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ELCPartially AllowedELC Miscellaneous Application No 176 of 2018 (Judicial Review)· [2022] KEELC 3888 (KLR)

Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Milicons Limited (Exparte Applicant) (Miscellaneous Civil Application 175 of 2018) [2022] KEELC 3888 (KLR)

Environment and Land Court
25 July 2022
4,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a 14-day eviction notice for ignoring the Land Act's mandatory three-month notice and proper service rules.

What this practically means

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Executive summary

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The applicant, a registered proprietor of LR No 25471, sought judicial review of a public notice dated September 25, 2018 issued by the National Buildings Inspectorate and the Multi-Sectoral Committee On Unsafe Structures, calling on persons who had encroached on Kenya Airports Authority land at JKIA to demolish and vacate within 14 days. The applicant claimed it was never heard, that the notice was issued by a body unknown in law under repealed legislation (the Wayleaves Act and the Physical Planning Act cap 286), and that it breached the Fair Administrative Action Act, natural justice and its legitimate expectation. The 1st, 3rd and 5th respondents defended the notice on grounds of aviation safety and public interest, while the 4th respondent denied issuing any enforcement notice. The court, applying settled judicial review principles, held that neither the National Buildings Inspectorate nor the Multi-Sectoral Committee was an illegal entity. It held that persons treated as trespassers are not entitled to a hearing before an eviction notice, but evictions must comply with sections 152A to 152I of the Land Act, 2012, which require three months' notice and prescribed service. The impugned notice gave only 14 days, rested on repealed laws, and lacked evidence of proper service; it was therefore illegal, null and void. Certiorari was granted quashing the notice as concerns the applicant and its land, and prohibition was granted but limited to actions taken pursuant to that notice. The declaration of ownership and the wide prohibitory orders were refused, as ownership disputes require a full civil suit with viva voce evidence and KAA was not joined. The applicant received half the costs against the 1st respondent.

Key legal issues

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01

Whether the National Buildings Inspectorate and the Multi-Sectoral Committee On Unsafe Structures were illegal entities

Holding

Neither was an illegal entity; a Government Ministry may lawfully form an inter-agency committee to handle a mandate falling under it

Reasoning

The National Buildings Inspectorate exists in law, having been established in 2015, with the Executive Order merely placing it under the Ministry. The Multi-Sectoral Committee was composed of national and county government agencies formed to deal with unsafe structures. Forming such a committee is not unlawful and neither body was an illegal entity as claimed.

p. 7
02

Whether the targets of the public notice were entitled to be heard before its issuance

Holding

No; persons considered trespassers are not entitled to be heard before an eviction notice, but the eviction process itself must comply with the Land Act's inbuilt mechanisms

Reasoning

The notice was addressed to persons considered trespassers, and trespass is an offence under the Trespass Act and prohibited by section 152A of the Land Act. The law does not oblige a land owner to hear a trespasser; rather, sections 152A-152I of the Land Act provide the procedure, notice and right to approach the court before eviction.

p. 8
03

Whether the impugned notice was lawful

Holding

The notice was illegal, null and void: it was purportedly issued under repealed laws (Wayleaves Act, Physical Planning Act cap 286), gave only 14 days instead of the statutory 3 months' notice, and there was no evidence of service as required

Reasoning

Section 152C and 152E of the Land Act prescribe a 3 months' notice and a prescribed form and manner of service. The 14-day notice did not conform and there was no evidence of proper service. The notice, founded on repealed legislation, was therefore null and void and open to judicial review, warranting certiorari.

p. 8
04

Whether the prohibition order and declaration should issue as prayed

Holding

Prohibition granted only in limited terms (against acting on the impugned notice); declaration refused because ownership is under serious challenge and cannot be determined in judicial review

Reasoning

The prohibitory order sought was framed in wide terms premised on ownership, which the court cannot determine on affidavit evidence, and KAA, on whose behalf the notice was issued, was not joined. The declaration of ownership requires a normal civil suit with viva voce evidence.

p. 9

Legal principles established

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  • A person considered a trespasser on land is not entitled to be heard before being asked to vacate; what the law secures is the process and manner of eviction under sections 152A-152I of the Land Act, 2012
  • An eviction notice that falls short of the statutory notice requirements (3 months' notice and proper service under sections 152C and 152E of the Land Act) is illegal, null and void, and liable to be quashed
  • A dispute over ownership of land cannot be determined in judicial review proceedings through affidavit evidence; the proper forum is a civil suit with viva voce evidence

Court orders

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  1. 1.An order of certiorari issued to bring into court and quash the 1st respondent's decision contained in the public notice dated September 25, 2018 as concerns the applicant and LR No 25471
  2. 2.An order of prohibition issued prohibiting the 1st respondent, its servants, agents or employees from acting on the public notice dated September 25, 2018 as concerns the applicant and LR No 25471
  3. 3.The applicant awarded half (1/2) the costs of the application to be paid by the 1st respondent

Authorities

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Legislation

  • Wayleaves Actchapter 292 (repealed in 2012)
  • Physical Planning ActCap 286 (repealed)
  • Fair Administrative Action Act2015
  • Trespass Actsection 3
  • Land Actsections 152A, 152B, 152C, 152E, 152A-152I (as amended)

Cases cited (5)

  • Municipal Council of Mombasa v Republic & another
    [2002] eKLR
  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others
    NRB CA 28 of 2016, [2017] eKLR
  • Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others
    [2018] eKLR
  • Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
Jurisdiction invoked
High Court's supervisory judicial review jurisdiction (Law Reform Act, Order 53 Civil Procedure Rules) over illegal administrative decisions concerning land

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 Multi-Sectoral Committee on Unsafe Structures & 4 others; Milicons Limited (Exparte Applicant) (Miscellaneous Civil Application 175 of 2018) [2022] KEELC 3888 (KLR)", Case Analysis (2022). ELC Miscellaneous Application No 176 of 2018 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3888/eng@2022-07-25

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