Republic v National Land Commission; Ex-parte Applicant: Fatuma Mohamud Mohamed; Narok Muslim Welfare Association( Interested Party) [2020] KEELC 1334 (KLR)
The bottom line
#Kenya's High Court quashed the National Land Commission's eviction order against Bilal Primary School Narok because the school was never given notice or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review jurisdiction
The court cannot enquire into the validity of the applicant's property interest or the capacity of signatories; those are matters for ordinary civil suits.
The court applied the Court of Appeal's guidance in the Amagoro Land Disputes Tribunal case that judicial review determines only whether the decision maker had jurisdiction, afforded a hearing, and considered relevant matters, not ownership or merits. The tenancy validity and leadership disputes therefore fell outside the court's judicial review remit.
Whether certiorari and prohibition were merited for want of notice and hearing
Yes. The respondent, a constitutional commission, was bound to give the school notice and a hearing; failure to do so rendered the decision null and void ab initio.
The respondent made a decision directing immediate eviction without notice or hearing, breaching Article 47, Article 50, section 4 of the Fair Administrative Action Act and sections 152A-E of the Land Act. Uncontroverted, the contention of lack of notice was proven, and a decision breaching natural justice is a nullity, warranting both certiorari and prohibition.
Whether the alternative remedy/exhaustion objection barred the application
No. No statutory appeal procedure was cited, and a void decision is a nullity; an appeal is not the right remedy against it.
The interested party invoked sections 9(2)-(4) of the Fair Administrative Action Act but cited no statutory appeal mechanism available. Citing Macfoy v United Africa Co Ltd, the court held a void act is a nullity and proceedings founded on it are incurably defective; the appropriate recourse is to seek quashing rather than appeal.
Legal principles established
#- Judicial review is concerned with the process of decision making, not the merits of the decision.
- A decision reached in breach of the rules of natural justice is null and void ab initio.
Court orders
#- 1.An order of certiorari removing into the court and quashing the decision of the respondent dated 12th October 2016 directing that Bilal Primary School Narok vacate Plot Number 143 block II Narok
- 2.An order of prohibition stopping the respondent, its agents or servants from evicting Bilal Primary School Narok from Plot Number 143 block II Narok pursuant to the respondent's decision dated 12th October 2016
- 3.Costs awarded to the ex parte applicant, to be borne by the respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court over decisions of a constitutional commission established under Article 67 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission; Ex-parte Applicant: Fatuma Mohamud Mohamed; Narok Muslim Welfare Association( Interested Party) [2020] KEELC 1334 (KLR)", Case Analysis (2020). Judicial Review Application (Ex parte). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1334/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.