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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 23rd September 2016)· [2020] KEELC 1832 (KLR)

Republic v National Land Commission; Lake Naivasha Riparian Association(Interested Party) Ex Parte Geoffrey Muhoro [2020] KEELC 1832 (KLR)

High Court of Kenya
3 July 2020
4,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed the National Land Commission's decision revoking a land title because only the Land Registrar—not the Commission—can revoke titles.

What this practically means

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Executive summary

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The ex parte applicant, registered proprietor of LR No. 22957/4, sought judicial review orders of certiorari and prohibition to quash and restrain the National Land Commission's determination dated 22nd August 2016 revoking his title. He argued the Commission lacked power under Section 14 of the National Land Commission Act to revoke titles, and that the notice and process breached Article 47 and the Fair Administrative Action Act, and his legitimate expectation of a further hearing. The respondent, supported by the Lake Naivasha Riparian Association, maintained it acted within its mandate under Article 67(2)(e) and Section 14 after a complaint about riparian land allocations around Lake Naivasha, and that it only directed the Registrar to revoke the title. The court distilled two issues: whether the determination was ultra vires, and whether the reliefs were available. Holding that Section 14(5) only empowers the Commission to direct the Registrar to revoke a title found unlawfully acquired, and that the Commission itself has no revocation power, the court found the determination ultra vires and in excess of jurisdiction, meriting certiorari. However, prohibition was refused because the determination was a past event and no further action was shown to be intended. The court expressly made no finding on the validity of the applicant's title. Certiorari issued quashing the determination, with costs to the ex parte applicant, borne by the respondent.

Key legal issues

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01

Whether the respondent’s determination revoking the applicant’s title was ultra vires

Holding

Yes - the Commission exceeded its jurisdiction by purporting to revoke a title (and allocations resulting in title), whereas Section 14(5) only empowers it to direct the Registrar to revoke

Reasoning

Section 14(5) of the National Land Commission Act is mandatory: where the Commission finds a title was unlawfully acquired, it shall direct the Registrar to revoke the title. The Commission itself has no revocation power. The respondent knew the applicant held a leasehold title, so it was dealing with a title, not a mere allocation. Its claim that it only directed revocation is contradicted by the wording of its determination, which stated the allocations 'are revoked'.

p. 4
02

Whether an order of prohibition is available

Holding

No - the determination was a past event and no evidence showed any intended further proceedings

Reasoning

Prohibition is directed at preventing continuing or future proceedings in excess of jurisdiction. The determination complained of was made on 22nd August 2016 and cannot be prohibited. No evidence showed the respondent intended further action on the suit property, so the relief was not available.

p. 5
03

Scope of judicial review

Holding

Judicial review concerns the decision-making process, not the merits; the court made no finding on the validity of the applicant’s title

Reasoning

The court emphasized that it did not determine ownership or validity of the title, which remains an issue for ordinary civil suits. Judicial review examines only jurisdiction, fair hearing and relevant considerations, as the Court of Appeal held in the Amagoro Land Disputes Tribunal case.

p. 5

Legal principles established

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  • The National Land Commission has no power to revoke a title itself; under Section 14(5) of the National Land Commission Act it may only direct the Registrar to revoke a title found to have been acquired unlawfully
  • A tribunal that exercises a jurisdiction it does not possess acts ultra vires and its decision is a nullity meriting certiorari
  • An order of prohibition cannot issue against a decision already made; it only prevents the making of a decision

Court orders

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  1. 1.An order of certiorari is hereby issued, bringing into this court and quashing the respondent’s decision dated 22nd August 2016 which purported to revoke the ex parte applicant’s title to all that parcel of land known as LR. No. 22957/4.
  2. 2.Costs are awarded to the ex parte applicant and shall be borne by the respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 67(2)
  • Constitution of KenyaArticle 68(c)(v)
  • Constitution of KenyaArticle 62(1)
  • Constitution of KenyaArticle 40(1)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 169(1)
  • National Land Commission ActSection 5
  • National Land Commission ActSection 14
  • Fair Administrative Action ActSection 4
  • National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017Regulations 16 and 28

Cases cited (13)

  • Republic v The Commissioner of Lands Ex Parte Jemimah Mbugua, John Richard Githere, Sally Gachonjo Githere, Mary Waceke Muiga (Administrators Ad Colligenda Bona of the Estate of Samuel Mbugua
    JR Case No. 1238 of 1998
  • Geoffrey Muhoro v Lake Flowers Ltd
    Nakuru HCCC No. 97 of 2009
  • Lake Flowers Ltd v Geoffrey Muhoro
    Court of Appeal Civil Application No. Nai. 114 of 2011
  • Robert Mutiso Lelli and Cabin Crew Investments Ltd v National Land Commission & 3 others
    [2017] eKLR
  • Mwangi Stephen Muriithi v National Land Commission & 3 others
    [2018] eKLR
  • Republic v Kenya National Highways Authority Ex parte John Mwaniki Kiarie
    [2016] eKLR
  • Sceneries Limited v National Land Commission
    [2017] eKLR
  • Isaac Gathungu Wanjohi & Another v. Attorney General & 6 Others
    [2012] eKLR
  • Republic v Kenya Revenue Authority Commissioner of Custom Services Ex-Parte Europa Healthcare Limited
    [2014] eKLR
  • Republic v National Land Commission & another; Kenya National Highways Authority (Interested Party) Ex Parte George Kimani Njuki t/a Capri Construction
    [2019] eKLR
  • Republic v Chairman Amagoro Land Disputes Tribunal & another Ex-parte Paul Mafwabi Wanyama
    [2014] eKLR
  • Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Joseph Malakwen Lelei & another v Rift Valley Land Disputes Appeals Committee & 2 others
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the law of Kenya (certiorari and prohibition against a constitutional commission)

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; Lake Naivasha Riparian Association(Interested Party) Ex Parte Geoffrey Muhoro [2020] KEELC 1832 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 23rd September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1832/eng@2020-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.