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ELCPartially AllowedJudicial Review Application dated 11th April 2019· [2020] KEELC 2805 (KLR)

Republic v National Land Commission & County Government of Kiambu Ex Parte;Farmers Choice Limited (Judicial Review 6 of 2019) [2020] KEELC 2805 (KLR)

High Court of Kenya
7 May 2020
4,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court quashed the National Land Commission's decision to revoke a land title because the owner received only one day's notice through a newspaper.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th April 2019, the Ex parte Applicant, Uplands Bacon Factory (Kenya) Limited, sought judicial review orders of certiorari to quash the National Land Commission's decision published in Kenya Gazette Notice No. 27, Vol. CXXI dated 1st March 2019, purporting to revoke its title to L.R 7593 (248.5 acres at Uplands, Lari, Kiambu County), plus a permanent injunction and a declaration of sole ownership. The Applicant alleged the Commission acted ultra vires section 80 of the Land Registration Act and the National Land Commission Act, and denied it fair administrative action by giving only one day's notice of a hearing via the Daily Nation newspaper of 26th September 2018. The 2nd Respondent, Kiambu County Government, defended the Commission's mandate under Articles 62(2) and section 14 of the National Land Commission Act; the 1st Respondent did not enter appearance. Gacheru J framed three issues and, applying the illegality/irrationality/procedural impropriety threshold, held the Commission did not act ultra vires because the Gazette Notice made a recommendation rather than revoking the title. However, the one-day newspaper notice was found insufficient, depriving the Applicant of fair administrative action under Article 47 and section 4 of the Fair Administrative Action Act. Certiorari and prohibition (prayers 1 and 2) were granted; the declaratory prayer on ownership was disallowed as beyond the scope of judicial review. Costs were awarded to the Applicant against the 1st Respondent. Judgment was delivered online pursuant to COVID-19 directions on 7th May 2020.

Key legal issues

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01

Whether the National Land Commission acted ultra vires in purporting to revoke the Applicant's title

Holding

The Commission did not act ultra vires; the Gazette Notice contained a recommendation to revert the property, not a revocation

Reasoning

Section 14 of the National Land Commission Act empowers the Commission to review grants of public land and make determinations. However, on perusal of the Gazette Notice of 1st March 2019, the Commission only recommended that the property revert to the County Government rather than itself revoking the title. Having made a recommendation only, the Commission did not arrogate to itself powers it did not have and did not act ultra vires section 80 of the Land Registration Act.

p. 4
02

Whether the Applicant was accorded fair administrative action before the hearing of 27th September 2018

Holding

The one-day newspaper notice was insufficient; the Applicant was denied fair administrative action

Reasoning

The Commission advertised the hearing in the Daily Nation on 26th September 2018 for a hearing the following day. The Court held the Applicant was required to be given notice in person and that the notice ought to have been sufficient. A single day's notice through a newspaper was not enough time to seek representation or prepare, breaching Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, warranting certiorari and prohibition.

p. 5
03

Whether the prayer for a declaration of ownership could be granted in judicial review proceedings

Holding

Refused; judicial review examines process, not merits of ownership

Reasoning

Citing Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, the Court reiterated that judicial review is not concerned with the merits of a decision but with the process by which it was reached. A declaration of sole registered ownership of the suit property is a determination of title on the merits, which lies outside the supervisory jurisdiction and was therefore disallowed.

p. 5

Legal principles established

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  • Judicial review courts concern themselves with the process of decision-making, not the merits of the decision
  • An applicant for judicial review must show the impugned decision is tainted with illegality, irrationality or procedural impropriety
  • A one-day newspaper notice of a hearing affecting a party's property rights is insufficient notice and denies fair administrative action under Article 47
  • 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

Court orders

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  1. 1.An order of Certiorari removing into the High Court and quashing the decision of the 1st Respondent dated 7th February 2019, published in Kenya Gazette No. 27, Vol CXXI dated 1st March 2019, purporting to revoke the Ex parte Applicant's title to L.R 7593
  2. 2.An order of prohibition restraining the Respondents from interfering with the Ex parte Applicant's property L.R 7593
  3. 3.Costs of the suit awarded to the Ex parte Applicant, borne by the 1st Respondent

Authorities

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Legislation

  • Land Registration Actsection 80
  • National Land Commission Actsections 4(3), 5, 7, 8, 14(1), 14(4), 14(5), 14(6), 15(5)(b)
  • Land Actsections 131 and 151
  • Fair Administrative Actions Actsection 4
  • Constitution of Kenya, 2010Articles 40, 47, 48, 50, 62(2), 68(c)(v)
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 21 rule 1 (and Order 53 implied)
  • Halsbury's Laws of England4th Edition Vol.1 at Pg.37 paragraph 128; Volume 1(1) page 218

Cases cited (7)

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR
  • Pastoli v Kabale District Local Government Canal & Others
    (2008) 2EA 300
  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No.266 of 1996
  • Al-Mehidswi v Secretary of State for the Housing Department
    (1990) AC 876
  • Republic v The Honourable The Chief Justice of Kenya & Others exparte Moijo Mataiya Ole Keiuwa
    Nairobi HCM CA No.1298 of 2004
  • Republic v National Land Commission; Pacifica Mwango & another (Interested Parties); Ex Parte Anil Ratilal Tailor
    [2019] eKLR
  • Sceneries Limited v National Land Commission
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Articles 47, 40 and 23 of the Constitution, section 8 of the Law Reform Act and Order 53 of the Civil Procedure Rules (Fair Administrative Action Act invoked for fair hearing standards)

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 v National Land Commission & County Government of Kiambu Ex Parte;Farmers Choice Limited (Judicial Review 6 of 2019) [2020] KEELC 2805 (KLR)", Case Analysis (2020). Judicial Review Application dated 11th April 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2805/eng@2020-05-07

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