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ELCAllowedConstitutional Petition No. 05 of 2019· [2021] KEELC 3715 (KLR)

Oloololo Game Ranch Ltd v National Land Commission & 2 others; Chief Land Registrar & 2 others (Interested Parties) [2021] KEELC 3715 (KLR)

Environment and Land Court
16 April 2021
MKMOHAMED N. KULLOW
1,729 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Land Commission cannot revoke your land title without giving you a hearing, and courts will quash such decisions.

What this practically means

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Executive summary

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The Petitioner, registered owner of land parcel Narok/Trans Mara/Oloololo/1, petitioned the Environment and Land Court at Narok after the National Land Commission, acting on a historical land injustice complaint by the 2nd Respondent, published a Gazette Notice on 1st March 2019 revoking the Petitioner's title. The Petitioner argued the revocation was made without notice or a fair hearing, was ultra vires the Commission's mandate, and reopened ownership issues conclusively determined by the High Court and Court of Appeal in prior suits, including Nairobi HCC No. 4090 of 1994 and HCC No. 262 of 1994. The 2nd Respondent opposed, contending its allocation of the land in 1974 was fraudulent and that the prior cases did not definitively determine ownership; the 3rd Interested Party acknowledged the courts had determined ownership in the Petitioner's favour. A cross-petition by the 2nd Respondent had earlier been struck out as res judicata. The court found that the 1st Respondent acted without giving the Petitioner an opportunity to be heard, contrary to the rules of natural justice and fair administrative action, and had no basis to decide a matter conclusively determined by competent courts. It also faulted the 2nd Respondent for non-disclosure of the prior decisions. The Petition was allowed in full: declarations of violation and non-disclosure issued, certiorari quashed the Gazette Notice, prohibition issued against further proceedings by the Commission and against the Interested Parties acting on it, and costs were awarded against the Respondents.

Key legal issues

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01

Violation of fair administrative action and natural justice

Holding

The 1st Respondent violated the National Land Commission Act and constitutional provisions by revoking the Petitioner's title without notice or a hearing.

Reasoning

The Gazette Notice revoking the Petitioner's title was published on 1st March 2019 without notice to the Petitioner or affording it a hearing. This offended the rules of natural justice and the right to fair administrative action under Section 4 of the Fair Administrative Action Act and Article 47 of the Constitution, rendering the decision ultra vires the 1st Respondent's mandate.

p. 2
02

Res judicata and finality of judicial determinations

Holding

The issue of ownership of the suit land had been conclusively determined by the High Court and Court of Appeal, and the 1st Respondent had no jurisdiction to reopen it.

Reasoning

Prior suits, including Nairobi HCC No. 4090 of 1994 and HCC No. 262 of 1994, determined ownership of the suit land in favour of the Petitioner, with appeals withdrawn. The court held the 1st Respondent could not purport to decide a matter conclusively heard and determined by courts of competent jurisdiction, and faulted the 2nd Respondent's casual contention that the cases were not definitive.

p. 3
03

Non-disclosure of material facts by the 2nd Respondent

Holding

The 2nd Respondent was guilty of material non-disclosure in failing to disclose the prior court decisions to the 1st Respondent.

Reasoning

The 2nd Respondent lodged the historical land injustice complaint without disclosing that the High Court and Court of Appeal had conclusively determined ownership. Had this been disclosed, the court reasoned, the 1st Respondent would not have purported to revoke the Petitioner's title. The court therefore issued the declaration of non-disclosure sought.

p. 3

Legal principles established

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  • A statutory body must accord a party affected by its decision an opportunity to be heard, in accordance with the rules of natural justice and the right to fair administrative action.
  • A body may not purport to hear and determine a matter already conclusively determined by courts of competent jurisdiction.

Court orders

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  1. 1.Declaration that the 1st Respondent violated Section 14, 15(2)(d)(3) of the National Land Commission Act and Articles 10, 20, 21(1), 40(1)4, 47, 50, 60, 64, 68, 23(1) and 23(2)
  2. 2.Order of certiorari quashing the decision of the 1st Respondent published in the Kenya Gazette of 1st March 2019 with regard to parcel Narok/Oloololo/1
  3. 3.Order of prohibition against the 1st Respondent from hearing and determining any complaint with respect to parcel Narok/Oloololo/1
  4. 4.Order of prohibition against the 1st, 2nd and 3rd interested parties from acting on the instructions of the 1st Respondent published in the Kenya Gazette of 1/3/2019 or interfering with the Petitioner's interest and title in the suit land
  5. 5.Declaration that the 2nd Defendant (2nd Respondent) is guilty of material non-disclosure and concealment in failing to disclose the prior High Court and Court of Appeal cases
  6. 6.Costs of the Petition to be borne by the Respondents

Authorities

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Legislation

  • Constitution of the Republic of KenyaArticles 10, 20, 21(1), 40(1), 40(3), 40(4), 47, 50, 60, 64, 67, 232(1), 232(2)
  • National Land Commission ActSections 14 and 15(2)(d) & (3)(e)
  • Registered Land ActSections 27(a) and 28(a)
  • Fair Administrative Action ActSection 4
Jurisdiction invoked
Articles 10, 20, 21(1), 40(1), 40(3), 40(4), 47, 50, 60, 64, 67, 232(1), 232(2) of the Constitution; Sections 14 and 15(2)(d) & (3)(e) of the National Land Commission Act, 2012; Section 4 of the Fair Administrative Action Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oloololo Game Ranch Ltd v National Land Commission & 2 others; Chief Land Registrar & 2 others (Interested Parties) [2021] KEELC 3715 (KLR)", Case Analysis (2021). Constitutional Petition No. 05 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3715/eng@2021-04-16

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