Republic v National Land Commission & another; County Government of Kiambu (Interested Party); Kariuki (Exparte) (Judicial Review 7B of 2021) [2022] KEELC 3182 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the National Land Commission's recommendation to revoke land titles because the owner was never given a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission's recommendation to revoke the Applicant's titles, made without notice or hearing, was procedurally improper and liable to be quashed
Yes. The Applicant, as registered owner adversely affected by the recommendation, was entitled to prior notice and a hearing under Article 47, Article 50(1) and Section 4 of the Fair Administrative Actions Act; the failure to afford a hearing rendered the decision null and void, justifying certiorari.
The court traced the judicial review grounds of illegality, irrationality and procedural impropriety per Lord Diplock, and held the audi alteram partem rule fundamental. Section 15 of the National Land Commission Act permits the Commission to summon persons, but Section 14(8) requires compliance with Article 47 principles. No evidence of notice to the Applicant was tabled. A decision reached without hearing the affected party is a nullity, and quashing and prohibition orders followed.
Whether the 2nd Respondent has power to revoke/cancel the Certificates of Title
No. In the circumstances of this case the power to cancel titles is the preserve of the Court.
While Article 40(6) withdraws constitutional protection from unlawfully acquired property, the court held that any taint on a title must still be examined and determined through due process of law. The court firmly found that the 2nd Respondent does not enjoy the power in law, in the circumstances of this case, to cancel titles, justifying the order of prohibition.
Legal principles established
#- A decision made in breach of the rules of natural justice is null and void ab initio, irrespective of whether the same decision would have been reached absent the breach.
- Even where a title may be tainted by unlawfulness, revocation must follow due process of law; cancellation of titles is the preserve of the Court, not the 2nd Respondent.
- Judicial review concerns the decision-making process, not the merits of the decision.
Court orders
#- 1.Certiorari: quashing the decision of the 1st Respondent made on 1/3/2019 through Gazette Notice No. 1995 dated 1/3/2019 as concerns the suit lands, recommending that the titles be revoked/cancelled by the 2nd Respondent
- 2.Prohibition: prohibiting the 2nd Respondent from revoking/cancelling the titles for LR No. 25484/20 and LR No. 25484/21
- 3.No orders as to costs
- Jurisdiction invoked
- Judicial review jurisdiction (orders of certiorari and prohibition) pursuant to leave granted on 29/7/2019; substance anchored on Articles 40, 47, 50 and 67(2)(e) of the Constitution and the Fair Administrative Actions Act and National Land Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another; County Government of Kiambu (Interested Party); Kariuki (Exparte) (Judicial Review 7B of 2021) [2022] KEELC 3182 (KLR)", Case Analysis (2022). Judicial Review Motion dated 14th August 2019 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3182/eng@2022-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.