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ELCPartially AllowedJudicial Review Motion dated 14th August 2019 (case number not stated in the judgment)· [2022] KEELC 3182 (KLR)

Republic v National Land Commission & another; County Government of Kiambu (Interested Party); Kariuki (Exparte) (Judicial Review 7B of 2021) [2022] KEELC 3182 (KLR)

Environment and Land Court
6 June 2022
2,863 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Exparte Applicant, registered owner of LR No. 25484/20 and LR No. 25484/21, obtained leave and filed a substantive Notice of Motion seeking certiorari to quash the National Land Commission's decision communicated through Gazette Notice No. 1995 of 1st March 2019 recommending revocation/cancellation of his titles, and prohibition restraining the 2nd Respondent from revoking the titles. He complained that he was never invited to appear before, heard by, or given an opportunity to inspect documents before the Commission, contrary to Articles 40, 47 and 50 of the Constitution and Section 4 of the Fair Administrative Actions Act. Though served, the Respondents and Interested Party did not oppose the motion. Applying the established framework of judicial review (illegality, irrationality, procedural impropriety per Lord Diplock in Council for Civil Services Unions), the court held that the right to be heard is a fundamental principle of justice binding the Commission under Sections 14(8) and 15 of the National Land Commission Act and Article 47. A decision reached without hearing the affected party is null and void ab initio. Further, even if a title were tainted by unlawful acquisition under Article 40(6), cancellation could only occur through due process, and in the circumstances the 2nd Respondent had no legal power to cancel titles, that power being the preserve of the Court. The court granted certiorari quashing the Gazette Notice recommendation and prohibition against the 2nd Respondent, and made no orders as to costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 6
02

Whether the 2nd Respondent has power to revoke/cancel the Certificates of Title

Holding

No. In the circumstances of this case the power to cancel titles is the preserve of the Court.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Prohibition: prohibiting the 2nd Respondent from revoking/cancelling the titles for LR No. 25484/20 and LR No. 25484/21
  3. 3.No orders as to costs

Authorities

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Legislation

  • National Land Commission ActSection 14(3); Sections 6 and 15; Section 14(8)
  • Fair Administrative Actions ActSection 4 (also cited as Section 14 in submissions)
  • Constitution of Kenya, 2010Articles 40, 40(6), 47, 50, 50(1), 67(2)(e)
  • Halsbury's Laws of England, 5th Edition 2010 Vol. 61para 639

Cases cited (6)

  • Super Nova Properties Ltd Vs The National Land Commission
    (2019) eKLR
  • Council for Civil Services Unions vs Minister for Civil Service
    (1985) AC 374 at 401D
  • Municipal Council of Mombasa vs Republic and Another
    2002 eKLR 223 Civil Appeal No. 185 of 2001
  • Republic vs Kenya Power and Lighting Company Limited & another
    [2013] eKLR
  • Sceneries Limited v National Land Commission
    (2017) eKLR
  • (HCK)
    [2006] 2 KLR 553
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

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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, "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.