Republic v National Land Commission; Ruto & 2 others (Interested Parties); County Government of Bomet (Exparte Applicant) (Judicial Review Application 1 of 2019) [2024] KEELC 4348 (KLR)
The bottom line
#The Environment and Land Court upheld the National Land Commission's power to decide historical land injustice claims against Bomet County, dismissing the county's challenge with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent acted ultra vires Article 67(2)(e) of the Constitution by making a final determination instead of merely investigating and recommending
The Respondent acted within its constitutional and statutory mandate; it only made a finding on historical land injustice and recommended redress
The court examined Article 67(2)(e) of the Constitution and Section 15(1) of the National Land Commission Act, which empower the Commission to receive, admit and investigate historical land injustice complaints and recommend appropriate redress. Applying judicial review principles, the court confined itself to the process rather than merits, and found the Commission did not exceed its jurisdiction by making the impugned determination and gazetting it.
Whether the ex-parte Applicant was accorded a fair hearing under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act
The Applicant was represented by its County Attorney, made submissions, and was afforded time to procure documents which it never submitted; no denial of fair administrative action
The court noted hearings were held on 24th September, 11th October and 2nd November 2018 at Narok, Kericho and Nairobi, with the Applicant's attorney present and making submissions. The attorney asked for time to procure documents but instead filed submissions. The court held that the process, which included circulation of notices of intended investigation, satisfied the requirements of fair administrative action.
Whether the Respondent's decision was irrational and whether defunct government liabilities fell on the National Government
The Farmers Training Centre was devolved to the Applicant under Schedule 4 of the Constitution, so liability properly falls on the Applicant, not the National Government
The Respondent deponed that the land in dispute concerned Bomet Farmers Training Centre, one of the institutions devolved to the ex-parte Applicant under Schedule 4 of the Constitution. The interested parties relied on authority that county governments are successors to the liabilities of defunct local authorities. The court accepted the Respondent had not breached the Applicant's Article 40 rights and the complaint of irrationality failed.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision
- An applicant for judicial review must show the decision is tainted with illegality, irrationality or procedural impropriety
- The National Land Commission acted within its constitutional mandate under Article 67(2)(e) in investigating historical land injustice complaints and recommending appropriate redress
- A party represented by counsel before an administrative body, and afforded opportunity to procure and submit documents, is not denied fair administrative action
Court orders
#- 1.The ex-parte Applicant's Notice of Motion application dated 9th August 2019 seeking certiorari to quash the Respondent's determination in Historical Land Injustice Reference No. NLC/HLI/159/2017 is dismissed
- 2.Costs of the application to the Respondents/interested parties
- Jurisdiction invoked
- Section 80 of the Law Reform Act, Order 53 Rule 1(2) and 1(4) of the Civil Procedure Rules and Articles 47, 50(1) and 165(6) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission; Ruto & 2 others (Interested Parties); County Government of Bomet (Exparte Applicant) (Judicial Review Application 1 of 2019) [2024] KEELC 4348 (KLR)", Case Analysis (2024). Kericho ELC Judicial Review No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4348/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.