Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Judicial Review No 37 of 2018· [2021] KEELC 503 (KLR)

Republic v National Land Commission & another Ex parte Baker Street Investment Limited [2021] KEELC 503 (KLR)

Environment and Land Court
2 December 2021
2,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's National Land Commission can revoke titles to public land irregularly allocated, and courts won't rescue owners who received tainted property.

What this practically means

#

Executive summary

#
Baker Street Investment Limited moved the Court by Notice of Motion under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, seeking certiorari to quash a decision of the National Land Commission gazetted on 17th July 2017 revoking its title to LR Number 209/7383/356, and prohibition restraining the Chief Land Registrar from implementing the revocation and from violating its property rights under Article 40 of the Constitution. The Commission, acting on complaints from Kimathi Estate residents, had conducted an inquiry under Section 14 of the National Land Commission Act and found the property, originally reserved as a children's playground, had been irregularly transferred to George Kiarie, the applicant's predecessor. The applicant argued the NLC lacked jurisdiction to revoke title, that its rights to fair administrative action and fair hearing were violated, and that the replying affidavit of Brian Ikol lacked evidentiary support. The interested party, through Bernard K. Njau, maintained the acquisition was tainted with fraud and illegality. The court framed three issues: ultra vires, entitlement to reliefs, and costs. Relying on Sanghani Investments, Krystalline Salt and Market Plaza, it held judicial review was not the forum to determine title authenticity, that the NLC acted within its Section 14 mandate since the land was public utility land irregularly allocated, and that the applicant fully participated in the NLC hearings through an advocate. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Whether the NLC had jurisdiction to review and revoke the applicant's title

Holding

The NLC acted within its mandate; the suit property was public land (a children's playground) irregularly transferred to George Kiarie, and its review under Section 14 of the National Land Commission Act was properly invoked

Reasoning

The court accepted evidence that the suit property was designated a children's playground reserved as a public utility when LR 209/7383 was subdivided in 1970, and that it was irregularly transferred to George Kiarie. Section 14(1) of the National Land Commission Act empowers the NLC to review grants or dispositions of public land to establish their legality or illegality. The validity of George Kiarie's title, the applicant's predecessor, had to be determined first before constitutional protection of property could attach.

p. 3
02

Whether the applicant was denied fair administrative action, natural justice and a fair hearing

Holding

No violation; the applicant was invited, participated through an advocate, and fully participated in the hearings before the NLC

Reasoning

The applicant admitted being invited to a hearing before the NLC, which fell within the period the Commission was mandated to conduct inquiries. The court found no material evidence supporting the claim that the applicant was denied an opportunity to challenge evidence, and noted that the applicant was represented by an advocate. On review of the proceedings, the applicant fully participated.

p. 4
03

Whether the applicant was entitled to the prerogative orders of certiorari and prohibition

Holding

Not entitled; the application was dismissed

Reasoning

Having found that the NLC acted within its statutory mandate and afforded the applicant a fair hearing, and that the validity of the predecessor's title was in question, the court found no merit in the application for certiorari and prohibition and dismissed it.

p. 4

Legal principles established

#
  • Judicial review proceedings are not the appropriate forum to adjudicate a dispute on land ownership or determine the authenticity of title to property
  • Once a person is lawfully granted leasehold tenure over public land, the land becomes private land and can only be converted back to public land by compulsory acquisition
  • The National Land Commission's mandate under Section 14(1) of the National Land Commission Act is to review grants or dispositions of public land to establish their legality or illegality
  • Where allegations of illegal or irregular acquisition of title arise, the validity of the predecessor's title ought to be determined first; constitutional protection of property does not extend to titles acquired illegally

Court orders

#
  1. 1.The Notice of Motion dated 19th October 2019 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 53 rule 1
  • National Land Commission ActSection 14(1)
  • Fair Administrative Actions ActSections 4 and 5
  • Constitution of Kenya, 2010Articles 40 and 67(2)
  • Planning ActCap 303

Cases cited (10)

  • Mwangi Stephen Muriithi vs National Land Commission & 3 Others
    [2018] eKLR
  • Republic vs National Land Commission; Exparte Krystalline Salt Limited
    [2015] eKLR
  • Registered Trustees of Arya Pratindhi Sabha East Africa vs National Land Commission
    [2016] eKLR
  • Jack Kaguu Githae vs Kenya Commercial Bank
    [2021] eKLR
  • Sanghani Investment Ltd vs Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1EA 354
  • Republic vs National Land Commission Exparte Holborn Properties Ltd
    [2016] eKLR
  • Market Plaza Ltd vs Commissioner for Lands & 3 Others
    [2017] eKLR
  • Axa General Insurance Ltd & Others vs The Lord Advocate
    [2011] UKSC 46
  • Sporring and Lonmroth vs Sweden
    [1982] 4 EHRR 35
  • Pressos Compania Naviera SA vs Belgium
    [1995] 21 EHRR 301
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 26; Order 53 of the Civil Procedure Rules, 2010; Section 14 of the National Land Commission Act; Sections 4 and 5 of the Fair Administrative Actions Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Land Commission & another Ex parte Baker Street Investment Limited [2021] KEELC 503 (KLR)", Case Analysis (2021). ELC Judicial Review No 37 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/503/eng@2021-12-02

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