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ELCAllowedPetition dated 1st November 2019 (Thika ELC)· [2021] KEELC 4125 (KLR)

Aaron Kitura Matti & 2 others v National Land Commission & 2 others [2021] KEELC 4125 (KLR)

Environment and Land Court
4 March 2021
4,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed the National Land Commission's revocation of a Thika land title because the owner was never given notice or a hearing.

What this practically means

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Executive summary

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By a Petition dated 1st November 2019, the Petitioner, the registered owner of Thika Municipality Block 20/340, challenged the nullification of its title by the National Land Commission via Gazette Notice No. 1995 of 1st March 2019 and the report of the Thika District Lands Officer dated 12th September 2018, both done without notice or hearing, and sought removal of a restriction placed by the 2nd Respondent. The Petitioner bought the property from Ngoingwa Company Limited in 2001 with an educational-user condition attached to the Government-issued lease. The 2nd and 3rd Respondents opposed, contending the property had been surrendered for public utility, the certificate of lease was irregularly obtained, lease conditions were breached by constructing a church instead of a school, and public interest superseded private interest. The 1st Respondent did not participate. The Court framed four issues: jurisdiction, fair administrative action, natural justice, and merits. It held that Section 14 of the National Land Commission Act gave the Commission jurisdiction to probe conversion of public land to private land, though not private-to-private transfers. It found the Petitioner was condemned unheard, in breach of the audi alteram partem rule, Articles 47 and 50, and natural justice; the hearing of 28th September 2018 proceeded without the Petitioner. No breach of lease conditions or reversion to Government was proved, and a legitimate expectation of valid title arose. The Lands Officer's report, describing the property as a playground, was unsupported and ripe for quashing. The Petition was allowed entirely in terms of prayers 1 to 8, with costs to the Petitioner. Judgment was delivered virtually pursuant to COVID-19 directions.

Key legal issues

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01

Jurisdiction of the NLC over leasehold land

Holding

The 1st Respondent had jurisdiction because the suit land was public land before allotment and the Commission may probe its conversion to private land.

Reasoning

Section 14 of the National Land Commission Act empowers the Commission to review grants and dispositions of public land to establish their propriety or legality. The Court held leasehold land allotted from public land falls within that mandate. However, a transfer from one private person to another would be outside the Commission's purview. Since the land was originally governmental before allotment, the Commission could investigate the conversion, though probing the private sale from Ngoingwa Company Limited to the Petitioner would have been ultra vires.

p. 4
02

Fair administrative action under Article 47

Holding

The Petitioner was not given notice or an opportunity to be heard before its title was revoked, breaching Article 47 and natural justice.

Reasoning

Neither the grounds of opposition nor the record showed that the Petitioner, the registered owner, was invited to or participated in the proceedings leading to revocation. The 2nd and 3rd Respondents did not controvert the assertion. Citing Halsbury's Laws of England, the Court held the audi alteram partem rule applies to administrative bodies, and the Petitioner's condemnation unheard rendered the action unconstitutional.

p. 4
03

Right to fair hearing and natural justice in revocation of title

Holding

The 28th September 2018 hearing proceeded without the Petitioner, violating Article 50 and the rules of natural justice.

Reasoning

Citing Sceneries Limited v National Land Commission, the Court noted a fair hearing requires that a party be informed of the case and given an opportunity to respond. The Petitioner was absent on the hearing date yet drastic orders were issued against it. The revocation therefore contravened natural justice and the right to be heard, and the nullification of title without notice was an arbitrary deprivation of property.

p. 5
04

Merits of the Petition and legitimacy of title

Holding

The Petition succeeded entirely; the title was validly issued, no breach of lease conditions was proved, and the Lands Officer's report was factually baseless and ripe for quashing.

Reasoning

The lease and subdivision scheme showed the property was designated for educational purposes, and no evidence proved reversion to Government or breach of lease conditions despite allegations of construction of a church. A legitimate expectation arose from the Government-issued lease. The Lands Officer's report described the property as a playground contrary to the records, and no basis was produced in Court, warranting quashing.

p. 4

Legal principles established

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  • The National Land Commission's review power under Section 14 of the National Land Commission Act extends to probing the process by which public land was converted to private land, but not to transfers between private persons.
  • A person affected by an administrative decision must be given notice and a hearing; a decision made without hearing the affected party violates natural justice and fair administrative action.

Court orders

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  1. 1.A Declaration that a legitimate expectation arose on the part of the Petitioner that it had a valid title in Thika Municipality Block 20/340 and that the Respondents would uphold its property rights
  2. 2.A Declaration that the actions of the 1st and 2nd Respondents in investigating and determining the Petitioner's land without reference to it amounted to unfair administrative action contrary to Articles 47 and 50
  3. 3.A Declaration that the nullification of the Petitioner's title without notice was an arbitrary deprivation of property contrary to Article 40
  4. 4.An order of Certiorari removing and quashing the report of the Thika District Land Officer dated 12th September 2018
  5. 5.An order of Certiorari removing and quashing Gazette Notice Number 1995 dated 1st March 2019, Item No. 14 (NLC/HLI/537/2018)
  6. 6.An order directing the 2nd Respondent to unconditionally and immediately remove the restriction placed on Thika Municipality Block 20/340
  7. 7.A Permanent Injunction restraining the 1st and 2nd Respondents, their employees and/or agents from revoking, cancelling, altering or interfering with the Petitioner's proprietary rights over Thika Municipality Block 20/340
  8. 8.Costs of the suit to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 50
  • National Land Commission ActSection 14(1)
  • Registered Land Act (Cap 300)not specified
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Republic …Vs… National Land Commission & Another Exparte Muktar Saman Olow
    [2015] eKLR
  • Sceneries Limited v National Land Commission
    (2017) eKLR
  • Msagha vs. Chief Justice & 7 Others
    Nairobi HCMCA no. 1062 of 2004 (HCK) [2006] 2 KLR 553
Jurisdiction invoked
Articles 40, 47, 50 of the Constitution of Kenya, 2010; Section 14 of the National Land Commission Act

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, "Aaron Kitura Matti & 2 others v National Land Commission & 2 others [2021] KEELC 4125 (KLR)", Case Analysis (2021). Petition dated 1st November 2019 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4125/eng@2021-03-04

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