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ELCAllowedJudicial Review Notice of Motion dated 13th December 2018 (ex parte applicant)· [2020] KEELC 3857 (KLR)

Republic v National Land Commission; Estate of Fredrick Kubai (Deceased) Ex parte Samson Ng’ang’a Mwangi [2020] KEELC 3857 (KLR)

Environment and Land Court
30 January 2020
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The National Land Commission cannot revoke a private landowner's title; its review powers cover public land only, so the title revocation was quashed.

What this practically means

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Executive summary

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The ex parte applicant, registered proprietor since 1993 of L.R. No. 1144/845, Original Grant No. I.R. 37534 in Naivasha, purchased from the late Fredrick Kubai, sought certiorari to quash and prohibition against a decision of the National Land Commission published in Gazette Notice 11714 of 9th November 2018, whereby the Commission found his title fraudulently acquired, directed the Chief Land Registrar to revoke it, and ordered reversion to the deceased's estate. He argued that under Article 68(c)(v) of the Constitution and Section 14(1) of the National Land Commission Act, the Commission may only review grants of public land, and that he was never given notice of the review. The respondent filed grounds of opposition contending that judicial review was inappropriate and that an appeal or ordinary suit lay, but filed no replying affidavit, submissions, and did not attend. The interested party did not oppose and consented to bear no costs. The court, relying on its earlier decision in the Comply Industries case and the Turf Developers decision, held the suit property was private land under Article 64, and that the Commission's review mandate is confined to public land; the review served purely private interests and was made without jurisdiction. Certiorari and prohibition issued quashing the Gazette Notice decision and restraining further investigation or review of the title, with costs to the ex parte applicant payable by the respondent.

Key legal issues

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01

Scope of the NLC's review mandate over private land

Holding

The Commission acted in excess of its mandate and without jurisdiction in reviewing a title to private land and ordering reversion to a private estate

Reasoning

Article 64 defines private land to include registered land held under freehold tenure. The ex parte applicant was the registered proprietor since 1993, so the suit property was private land. Article 68(c)(v) and Section 14 of the National Land Commission Act limit review powers to grants of public land. The review here served purely private interests, ordering reversion to a deceased's estate, exceeding the Commission's mandate.

p. 3
02

Availability of certiorari and prohibition against a decision made without jurisdiction

Holding

Certiorari and prohibition are available where a body acts without jurisdiction

Reasoning

Relying on Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge, the court held that where a statutory body acts in excess of mandate and without jurisdiction, judicial review orders of certiorari to quash and prohibition to restrain further action are available. The respondent's grounds of opposition, that ownership disputes belong in an ordinary suit and that an appeal was the proper remedy, were rejected.

p. 3
03

Denial of a hearing

Holding

The respondent never gave the ex parte applicant notice of the review, contrary to Section 14(3) of the National Land Commission Act which requires notice and an opportunity to appear

Reasoning

The applicant deposed that he learnt of the proceedings only after the Gazette Notice and that the respondent never gave him notice of the review. These facts were uncontested, the respondent having filed no replying affidavit and not attended court, and the interested party not opposing the application.

p. 1

Legal principles established

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  • The National Land Commission's mandate to review grants or dispositions under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act is limited to public land only
  • The Commission has no mandate to arbitrate wholly private land disputes; that is the remit of the court

Court orders

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  1. 1.An order of certiorari quashing the decision of the respondent contained in Kenya Gazette Notice Number 11714 of 9th November, 2018 at pages 3978 and 3979 directing the Chief Land Registrar to revoke the ex parte applicant's title to LR. No. 1144/845 Grant Number I.R. 37534
  2. 2.An order of prohibition prohibiting the respondent from dealing in any manner whatsoever, investigating and reviewing the ex parte applicant's title to LR. No. 1144/845 Grant Number I.R. 37534
  3. 3.The ex parte applicant awarded costs of the proceedings, to be paid by the respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 61, 62(1), 64, 68(c)(v), 40, 47, 60
  • National Land Commission ActSection 14(1)-(9)
  • Fair Administrative Action ActSection 7(2)

Cases cited (4)

  • Republic v National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 others
    [2016] eKLR
  • Republic v Chairman & Members of National Land Commission Ex Parte Turf Developers Ltd
    [2016] eKLR
  • Republic v National Land Commission; Estate of the Fred Kubai (Interested Party); Ex-parte: Comply Industries Limited
    [2018] eKLR
  • Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (leave granted 27th November 2018); statutory framework Articles 61, 62, 64, 68(c)(v) of the Constitution and Section 14 of the National Land Commission 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 v National Land Commission; Estate of Fredrick Kubai (Deceased) Ex parte Samson Ng’ang’a Mwangi [2020] KEELC 3857 (KLR)", Case Analysis (2020). Judicial Review Notice of Motion dated 13th December 2018 (ex parte applicant). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3857/eng@2020-01-30

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