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ELCDismissedELC JR 76 of 2018 (Formerly Misc. Appl. No. 644 of 2017)· [2020] KEELC 2376 (KLR)

Republic of Kenya v National Land Commission & 2 others Ex-parte Samuel Kuntai Tunai [2020] KEELC 2376 (KLR)

Environment and Land Court
21 May 2020
EOE. O. Obaga
3,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed the National Land Commission can lawfully direct revocation of irregularly acquired titles if it gives public notice, a hearing chance, and reasons.

What this practically means

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Executive summary

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The Ex-Parte Applicant, Samuel Kuntai Tunai, registered owner of LR No. 209/14434/IR No. 89461 along Mombasa Road at the Southern Bypass interchange, sought judicial review orders of prohibition, certiorari and mandamus, plus declarations and damages, challenging Gazette Notice No. 6865 of 17th July 2017 in which the National Land Commission, following complaints by the Kenya National Highways Authority that properties had been created out of the road and rail reserve, directed the Chief Land Registrar to revoke his title under section 14(5) of the National Land Commission Act. He argued he was not heard, was not given reasons, and that the Commission acted ultra vires and in breach of Articles 40 and 47 and the Fair Administrative Action Act. The 3rd Respondent contended the suit property fell within the transport corridor reserve and was never available for allocation, and that the Applicant was invited by public notice to a hearing but did not attend. The court, concerned with process rather than merits, held that the Commission did not itself revoke the title but directed the Registrar as statute requires; that the Applicant was afforded a hearing opportunity by public notice and chose not to attend, so a hearing could proceed ex-parte; and that reasons were given in the Gazette Notice, the land being public utility illegally allocated. The Notice of Motion was dismissed with costs to the Respondents.

Key legal issues

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01

Jurisdiction of the National Land Commission to review and recommend revocation of titles

Holding

The Commission did not revoke the title itself; it directed the Chief Land Registrar to revoke under section 14(5) of the National Land Commission Act, acting within its statutory mandate.

Reasoning

The Gazette Notice expressly invoked Article 68(c)(v) of the Constitution and section 14 of the National Land Commission Act and directed the Chief Land Registrar to revoke where the order called for revocation. The Applicant misread the word 'revoke' in the gazette table by isolating it from the clear directions. The Commission's role was recommendatory/directive, not the actual revocation, so no ultra vires act was established.

02

Duty to accord a hearing before title revocation

Holding

The Applicant was afforded an opportunity to be heard through public notice of the hearing but did not attend; a hearing may proceed ex-parte in such circumstances.

Reasoning

The Commission published notice on 17th March 2017 inviting affected persons to a public hearing, and the suit property was listed at number 132. The Applicant did not attend. The court held there is no requirement under the National Land Commission Act for personal service, and given the publicity surrounding the southern bypass ownership disputes, the Applicant could not claim ignorance of the advertisement. Failure to seize the opportunity defeats a claim of denial of fair hearing.

p. 4
03

Statutory duty to give reasons under section 6 of the Fair Administrative Action Act

Holding

The Commission gave a reason - that the suit property had been illegally allocated as the land was public utility land - published in the Gazette Notice, satisfying the duty to give reasons.

Reasoning

Section 6(1) and (2) of the Fair Administrative Action Act entitles a person affected by administrative action to be informed of the reasons. The Gazette Notice stated that the properties, including the suit property, had been illegally allocated because the land was public utility land. Since reasons were published, the Applicant's claim that no reasons were given fails.

p. 4
04

Entitlement to judicial review orders and declarations

Holding

Since the Commission followed a proper process, the Applicant was not entitled to prohibition, certiorari, mandamus, declarations or compensation.

Reasoning

Judicial review examines process, not merits. The process here was proper: notice was given, a hearing opportunity afforded, and reasons published. With no procedural failure, no declaration of unfair administrative action or breach of Article 40 or 47 could issue, and without a violation, compensation (general, aggravated and punitive damages) was unavailable.

p. 4

Legal principles established

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  • Where a person is given an opportunity to be heard but chooses not to attend, the hearing may proceed ex-parte and that person cannot complain of denial of a hearing; notification by public advertisement suffices, personal service is not required
  • The National Land Commission, on review of grants under section 14 of the National Land Commission Act, does not itself revoke titles but directs the Chief Land Registrar to revoke pursuant to section 14(5), and in so doing acts within its mandate
  • In judicial review the court is concerned with the process leading to the decision, not the merits of the decision

Court orders

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  1. 1.The Ex-Parte Applicant's Notice of Motion dated 8th December 2017 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Law Reform ActCap 26
  • Constitution of Kenya, 2010Articles 10, 20, 21(1), 40(1), 40(3), 40(4), 47, 60, 64, 68, 232(1), 232(2), Article 67, Article 68(c)(v)
  • Land ActAct No. 6 of 2012, Part VIII
  • Land Registration ActNo. 3 of 2012, sections 12 and 13
  • National Land Commission ActNo. 5 of 2012, sections 14(3) and 14(5)
  • Kenya Roads ActNo. 2 of 2007, section 3
  • Environment and Land Court Actas amended and/or revised from time to time
  • Fair Administrative Action Act2015, sections 3, 4, 5, 6(1) and (2)
Jurisdiction invoked
Judicial review under the Law Reform Act, Cap 26 and Articles 10, 20, 21(1), 40, 47, 60, 64, 68, 232 of the Constitution; transferred to ELC pursuant to Article 162(2) and the Environment and Land Court Act

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 of Kenya v National Land Commission & 2 others Ex-parte Samuel Kuntai Tunai [2020] KEELC 2376 (KLR)", Case Analysis (2020). ELC JR 76 of 2018 (Formerly Misc. Appl. No. 644 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2376/eng@2020-05-21

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