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ELCPartially AllowedThika ELC Petition No. 17 of 2019 (companion to Thika ELC Petition No. 16 of 2019)· [2022] KEELC 1261 (KLR)

Francis Githinji Ngatia v National LandmCommission & 4 others [2022] KEELC 1261 (KLR)

Environment and Land Court
8 February 2022
4,001 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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Kenya's National Land Commission revoked a landowner's title without giving him a hearing, so the court cancelled that decision.

What this practically means

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Executive summary

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The petitioner, Francis Githinji Ngatia, challenged a determination of the National Land Commission gazetted on 9/11/2018 (Gazette Notice No 11714) which, in exercise of its grants-review mandate under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act, directed the revocation of his title to land parcel Ndumberi/Riabai/2673 on the ground that it was reserved as part of Kirigiti Market, with a recommendation that he be issued a lease by the Kiambu County Government. He sought declarations of rights violations, certiorari, prohibition, reinstatement of land records and survey maps, a declaration of lawful ownership and damages. The National Land Commission did not respond despite service, leaving the allegations of procedural impropriety uncontroverted. Eboso J found that the petitioner was never supplied with the complaint against his title nor invited to a hearing, breaching Articles 47 and 50, and that uncontroverted evidence of no hearing warranted quashing of the decision. The court, however, declined to declare the petitioner the lawful owner: the land existed as public land of the Kiambu County Council until 1998, no state organ had challenged the title, and the petitioner's predecessor Lucy Kimani was not joined. The 2nd, 3rd, 4th and 5th respondents were found not privy to the violations. The court declared the violations, quashed the Gazette Notice decision and consequential register entries, awarded nominal damages of Kshs 100,000 against the Commission, reserved title-validity questions to proper proceedings, and awarded the petitioner costs against the 1st respondent.

Key legal issues

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01

Whether the 1st respondent violated the petitioner's rights under Articles 47 and 50 in the grant review process

Holding

Yes - the petitioner was never supplied with the complaint or supporting documents and was not invited to a hearing; the procedure was procedurally unfair

Reasoning

The National Land Commission was served but filed no response or submissions, leaving the allegations of procedural impropriety uncontroverted. On the petitioner's uncontroverted evidence, no complaint was availed and no hearing was conducted before the decision revoking his title was gazetted. Such a failure to afford a hearing breached Articles 47 and 50 and the Fair Administrative Actions Act, warranting quashing of the decision and damages.

p. 4
02

Whether the petition was the appropriate forum to declare the petitioner the lawful owner of the suit property

Holding

No - the court declined to make a conclusive pronouncement on the title's validity

Reasoning

Since the petitioner was never given the allegations, the court could not know who challenged the title or on what grounds. The register showed the land as public land of Kiambu County Council until 1998, but no state organ had challenged the title and no evidence of disposal was presented. Further, Lucy Kimani, the predecessor who obtained the title from the Council, was not joined. Title validity must be litigated in proper proceedings with the necessary parties.

p. 5
03

Whether the other respondents violated the petitioner's rights

Holding

No evidence of violation by the 2nd, 3rd, 4th and 5th respondents

Reasoning

No evidence was tendered showing that the other respondents were privy to the violations committed by the National Land Commission or to any other violations. The 3rd respondent's deponent confirmed the property remained registered in the petitioner's name and the impugned decision had not been implemented. Relief was therefore confined to the 1st respondent.

p. 5

Legal principles established

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  • A decision affecting a person's rights made without affording a hearing and without disclosure of the allegations against them violates Articles 47 and 50 of the Constitution and is liable to be quashed; uncontroverted allegations against a defaulting party will be accepted by the court
  • A constitutional petition raising procedural impropriety is not the appropriate platform for conclusive declarations on the validity or legality of a title absent the necessary parties and evidence

Court orders

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  1. 1.Declaration that the 1st respondent, in its grant review determination relating to title number Ndumberi/Riabai/2673, 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.An order quashing the grant review decision of the 1st respondent relating to Title Number Ndumberi/Riabai/2673 contained in Legal Notice No 11714 in Kenya Gazette Vol CXX-No 138 dated 9/11/2018, and any rectifications or cancellations made in the relevant land register or records as a consequence of the said decision
  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/2673 may be adjudicated in proper proceedings involving the necessary parties
  5. 5.The 1st respondent shall bear the petitioner's costs of this petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 3, 27, 35, 40, 47, 48, 50, 50(1), 67(2), 68(c)(v), 68(v), 165(6), 260
  • National Land Commission ActSections 6, 14, 14(3), 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
Articles 47, 50 and 165 of the Constitution of Kenya 2010; review of grants under Article 68(c)(v) 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, "Francis Githinji Ngatia v National LandmCommission & 4 others [2022] KEELC 1261 (KLR)", Case Analysis (2022). Thika ELC Petition No. 17 of 2019 (companion to Thika ELC Petition No. 16 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1261/eng@2022-02-08

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