Wandemi Developers Limited v National Land Commission & another; Varsityville Residents Association (Interested Party) (Environment & Land Petition 29 of 2020) [2022] KEELC 3920 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the National Land Commission's revocation of Ruiru Academy's land title because the school was never given a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the NLC's decision revoking the petitioner's title violated articles 40, 47 and 50 of the Constitution
Yes - the petitioner was not afforded a fair hearing; the NLC failed to avail its proceedings or minutes as mandated by section 19 of the NLC Act, so the petitioner proved the violation on a balance of probabilities.
The petitioner attended the hearing of January 30, 2017 and objected on the ground of a pending suit, after which the panel resolved to halt proceedings. No further communication or proceedings were availed despite the NLC's statutory duty to keep minutes under schedule 4, section 19 of the NLC Act. The 1st respondent did not participate in the proceedings, and the interested party could not prove a fair hearing on its behalf. Fair hearing is a question of fact depending on the circumstances of each case.
Whether the NLC had jurisdiction to investigate the suit property while ELC 510 of 2015 was pending
No - the suit was filed in 2015 before the NLC's investigation, and the Commission cannot usurp the jurisdiction of a competent court.
Relying on Robert Mutiso Lelli, the court held that where litigation over the same subject matter is pending, the NLC should not remove the pith of the litigation and render the court's decision nugatory. The dispute over the suit property was pending since 2015, before the NLC's investigation, so the Commission lacked jurisdiction to entertain it.
Whether the cross-petition was competent
No - its prayers duplicate those in ELC 510 of 2015 and are sub judice; the cross-petition was dismissed.
The cross-petitioner sought declarations of community land, cancellation of the title and injunctions identical to the prayers in the plaint in ELC 510 of 2015. The court declined to make determinations similar to those pending in that suit, holding the issues should be ventilated there.
Legal principles established
#- No person should be condemned without being given an opportunity to be heard; where an administrative action adversely affects rights, prior notice and a hearing are required.
- A party asserting denial of fair hearing may shift the evidential burden to the administrative body, which must avail its proceedings; failure to do so means the claim is proven on a balance of probabilities.
- The National Land Commission must not usurp the powers of a court of competent jurisdiction over land already subject to pending litigation.
Court orders
#- 1.A declaration that the petitioner's right to fair administrative action under article 47 as read with the Fair Administrative Action Act 2015 and its right to a fair hearing under article 50(1) were violated
- 2.An order of certiorari to remove to the High Court and quash the decision of the 1st respondent contained in legal notice 6865 table 13 item 18
- 3.An order of prohibition prohibiting the 2nd respondent from revoking the petitioner's title on Ruiru/Ruiru East Block 7/46 or mandamus to restore the title if revocation had already been effected
- 4.The cross-petition dismissed with costs
- 5.The 1st respondent and the interested party to pay the costs of the petition
- Jurisdiction invoked
- Articles 40, 47, 50 and 67 of the Constitution; National Land Commission Act No. 5 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandemi Developers Limited v National Land Commission & another; Varsityville Residents Association (Interested Party) (Environment & Land Petition 29 of 2020) [2022] KEELC 3920 (KLR)", Case Analysis (2022). Petition dated September 5, 2017 (Nairobi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3920/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.