Republic v National Land Commission; Telkom Kenya Limited (Exparte); Asumba & 2 others (Interested Parties) (Judicial Review Application 44 of 2019) [2023] KEELC 127 (KLR)
The bottom line
#Kenya's High Court-level Environment and Land Court quashed the National Land Commission's decision to revoke Telkom Kenya's private land title, ruling the Commission had no power over private land disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the motion was statute barred under section 9 of the Law Reform Act
The objection failed; judicial review sought under article 23(3) or section 7 of the FAA Act carries no limitation period.
The court noted that judicial review is available under article 23(3) of the Constitution, section 8 of the Law Reform Act, section 13(7) of the ELC Act, section 7 of the FAA Act and common law. Where proceedings enforce the Bill of Rights under article 22 or review administrative action under section 7 of the FAA Act, no leave or time limitation applies. The six-month objection by the interested parties was therefore rejected.
Whether the NLC exceeded its jurisdiction in reviewing a private land title
Yes. Section 14 of the NLC Act empowers review of grants of public land only; the dispute concerned private land and was a private dispute between the parties.
The complaint related to land initially registered in the name of Hesbon Ahiro Asumba, being private land. For the Commission to order revocation it had to establish the title related to previously existing public land irregularly disposed, which the Commission's bare affidavit did not demonstrate. The dispute was private and should have been litigated before the Environment and Land Court.
Whether the applicant was denied an opportunity to be heard
No. The record showed the applicant was invited and given a hearing on several occasions; the fair hearing ground failed.
Having perused the Commission's proceedings and correspondence, the court found no evidence of denial of a hearing. The applicant was invited to appear on several occasions and given an opportunity to explain how it procured its title. The contention that the applicant's right to fair administrative action under article 47 and section 4(3) of the FAA Act was violated was found unfounded.
Whether certiorari should issue
Yes. Having found the Commission lacked jurisdiction, its decision was amenable to quashing by certiorari.
Relying on the Kenya National Examination Council v Republic ExParte Geoffrey Gathenji Njoroge principles, certiorari issues where a decision is made without or in excess of jurisdiction. Since the Commission lacked jurisdiction over the private land dispute, its purported decision to commence the review process was quashed. Costs were, however, left to each party.
Legal principles established
#- The National Land Commission has no jurisdiction under section 14 of the NLC Act to review grants or determine disputes over private land; such disputes fall to the Environment and Land Court.
- Certiorari lies to quash a decision made without or in excess of jurisdiction.
- Judicial review relief sought under article 23(3) of the Constitution in enforcement of the Bill of Rights or under section 7 of the Fair Administrative Action Act is not subject to a six-month limitation period.
Court orders
#- 1.An order of certiorari quashing the decision of the National Land Commission dated April 28, 2017 and communicated to the parties on January 28, 2019
- 2.Each party to bear their own costs of the motion
- Jurisdiction invoked
- Article 23(3) of the Constitution and section 7 of the Fair Administrative Action Act, 2015 (judicial review relief); sections 8 and 9 of the Law Reform Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission; Telkom Kenya Limited (Exparte); Asumba & 2 others (Interested Parties) (Judicial Review Application 44 of 2019) [2023] KEELC 127 (KLR)", Case Analysis (2023). Judicial Review Motion dated November 5, 2021 (following Chamber Summons dated July 18, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/127/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.