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ELCPartially AllowedThika ELC Petition (number not stated; related to Thika ELC Petition No. 12 of 2019)· [2022] KEELC 1256 (KLR)

Alex Kamweru Njunge v National Land Commission & 4 others [2022] KEELC 1256 (KLR)

Environment and Land Court
8 February 2022
BEB M Eboso
4,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner, Alex Kamweru Njunge, challenged a Gazette Notice No 11714 published on 9/11/2018 in which the National Land Commission, exercising its grants review mandate under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act, determined that title Ndumberi/Riabai/2674, registered in his name, formed part of Kirigiti Market and directed its revocation and re-planning. He sought declarations of rights violations, certiorari, prohibition, rectification of records and maps, declaration of ownership and damages. The National Land Commission did not respond or submit despite service; the state counsel for the 2nd, 3rd and 5th respondents conceded violation by the Commission but denied any violation by their clients; the County Government of Kiambu defended the review process. The court, deciding two issues, found the allegations of procedural impropriety uncontroverted: the petitioner was never served with the complaint against his title nor invited to a hearing, violating Articles 47 and 50, warranting quashing of the decision. However, the court declined to pronounce on the validity or legality of the title itself because the complainant was unknown, no state organ challenge was before it, and Lucy Kimani, the 1998 transferee of what was formerly public land under Kiambu County Council, was not joined. The petition was partially allowed: declarations issued, the review decision quashed, nominal damages of Kshs 100,000 awarded against the Commission, title-validity questions left to proper proceedings, and the Commission ordered to pay the petitioner's costs.

Key legal issues

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01

Whether the petitioner's rights to fair hearing and fair administrative action were violated by the National Land Commission's grant review determination

Holding

Yes - no hearing was conducted and the allegations against the title were never disclosed to the petitioner; the Gazette Notice insofar as it affected his title was quashed

Reasoning

The Commission was duly served but filed no response or submissions, leaving allegations of procedural impropriety uncontroverted. The petitioner's evidence showed he was never supplied with the complaint, never invited to a hearing, and no written determination was availed. The right to be heard is protected by Articles 47 and 50 and the Fair Administrative Actions Act, so the decision could not stand.

p. 4
02

Whether the petition could determine the legality or validity of the petitioner's title

Holding

No - the petition raised only procedural issues, no state organ had challenged the title before the court, and Lucy Kimani, the predecessor who procured title over former public land, was not joined

Reasoning

The court could not identify who challenged the title or on what grounds. The register showed the land was originally public land registered to Kiambu County Council and transferred to Lucy Kimani in 1998, but no evidence of unlawful disposal was presented and the necessary parties were absent. Questions of title validity were left to proper proceedings.

p. 5
03

Whether the other respondents violated the petitioner's rights

Holding

No - no evidence linked them to the violations

Reasoning

The evidence of violation was directed solely at the National Land Commission's decision-making process. There was no proof that the land registry, survey or county government respondents were privy to or committed any violation, so the reliefs against them failed.

p. 5
04

Whether damages were payable

Holding

Nominal general damages of Kshs 100,000 awarded against the 1st respondent

Reasoning

Counsel cited Dominic Mbugua Wainaina where general damages were assessed at Kshs 200,000. In the circumstances of the proven violation, the court awarded nominal damages of Kshs 100,000.

p. 5

Legal principles established

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  • A grant review decision made without hearing the affected title holder or disclosing the allegations against the title violates the right to fair hearing and fair administrative action and is liable to be quashed
  • Uncontroverted allegations against a party who fails to respond, despite service, will be accepted by the court

Court orders

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  1. 1.Declaration that the 1st respondent, in its grant review determination relating to title number Ndumberi/Riabai/2674, violated the petitioner's right to a fair hearing under Article 50(1) and fair administrative action under Article 47 of the Constitution
  2. 2.Order quashing the grant review decision of the 1st respondent relating to Title Number Ndumberi/Riabai/2674 contained in Legal Notice No 11714 in Kenya Gazette Vol CXX-No 138 dated 9/11/2018, together with any rectifications or cancellations made in the land register or records as a consequence
  3. 3.The 1st respondent shall pay the petitioner nominal general damages of Kshs 100,000 for the violations
  4. 4.Issues or disputes relating to the validity, legality or lawfulness of Title Number Ndumberi/Riabai/2674 may be adjudicated in proper proceedings involving the necessary parties
  5. 5.The 1st respondent shall bear the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 3, 27, 35, 40, 47, 48, 50(1), 67(2), 68(c)(v), 165(6), 260
  • National Land Commission Act 2012Sections 6 and 14 (including 14(3) and 14(8))
  • Fair Administrative Actions Actgeneral framework

Cases cited (9)

  • Katende v Haridas & Co. Ltd
    (2008) 2EA 173
  • Sceneries Limited Vs National Land Commission
    (2017) eKLR
  • Kenya Country Bus Association v Cabinet Secretary for Transport and Infrastructure & 5 Others
    (2014) eKLR
  • Aaron Kitura Matti & 2 Others v National Land Commission & 2 Others
    (2021) eKLR
  • Anarita Karimi Njeru v AG
    (1979) KLR 154
  • Umoja 111 Central Limited V Nairobi City County Government, Director of Survey & 2 Others (Interested Parties)
    (2021) eKLR
  • R v National Land Commission Exparte Krystalline Salt
    334 of 2014
  • Republic vs. the Honourable the Chief Justice of Kenya & Others Ex Parte Justice Moijo Mataiya Ole Keiwua
    Nairobi HCMCA No. 1298 of 2004
  • Dominic Mbugua Wainaina & another v National Land Commission & 2 others
    [2019] eKLR
Jurisdiction invoked
Article 165 of the Constitution (petition for enforcement of constitutional rights); review of grants under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act 2012

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, "Alex Kamweru Njunge v National Land Commission & 4 others [2022] KEELC 1256 (KLR)", Case Analysis (2022). Thika ELC Petition (number not stated; related to Thika ELC Petition No. 12 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1256/eng@2022-02-08

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