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ELCPartially AllowedPetition dated 12/8/2020 (number not stated in judgment)· [2023] KEELC 152 (KLR)

Wanjiku v National Land Commission & 4 others (Environment & Land Petition 10 of 2020) [2023] KEELC 152 (KLR)

Environment and Land Court
20 January 2023
BEB M Eboso
3,968 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Land Court quashed the National Land Commission's revocation of a Kiambu title because the owner was never given a fair hearing, but stopped short of confirming ownership.

What this practically means

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Executive summary

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The petitioner, Rosemary Mungai Wanjiku, challenged the determination and directions published by the National Land Commission in Gazette Notice No 11714 (Kenya Gazette Vol CXX-No 138, dated 28/4/2017, published 9/11/2018), which revoked her title to land parcel Ndumberi/Riabai/2677, directed re-planning of the land as a market, and recommended that she be accommodated by the Kiambu County Government with a lease. She sought declarations of constitutional violations, an order of certiorari to quash the decision, prohibitory orders, reinstatement of land records and survey maps, a declaration of ownership, and damages. The Commission contended that the petitioner was represented at hearings, that it relied on filed documents after its term lapsed, and that proceedings were quasi-judicial. The State respondents argued the land was reserved for a market, not capable of alienation, and that Article 40 protection does not extend to illegally acquired property. The court found that the Commission never availed the complaint against the title, never invited the petitioner to a resumed hearing, and made its decision after its five-year mandate lapsed and without procuring an extension, in violation of Articles 47 and 50. The impugned decision was quashed and nominal damages of Kshs 100,000 awarded. However, the court declined to make conclusive findings on the validity of the petitioner's title, holding the petition was an inappropriate platform given the absence of the original complaint, absence of evidence on the disposal of what was public land in 1998, and the non-joinder of Lucy Kimani, directing any such dispute to ordinary civil proceedings. Reliefs against the other respondents failed for want of evidence.

Key legal issues

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01

Whether the National Land Commission violated the petitioner's right to a fair hearing and fair administrative action in its grants review determination

Holding

Yes. The Commission did not avail the complaint or supporting documents, did not invite the petitioner to a resumed hearing after adjournments, made its decision after its five-year mandate lapsed without procuring an extension, and backdated the Gazette Notice.

Reasoning

The court held that the right to be heard is underpinned by Articles 47 and 50 and the Fair Administrative Actions Act. The Commission proceeded to make a review decision without conducting the envisaged hearing and backdated its decision. The procedural safeguards are mandatory, so the impugned Gazette Notice was quashed in so far as it related to the suit property.

p. 6
02

Whether the petition was the appropriate platform to make conclusive pronouncements on the legality or validity of the petitioner's title

Holding

No. The court declined to declare the petitioner the lawful owner.

Reasoning

The court gave three reasons: it did not know who challenged the title or on what grounds since the petitioner never saw the complaint; there was no challenge by state organs and no evidence on the disposal of land that was public land in 1998; and Lucy Kimani, who took the title from Kiambu County Council, was not joined. Any title-validity dispute must be litigated in an ordinary civil suit with all necessary parties.

p. 7
03

Whether the other respondents (2nd, 3rd, 4th and 5th) violated the petitioner's rights

Holding

No violation established against them.

Reasoning

The petitioner alleged denial of access to land records, destruction of records, and erasure of the survey map, but tendered no conclusive evidence that those respondents were privy to the violations. The burden of proof was not discharged against them.

p. 7

Legal principles established

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  • A public authority making a decision affecting constitutional rights must afford the affected person a fair hearing; making a decision without a hearing and backdating the decision violates Articles 47 and 50 of the Constitution
  • A constitutional petition raising only procedural issues is not the appropriate forum for conclusive declarations on the validity of title where necessary parties are absent; such disputes belong in ordinary civil proceedings

Court orders

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  1. 1.Declaration that the 1st respondent, in its grant review determination relating to title number Ndumberi/Riabai/2677, violated the petitioner's right to a fair hearing under Article 50(1) and fair administrative action under Article 47 of the Constitution
  2. 2.An order quashing the grant review decision of the 1st respondent relating to Title Number Ndumberi/Riabai/2677 contained in Legal Notice No 11714 in Kenya Gazette Vol CXX-No 138 dated 9/11/2018, together with any rectifications or cancellations made in the relevant land register or records as a consequence of that decision
  3. 3.The 1st respondent to pay the petitioner nominal general damages of Kshs 100,000 for the violation
  4. 4.Issues or disputes relating to the validity, legality or lawfulness of Title Number Ndumberi/Riabai/2677, which until 1998 existed as a surveyed and titled public land, may be adjudicated in proper ordinary civil proceedings involving the necessary parties
  5. 5.The 1st respondent shall bear the petitioner's costs of this petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 3, 27, 35, 40, 47, 48, 50, 50(1), 67(2), 68(c)(v), 165(6), 260
  • National Land Commission ActSection 14
  • Land Registration ActSection 26
  • Fair Administrative Actions Actnot specified
  • Interpretation and General Provisions ActSection 23(3)

Cases cited (3)

  • Katende v Havidas & Co. Ltd
    (2008) 2 EA 173
  • Republic v the Honourable the Chief Justice of Kenya & others Ex Parte Justice Moijo Mataiya Ole Keiwua
    Nairobi HCMCA No 1298 of 2004
  • Dominic Mbugua Wainaina & another v National Land Commission & 2 others
    [2019] eKLR
Jurisdiction invoked
Articles 47, 50 and 165 of the Constitution of Kenya 2010 (enforcement of Bill of Rights; challenge to National Land Commission grant review under Article 68(c)(v) and Section 14 of the National Land Commission Act 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, "Wanjiku v National Land Commission & 4 others (Environment & Land Petition 10 of 2020) [2023] KEELC 152 (KLR)", Case Analysis (2023). Petition dated 12/8/2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/152/eng@2023-01-20

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