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ELCPartially AllowedJudicial Review 3 of 2020 & Environment and Land Judicial Review Case 4 & 5 of 2020 (Consolidated)· [2023] KEELC 16903 (KLR)

Republic v National Land Commission & 6 others; Tuei & 4 others (Interested Parties); James Finlays Kenya Ltd & 12 others (Exparte) (Being Members of Kenya Tea Growers Association & Kenya Tea Growers Association)

Environment and Land Court
20 April 2023
22,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~89 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed National Land Commission recommendations on historical land injustice claims against tea companies because the companies were never given proper notice or a hearing.

What this practically means

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Executive summary

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Three consolidated judicial review applications challenged Gazette Notice Vol CXX1-No 27 of 1 March 2019 publishing the National Land Commission's recommendations on historical land injustice claims: JR 3 by tea companies in Kericho and Bomet (through KTGA members), JR 4 by Kakuzi PLC, and JR 5 by Eastern Produce Kenya Limited. The ex parte applicants sought certiorari, prohibition and declarations that the NLC proceedings breached Articles 47 and 50(1) of the Constitution and Section 4(3) and (4) of the Fair Administrative Action Act, and exceeded Section 15(9) of the NLC Act. The NLC, the County Governments and the Interested Parties maintained the process was investigative, publicly announced and fair, and that the absence of the annulled 2017 Regulations did not vitiate the proceedings. The Court first disposed of competency objections, holding the jurisdictional challenge res judicata and finding locus standi for Eastern Produce. On the merits, it held in JR 3 that no notice was given to the applicants and no evidence of public notification existed, vitiating the recommendations as a nullity; in JR 4 that the NLC breached blanket conservatory orders issued by the High Court and failed to notify Kakuzi before acting on public utilities, rendering the recommendations ultra vires and void; but in JR 5 that Eastern Produce was given an adequate opportunity to be heard which it failed to utilize, and the directives remained recommendations. Declaratory orders were refused as unavailable in judicial review. Certiorari and prohibition issued in JR 3 and 4; JR 5 was dismissed, with costs to the NLC in JR 3 and 4 and against Eastern Produce in JR 5.

Key legal issues

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01

Competency of the judicial review applications (jurisdiction and representative-suit objections)

Holding

The objections failed. The jurisdictional challenge was res judicata, having been determined in the Court's Ruling of 16 December 2021; the Civil Procedure Rules (save Order 53) do not strictly apply to judicial review, so lack of written authority for the deponent was not fatal; and Eastern Produce Kenya Limited had locus standi despite mis-description of its name.

Reasoning

The Court held the transfer from the High Court was valid under concurrent jurisdiction and could not be collaterally attacked. Order 1 Rule 8 was held inapplicable to judicial review; the mischief of the rule was satisfied since no affected tea estate disowned the deponent. The Gazette notice named Eastern Produce Kenya Limited, establishing its locus.

02

Whether absence of the annulled NLC (Historical Land Injustices) Regulations rendered the proceedings a nullity (JR 3 and 4)

Holding

No. Section 15 of the NLC Act sufficiently guides the Commission's proceedings; the regulations merely streamlined the constitutional mandate.

Reasoning

Following R vs NLC ex-parte Holborn Properties, the Court held the Act is clear on how the exercise should be carried out. The Commission is constitutionally mandated under Article 67 to investigate historical land injustices, and the annulled regulations cannot upheave that mandate.

p. 33
03

Whether the NLC investigations in JR 3 (Kericho/Bomet claims) breached fair administrative action

Holding

Yes. No notice was given to the Applicants and no evidence of public notification via radio or public address systems was adduced; the proceedings were vitiated by procedural impropriety and the recommendations were a nullity.

Reasoning

The Hansard showed no representation by the Applicants. The Court held it insufficient for the NLC to allege that parties resident in Kericho and Bomet ought to have known of the hearings. Notice must be sufficiently precise, and the investigative (non-adversarial) nature of the process does not dispense with notice and an opportunity to be heard.

04

Whether the NLC recommendations in JR 4 (Kakuzi) were issued in breach of court stay orders

Holding

Yes. The conservatory orders of 29 October 2018 were a blanket stay on the proceedings in respect of the complaints; the NLC could not import its public land mandate to continue, and after the stay lapsed it should have set new hearing dates and notified the Applicant. The recommendations were ultra vires, illegal and procedurally improper.

Reasoning

The proceedings were conducted under the historical land injustice jurisdiction, so the stay covered them entirely. Even on the NLC's own construction, the Applicant was entitled to notice and representations before administrative action affecting it, particularly where facts such as the status of public utilities were disputed.

p. 38
05

Whether Eastern Produce (JR 5) was denied a fair hearing

Holding

No. The Applicant attended sessions on 10 and 11 July 2018, was granted 21 days to respond and directed to obtain the documents it needed, but filed no response. Fairness does not require an adversarial hearing.

Reasoning

The Hansard confirmed counsel's presence and the directions given. The NLC, as a tribunal, is master of its own procedure provided it achieves appropriate fairness. Having been given a reasonable opportunity and not utilizing it, the Applicant could not complain of denial of hearing. The directives remained recommendations, not determinations in excess of jurisdiction.

p. 40
06

Whether the NLC's directives were determinations in excess of jurisdiction under Section 15(9) of the NLC Act

Holding

In JR 5 the Court held the directives remained recommendations implementable by other bodies and not in excess of jurisdiction; in JR 3 and 4 the question was moot given the nullity finding.

Reasoning

Relying on the Supreme Court's Advisory Opinion No 2 of 2014, words like recommend and investigate denote a facilitative role. Directives requiring implementation by other organs remain recommendations notwithstanding the absence of the word 'recommend'.

p. 40

Legal principles established

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  • The absence of regulations governing NLC historical land injustice investigations does not render the Commission's proceedings a nullity where the NLC Act sets out the parameters
  • Failure to notify an affected party of a complaint and to afford it an opportunity to be heard is a grave violation of fair administrative action rendering the resultant decision a nullity, even in investigative (non-adversarial) proceedings
  • A blanket stay of proceedings by a court binds the administrative body entirely; it cannot pick and choose which aspects of its mandate to continue
  • A party given a reasonable opportunity to be heard who fails to utilize it cannot later complain of denial of a fair hearing; fairness does not require a full adversarial hearing
  • Declaratory orders are not available within judicial review proceedings under Order 53

Court orders

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  1. 1.In ELC JR No 3 of 2020: certiorari quashing the Gazette Notice of 1 March 2019 in so far as it relates to the NLC recommendations dated 18 February 2019 on claims by Kericho and Bomet County Governments (Refs NLC/HL1/044/2017, NLC/HL1/546/2018 and NLC/HL1/173/2017)
  2. 2.In ELC JR No 3 of 2020: prohibition prohibiting the Director of Surveys and the County Governments of Kericho and Bomet from implementing the said recommendations
  3. 3.In ELC JR No 3 of 2020: the 1st Respondent to pay the Applicant the costs of the application
  4. 4.In ELC JR No 4 of 2020: certiorari quashing the Gazette Notice of 1 March 2019 in so far as it relates to NLC/HLI/530/2018, NLC/HLI/069/2017, NLC/HLI/063/2017, NLC/HLI/006/2017, NLC/HLI/049/2017, NLC/HL1/170/2018, NLC/HLI/176/2018 and NLC.HLI/052/2017
  5. 5.In ELC JR No 4 of 2020: prohibition prohibiting the Director of Surveys, the National Land Commission and the County Government of Muranga from implementing the said recommendations
  6. 6.In ELC JR No 4 of 2020: the 1st Respondent to pay the costs of the application
  7. 7.In ELC JR No 5 of 2020: the Notice of Motion dated April 18, 2019 dismissed
  8. 8.In ELC JR No 5 of 2020: the ex parte Applicant to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 50(1), 65, 67, 159
  • Fair Administrative Action ActSections 2, 4(3) and (4), 5, 8, 11
  • National Land Commission ActSections 5, 6, 14, 15(1)-(10)
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 1 Rule 8; Order 53 Rule 1(1)
  • Community Land Act, 2016Section 6(1)
  • Environment and Land Court ActSection 3
  • Limitation of Actions Act (Cap 22)Section 7
  • National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017annulled by Parliament

Cases cited (40)

  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court without jurisdiction must down tools

  • Republic vs National Land Commission ex-parte Holborn Ltd
    [2016] eKLR

    Absence of rules cannot stop the NLC from exercising its statutory functions

  • Republic vs NLC & Others ex-parte Oyster Village Ltd
    [2021] eKLR

    Failure to give notice of allegations violates fair administrative action (cited by Applicants)

  • Sceneries vs National Land Commission
    [2017] eKLR

    All affected persons must be served with proper notices; proceedings without regulations a nullity (cited by Applicants)

  • Kenya Human Rights Commission & Another vs Non-Governmental Organization Co-ordination Board and Another
    [2018] eKLR

    Principles of fair administrative action under Article 47 (cited by Applicants)

  • Republic vs National Irrigation Board & 4 Others ex-parte Josphat Kariuki Mutuanjara
    [2016] eKLR

    Audi alteram partem does not mean a full adversarial hearing

  • Union Insurance Co of Kenya Ltd vs Ramazan Abdul Dhangi
    Civil Application No 179 of 1998

    A party given a reasonable opportunity to be heard who does not use it cannot complain

  • Pastoli vs Kabale District Local Government Council & Others
    (2008) 2 EA 300

    Illegality, irrationality and procedural impropriety as thresholds for judicial review

  • Kenya National Examination Council vs Republic ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR; Civil Appeal No 266 of 1996

    Parameters of certiorari, prohibition and mandamus

  • Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR

    A court without jurisdiction cannot transfer a suit (cited by 3rd Respondent)

  • Samuel Kamau Macharia and Another vs Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    Jurisdiction cannot be created by judicial craftsmanship (cited by 3rd Respondent)

  • R vs Land Registrar, Mombasa & 2 Others ex-parte Bhangra Ltd
    [2012] eKLR

    NLC's power to review grants (cited by 4th Respondent)

  • Republic vs National Land Commission; Pacifica Mwango & Another (Interested Parties); ex-parte Anil Ratilal Tailor
    [2019] eKLR

    In absence of rules, Section 4 of FAAA applies to NLC review of grants (cited by Interested Parties)

  • Republic vs Betting Control and Licensing Board & another Ex parte Outdoor Advertising Association of Kenya
    [2019] eKLR

    Illegality assessed against the scope of the instrument conferring power (cited by 1st Interested Party)

  • Republic vs Musanka Ole Runkes Tarakwa & 5 Others ex-parte Joseph Lesalol Lekition & others
    [2015] eKLR

    Order 1 Rule 8 principles applicable to judicial review; written authority required

  • Republic vs Law Society of Kenya & 2 Others ex-parte Paul Wainaina Kimani & Another
    [2014] eKLR

    Civil Procedure Rules do not strictly apply to judicial review

  • Republic vs Public Procurement Administrative Review Board & 2 others
    [2013] eKLR

    Civil Procedure Act and Rules do not ordinarily apply to judicial review proceedings

  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229

    Definition of locus standi

  • Judges and Magistrates Vetting Board vs Centre for Human Rights and Democracy
    [2014] eKLR

    Judicial review safeguards the rule of law; concerned with lawfulness of decisions

  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) vs Public Procurement Administrative Review Board Kenya & 2 others
    [2017] eKLR

    Judicial review concerned with decision-making process, not merits

  • Benson Wekesa Milimo vs National Land Commission & 2 others
    [2021] eKLR

    Article 47 includes right to prior adequate notice and opportunity to be heard

  • Judicial Service Commission vs Hon. Mr. Justice Mbalu Mutava & Another
    Civil Appeal No 52 of 2014; [2014] eKLR

    Rules of natural justice; Ridge v Baldwin principles

  • Ridge vs Baldwin
    [1964] AC 40

    Natural justice applies to administrative bodies

  • Evans Odhiambo Kidero & 4 others vs Ferdinand Ndungu Waititu & 4 others
    [2014] eKLR

    Article 50(1) right to fair hearing expansively construed

  • Baker vs Canada (Minister of Citizenship & Immigration)
    2 SCR 817

    Procedural fairness is flexible and context-dependent; five factors

  • Geothermal Development Company Limited vs Attorney General & 3 others
    [2013] eKLR

    Notice must be sufficiently precise to put a party on notice of the inquiry

  • Republic vs the Honourable the Chief Justice of Kenya & Others Ex Parte Justice Moijo Mataiya Ole Keiwua
    Nairobi HCMCA No 1298 of 2004

    Intrinsic and instrumental value of the right to be heard

  • Evans Thiga Gaturu & another vs Naiposha Company Ltd & 13 Others
    [2017] eKLR

    A decision reached without a fair hearing cannot stand regardless of outcome

  • Republic vs Commissioner of Mines & another ex-parte Basu Mining Limited & Cortec Mining Kenya Limited & 5 others
    [2015] eKLR

    Judicial review confined to mandamus, certiorari and prohibition; declaratory orders misconceived

  • R (H) vs Ashworth Special Hospital Authority
    (2003) 1 WLR 127

    Essential effect of a stay of proceedings is to suspend them

  • Sun Africa Hotels Limited & Another v Kenya Revenue Authority & 2 others
    (2018) eKLR

    Cited for the Ashworth stay principles

  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
    [2005] ZACC 14

    An individual must know the administrator's concerns and be able to answer them

  • Kenya Revenue Authority vs Menginya Salim Murgani
    Civil Appeal No 108 of 2009

    Decision-making bodies are masters of their own procedures if fairness is achieved

  • The Matter of the National Land Commission Advisory Opinion Reference No 2 of 2014
    [2015] eKLR

    Words like recommend and investigate denote a facilitative role

  • Dry Associates Limited vs Capital Markets Authority & Others
    [2012] eKLR

    Principles of fair administrative action under Article 47 (cited by 2nd Interested Party)

  • R vs NLC ex-parte Krystalline Salt Limited
    [2015] eKLR

    The law only protects lawfully acquired property (cited by 2nd Interested Party)

  • R vs National Transport and Safety Authority & 10 others ex-parte James Maina Mugo

    Considerations for granting quashing orders (cited by 2nd Interested Party)

  • Council of Civil Servants Union vs Minister for the Civil Service
    [1985] AC 2

    Illegality, irrationality, procedural impropriety thresholds

  • An Application by Bukoba Gymkhana Club
    [1963] EA 478

    Irrationality as gross unreasonableness

  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876

    Procedural impropriety includes failure to observe statutory procedural rules

Jurisdiction invoked
Judicial review under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, transferred from the High Court under concurrent jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v National Land Commission & 6 others; Tuei & 4 others (Interested Parties); James Finlays Kenya Ltd & 12 others (Exparte) (Being Members of Kenya Tea Growers Association & Kenya Tea Growers Association)", Case Analysis (2023). Judicial Review 3 of 2020 & Environment and Land Judicial Review Case 4 & 5 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16903/eng@2023-04-20

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