Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare association (Interested Party) [2022] KEELC 1996 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld the National Land Commission's power to revoke titles to public land, even after the land was allocated to private owners.
What this practically means
#Executive summary
#Key legal issues
#Whether the supervisory jurisdiction application was properly instituted by Originating Notice of Motion.
Yes. The Mutunga Rules repealed only Part III of the Gicheru Rules; the procedure for invoking supervisory jurisdiction remains an Originating Notice of Motion under Rule 2 of the Gicheru Rules.
The court traced the Gicheru Rules (2006) and the Mutunga Rules (2013), holding that the latter repealed only Part III on enforcement of fundamental rights. The supervisory and interpretation jurisdiction procedures in the Gicheru Rules survived. The Applicant therefore moved the court correctly, and the Interested Party's preliminary objection failed, although some cited Gicheru Rules were irrelevant.
Whether the National Land Commission had jurisdiction to review a title to land that had become private land upon alienation.
Yes. The review power under section 14 extends to grants of public land alienated to private persons, because the mandate is to probe the conversion of public land into private land.
Relying on section 9(2) of the Land Act and the authorities of Muktar Saman Olow and Holborn Properties, the court held that once public land is alienated it becomes private land, and section 14 exists precisely to examine the propriety of such alienation. The Interested Party's complaint was that land reserved as an open space was irregularly allocated, which falls squarely within the Commission's review mandate; the Commission was not adjudicating ownership between private rivals.
Whether the Applicant received a fair hearing and fair administrative action before the Commission.
Yes. The Applicant saw the newspaper notice naming him and his parcel, was served with the complaint and documents, filed a reply through advocates, and his advocates attended the hearing where the complainant's surveyor testified.
The court reviewed sections 14(3) and 14(8) of the National Land Commission Act and Article 47 of the Constitution. It found the Applicant had notice, participated through TripleOKLaw Advocates, filed a reply and affidavit, and never protested insufficient time. He chose not to give evidence. The material (survey map and surveyor evidence) showed the land was reserved as an open space, and the Applicant never challenged that evidence. Natural justice was observed.
Whether the Commission could make a determination and direct revocation of title rather than merely recommend redress.
Yes. Sections 14(4), (5) and (6) of the National Land Commission Act empower the Commission to make a determination, direct revocation for unlawful acquisitions, and correct irregularities.
Article 67(3) allows Parliament to confer additional functions on the Commission. Whether labelled a recommendation or determination, the effect is a decision after review. Finding the land reserved as an open space and thus unavailable for allocation, the Commission was justified in directing revocation and reversion to the reserved public purpose. The correction of the parcel number was a permissible rectification of a typographical error causing no prejudice.
Whether the Commission's correction of its determination and the gazettement amounted to contempt of the orders of 13th October 2016 and 5th December 2016.
No. The orders stayed execution only, and no evidence showed execution while they were in force.
The court distinguished between staying execution of a decision and restraining its correction or gazettement. Contempt must be proved with evidence that the stayed decision was executed; the Applicant led none. The Gazette Notice of 17th July 2017 did not therefore breach the subsisting orders, and the declaration of contempt and certiorari against the second determination and Gazette Notice No. 6862 could not issue.
Legal principles established
#- Once public land is alienated to a private person it becomes private land, but the National Land Commission may still review the grant under section 14 of the National Land Commission Act because the review targets the conversion of public land to private use.
- The Commission's powers under section 14(4), (5) and (6) of the National Land Commission Act include making a determination and directing revocation of titles, not merely recommending redress.
- A body exercising review powers without rules of procedure must still observe the rules of natural justice, including adequate notice and an opportunity to be heard.
- A quasi-judicial body has power to correct typographical and arithmetical errors in its decisions.
- An order staying execution of a decision does not restrain the decision-maker from correcting or gazetting the decision absent an express restraint, and contempt must be proved.
- Supervisory jurisdiction under Article 165(6) and (7) is invoked by Originating Notice of Motion under the Gicheru Rules, which were only partially repealed by the Mutunga Rules.
Court orders
#- 1.The Interested Party's preliminary objection on the mode of bringing the application is dismissed (the application is properly before the court).
- 2.The Applicant's amended Originating Notice of Motion dated 18th December 2018 is dismissed.
- 3.The Respondents and the Interested Party are awarded the costs of the application.
- Jurisdiction invoked
- Article 165(6) and (7) of the Constitution (supervisory jurisdiction), read with section 7 of the Fair Administrative Action Act, 2015 and section 13 of the Environment and Land Court Act, 2011; procedure under the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 (Gicheru Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare association (Interested Party) [2022] KEELC 1996 (KLR)", Case Analysis (2022). Misc Application No 227 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1996/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.