Republic v National Land Commission & another; Samuel Wachira Wanja & 2 others (Ex-parte); Kiambu Dandora Farmers Co Ltd & another (Interested parties) [2021] KEELC 2909 (KLR)
The bottom line
#Kenya's High Court-grade land review window closed in 2017, so the National Land Commission's 2018 decision revoking these titles was quashed as unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent (National Land Commission) had jurisdiction to review the grants over the suit properties in May 2018
The Commission had no jurisdiction; its five-year review mandate under section 14 of the National Land Commission Act expired on 2nd May 2017 and was not extended by Parliament.
The Act commenced on 2nd May 2012 and section 14(1) allowed review of grants and dispositions of public land within five years. No parliamentary extension was granted under section 14(9). The impugned determination was made on or about 10th May 2018, after the mandate lapsed, so the Commission exercised a power it did not have.
Whether the Commission could review grants over land that had been alienated and registered in private names
Section 14 review extends to the process of alienation of public land for private use, since once alienated such land becomes private land; but the jurisdictional bar of expiry of mandate disposed of the issue.
Relying on section 9(2) of the Land Act, the court held that unalienated public land becomes private land upon alienation. Section 14 empowers the Commission to examine the propriety of that alienation. The suit properties were public land before alienation, so the process was in principle reviewable, but the mandate had expired.
Whether the Commission's assumption of jurisdiction over a matter pending before the courts was proper
It amounted to abuse of power and contempt of court, the ownership of the original parcel being sub-judice in ELC Constitutional Petition No. 47 of 2011 and other suits.
The compulsory acquisition of the original parcel was a live issue in pending proceedings to which both the Commission and the 1st interested party were parties. The court, following its own decision in R v National Land Commission Ex-parte Samuel Mbugua Githegi, held that a court seized of a matter must be allowed to pronounce itself before any other proceedings on the same matter.
Whether the applicants were accorded fair administrative action and a fair hearing
They were not; the Commission failed to supply particulars of complaints, held no demonstrated hearing, and refused to furnish the determination and reasons, contrary to section 14(3) of the NLC Act, Article 47 of the Constitution and the Fair Administrative Action Act.
The newspaper notice did not disclose whether the review was on the Commission's own motion or on a complaint or its particulars. The Commission refused to supply complaint particulars, placed no complaints before the court, adduced no evidence of a hearing, and refused despite written demand to furnish the determination with reasons.
Whether the Commission was biased in favour of the 1st interested party
Yes; the settlement agreement of 18th August 2015 showed a predetermined outcome adopted before the review process commenced, offending the rules of natural justice.
The confidential agreement between the Commission and the 1st interested party pre-committed the Commission to find the 1st interested party the lawful owner and to review the applicants' titles. The applicants were not parties to or consulted on it. Justice could not be seen to have been done.
Legal principles established
#- The National Land Commission's mandate under section 14 of the National Land Commission Act to review grants and dispositions of public land expired on 2nd May 2017 and cannot be exercised thereafter unless extended by Parliament.
- It is an abuse of power and contempt of court for the Commission to determine ownership of land that is the subject of pending court proceedings.
- An administrator with a premeditated or predetermined outcome, arrived at through a prior agreement with a complainant, is biased and cannot conduct a fair hearing.
Court orders
#- 1.Judgment entered for the applicants against the respondents in terms of prayers 1 and 2 of the Notice of Motion dated 13th June 2018 (certiorari quashing the determination of 10th May 2018 and prohibition against its enforcement/publication in respect of the suit properties)
- 2.Costs of the application awarded to the applicants and the 2nd interested party, to be paid by the 1st respondent and the 1st interested party, assessed at Kshs. 750,000/- for the applicants and Kshs. 200,000/- for the 2nd interested party, exclusive of court fees and disbursements, taxable if not agreed
- Jurisdiction invoked
- Section 13(7)(b) of the Environment and Land Court Act, 2011 (power to grant prerogative orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another; Samuel Wachira Wanja & 2 others (Ex-parte); Kiambu Dandora Farmers Co Ltd & another (Interested parties) [2021] KEELC 2909 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 13th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2909/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.