Kibera v Chief Land Registrar & 4 others (Constitutional Petition E031 of 2023) [2024] KEELC 1053 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a land dispute decided without hearing a property owner was unconstitutional, nullifying those proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner's right to fair hearing under Articles 47 and 50(1) was breached by ELC No. 1030 of 2013 conducted without his participation
Yes. A party claiming ownership of the suit property ought to have been heard before ownership was adjudicated; the proceedings breached Articles 27(1), 40(3), 47 and 50(1).
The court held that the Petitioner, who claims to be the registered owner and was in occupation and development of the property, was condemned unheard. The doctrine of natural justice, codified in Articles 47 and 50, entitles every person to be heard before a decision affecting them, regardless of whether their case would ultimately succeed. A decision in breach of natural justice is vitiated even if the outcome would have been the same. The court applied Onyango v Attorney General and the Speaker of Kisumu County Assembly decisions.
Whether the Petition is an abuse of the due process of the court given the pending appeal against dismissal of the joinder application
No. The court was divested of jurisdiction to re-agitate abuse of process already determined in its ruling of 21st September 2023, and constitutional rights violations can only be canvassed by Petition.
The 5th Respondent argued the Petition abused court process because the Petitioner had sought joinder and appealed its dismissal. The court found the argument misleading and misconceived: the abuse question had already been canvassed and decided in a previous ruling, and re-agitating it would amount to sitting on appeal on its own decision. Further, breaches of constitutional rights and fundamental freedoms are matters properly brought by Petition under Articles 22, 23 and 258.
What reliefs ought to issue given the finding of a breach of fair hearing
Declaratory reliefs and prohibition issued; reliefs determining ownership, cancelling the 5th Respondent's title, damages, indemnity and refund were declined as only determinable in a plenary hearing in ELC No. 1030 of 2013.
Although the Petitioner proved breach of his constitutional rights, the court could not determine ownership, which was the subject of ELC No. 1030 of 2013 and required oral evidence; doing so would create two parallel decisions. The suitable remedy was one facilitating the Petitioner's inclusion in that suit, with liberty to apply for review. The indemnity claim failed for want of a valuation report, and refund was conditional on the outcome of that suit.
Legal principles established
#- A decision made in breach of the rules of natural justice cannot be upheld on the basis that the same result would have been reached had the party been heard.
- The right to fair hearing belongs to every party irrespective of the apparent strength or weakness of their case.
- A court cannot re-agitate an issue of abuse of process it has already determined, as that would amount to sitting on appeal on its own decision.
- Where a party's rights were determined in proceedings conducted without hearing them, the appropriate remedy is one facilitating their inclusion in those proceedings.
Court orders
#- 1.Declaration that the Petitioner is entitled to due protection and benefit of the law pursuant to the Human Rights and Fundamental Freedoms in the Constitution, 2010.
- 2.Declaration that the Petitioner's rights and fundamental freedoms have been breached, violated by the Respondents.
- 3.Declaration that the proceedings in ELC No. 1030 of 2013 between the 5th and 4th Respondents, undertaken without the Petitioner's involvement, were illegal, unconstitutional and thus a nullity.
- 4.An order of Judicial Review in the nature of Prohibition to bar implementation of the impugned proceedings and the Judgment affecting the Petitioner's rights to the suit property.
- 5.Liberty granted to the Petitioner to file a suitable application for review in respect of ELC No. 1030 of 2013 premised on this Judgment, for purposes of joinder into the said suit and tendering evidence on ownership.
- 6.The court seized of ELC No. 1030 of 2013 at liberty to take cognizance of Articles 10, 27, 40, 47 and 50(1) of the Constitution and make appropriate orders.
- 7.Costs of the Petition to be borne by the 1st, 2nd, 3rd and 5th Respondents jointly and/or severally.
- 8.Any other reliefs not expressly granted are declined.
- Jurisdiction invoked
- Articles 22, 23, 258 and 162(2)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibera v Chief Land Registrar & 4 others (Constitutional Petition E031 of 2023) [2024] KEELC 1053 (KLR)", Case Analysis (2024). Constitutional Petition No E031 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1053/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.