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ELCPartially AllowedPetition dated August 12, 2020 (Environment and Land Court, Thika)· [2022] KEELC 3100 (KLR)

Maina v National Land Commission & 4 others (Environment & Land Petition 7 of 2020) [2022] KEELC 3100 (KLR)

Environment and Land Court
7 June 2022
BEB M Eboso
3,952 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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The National Land Commission revoked a Kiambu landowner's title without a hearing, and the court cancelled that decision and awarded her damages.

What this practically means

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Executive summary

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This was one of a series of petitions challenging the National Land Commission's determination and directions published in Gazette Notice No 11714 on November 9, 2018, revoking the petitioner's title to land parcel Ndumberi/Riabai/2676, a subdivision of land formerly registered in the name of Kiambu County Council, and directing re-planning of the land as a market. The petitioner, a purchaser for value since 1998, claimed the Commission reviewed her title without availing the complaint against her, without a hearing after scheduled hearings were postponed, and after the Commission's five-year review mandate had lapsed on May 2, 2017, and sought quashing, prohibition, declarations of ownership, reinstatement of records and damages. The Commission admitted it made the determination without a further hearing due to time constraints; the State respondents maintained the land was reserved public utility land and that Article 40 does not protect illegally acquired property. The court framed two issues and held that the failure to avail the complaint, the absence of a hearing, the post-mandate determination and the backdating of the Gazette Notice violated the petitioner's rights under Articles 47 and 50. However, it declined to pronounce conclusively on the validity of the title, since the complaint was never disclosed, no state organ challenged the title, and Lucy Kimani, the root-holder, was not joined. The petition partially succeeded: the impugned decision was quashed, nominal damages of Kshs 100,000 were awarded against the Commission, validity issues were left to ordinary civil proceedings, and the Commission was ordered to bear the petitioner's costs.

Key legal issues

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01

Whether the petitioner's right to fair hearing and fair administrative action was violated by the 1st respondent's grants review determination

Holding

Yes - the petitioner was never availed the complaint against her title nor invited to a hearing after adjournments, and the Commission backdated its decision after its term lapsed

Reasoning

The court found on the evidence that the Commission neither supplied the written complaint and supporting documents nor reconvened the postponed hearing. With its five-year term expired and no extension obtained, the Commission made a determination without the envisaged hearing and backdated the Gazette Notice. This breached Articles 47 and 50 and the Fair Administrative Actions Act, warranting quashing of the decision.

p. 6
02

Whether the petition was the appropriate platform to pronounce on the validity of the petitioner's title

Holding

No - the court declined to make conclusive findings on title validity

Reasoning

The court gave three reasons: it did not know who challenged the title or on what grounds since the petitioner never saw the complaint; there was no evidence or challenge by state organs regarding disposal of the 1998 public land; and Lucy Kimani, the immediate root-holder from the Kiambu County Council title, was not joined. Any validity dispute must go to an ordinary civil suit.

p. 7
03

Whether the other respondents violated the petitioner's rights

Holding

No - no violation by the 2nd, 3rd, 4th or 5th respondents was established

Reasoning

The court found no conclusive evidence that the other respondents were privy to the violations committed by the Commission or to any other violations. The petitioner had also not adduced evidence of the previous state of the register or survey map, nor that she sought and was denied records.

p. 7

Legal principles established

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  • A grants review determination made without affording the affected title-holder a hearing violates the rights to fair hearing and fair administrative action and warrants quashing
  • A constitutional petition raising procedural issues is not the proper vehicle to conclusively determine the legality or validity of a title; such issues belong in an ordinary civil suit with all necessary parties

Court orders

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  1. 1.Declaration that the 1st respondent violated the petitioner's right to a fair hearing under Article 50(1) and fair administrative action under Article 47 in its grant review determination relating to title number Ndumberi/Riabai/2676
  2. 2.Quashing of the 1st respondent's grant review decision relating to Title Number Ndumberi/Riabai/2676 contained in Legal Notice No 11714 in Kenya Gazette Vol CXX-No 138 dated November 9, 2018, together with any rectifications or cancellations made in the land register or records as a consequence
  3. 3.The 1st respondent to pay the petitioner nominal general damages of Kshs 100,000
  4. 4.Issues relating to the validity, legality or lawfulness of Title Number Ndumberi/Riabai/2676 may be adjudicated in proper ordinary civil proceedings involving the necessary parties
  5. 5.The 1st respondent to bear the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 27, 35, 40, 47, 48, 50, 67(2), 68(c)(v), 165(6), 260
  • National Land Commission ActSection 14
  • Land Registration ActSection 26
  • Interpretation and General Provisions ActSection 23(3)
  • Fair Administrative Actions Actgeneral framework

Cases cited (3)

  • Katende v Havidas & Co Ltd
    (2008)2 EA 173
  • 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; 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, "Maina v National Land Commission & 4 others (Environment & Land Petition 7 of 2020) [2022] KEELC 3100 (KLR)", Case Analysis (2022). Petition dated August 12, 2020 (Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3100/eng@2022-06-07

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