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ELCDismissedJudicial Review Application (substantive notice of motion filed 6.12.2019, chamber summons dated 17.7.2019)· [2022] KEELC 1529 (KLR)

Republic v National Land Commission; Kenya Airports Authority (Interested party) [2022] KEELC 1529 (KLR)

High Court of Kenya (Judicial Review Division), Nairobi
9 February 2022
3,898 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 High Court confirmed the National Land Commission can investigate public land even after it has been transferred into private hands.

What this practically means

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Executive summary

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The ex-parte Applicant, owner of LR No. 25470/1 (I.R. No. 103792/1) in Embakasi, sought orders of certiorari to quash the National Land Commission's report on inquiries into titles within Jomo Kenyatta International Airport public land LR No. 21919, and prohibitory orders restraining the Commission from reviewing its title or requiring representations. The Applicant, a purchaser from Heartland Holdings Limited, argued that NLC's mandate extends only to the initial allottee of public land and that it was a bona fide purchaser for value without notice whose title could not be impeached; it also complained of breach of natural justice and relied on Article 40 of the Constitution. NLC opposed, contending it was conducting inquiries under Section 6 of the NLC Act into complaints by the Kenya Airports Authority that parcels within JKIA land had been illegally excised and allocated, and that its report contained only recommendations, not binding decisions. The court, per Lucy N. Mbugua J, framed two issues: NLC's jurisdiction and compliance with natural justice. Applying Krystalline Salt and the Court of Appeal decision in Tom Dola, the court held that a claim relating to public land can be raised even where the land has passed into private hands, and that NLC had jurisdiction to conduct the inquiries. On natural justice, the Applicant had appeared and made representations, and no prejudice was shown. Judicial review being confined to the decision-making process, the court would not examine the merits of the titles. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Jurisdiction of the National Land Commission over land now privately held

Holding

NLC had jurisdiction to conduct inquiries under Section 6 of the NLC Act into parcels falling within public land LR No. 21919, even though titles had been issued to the ex-parte Applicant and others.

Reasoning

The complaint by KAA related to public land (JKIA parcel 21919). The Commission's constitutional mandate under Article 67 includes investigating present or historical land injustices relating to public land. The Court of Appeal in Tom Dola confirmed the Commission's power to review grants of public land notwithstanding subsequent conversion to private title, and Krystalline Salt confirmed this jurisdiction.

p. 5
02

Compliance with rules of natural justice

Holding

The ex-parte Applicant failed to demonstrate any breach of natural justice; it appeared before the Commission, submitted documents and filed submissions, and suffered no prejudice from the manner of obtaining the report.

Reasoning

The Applicant admitted participating in the inquiry, presenting documents and written submissions. Its only complaint was not receiving a copy of the determination, but it had the report and nothing showed prejudice. The court in judicial review examines process, not merits, and found the process not flawed.

p. 5
03

Whether the impugned report was a review of grants or an inquiry

Holding

The proceedings before the Commission were inquiries and investigations under Section 6 of the NLC Act, not a review of grants under Section 14, and the report made recommendations only.

Reasoning

The impugned document was headed as a report on inquiries into titles within JKIA public land. The Commission did not revoke the title; it recommended revocation of one lease in favour of a lease on terms approved by KAA. A recommendation is advisory and not a legally binding decision amenable to certiorari.

p. 4

Legal principles established

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  • The National Land Commission has jurisdiction to inquire into the legality and propriety of disposal of public land even where such land is now registered in the hands of private entities.
  • Judicial review is confined to the decision-making process and the court must not delve into the merits of the decision under the 'forbidden appellate approach'.
  • A recommendation by the Commission is advisory only and does not amount to a binding decision capable of being quashed.

Court orders

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  1. 1.The substantive notice of motion dated (filed 6.12.2019) seeking certiorari and prohibition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67
  • Constitution of Kenya, 2010Article 40 (including 40(3))
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 162(2)
  • National Land Commission ActSections 6, 7, 14(1), 14(7)
  • Land Registration ActSections 26, 80
  • Land Acquisition Act (now repealed)General procedure for compulsory acquisition
  • Aerodrome ActGazette Notice Nos. 1149 and 1150 of 1953 (referred)

Cases cited (14)

  • Owners of Motor Vehicle Lillian "S" vs. Caltex Limited
    No. 1989 Kenya Law Report 1
  • Isaac Gathungu Wanjohi and another vs. AG and 6 Others
    (2012) eKLR
  • Charles Karathe Kiarie and 2 Others vs. Administrators of the Estate of John Wallance Muthare (Deceased) and 5 others
  • Virendra Ramji Gudka and 3 others vs Attorney General
    (2014) eKLR
  • Republic vs. National Land Commission 2 others, Ex-parte Archiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    (2018) eKLR
  • Republic vs. National Land Commission ex-parte Krystalline Salt Limited
    [2015] eKLR (also cited as 33 of 2014)
  • Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya Suing through its Chairman Robert Njoka Ex-parte Applicant
    (2019) eKLR
  • Republic vs. Cabinet Secretary for Interior and Co-ordination National Government and another (Peter Adiele Mmegwa and another
    2020 eKLR
  • Republic v National Land Commission & 4 others Ex parte Mutuma Angaine & 4 others; Ontulili Mt. Kenya Forest Squatters & 3 others Interested Parties
    [2021] eKLR
  • Pastoli V Kabale District Local Government Council & Others
    [2008] E.A. 300 at 303-304
  • Pati Limited vs. Funzi Island Development Limited & 4 Others
    (2021) eKLR
  • Tom Dola & Others v Chairman, National Land Commission & 5 Others
    (2020) eKLR
  • Vekariya Investment Limited vs. Kenya Airports Authority & 2 Others
    (2014) eKLR
  • Kenya Airports Authority v Wambua Mila & 1066 Others
    (2021) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; review of administrative action of NLC under Article 47 of the Constitution and the Fair Administrative Action Act framework; Article 67 and National Land Commission Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v National Land Commission; Kenya Airports Authority (Interested party) [2022] KEELC 1529 (KLR)", Case Analysis (2022). Judicial Review Application (substantive notice of motion filed 6.12.2019, chamber summons dated 17.7.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1529/eng@2022-02-09

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