Republic v National Land Commission; Estate of Fredrick Kubai (Deceased) Ex parte Samson Ng’ang’a Mwangi [2020] KEELC 3857 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of the NLC's review mandate over private land
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
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.
Availability of certiorari and prohibition against a decision made without jurisdiction
Certiorari and prohibition are available where a body acts without jurisdiction
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.
Denial of a hearing
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
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.
Legal principles established
#- 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
#- 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.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.The ex parte applicant awarded costs of the proceedings, to be paid by the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.