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ELCPartially AllowedPetition dated 27th August 2018, Kisumu· [2021] KEELC 3226 (KLR)

Sidian Bank Ltd v National Land Commission & 2 others; Sigtunes Communications Limited and another (Interested Parties) [2021] KEELC 3226 (KLR)

Environment and Land Court (High Court constitutional jurisdiction, Kisumu)
21 May 2021
AOAntony Ombwayo
4,092 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed the National Land Commission's revocation of a Kisumu land title because the affected bank and owner were never personally served or heard.

What this practically means

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Executive summary

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A financial institution that had advanced Kshs 5,000,000/- secured by a charge over Title No. Kisumu Municipality/Block 4/832 petitioned the court after the National Land Commission revoked the title pursuant to Gazette Notice No. 6862 of 17/07/2017 without serving the bank or the registered owner with the complaint, hearing notices, or documents relied upon. The bank sought declarations of violation of Articles 47 and 50, certiorari to quash the NLC proceedings and determination, mandamus compelling a lawful fresh review, and in the alternative indemnity for the loss of its security. The NLC defended the process, saying it issued a public newspaper notice which sufficed and that Article 40 does not protect illegally acquired property. The court framed three issues: procedural regularity of the revocation, entitlement to judicial review orders, and indemnity. It held that under Section 151 of the Land Act newspaper publication is a last resort and, absent proof of attempted personal service and of service of the complaint and documents, the process violated Articles 47 and 50. On the second issue, although judicial review ordinarily must be brought within six months, the petitioner was not a party to the proceedings generating the decision and so was not time-barred. On indemnity, the Kshs 5,000,000/- claim, pleaded and proved by loan account statements and uncontroverted, was payable. The court declared the revocation proceedings null and void, quashed the determination by certiorari, ordered the 1st Respondent to indemnify the petitioner, and awarded costs against the 1st Respondent.

Key legal issues

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01

Adequacy of notice and hearing in the NLC revocation process

Holding

The revocation process violated Articles 47 and 50 of the Constitution because the petitioner and interested parties were not personally served with the complaint or notices and were not furnished with documents relied upon

Reasoning

Section 151 of the Land Act makes newspaper publication a last resort where personal or postal service is impossible; the 1st Respondent gave no proof of attempted personal service. The complaint was never served and the documents relied on were not availed for inspection, so the petitioner could not prepare its case. The process therefore fell below the fair administrative action and fair hearing thresholds.

p. 5
02

Entitlement to judicial review orders despite the six-month limitation

Holding

Judicial review orders were granted because the petitioner was not a party to the proceedings giving rise to the decision

Reasoning

Although judicial review under the Law Reform Act and Order 53 must ordinarily be sought within six months, the court held that a person who was not a party to the proceedings producing the decision is not bound by the time limit, and constitutional jurisdiction under Article 23 permits judicial review remedies where rights are infringed.

p. 6
03

Indemnity for loss of security

Holding

The petitioner proved special damages of Kshs 5,000,000/- and was entitled to indemnity from the 1st Respondent

Reasoning

The claim, pleaded as special damages, was supported by loan account statements and was not refuted by the respondents. Following Bangue Indosuez, special damages must be specially pleaded and strictly proved, which the petitioner did; breach of fundamental rights also attracts discretionary remedies per Fredrick Gitau Kimani.

p. 6

Legal principles established

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  • Where an administrative action adversely affects rights, personal service of notice is primary; advertisement in a newspaper is a last resort only after personal service has been attempted and failed
  • The right to be heard extends beyond mere notice to being given sufficient information to prepare and present one's case
  • A party not party to proceedings giving rise to a decision is not bound by the six-month judicial review limitation
  • Special damages must be specially pleaded and strictly proved

Court orders

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  1. 1.Declaration that the petitioner was entitled to be personally served with the complaints lodged with the 1st Respondent and all notices of the proceedings, and entitled to respond, submit memoranda and submissions and participate fully in the proceedings
  2. 2.Declaration that failure to personally serve the petitioner with the complaints and notices of proceedings, and failure to grant the petitioner an opportunity to respond or participate, violated the petitioner's rights under articles 47 and 50 of the Constitution, section 14(3) of the National Land Commission Act and section 4(3) of the Fair Administrative Actions Act
  3. 3.Declaration that the proceedings before the National Land Commission including the determination of 04/10/2016 published in Gazette Notice No. 6862 of 17/07/2017 were tainted with illegality and null and void for all purposes
  4. 4.Order of Certiorari quashing the entire proceedings, ruling and determination made on 04/10/2016 and published in Gazette Notice No. 6862 of 17/07/2017 touching on Property Title No. Kisumu Municipality/Block 4/832
  5. 5.Order that the 1st Respondent indemnify the Petitioner for Kshs 5,000,000/- together with all interests and costs accrued from the petitioner's inability to enforce its security
  6. 6.Costs of the proceedings to be met by the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 40, 47(1) & (2), 50(1), 165(3)(d)(ii), 40(3)
  • National Land Commission ActSections 14(3), 14
  • Fair Administrative Actions ActSections 4(3), 6(1) & (2)
  • Land ActSection 151
  • Law Reform Act(judicial review procedure)
  • Civil Procedure RulesOrder 53

Cases cited (5)

  • Mwangi Stephen Muriithi Vs National Land Commission & 3 Others
    [2018] eKLR
  • Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another
    (2011) eKLR
  • Dr. Ignatius L. M. Muturi v The District Land Disputes Tribunal & 2 others
    [2011] eKLR
  • Bangue Indosuez vs DJ Lowe and company Ltd
    [2006] 2 KLR 208
  • Fredrick Gitau Kimani v Attorney General & 2 Others
    [2012] eKLR
Jurisdiction invoked
Article 165(3)(d)(ii) of the Constitution (enforcement of Bill of Rights under Article 23)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Sidian Bank Ltd v National Land Commission & 2 others; Sigtunes Communications Limited and another (Interested Parties) [2021] KEELC 3226 (KLR)", Case Analysis (2021). Petition dated 27th August 2018, Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3226/eng@2021-05-21

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