Apex Steel Limited v National Land Commission, Cabinet Secretary Ministry of Land, Housing & Urban Development, Chief Land Registrar & Attorney General; Wavinya Ndeti, Commercial Bank of Africa Limited, Nic Bank Limited & Raphael Musyoki Ndeti (Interested Parties) (Petition 1028 of 2015) (Environment and Land) [2020] KEELC 1987 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the National Land Commission's attempt to revoke Apex Steel's land titles, protecting a genuine buyer and banks holding securities.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission to review titles under section 14
The Commission has jurisdiction to review grants of public land that have been alienated and converted to private land, including alienations before the 2010 Constitution
The court read section 14 of the National Land Commission Act 2012 as intended to examine the propriety and legality of alienation of public land for private use. Once alienated, public land becomes private land under section 9(2) of the Land Act, but that conversion is precisely what is subject to review. The review mandate was also held to be retrospective, following Holborn Properties.
Revocation of title of a bona fide purchaser
The direction to revoke the Petitioner's title to L.R No. 337/4775, an amalgamation of three purchased parcels, was illegal and void as it contravened section 14(7)
The court found the Petitioner purchased the three amalgamated parcels for value without notice of any defect; the rival claimants had not accepted or paid for their 1998 allotments when the Petitioner was registered in 2011. An unpaid, unaccepted allotment confers no interest. The Commission ignored the purchase evidence entirely and made a baseless finding of allocation.
Fair hearing of chargees (2nd and 3rd Interested Parties)
The Commission violated the 2nd and 3rd Interested Parties' rights to fair hearing and fair administrative action by nullifying their securities without notice
The Commission was obliged under section 14(3) to give every interested person notice and an opportunity to be heard. A search of the register would have disclosed the charges securing loans exceeding Kshs. 3 billion. The Petitioner's private contractual duty to notify the chargees could not displace the Commission's own constitutional and statutory duty; nor could the existence of other remedies excuse denial of a hearing.
Fair hearing of the Petitioner
The Petitioner was accorded fair administrative action and fair hearing; the delay in determination was not inordinate
The Petitioner received notice of the complaints, filed written memoranda covering both properties and made oral submissions at plenary sessions. The initial letter's omission of L.R No. 337/4775 was cured by the public notices and by the Petitioner's own responses covering both parcels, causing no demonstrable prejudice.
Validity of the unsigned determination copy
The determination was not null and void for want of signature and seal; a signed copy was before the court and unchallenged
The unsigned copy in the Petitioner's affidavit appears to have originated from the 3rd Respondent, who responded to the forwarding letter without raising lack of signature, and did not raise it in response to the petition. The 4th Interested Party annexed a signed copy which the Petitioner did not challenge.
Rationality of the Commission's decision
The decision was irrational, arbitrary and unjust and could not stand
The Commission presided over a private dispute, held the properties belonged to the claimant families on no evidence, mixed up the evidence on the two parcels, ignored the Petitioner's responses and failed to note that the allotments were unpaid and that payments in 2013 related to non-existent parcels, and overlooked that L.R No. 337/4775 was purchased, not allocated.
Damages
General and exemplary damages were not proved
The Petitioner claimed Kshs. 2,000,000/- as general damages without laying any basis or adducing evidence of loss, and there was no evidence of conduct by the Commission attracting exemplary damages.
Legal principles established
#- Section 14 review jurisdiction of the National Land Commission extends to probing the process by which public land was converted to private land, including alienations predating the 2010 Constitution
- A letter of allotment that has not been accepted and paid for creates no interest in land
- Section 14(7) of the National Land Commission Act protects a bona fide purchaser for value without notice of a defect from revocation of title
- The Commission's review power under section 14 is to be exercised in the public interest and not to resolve private land disputes
- A statutory decision-maker must personally notify every person with a registered interest, such as chargees, before making a decision adversely affecting that interest; the duty cannot be delegated to another party
Court orders
#- 1.A declaration that the Petitioner is the registered proprietor of the suit properties (prayer a)
- 2.A declaration that the 1st Respondent's power to review grants under section 14 of the National Land Commission Act, 2012 is limited to public land and does not extend to private land (prayer b)
- 3.A declaration that the 1st Respondent infringed and/or violated the 2nd and 3rd Interested Parties' right to property, fair hearing and fair administrative action (prayer f)
- 4.A declaration that in the absence of guidelines and regulations envisaged under sections 79(2) and 79(4) of the Land Registration Act, 2012, the 3rd Respondent could not revoke registered titles (prayer i)
- 5.An order of certiorari to quash the 1st Respondent's decision dated 30th September, 2015 (prayer l)
- 6.An order of prohibition prohibiting the 3rd Respondent from revoking or lodging a caution or caveat or restriction of any nature on the titles of the suit properties (prayer m)
- 7.An injunction restraining the Respondents from interfering with the Petitioner's proprietorship of or title to the suit properties (prayer n)
- 8.Costs of the petition assessed at Kshs. 500,000/- for the Petitioner and Kshs. 200,000/- for each of the 2nd and 3rd Interested Parties, to be paid by the 1st and 4th Interested Parties, exclusive of court fees and disbursements
- Jurisdiction invoked
- Articles 23, 67, 68 and 165 of the Constitution; section 14 of the National Land Commission Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apex Steel Limited v National Land Commission, Cabinet Secretary Ministry of Land, Housing & Urban Development, Chief Land Registrar & Attorney General; Wavinya Ndeti, Commercial Bank of Africa Limited, Nic Bank Limited & Raphael Musyoki Ndeti (Interested Parties) (Petition 1028 of 2015) (Environment and Land) [2020] KEELC 1987 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1987/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.