Del Monte Kenya Limited v National Land Commission & another; Kandara Residence Association & 3 others (Interested Parties) (Petition 3 of 2020) [2022] KEELC 2234 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the petition
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
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.
Violation of the right to fair hearing (article 50(1))
The petitioner's right to fair hearing was infringed because it was not accorded an opportunity to ventilate its case before the determination
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.
Violation of the right to fair administrative action (article 47)
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
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.
Constitutionality of section 15(3)(b)(i) of the National Land Commission Act
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)
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.
Legal principles established
#- 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
#- 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.A declaration that the petitioner's right to fair administrative action under article 47 of the Constitution was violated
- 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.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.Such other orders as deemed fit and just in terms of prayer 2(f)
- 6.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- ADOMONYANG WYANYANG v CHEPTUKECH LEMPONG & 2 others[2024] KEELC 691 (KLR)15 Feb 2024
- Akithi Ranching (Directed Agricultural) Company Limited v District Land Adjudication & Settlement Officer – Tigania East & West Districts & 4 others; Muthaura & 4 others (Interested Parties) (Suing on Behalf of themselves and on Behalf of more than 3316 Residents of Rwanda location in Tigania Meru County Collectively known as Rwanda Residents) (Environment & Land Petition 3 of 2018) [2023] KEELC 721 (KLR)[2023] KEELC 721 (KLR)15 Feb 2023
- Malindi Law Society v Attorney General & 2 others [2020] KEELC 3477 (KLR)[2020] KEELC 3477 (KLR)28 Feb 2020
Cite this brief
#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.