Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Milicons Limited (Exparte Applicant) (Miscellaneous Civil Application 175 of 2018) [2022] KEELC 3888 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the National Buildings Inspectorate and the Multi-Sectoral Committee On Unsafe Structures were illegal entities
Neither was an illegal entity; a Government Ministry may lawfully form an inter-agency committee to handle a mandate falling under it
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.
Whether the targets of the public notice were entitled to be heard before its issuance
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
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.
Whether the impugned notice was lawful
The notice was illegal, null and void: it was purportedly issued under repealed laws (Wayleaves Act, Physical Planning Act cap 286), gave only 14 days instead of the statutory 3 months' notice, and there was no evidence of service as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
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 The notice, founded on repealed legislation, was therefore null and void and open to judicial review, warranting certiorari.
Whether the prohibition order and declaration should issue as prayed
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
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.
Legal principles established
#- 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
#- 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.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.The applicant awarded half (1/2) the costs of the application to be paid by the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.