Republic v National Land Commission; Families/Clans of Kipboson arap Selumbu & another (Interested Parties) [2020] KEELC 1392 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a National Land Commission land allocation decision because the affected landowners were never notified or given a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to a hearing before the National Land Commission in a historical land injustice inquiry
The ex parte applicants, whose registered titles traced back to LR No. 8653 IR 13230, were entitled to a hearing under Section 4(3) and (4) of the Fair Administrative Action Act.
The court perused the respondent's annexed title extract showing the property was transferred to Metta Estate Limited, charged, discharged and surrendered for subdivision, matching the applicants' claim. Their interest in proprietary rights over the land made them persons likely to be adversely affected by the determination, attracting the constitutional guarantees of fair administrative action under Articles 47 and 50 and the statutory notice and hearing rights.
Whether a fair hearing was accorded
The ex parte applicants were not accorded a fair hearing because they were neither notified of the claim nor given an opportunity to respond.
The determination identified only the interested party and the Waweru family as parties; the applicants and their registration section were nowhere mentioned. The ground visit did not involve them, and the respondent's claim that the Attorney General represented them was unsupported by any record of participation. Notification is a prerequisite under Section 4(3) and (4) of the Fair Administrative Action Act, and its absence vitiated the proceedings.
Availability of the order of prohibition
Prohibition was refused because the impugned decision had already been made and the respondent could not be barred from lawfully exercising its mandate.
Applying the Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge principles, prohibition prevents the making of a decision but is powerless against one already made. Further, the court found no basis to stop the NLC from discharging its constitutional and statutory mandate over the suit properties provided it acts within the law.
Scope of judicial review vis-à-vis validity of titles
The court made no determination on the validity of the ex parte applicants' titles, that being outside judicial review's process-focused remit.
The court cautioned that both sides had addressed the merits of the NLC's determination, which is not the province of judicial review. The court decides only whether the decision-maker had jurisdiction, acted fairly, and considered relevant matters; ownership questions must be litigated in appropriate proceedings.
Legal principles established
#- A decision-maker whose decision is likely to adversely affect a person's rights must accord that person a hearing under Section 4(3) and (4) of the Fair Administrative Action Act and Articles 47 and 50 of the Constitution.
- Failure to accord a fair hearing renders the resultant decision a nullity, regardless of whether the outcome would have been the same.
- An order of prohibition can only prevent the making of a decision; it cannot operate against a decision already made.
- A judicial review court is concerned with the decision-making process, not the merits of the decision.
Court orders
#- 1.An order of certiorari bringing into the court and quashing the decision of the respondent published vide Kenya Gazette Notice No. 1995 of 1st March 2019 page 876 allocating LR No. 8653 IR 13230 to Kipkilach Arap Leitich and Kipboson Arap Selembu families/clans for settlement and directing the Ministry of Lands and Physical Planning to facilitate the said settlement
- 2.Costs awarded to the ex parte applicants and borne by the respondent
- Jurisdiction invoked
- High Court judicial review jurisdiction (certiorari and prohibition); proceedings decided by the Environment and Land Court at Nakuru
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission; Families/Clans of Kipboson arap Selumbu & another (Interested Parties) [2020] KEELC 1392 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1392/eng@2020-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.