Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Dakawou Transport Limited (Exparte) (Miscellaneous Civil Application 176 of 2018) [2022] KEELC 3981 (KLR)
The bottom line
#A Kenyan court quashed a 14-day demolition notice for ignoring the Land Act's 3-month eviction procedure, even though the agency itself was lawful.
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
Both entities exist in law and were lawful; the committee was a lawful multi-agency body formed under the Ministry
The court found the National Buildings Inspectorate was established in 2015, not (as deposed) by Executive Order No. 1 of 2018 which merely placed it under the Ministry. The Multi-Sectoral Committee was composed of national and county government agencies with mandates including profiling and demolishing unsafe buildings and removing illegal structures. A Ministry may lawfully form such a committee. The applicant's contention that the notice-issuer was a body unknown in law therefore failed.
Whether the persons targeted by the notice were entitled to a hearing before it was issued
No; persons considered trespassers are not entitled to be heard before being asked to vacate, but evictions must follow the statutory procedure
Relying on sections 3 of the Trespass Act and 152A and 152B of the Land Act, the court held the notice was an eviction notice addressed to trespassers. The law places no obligation on a landowner to hear a trespasser before requiring vacation; instead the law secures the process of eviction, which includes statutory notice, a right to approach the court for relief, and a prescribed manner of eviction.
Whether the impugned notice was lawful
The notice was illegal, null and void because it gave 14 days instead of the statutory 3 months' notice and there was no evidence of service as required by the Land Act, and it purported to be issued under repealed statutes
Sections 152C and 152E of the Land Act, 2012 (as amended in 2016) prescribe a 3-month notice before eviction, a right to approach the court, and a manner of service. The 1st respondent gave only 14 days and no evidence of proper service was adduced. The notice also purported to be issued under the repealed Wayleaves Act and the repealed Physical Planning Act. It was therefore a nullity, and a null and void notice is open to review by the court.
Whether the orders of prohibition (as prayed) and declaration could issue
Prohibition was granted only in respect of the impugned notice; the declaration of ownership was refused as the ownership dispute cannot be determined in judicial review
There was an underlying ownership dispute between the applicant and KAA over the suit property, which the applicant acknowledged in correspondence and negotiations. The prohibitory order sought was framed too widely and could only issue upon a determination of lawful ownership, which requires joinder of KAA and viva voce evidence unavailable in judicial review. Prohibition was therefore limited to actions pursuant to the quashed notice.
Legal principles established
#- A person considered a trespasser on land is not entitled to be heard before being asked by the land owner to vacate; what the law secures is the process and manner of eviction, which requires compliance with the statutory eviction procedure
- An eviction notice that fails to comply with the notice periods, service and procedural requirements of sections 152C and 152E of the Land Act, 2012 is illegal, null and void and open to judicial review
- A dispute over ownership of land cannot be determined in judicial review proceedings by affidavit evidence; the applicant must file a normal civil suit and join the true claimant
- It is not unlawful for a Government Ministry to form a multi-agency committee to assist it in handling a mandate falling under it
Court orders
#- 1.An order of Certiorari is issued to bring into court for the purpose of being quashed the 1st respondent's decision contained in the public notice dated September 25, 2018 as concerns the Applicant and L.R. No. 25469
- 2.An order of Prohibition is issued prohibiting the 1st respondent by itself, its servants, agents, employees or whomsoever from acting on the public notice dated September 25, 2018 as concerns the applicant and L.R. No. 25469
- 3.The applicant shall have half (½) the costs of the application to be paid by the 1st Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (order of Certiorari and Prohibition) pursuant to leave granted on October 23, 2018; Fair Administrative Action Act 2015; Article 40 and Article 47 of the Constitution invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Dakawou Transport Limited (Exparte) (Miscellaneous Civil Application 176 of 2018) [2022] KEELC 3981 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated October 24, 2018) pursuant to leave granted on October 23, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3981/eng@2022-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.