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ELCPartially AllowedPetition dated September 5, 2017 (Nairobi ELC)· [2022] KEELC 3920 (KLR)

Wandemi Developers Limited v National Land Commission & another; Varsityville Residents Association (Interested Party) (Environment & Land Petition 29 of 2020) [2022] KEELC 3920 (KLR)

Environment and Land Court
28 July 2022
3,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, Ruiru Academy, purchased land parcel Ruiru/Ruiru East Block 7/46 in 2007 and challenged a gazette notice dated July 17, 2017 (legal notice 6865 table 13 item 18) by which the National Land Commission directed the revocation of its title. The petitioner argued that the Commission contravened its rights under articles 40, 47 and 50 of the Constitution by making the determination without affording it a hearing, particularly since the dispute over the same property was already pending in Nairobi ELC Case No 510 of 2015. The 1st and 2nd respondents did not respond. The interested party, Varsity Ville Residents Association, opposed the petition and filed a cross-petition seeking declarations that the land is community land reserved for a public school, cancellation of the petitioner's title, injunctions and damages. The court framed two issues: whether the petition was merited and whether the cross-petition was competent. Holding that fair hearing is a question of fact, and that the Commission failed to avail its proceedings or the minutes it was statutorily obliged to keep, the court found the petitioner proved on a balance of probabilities that it was denied a fair hearing. Relying on Robert Mutiso Lelli, the court further held that the Commission lacked jurisdiction to entertain the dispute while ELC 510 of 2015 was pending. The petition was allowed with declarations of violation of articles 47 and 50(1), certiorari quashing the impugned decision, and prohibition/mandamus protecting the title. The cross-petition, whose prayers duplicated those pending in ELC 510 of 2015, was dismissed as sub judice with costs. Judgment delivered virtually on July 28, 2022 by O. A. Angote, Judge.

Key legal issues

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01

Whether the NLC's decision revoking the petitioner's title violated articles 40, 47 and 50 of the Constitution

Holding

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.

Reasoning

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.

p. 7
02

Whether the NLC had jurisdiction to investigate the suit property while ELC 510 of 2015 was pending

Holding

No - the suit was filed in 2015 before the NLC's investigation, and the Commission cannot usurp the jurisdiction of a competent court.

Reasoning

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.

p. 8
03

Whether the cross-petition was competent

Holding

No - its prayers duplicate those in ELC 510 of 2015 and are sub judice; the cross-petition was dismissed.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The cross-petition dismissed with costs
  5. 5.The 1st respondent and the interested party to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 40, 47, 50(1), 60, 63(2)(a) and (b), 67(2), 68(c)(v)
  • National Land Commission Act No 5 of 2012section 14(1)-(7), schedule 4 section 19
  • Fair Administrative Action Act, 2015section 4(3)
  • Civil Procedure Actsection 6
  • Societies Act

Cases cited (12)

  • Republic v National Land Commission and Tropical Treasure Ltd ex-parte Krystalline Salt Limited
    [2015] eKLR
  • Judicial Service Commission v Mbalu Mutava & Anor
    [2015] eKLR
  • Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others
    [2014] eKLR
  • Hon Gideon Mbuvi alias Sonko v The Attorney General & Anor
    [2017] eKLR
  • Republic v National Land Commission Ex-parte Holborn Properties
    [2016] eKLR
  • Samuel Kimondo Theuri v Dr Mohammed Swazuri & 2 others
    ELC Petition No 28 of 2017 [unreported]
  • Tom Dola & 2 others v Chairman, National Land Commission & 5 others
    [2020] eKLR
  • Robert Mutiso Lelli and Cabin Crew Investments Ltd v National Land Commission & 3 others
    [2017] eKLR
  • Dr Alfred Mutua v Ethics and Anti-Corruption Commission & Others
    Civil Application Nairobi No 31 of 2016
  • Olusi & another v Abanobi & others
    Suit No CA/B/309/2008
  • United Cement Company of Nigeria v Dangote Industries Ltd & Minister of Solid Mineral Development
    /CA/A/165/2005
  • Ridge v Baldwin
    [1964] AC 40
Jurisdiction invoked
Articles 40, 47, 50 and 67 of the Constitution; National Land Commission Act No. 5 of 2012

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, "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.