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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1392 (KLR)

Republic v National Land Commission; Families/Clans of Kipboson arap Selumbu & another (Interested Parties) [2020] KEELC 1392 (KLR)

Environment and Land Court
17 September 2020
5,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The ex parte applicants, registered proprietors of parcels in Mau Narok/Siapei Block 1 (Meta) tracing their titles to LR No. 8653 IR 13230 acquired by Metta Estate Limited in 1968, sought certiorari and prohibition against a decision of the National Land Commission published in Gazette Notice No. 1995 of 1st March 2019. The decision, made in Historical Land Injustice Ref No. NLC/HLI/522/2018 at the instance of the interested party, recommended that LR No. 8653 IR 13230 be allocated to the families/clans of Kipkilach Arap Leitich and Kipboson Arap Selembu for settlement. The applicants complained they were never notified of or heard in the proceedings, which were conducted against the Waweru family. The respondent and interested party contended that all parties were invited to hearings and that the applicants were represented by the Attorney General. The court distilled three issues: entitlement to a hearing, whether a fair hearing was accorded, and whether the reliefs should issue. It held that the applicants' proprietary interests attracted the hearing requirements of Articles 47 and 50 of the Constitution and Section 4(3) and (4) of the Fair Administrative Action Act; that they were neither notified nor heard, rendering the decision a nullity; and that prohibition could not issue against a decision already made nor bar the respondent's lawful mandate. Certiorari issued quashing the gazetted determination, with costs to the ex parte applicants. The court expressly made no finding on the validity of the applicants' titles.

Key legal issues

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01

Entitlement to a hearing before the National Land Commission in a historical land injustice inquiry

Holding

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.

Reasoning

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.

p. 6
02

Whether a fair hearing was accorded

Holding

The ex parte applicants were not accorded a fair hearing because they were neither notified of the claim nor given an opportunity to respond.

Reasoning

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.

p. 6
03

Availability of the order of prohibition

Holding

Prohibition was refused because the impugned decision had already been made and the respondent could not be barred from lawfully exercising its mandate.

Reasoning

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.

p. 7
04

Scope of judicial review vis-à-vis validity of titles

Holding

The court made no determination on the validity of the ex parte applicants' titles, that being outside judicial review's process-focused remit.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.