Peter Maina Chege t/a Smart Choice Electronic Company v National Land Commission & another; Kiambu County Government (Interested Party) [2020] KEELC 2160 (KLR)
The bottom line
#Kenya's High Court quashed the National Land Commission's title revocation because the landowner was never given a hearing before the decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the NLC acted ultra vires by revoking titles itself rather than directing the Land Registrar
The Court could not hold that the 1st Respondent acted ultra vires because the impugned gazette notice was not attached to the pleadings.
The Applicant argued, relying on Robert Mutiso Lelli, that the power to revoke title vests in the Registrar and not the Commission. The Court held that to determine whether the Commission revoked the titles or merely directed revocation, it needed to see the impugned gazette notice, which was not exhibited; accordingly it could not find ultra vires conduct on that basis.
Whether the reversal of the 9th November 2018 gazette notice without a hearing breached natural justice and fair administrative action
The Applicant was condemned unheard; the reversal without a hearing breached natural justice and fair administrative action, entitling the Applicant to certiorari and prohibition.
The Applicant contended he was not heard before the reversal in the gazette notice of 15th February 2019. The Interested Party acknowledged the reversal but did not rebut the allegation of no hearing. The Court found no evidence the Applicant was heard, invoked the audi alteram partem rule and fair administrative action principles, and concluded the threshold for judicial review orders was established.
Costs
Costs follow the event; the successful Ex parte Applicant was awarded costs against the 1st Respondent.
Section 27 of the Civil Procedure Act gives the Court discretion on costs. Costs follow the event unless special circumstances warrant deviation. The Ex parte Applicant was the successful party and was awarded costs to be borne by the 1st Respondent.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision.
- An applicant for judicial review must show that the decision complained of is tainted with illegality, irrationality or procedural impropriety.
- Certiorari will issue where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.
- A party condemned unheard is denied natural justice, entitling the court to quash the decision.
Court orders
#- 1.An order of Certiorari to remove into the High Court and quash the proceedings and determination contained in the Kenya Gazette special issue Vol. CXXI-No. 21 of 15th February 2019 at pages 573 and 574 in relation to Municipality Block 10/687, 695-705 (the suit properties)
- 2.An order of prohibition directed to the Respondents prohibiting them, their agents, servants or anyone under their direction from revoking, resurveying, excising or vesting the suit properties to the interested party or in any other manner alienating the suit properties
- 3.A Declaration that the gazette Notice Vol. CXX-No. 138 of 9th November 2018 at page 3988 constitutes a lawful recommendation over the suit properties and should be upheld
- 4.A Declaration that the determination and gazettement contained in the gazette Notice special issue Vol. CXXI-No. 21 of 15th February 2019 is unconstitutional, null and void
- 5.Costs of the suit awarded to the Ex parte Applicant, to be borne by the 1st Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court under the law of judicial review; grounds of illegality, irrationality and procedural impropriety (Pastoli v Kabale District Local Government); National Land Commission Act ss 5, 8, 14; Article 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v National Land Commission; Kanyari & 7 others (Exparte Applicants); County Government of Nyandarua (Interested Party)[2023] KEELC 22033 (KLR)30 Nov 2023
- Republic v Attorney General & another; Mathuku (Interested Party); Kitambu & another (Exparte)[2022] KEELC 13362 (KLR)29 Sept 2022
Cite this brief
#Cite this brief
Caselaw, "Peter Maina Chege t/a Smart Choice Electronic Company v National Land Commission & another; Kiambu County Government (Interested Party) [2020] KEELC 2160 (KLR)", Case Analysis (2020). Judicial Review Application dated 11th April 2019 (Nairobi HCM CA reference not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2160/eng@2020-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.