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ELCPartially Allowed· [2023] KEELC 110 (KLR)

Brothers of our lady mother of mercy registered trustees v National Land Commission & another (Environment & Land Petition 10 of 2018) [2023] KEELC 110 (KLR)

Environment and Land Court
19 January 2023
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court confirmed that even allegedly illegally acquired land cannot be revoked by gazette notice—the State must give the owner a hearing first.

What this practically means

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Executive summary

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The petitioner, Brothers of Our Lady Mother of Mercy (Registered Trustees), purchased Nakuru Municipality/Block 23/523 from Salome Njeri Gichuru, completed the purchase price, was registered and issued a certificate of lease. By Gazette Notice Vol CXIX-No.97 in a Special Issue dated 17th July 2017, the National Land Commission announced revocation of the petitioner's title, and a restriction was entered by the Naka Residents Association, all without notice to the petitioner. The petitioner sought declarations of ownership and non-interference with the register, cancellation of adverse entries, quashing of the gazette notice and damages. The respondents opposed, contending the petition failed the constitutional petition threshold, that ownership disputes belong in ordinary civil jurisdiction, and that public interest takes precedence. The court held the petition met the Anarita Karimi Njeru precision threshold, being founded on Articles 40(2), 40(6), 47(1) and 50(1). Relying on Evelyn College of Design and Adan Abdirahani Hassan, it held that even allegedly unlawfully acquired property cannot be dispossessed without due process before a court. Citing JSC v Mbalu Mutava and the South African SARFU case, it found the restriction and revocation procedurally improper under Articles 10 and 47 and a breach of Article 50(1). The petition was allowed: the petitioner was declared legal owner, the respondents restrained from interfering with the register, the gazetted revocation was quashed, adverse entries were ordered cancelled, and costs were awarded to the petitioner. Damages, though sought, were not awarded.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold of precision

Holding

The petition met the threshold because it stated with precision the constitutional provisions violated and the manner of violation

Reasoning

Applying Anarita Karimi Njeru as reaffirmed in Mumo Matemu, the court found the petition identified Articles 40(2), 40(6), 47(1) and 50(1) and specifically complained of revocation of title without a hearing, giving the respondents adequate notice of the case to meet.

p. 3
02

Whether property said to be unlawfully acquired can be revoked without due process

Holding

No; a finding of unlawful acquisition under Article 40(6) can only be made through due process before a court

Reasoning

Relying on Evelyn College of Design and Adan Abdirahani Hassan, the court held that even where land is reserved for public purpose or alleged illegally acquired, the State must use due process and accord the proprietor a hearing before any administrative action dispossesses them. Extra-gazettement revocation without hearing was therefore unconstitutional.

p. 3
03

Whether the revocation and restriction breached Article 47(1) on fair administrative action

Holding

Yes; the entry of restriction and revocation of title was procedurally improper

Reasoning

Article 47 constitutionalises the right to written reasons and procedurally fair administrative action, elaborated in sections 4 and 6 of the Fair Administrative Action Act. The court, following JSC v Mbalu Mutava and the South African SARFU case, held the action was shrouded in procedural impropriety contrary to Articles 10 and 47.

p. 4
04

Whether the action breached Article 50(1) on fair hearing

Holding

Yes; determination without hearing the petitioner breached Article 50(1)

Reasoning

Article 50(1) guarantees every person a fair and public hearing before a court or independent and impartial tribunal or body for any dispute resolvable by law. Revoking the title by gazette notice without notice or hearing the registered proprietor infringed this guarantee, entitling the petitioner to the declaratory and quashing orders sought.

p. 4

Legal principles established

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  • Even where property is said to have been illegally acquired, it cannot be dispossessed without due process; Article 40(6) presupposes a court process before property is found unlawfully acquired
  • Revocation of title without affording the owner a hearing breaches the rights to fair administrative action and fair hearing

Court orders

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  1. 1.Declaration that the petitioner is the legal owner of all that parcel of land known as Title Number Nakuru Municipality/Block 23/523
  2. 2.Declaration restraining the respondents by themselves, servants and agents from interfering in any way with the register relating to suit property Nakuru Municipality/Block 23/523
  3. 3.Order of judicial review quashing the decision of the respondents to revoke the petitioner's title through Gazette Notice Vol CXIX-No.97 contained in the Kenya Gazette Special Issue dated 17th July 2017
  4. 4.Order that the respondents by themselves, servants and agents cancel any entry on the petitioner's certificate of title made as a consequence to or in furtherance of their action on title number Nakuru Municipality/Block 23/523
  5. 5.Costs of the petition to the petitioner

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40(2), 40(6), 47(1), 50(1), 10
  • Fair Administrative Action ActSections 4 and 6
  • Ethics and Anti-corruption Commission Actnot specified (referred to in quoted passage)

Cases cited (6)

  • Anarita Karimi Njeru v The Republic
    (1979) eKLR
  • Mumo Materi v Trusted Society
    (2013) eKLR
  • Evelyn College of Design Ltd v Director of Children's Department & another
    [2013] eKLR
  • Adan Abdirahani Hassan and 2 Others v The Registrar of Titles and Others
    Nairobi Petition No. 7 of 2012 [2013] eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [48 of judgment, no full citation given]
  • President of the Republic of South Africa and Others v South African Rugby Football Union and Others
Jurisdiction invoked
Original constitutional jurisdiction over alleged violations of Articles 40, 47(1) and 50(1) of the Constitution of Kenya 2010; the petition was pleaded as a constitutional petition

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, "Brothers of our lady mother of mercy registered trustees v National Land Commission & another (Environment & Land Petition 10 of 2018) [2023] KEELC 110 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/110/eng@2023-01-19

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