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ELCPartially AllowedNot stated in the judgment (Judicial Review Motion dated 22nd August 2023)· [2024] KEELC 932 (KLR)

Republic v Chairman of the National Land Commission & 2 others; Halal Meat Products Limited & another (Interested Parties) (Judicial Review Miscellaneous Application E002 of 2023) [2024] KEELC 932 (KLR)

High Court of Kenya
25 January 2024
4,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The High Court ordered the National Land Commission to decide a Kshs 1.67 billion land compensation claim within 30 days after five years of silence.

What this practically means

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Executive summary

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The applicants, Urban Solutions Real Estates Limited and Carlingwood Investments Company Limited, sought judicial review orders of mandamus and prohibition arising from the compulsory acquisition of portions of land known as Ngong/Ngong/2221, 2628 and 2629 by the National Land Commission for the Standard Gauge Railway (Phase 2A) on behalf of the 2nd interested party, pursuant to Gazette Notice No. 12526 of 22nd December 2017. The applicants claimed to hold development rights over the land under a joint venture agreement with the 1st interested party and had lodged a compensation claim of Kshs 1,667,005,373.80 with the respondents in 2018, which remained undetermined over five years later, while the 1st interested party had received part payment of Kshs 140,576,426 and faced imminent payment of its outstanding claim. The applicants sought mandamus compelling determination of their claim and award of compensation, and prohibition against payment to the 1st interested party, citing the risk of double payment from public funds. The respondents attributed the delay to the applicants' failure to supply documents and to the ongoing dispute with the 1st interested party; the 1st interested party opposed the motion, noting a separate suit (HCCC No. 10 of 2019) over advances of about Kshs 120 million, and offered an escrow arrangement. The court found the respondents had not determined the applicants' claim and had denied them a hearing, violating Article 47 and Section 4(3) of the Fair Administrative Action Act. Mandamus was granted in terms of prayers 1 and 2; prohibition was refused, the applicants having made a similar application in HCCC No. 10 of 2019 that was disallowed. Each party was ordered to bear its own costs.

Key legal issues

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01

Entitlement to mandamus against the National Land Commission

Holding

Mandamus issued because the respondents have not determined the applicants' compensation claim lodged in 2018 despite years of submissions, meetings and correspondence

Reasoning

The court found it common ground that the applicants lodged a compensation claim with the 3rd respondent by letter dated 7th July 2018 and made further submissions and amendments, yet over five years later the claim remained undetermined. The court's mandate jurisdiction, as framed in Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge, supports an order compelling the Commission to perform its statutory duty. The inaction also breached fair administrative action guarantees.

p. 9
02

Violation of fair administrative action

Holding

The respondents violated the applicants' right to fair administrative action under Article 47 and Section 4(3) of the Fair Administrative Action Act by not hearing them on their claim

Reasoning

The court was satisfied that the applicants had never been accorded an opportunity to be heard on their compensation claim. No inquiry date was communicated to persons interested in the land as contemplated by Section 112 of the Land Act, and no proceedings of which the applicants were aware had been conducted. This failure constituted an unlawful administrative omission justifying intervention.

p. 9
03

Whether prohibition should issue against payment of the 1st Interested Party's claim

Holding

Prohibition was refused because the two claims are distinct and the applicants had already sought similar relief in High Court Civil Suit No. 10 of 2019 and were disallowed

Reasoning

The court accepted the 1st Interested Party's submission that its compensation claim concerned loss and damage to pre-existing structures, a different head from the applicants' claim. The applicants had made a similar application to stay that compensation in HCCC No. 10 of 2019 and it was disallowed. Prohibition on these facts was therefore not warranted.

p. 9

Legal principles established

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  • A person whose claim for compensation arising from compulsory acquisition has not been determined by the National Land Commission, and who has not been accorded an opportunity to be heard, is entitled to mandamus compelling the Commission to determine the claim
  • Failure to afford a claimant an opportunity to be heard violates the right to fair administrative action under Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act

Court orders

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  1. 1.Judicial review motion dated 22nd August 2023 allowed in terms of prayers 1 and 2 only, namely mandamus to compel the respondents to determine within thirty days of the court's order whether the 1st or 2nd applicant have/had an interest in the parcels Ngong/Ngong/2221, 2628 and 2629
  2. 2.Mandamus to compel the respondents to make an award of compensation to the 1st ex-parte applicant in the event the respondents determine that the 1st or 2nd ex-parte applicants have/had an interest in the said parcels
  3. 3.Each party to bear its own costs of the motion
Jurisdiction invoked
Judicial review jurisdiction of the High Court over administrative action of the National Land Commission under Article 47 of the Constitution, the Fair Administrative Action Act and the Land Act (Sections 112, 113, 114, 115, 125 and 162(2))

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, "Republic v Chairman of the National Land Commission & 2 others; Halal Meat Products Limited & another (Interested Parties) (Judicial Review Miscellaneous Application E002 of 2023) [2024] KEELC 932 (KLR)", Case Analysis (2024). Not stated in the judgment (Judicial Review Motion dated 22nd August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/932/eng@2024-01-25

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