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ELCDismissedNot stated in the judgment excerpt (petition number not reproduced)· [2020] KEELC 1956 (KLR)

Airport View Housing Limited v National Land Commission & 4 others [2020] KEELC 1956 (KLR)

Environment and Land Court
18 June 2020
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court allowed Kenya's National Land Commission to review a private land title because the land originally came from public land.

What this practically means

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Executive summary

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The applicant, a company claiming to be the registered proprietor of L.R No. 209/12848 formed by amalgamation of two parcels allocated to it by the Government in 1989 and 1994, sought conservatory orders restraining the National Land Commission from conducting a public hearing reviewing its title under section 14 of the National Land Commission Act, 2012, and restraining the Registrar from revoking or making entries on the title, pending determination of its petition. It argued its title was indefeasible under the Registration of Titles Act and the Land Registration Act, that the Commission had no jurisdiction to review private land, and that the Commission was biased, having publicly branded the applicant a grabber of public land after the demolition of its perimeter wall by the 3rd respondent. The respondents opposed, contending the Commission had power under section 14(1) to review grants and dispositions of public land. Applying the established principles on conservatory orders, the court held the applicant had not discharged the burden of showing a prima facie case: the suit property originated as a grant of public land, and what the Commission reviews is the process by which public land became private land, so the title was reviewable. The bias claim also failed, the applicant having participated in the review by filing its memorandum. The application was dismissed with costs to be in the cause.

Key legal issues

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01

Whether the 1st respondent had power under section 14(1) of the National Land Commission Act, 2012 to review the applicant’s title to the suit property

Holding

The applicant’s title was subject to review because the suit property originated as a grant of public land; the Commission reviews the process of alienation, not private land as such

Reasoning

The court accepted that the suit property was now private land, but held that what section 14(1) permits the Commission to review is the propriety of the grant through which public land was alienated to a private party. The evidence showed the land was public land alienated by grant to the applicant by the Government in 1989 and 1994, so the applicant failed to establish a prima facie case that the review exceeded jurisdiction.

p. 3
02

Whether the 1st respondent was biased against the applicant

Holding

No reasonable apprehension of bias was established; the applicant had submitted to the Commission’s jurisdiction by filing its memorandum

Reasoning

The court found no evidence that after initiating the review the Commission engaged in acts or utterances giving rise to a reasonable apprehension of bias. The applicant’s participation in the process by filing a memorandum and letter of protest weighed against the bias claim. The burden was on the applicant and it was not discharged.

p. 4

Legal principles established

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  • In an application for conservatory orders the court does not make definite findings of fact or law; the applicant need only establish a prima facie case with a likelihood of success, show prejudice if the order is not granted, and the court bears in mind the public interest and constitutional values
  • Conservatory orders bear a public-law connotation and are granted on the inherent merit of a case, bearing in mind the public interest and constitutional values
  • The National Land Commission’s review power under section 14(1) of the National Land Commission Act extends to reviewing the process through which public land was alienated by grant and became private land

Court orders

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  1. 1.The petitioner’s Notice of Motion application dated 25th February 2015 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Registration of Titles Act, Chapter 281 (now repealed)section 23(1)
  • Land Registration Act, 2012sections 24, 25(1) and 26(1)
  • Constitution of KenyaArticles 40, 50(1), 60(1), 68(v)
  • National Land Commission Act, 2012section 14(1) and section 14

Cases cited (3)

  • Kevin K. Mwiti & Others v Kenya School of Law & Others
    [2015] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition filed under the Bill of Rights, Articles 40, 50(1) and 60(1) invoked by the applicant); Environment and Land Court jurisdiction (matter transferred from Onguto J. of the High Court following the Court of Appeal decision on jurisdiction of ELC judges)

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, "Airport View Housing Limited v National Land Commission & 4 others [2020] KEELC 1956 (KLR)", Case Analysis (2020). Not stated in the judgment excerpt (petition number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1956/eng@2020-06-18

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