Ngoingwa Company Limited v National Land Commission & 2 others [2021] KEELC 3688 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the National Land Commission's revocation of Thika land titles because the owner was never given a hearing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission over registered leasehold land
The Commission had jurisdiction because the suit land was public land before allotment, and the Commission may probe the process of conversion to private land; it would only be ultra vires if probing a private-to-private transfer.
Section 14(1) of the National Land Commission Act empowers the Commission to review grants of public land. Although the suit property is now registered leasehold, the court held it was public land before allotment. Following the Olow decision, the Commission may investigate the conversion process; its mandate ends only where a private person sold to a private person, so a probe of the transfer from Ngoingwa Company Limited to the Petitioner would be ultra vires.
Whether a Gazette Notice is capable of being quashed
Yes - in the absence of any separate decision, the Gazette Notice of 1st March 2019 embodied the 1st Respondent's decision and was capable of being quashed.
The 2nd and 3rd Respondents argued a Gazette Notice is merely informative. The court found no evidence of any separate decision; the impugned Notice stated the claim allowed and set out the reasoning, so the decision was contained in the Notice itself. Following the Onyancha and Lake Flowers line of authority, where gazettement is the only formalisation, the court can treat it as the decision and quash it.
Fair administrative action and hearing
The Petitioner was never invited to the 28th September 2018 hearing and was condemned unheard, breaching Articles 47 and 50 and the audi alteram partem rule.
The Hansard of the 1st Respondent's hearing and the Committee's report of 7th February 2019 omit the Petitioner despite mentioning it and its parcels. Letters showed a summons and a request for another date, but no evidence the Petitioner was invited to the actual hearing. The 2nd and 3rd Respondents did not controvert this. Condemnation without hearing breaches natural justice and renders the revocation unconstitutional.
Revocation of title without due process
The revocation contravened natural justice; the proper course was suitable judicial proceedings, not ultra vires revocation of title.
Because the Petitioner was absent when drastic orders were issued on 28th September 2018, it was denied the fair hearing guaranteed by Article 50. Relying on Sceneries Limited and the A.K. Abdulgani decision, the court held that interests in land must be asserted through proper judicial proceedings, and revocation without proper process contravened the cardinal rules of natural justice.
Status of plots allocated subject to public-purpose conditions
The plots remained the Petitioner's property absent proof of breach of conditions, save L.R 20/533 which reverted to the Government as a Police Post site.
The 2002 Commissioner of Lands letter revised the subdivision conditions, removing the general surrender requirement except for the Police Post plot. No evidence proved breach of the user conditions, so the properties did not revert to the Government. Only L.R 20/533, earmarked for a Police Post, was to be surrendered and remains a public utility; relief was accordingly limited in respect of that plot.
Legal principles established
#- The National Land Commission has jurisdiction under Section 14 of the National Land Commission Act to investigate the process by which public land was converted to private land, even where the land is now registered as private property, except where a private person sold to another private person.
- Where there is no separate formal decision, a Gazette Notice may itself constitute the decision capable of being quashed by certiorari.
- A registered owner condemned unheard is denied fair administrative action and natural justice; a decision made in breach of natural justice is no decision and cannot stand.
Court orders
#- 1.A declaration that the actions of the 1st and 2nd Respondents in carrying out investigations and determinations without reference to the Petitioner amounted to unfair administrative action contrary to Articles 47 and 50 of the Constitution.
- 2.A declaration that in purporting to order recovery/nullification of the Petitioner's land parcel Thika Municipality Block 20 without notice, the 1st Respondent acted illegally, unconstitutionally, unlawfully and irregularly, constituting arbitrary deprivation of property contrary to Article 40.
- 3.A permanent injunction restraining the 1st and 2nd Respondents from revoking, cancelling, altering or interfering with registers of title emanating from Thika Municipality/Block 20, save for L.R 533 set aside for a police post.
- 4.An order of certiorari removing and quashing the report of the Thika District Land Office dated 12th September 2018.
- 5.An order of certiorari removing the report of the National Lands Commission Historical Injustices Committee dated 7th February 2019 in so far as it reports on Thika Municipality/Block 20.
- 6.An order of certiorari removing and quashing Gazette Notice No. 1995 dated 1st March 2019, item 14, Ref NLC/HLI/537/2018, in so far as it reports on Thika Municipality/Block 20, save for plot 533 meant for a Police Post.
- 7.An order barring the 1st, 2nd and 4th Respondents from any further interference with the Petitioner's right to property in respect of the affected parcels.
- 8.The 1st Respondent to bear the costs of the suit.
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya (constitutional petition for violation of Articles 40, 47 and 50)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoingwa Company Limited v National Land Commission & 2 others [2021] KEELC 3688 (KLR)", Case Analysis (2021). Constitutional Petition dated 1st July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3688/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.