Republic v National Land Commission & 2 others Ex Parte Denman Properties Limited & 2 others [2020] KEELC 2022 (KLR)
The bottom line
#Kenya's National Land Commission cannot revoke land titles that a court has already confirmed, especially when it skips giving owners a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent acted within its statutory mandate in revoking the Ex-Parte Applicants' titles
The 1st Respondent acted ultra vires its mandate; it had no authority to review or revoke titles whose ownership had been determined by a court of competent jurisdiction in which it was a party.
The NLC was the 27th Interested Party in Malindi ELC Petition No. 11 of 2012 and the 2nd Respondent in Malindi ELC Case No. 150 of 2014, both of which declared the Ex-Parte Applicants the legal proprietors. No appeal or review was preferred. The NLC nonetheless published Gazette Notices revoking the titles without conducting a hearing. The court, applying Angote J's reasoning in the Holborn Properties case, held that the NLC cannot second-guess a court decision and must instead abide by or appeal it.
Whether the Ex-Parte Applicants' right to fair administrative action was violated
Yes; the 1st Respondent did not supply adequate notice of the complaints nor accord the Applicants a reasonable opportunity to respond, contrary to Section 4 of the Fair Administrative Actions Act and Article 47 of the Constitution.
Judicial review concerns the probity and integrity of the decision-making process rather than the merits. Section 4 of the Fair Administrative Actions Act required adequate notice and a reasonable opportunity to respond. The court found the 1st Respondent did not even pretend to have conducted a hearing before arriving at its determination, hence the process was procedurally defective and the decisions liable to be quashed.
The scope of the NLC's powers under Section 14(1) of the National Land Commission Act
Although the NLC has power under Section 14(1) to review grants and dispositions of public land, that power cannot be exercised over property whose ownership has been judicially determined, particularly where the NLC was party to the proceedings.
The 1st Respondent relied on Section 6 of the National Land Commission Act and Article 60(1) to justify its measures. The court acknowledged its statutory powers but held that being a party to the two prior suits and aware of the judgments, it was obliged to participate and abide by the decisions. The inconsistent treatment of Holborn Properties, whose parcels were noted as under court injunction, demonstrated the arbitrariness of its approach.
Legal principles established
#- A party to proceedings in which ownership of land has been judicially determined must abide by that decision and cannot reopen the propriety of the titles through administrative review; its only recourse is an appeal.
- Failure to give adequate notice and a reasonable opportunity to respond violates the right to fair administrative action under Article 47 and Section 4 of the Fair Administrative Actions Act.
Court orders
#- 1.An order of certiorari quashing the 1st Respondent's determination on the 1st Ex-Parte Applicant's Plot Nos. 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 and 344 in Kilifi/Jimba as published in Gazette Notice No. 1549
- 2.An order of certiorari quashing the 1st Respondent's determination on the 2nd Ex-Parte Applicant's Plot Nos. 315, 319, 316, 314, 346 and 312 in Kilifi/Jimba
- 3.An order of certiorari quashing the 1st Respondent's determination on the 3rd Ex-Parte Applicant's Plot No. 323 in Kilifi/Jimba
- 4.Orders of prohibition restraining the 3rd and 4th Respondents from giving effect to the impugned determinations in respect of all three Ex-Parte Applicants' plots
- 5.An order of mandamus compelling the 1st Respondent to clear the Ex-Parte Applicants' listed plots
- 6.Costs of the application against the 1st Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court; Fair Administrative Actions Act, Section 4; Article 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others Ex Parte Denman Properties Limited & 2 others [2020] KEELC 2022 (KLR)", Case Analysis (2020). Not stated in judgment (Judicial Review Notice of Motion dated 12th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2022/eng@2020-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.