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ELCPartially AllowedNot stated in the judgment (petition dated 10th April, 2018, filed 11th April, 2018)· [2021] KEELC 1469 (KLR)

Joseph Musikali Mutemi v National Land Commission & 2 others [2021] KEELC 1469 (KLR)

Environment and Land Court
13 October 2021
SOS. Okong'o
7,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed the National Land Commission's revocation of a land title because the owner was never properly notified or given a hearing.

What this practically means

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Executive summary

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The petitioner, the registered proprietor of L.R No. 209/14436, challenged the National Land Commission's (1st respondent) recommendation, published in the Kenya Gazette on 17th July 2017, that his title be revoked on the ground that the property encroached on the Nairobi Southern Bypass road and railway reserve. He sought declarations that the revocation infringed his rights to property (Article 40) and fair administrative action (Article 47), certiorari to quash the gazette decision, prohibitory and mandatory injunctions, and costs. The respondents maintained that the NLC acted within its statutory mandate under section 14 of the National Land Commission Act, that the property sat on a transport corridor reserved since 1985, that the petitioner was given notice and an opportunity to be heard, and that an unlawfully acquired title enjoys no Article 40 protection. The court framed three issues: infringement of rights, entitlement to reliefs, and costs. It found the respondents' evidence on notice and hearing dates mutually contradictory and unproven by the 1st respondent, which bore the burden of proving that it gave notice; any notice was so inadequate as to amount to no notice. The revocation recommendation was therefore reached through a flawed process violating Articles 47 and 50 and section 14(3) of the Act. The court refused the declaration of ownership, holding that a contested title's legality cannot be determined on affidavit evidence and requires viva voce evidence; it also refused the mandatory injunction since there was no evidence the title had actually been revoked. The court declined to hold that certiorari in a constitutional petition is subject to the Law Reform Act's six-month limitation. Judgment was entered for the petitioner on prayers (b), (c) and (d), with costs to the petitioner payable by the 1st respondent.

Key legal issues

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01

Whether the petitioner's right to fair hearing and fair administrative action was violated by the 1st respondent's revocation of his title

Holding

Yes - the 1st respondent failed to prove it gave the petitioner notice of the review or conducted a hearing; the conflicting evidence on notice dates and the inadequacy of any notice amounted to no notice, violating Articles 47 and 50 and section 14(3) of the National Land Commission Act

Reasoning

The Gazette Notice of 17th July 2017 indicated notices issued on 30th October 2016 and 18th January 2017 with hearings between 30th January and 3rd February 2017, while the 3rd respondent claimed notice was given on 17th March 2017 with a hearing on 27th March 2017. The 1st respondent placed no evidence proving its claims. Even the 3rd respondent's asserted notice was so inadequate as to amount to no notice. The petitioner was therefore condemned unheard and the revocation recommendation flowed from a flawed process.

p. 6
02

Whether the petitioner is entitled to a declaration that he is the lawful owner of the suit property

Holding

No - the validity of the title is a contested factual issue requiring viva voce evidence and cannot be determined on affidavit evidence in a constitutional petition

Reasoning

The court found it could not determine on affidavit evidence whether the suit property was carved from a road/railway reserve or not. If created from the reserve the title is invalid; if not, it is valid. The court declined to venture into that determination and left the parties free to move the court appropriately, noting the petitioner's complaints challenged process rather than the merits of the decision.

p. 8
03

Whether certiorari in a constitutional petition is subject to the six-month limitation under the Law Reform Act and Order 53(2) of the Civil Procedure Rules

Holding

No - the court expressly disagreed with the authority relied on by the 2nd respondent on this point

Reasoning

The 2nd respondent argued the certiorari order was time-barred since the gazettement was 17th July 2017 and the petition was filed more than 9 months later. The court held it was not bound by that limitation where certiorari is sought within a constitutional petition, and found the petition's prayers were for judicial review relief despite not being expressly worded as such.

p. 7
04

Who should bear the costs of the petition

Holding

The petitioner, having to a large extent succeeded, was awarded costs payable by the 1st respondent

Reasoning

Costs follow the event as a general rule and no reason was advanced to deny the petitioner costs given his substantial success on prayers (b), (c) and (d).

p. 8

Legal principles established

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  • A decision affecting the legal rights of an individual arrived at by a procedure offending the principles of natural justice is outside the jurisdiction of the decision-making authority
  • Where a statutory body claims to have given notice and conducted a hearing, the burden rests on it to prove that it did so
  • An order of certiorari sought in a constitutional petition is not subject to the six-month limitation in the Law Reform Act and Order 53 of the Civil Procedure Rules
  • The legality of a contested land title cannot be determined on affidavit evidence in a constitutional petition; it requires viva voce evidence

Court orders

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  1. 1.Judgment entered for the petitioner in terms of prayer (b) of the petition - a declaration that the decision by the 1st respondent to revoke the petitioner's title to the suit property was unlawful and infringed his rights under Articles 40 and 47 of the Constitution
  2. 2.Judgment entered for the petitioner in terms of prayer (c) of the petition - an order bringing up into the court and quashing the 1st respondent's decision contained in the Kenya Gazette dated 17th July, 2017 as it relates to the suit property
  3. 3.Judgment entered for the petitioner in terms of prayer (d) of the petition - an injunction prohibiting the 2nd respondent from enforcing the 1st respondent's decision published in the Kenya Gazette dated 17th July, 2017 as relates to the title of the suit property
  4. 4.The petitioner awarded the costs of the petition, to be paid by the 1st respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 20, 22(1), 23(3), 40 (including 40(1), (2), (6)), 47 (47(1) and (2)), 48, 50 (including Article 50 on fair hearing), 67(1) and 67(2), 159(2), 162(2)(b), 165(3) and (5)(b), 258(1)
  • National Land Commission Act, 2012section 14 (including 14(1), (3), (7) and (8))
  • Fair Administrative Action Act, 2015section 7(2)
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 23(1)
  • Land Act, 2012section 26(1)
  • Kenya Roads Act, 2007section 3
  • Law Reform Actsection 9(3)
  • Civil Procedure Rules, 2010Order 53 rule 2

Cases cited (22)

  • Teresia Kamene King'oo v Harun Edward Mwangi
    [2019] eKLR
  • Katende v Haridar & Company Ltd.
    [2008] 2 E.A. 173
  • Samuel Kamere v Land Registrar, Kajiado
    Civil Appeal No. 28 of 2005
  • Daudi Kiptugen v Commissioner of Lands and 4 others
    [2015] eKLR
  • Samwel Kamere v Chief Land Registrar
    [2015] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Nicholas Mwatika Mulei v National Land Commission & 3 others
    [2018] eKLR
  • Belgo Holdings Limited v National Land Commission & another
    [2017] eKLR
  • Fredrick Mworia v District Land Adjudication Officer Tigania West/East & 3 others
    [2016] eKLR
  • Republic v National Land Commission Ex parte Holborn Properties Ltd
    [2016] eKLR
  • Mwangi Stephen Muriithi v National Land Commission & 3 others
    [2018] eKLR
  • Republic v Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    [2006] 1 KLR (E&L) 563
  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    (2018)
  • Samuel Odhiambo Oludhe & 2 others v Jubilee Jumbo Hardware Limited & Another
    [2018] eKLR
  • Chemei Investments Limited v The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Milan Kumar Shah & 2 Others vs. City Council of Nairobi & Another
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
  • Commissioner of Lands vs Kunste Hotel Ltd
    [1997] eKLR
  • Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others
    [2018] eKLR
  • Republic v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 2 others Ex-Parte Kisimani Holdings Ltd
    [2015] eKLR
  • Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
  • Attorney General v Ryath
    [1980] AC 718
Jurisdiction invoked
Articles 20, 22(1), 23(3), 40, 47, 48, 50(1), 159(2), 162(2)(b), 165(3) and (5)(b) and 258(1) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Musikali Mutemi v National Land Commission & 2 others [2021] KEELC 1469 (KLR)", Case Analysis (2021). Not stated in the judgment (petition dated 10th April, 2018, filed 11th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1469/eng@2021-10-13

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