Republic v National Land Commission & 2 others Ex parte Oyester Village Limited; Nairobi City County & 2 others (Interested Parties) [2021] KEELC 3496 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Limitation/delay in judicial review under the Fair Administrative Action Act
The application was not time barred; it was brought without unreasonable delay, and the FAAA transformed the procedural law on judicial review.
The NLC never sent its decision to the Ex-parte Applicant despite sending it to other affected parties; the Applicant filed proceedings promptly upon learning of the decision. The application was anchored on Article 47 and the FAAA, which requires only that an application be brought without unreasonable delay rather than within six months under Order 53, and no longer requires leave.
Breach of the right to fair administrative action
The NLC breached the Ex-parte Applicant's right to fair administrative action by failing to give adequate notice of the allegations, conducting site visits without the Applicant, withholding its decision, revising it via Gazette Notice without involvement, and acting with bias and discrimination.
The Applicant learned of the complaint only at the hearing through its lawyers; the NLC gathered additional evidence on site without the Applicant's officials; the decision was withheld even when requested; and the revised Gazette Notice was issued without involvement. The NLC also treated a similar case differently, declining to interfere where a matter was in court yet proceeding against the Applicant despite conservatory orders - evidence of bias.
Ultra vires exercise of NLC powers under section 14 NLC Act
The NLC acted ultra vires by ordering cancellation of the amalgamation, re-allocation of title and compensation, remedies outside section 14(5), having found the title unlawfully rather than irregularly acquired.
Having based its inquiry on unlawful acquisition of title, the only verdict open to the NLC was to direct revocation under section 14(5); consequential orders were only available under section 14(6) upon a finding of irregular acquisition, which was not made. Section 14(7) further protected the Applicant as a bona fide purchaser for value without notice of any defect.
Bona fide purchaser protection
The evidence showed the Ex-parte Applicant was a bona fide purchaser without notice of any defect in the title, so its title could not be revoked or affected.
The Applicant purchased after an official search, from Shepherds Group of Companies Limited, and the record showed no involvement in any illegality. The evidence also indicated the suit properties were not among plots reserved for public utilities, since the 240 acres equivalent to the 20% surrender obligation far exceeded the parcels reviewed.
Legal principles established
#- Since the promulgation of the 2010 Constitution and the Fair Administrative Action Act, judicial review applications need not be brought within six months under Order 53 but without unreasonable delay, and leave is no longer an express prerequisite.
- An administrative organ must afford an affected party adequate notice of the allegations it is to meet as an essential requirement of natural justice.
- Where the National Land Commission finds a title was unlawfully acquired, section 14(5) of the NLC Act only permits revocation; it confers no power to make consequential orders such as compensation or cancellation of an amalgamation, and no revocation may be effected against a bona fide purchaser for value without notice.
Court orders
#- 1.Order of certiorari quashing the National Land Commission's decision dated 23rd March 2018 (as revised vide Gazette Notice No. 1551 dated 13th February 2019) cancelling the amalgamation of LR Nos. Nairobi/Block 82/1765 and 1767 into Nairobi/Block 82/9102 and directing the Director of Surveys to revert to the original survey
- 2.Order of certiorari quashing the NLC decision directing the Chief Land Registrar to issue title over LR No. Nairobi/Block 82/1765 to Savanna Jua Kali Association
- 3.Order of certiorari quashing the NLC decision directing the Ex-parte Applicant to compensate members of Savanna Jua Kali Association
- 4.Order of prohibition directed at the Director of Surveys prohibiting him from reverting to the original survey before amalgamation
- 5.Order of prohibition directed at the Chief Land Registrar prohibiting him from issuing title over LR No. Nairobi/Block 82/1765 to members of Savanna Jua Kali Association or Nairobi City County
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Article 47 of the Constitution and the Fair Administrative Action Act; judicial review jurisdiction of the High Court (ELC) under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others Ex parte Oyester Village Limited; Nairobi City County & 2 others (Interested Parties) [2021] KEELC 3496 (KLR)", Case Analysis (2021). ELC Judicial Review No. 58 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3496/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.