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ELCPartially AllowedPetition No 3 of 2020· [2022] KEELC 2234 (KLR)

Del Monte Kenya Limited v National Land Commission & another; Kandara Residence Association & 3 others (Interested Parties) (Petition 3 of 2020) [2022] KEELC 2234 (KLR)

Environment and Land Court
28 April 2022
11,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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Kenya's land court quashed the National Land Commission's decision against Del Monte because the company was never properly heard before the decision was made.

What this practically means

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Executive summary

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Del Monte Kenya Limited petitioned the Environment and Land Court at Murang'a seeking declarations that National Land Commission proceedings in historical land injustice complaint NLC/HLI/004/2017 (Kandara Residents Association v Del Monte Kenya Limited) violated its constitutional rights, certiorari to quash the Commission's determination of February 7, 2019 and Gazette Notice No. 1995, an order of prohibition against further complaints over its suit lands, and a declaration that section 15(3)(b)(i) of the National Land Commission Act was unconstitutional. The Commission and interested parties opposed, contending the petitioner was heard throughout and that the ELC lacked jurisdiction. The court framed five issues. On jurisdiction, it held the ELC is clothed with jurisdiction under article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act, it being immaterial how the suit is instituted, and article 23 permits prerogative orders in constitutional petitions. On the merits, the court found the petitioner was not accorded an opportunity to ventilate its case: the Commission ignored its preliminary objection, admitted bias during mediation yet proceeded to determine the complaint, and failed to produce the record of the alleged September 27, 2018 hearing, shifting the evidentiary burden to the Commission. Both the article 50(1) right to fair hearing and the article 47 right to fair administrative action were held violated. However, section 15(3)(b)(i) of the National Land Commission Act was held constitutional, consistent with the three-judge bench Malindi Petitions decision and Gathoni Park Farm, the right to property under article 40 not being absolute. The petition partially succeeded: the impugned determination and Gazette Notice were quashed and general just orders granted, but the unconstitutionality declaration and prohibition orders were refused. Being a public interest matter, there were no orders as to costs.

Key legal issues

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01

Jurisdiction of the ELC over the petition

Holding

The petition is properly before the ELC, which has jurisdiction under article 162(2)(b) and section 13(2) of the ELC Act to hear constitutional petitions and grant prerogative orders on land matters

Reasoning

The petition sought prerogative orders and constitutional enforcement over land disputes, not a renewal of leases as the 1st respondent contended. Article 23 now allows prerogative orders by way of constitutional petitions, and section 128 of the Land Act refers land disputes to the ELC. The NLC's mandate to renew leases cannot be usurped, but this petition sought quashing of its determination for rights violations.

p. 15
02

Violation of the right to fair hearing (article 50(1))

Holding

The petitioner's right to fair hearing was infringed because it was not accorded an opportunity to ventilate its case before the determination

Reasoning

Although the petitioner was represented at preliminary sessions, the Commission refused to hear its preliminary objection, admitted bias during mediation yet proceeded to determine the complaint, and failed to produce minutes or proceedings of the alleged September 27, 2018 hearing. The evidentiary burden shifted to the 1st respondent, which failed to discharge it; the 3rd interested party corroborated that no fair hearing occurred.

p. 18
03

Violation of the right to fair administrative action (article 47)

Holding

The right to fair administrative action was violated because the 1st respondent, as an administrator under the Fair Administrative Action Act, 2015, determined the complaint without giving the petitioner an opportunity to be heard

Reasoning

Section 4(3) of the Fair Administrative Action Act required prior and adequate notice, an opportunity to be heard and disclosure of evidence relied upon. The Commission relied on 80 affidavits never availed to the petitioner and issued a determination after calling off mediation on admitted bias. A decision violating natural justice cannot stand regardless of its merits.

p. 21
04

Constitutionality of section 15(3)(b)(i) of the National Land Commission Act

Holding

Section 15(3)(b)(i) is constitutional; the right to property under article 40 is not absolute and the section was enacted pursuant to article 67(3)

Reasoning

Historical land injustice investigation is a constitutional mandate of the NLC under article 67(1)(e). The presumption of constitutionality was not rebutted, and previous decisions of coordinate and three-judge benches (Malindi Petitions; Gathoni Park Farm) upheld the section, finding that distinctions drawn pursue a legitimate aim and are not discriminatory.

p. 25

Legal principles established

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  • Failure to accord a party a hearing renders the resulting administrative decision invalid and liable to be quashed, even if the decision would otherwise be correct on the merits
  • The Environment and Land Court has jurisdiction to hear constitutional petitions concerning land regardless of the mode of initiation, and may grant prerogative orders in constitutional petitions under article 23
  • An evidentiary burden may shift to a respondent who is in custody of the records of proceedings it alleges were conducted

Court orders

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  1. 1.A declaration that the petitioner's right to fair hearing under article 50(1) of the Constitution was infringed, denied and/or violated by the 1st respondent
  2. 2.A declaration that the petitioner's right to fair administrative action under article 47 of the Constitution was violated
  3. 3.An order of certiorari quashing the determination of the National Land Commission's Historical Land Injustices Committee dated February 7, 2019 in NLC/HLI/004/2017 (prayer 4)
  4. 4.An order of certiorari quashing Gazette Notice Number 1995 dated February 18, 2019 in so far as it relates to the petitioner's parcels of land (prayer 5)
  5. 5.Such other orders as deemed fit and just in terms of prayer 2(f)
  6. 6.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 10, 19, 20, 23, 24, 25, 27, 40, 46, 47, 50, 60, 62, 67, 162(2)(b), 249(1)(c), 259, Chapter Five, Chapter Six
  • National Land Commission ActSections 15(1), 15(3), 15(3)(b)(i) and (ii)
  • Environment and Land Court ActSections 13(2), 13(7)
  • Land ActSections 13, 128
  • Fair Administrative Action Act, 2015Sections 2, 3, 4(3), 6
  • Limitation of Actions Act (Cap. 22)Section 7
  • Evidence ActSections 107-109
  • Civil Procedure ActSection 27
  • Land Laws (Amendment) Act, 2016Section 38
  • Land (Extension and Renewal of Leases) (Amendment) Rules 2020 / Rules 2017Rules 7(5), 10-18
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013General
  • National Land Commission (Historical Land Injustices) Rules, 2016 (draft)General
  • National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017 (annulled)General

Cases cited (21)

  • Sceneries Limited v National Land Commission
    [2017] eKLR
  • Japheth Pasi Kilonga & 8 others v Mombasa Autocare Limited
    [2015] eKLR
  • Delmonte Kenya Limited vs County Government of Murang'a & another
    [2019] eKLR
  • Malindi Law Society & 12 others v Attorney General & 2 others (Petition 16 of 2016 consolidated with Petition 291 of 2016)
    [2021] KELC 168 (KLR)
  • RM v Attorney General
    (2008) 1 KLR 574
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    Nairobi Civil Appeal No. 244 of 2010 [2019] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    [1989] eKLR
  • Kipsiwo Community Self Help Group vs Attorney General and 6 others
    [2013] eKLR
  • Patrick Musimba vs National Land Commission & 4 others
    [2015] eKLR
  • Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others
    [2014] eKLR
  • Ahmed Mohammed Noor vs Abdi Aziz Osman
    [2019] eKLR
  • Judicial Service Commission vs. Mbalu Mutava & another
    Civil Appeal 52 of 2014 [2015] eKLR
  • Republic vs. Registrar of Companies ex parte Githungo
    [2001] KLR 299
  • Egal Mohamed Osman vs. Inspector General of Police & 3 others
    [2015] eKLR
  • The Management of Committee of Makondo Primary School and another vs. Uganda National Examination Board
    HC Civil Misc Application No. 18 of 2010
  • Onyango Oloo vs. Attorney General
    [1986-1989] EA 456
  • Republic v National Land Commission & 2 Others, Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    [2018] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    (2013) eKLR
  • Commission for Implementation of the Constitution v Parliament of Kenya & another
    High Court Petition No 454 of 2012
  • Ndyanabo v Attorney General
    [2001] EA 495
  • Gathoni Park Farm Limited vs National Land Commission & 7 others
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with section 13(2) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Del Monte Kenya Limited v National Land Commission & another; Kandara Residence Association & 3 others (Interested Parties) (Petition 3 of 2020) [2022] KEELC 2234 (KLR)", Case Analysis (2022). Petition No 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2234/eng@2022-04-28

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