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ELCDismissedJudicial Review Application (Notice of Motion dated 25th March 2019)· [2025] KEELC 2844 (KLR)

Republic v National Land Commission & another; Kimani & 2 others (Exparte); Eastleigh Residents Community Association & another (Interested Parties) (Environment and Land Judicial Review Case 8 of 2019) [2025] KEELC 2844 (KLR)

High Court of Kenya
19 March 2025
3,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court upheld the National Land Commission's revocation of the landowners' titles, ruling they received a fair hearing and judicial review cannot re-examine the decision's merits.

What this practically means

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Executive summary

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The Ex parte Applicants sought orders of certiorari to quash the National Land Commission's decision of 28th April 2017 revoking their titles to LR Nos 36/1/1025-36/1/1031 (formerly part of LR 36/1/915R, reserved as the Eastleigh open air market), and prohibition restraining alteration of documents or eviction. They claimed the titles derived from allocations by the defunct City Council of Nairobi in 1992 and alleged the NLC acted ultra vires, was biased, and improperly imported the testimony of one Anna Mumbua Nzioka concerning a different parcel, contrary to Articles 47, 50 and the Fair Administrative Action Act. The NLC, through its Director-Legal Services, maintained that the proceedings were conducted under Section 14 of the National Land Commission Act, that the Applicants were heard and represented by counsel, and that the decision rested on Ministry of Lands records showing the land was reserved for public use. The 2nd Interested Party similarly contended the Applicants were accorded a hearing and that no ultra vires conduct was shown. The court, applying the Council for Civil Service Unions grounds of illegality, irrationality and procedural impropriety and Municipal Council of Mombasa, held that judicial review examines process, not merits. It found the Applicants fully participated in the public hearing, no rules of natural justice were violated, and no procedural impropriety, unfairness, unreasonableness or bias was demonstrated. The Notice of Motion dated 25th March 2019 was dismissed with costs to the 1st Respondent and 2nd Interested Party.

Key legal issues

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01

Whether the 1st Respondent's decision of 28th April 2017 was vitiated by illegality, irrationality or procedural impropriety

Holding

The court held the decision was not vitiated; the Applicants fully participated in the public hearing, were represented by counsel, and produced documents; no rules of natural justice were breached

Reasoning

The court applied Lord Diplock's trilogy of judicial review grounds. On the facts, the Applicants participated fully in the NLC's public hearing through counsel, produced documents, and were heard. The alleged importation of Anna Mumbua Nzioka's testimony concerning a different parcel was not borne out by the impugned decision, which made no reference to another parcel. The Applicants' real grievance was with the merits of the decision, which is impermissible in judicial review.

02

Whether the court could review the merits of the 1st Respondent's decision, including the alleged inconsistency of upholding some titles while revoking others

Holding

No; the court cannot act as an appellate body over the decision maker on the merits

Reasoning

Relying on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, the court reiterated that judicial review concerns the process, not the merits. The Applicants' complaint that the NLC upheld neighbouring titles while revoking theirs attacked the reasonableness of the outcome on its merits, which the court declined to entertain.

p. 7

Legal principles established

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  • Judicial review grounds are classified as illegality, irrationality and procedural impropriety
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A party accorded an opportunity to be heard before an administrative body cannot complain of procedural unfairness merely because the substantive outcome went against it

Court orders

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  1. 1.The Notice of Motion application dated 25th March 2019 is dismissed
  2. 2.Costs awarded to the 1st Respondent and the 2nd Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 60
  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 169(1)
  • National Land Commission ActSection 14(1), (2), (3) & (4)
  • National Land Commission ActSection 8
  • Fair Administrative Action Act, 2015Section 4
  • Civil Procedure RulesOrder 53 Rule 2

Cases cited (10)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic v Safaris & 3 Others; Khaminwa (Ex parte)
    [2022] KEHC 18064 (KLR)
  • Republic v Speaker of the senate & Another Ex Parte Afrison Export Limited & Another
    [2018] eKLR
  • Sceneries Limited v National Land Commission, Ngengi Muigai & Kenya Reinsurance Corporation Ltd
    [2017] KEHC 8460 (KLR)
  • Evelyn College of Design Ltd v Director of Children's Department & Another
    [2013] eKLR
  • Republic v National Land Commission & Tropical Treasure Limited Ex-parte Krystalline Salt Limited
    [2015] KEHC 7322 (KLR)
  • Republic v National Land Commission ex parte Hodon Properties Limited
    [2016] eKLR
  • Torino Enterprises Limited v Attorney General
    (Petition 5 (E006) of 2022 [2013] KESC 79 (KLR)
  • Lilian Waithera Gachuhi v David Shikuku Mzee
    [2005] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; review of administrative action under Article 47 of the Constitution and the Fair Administrative Action Act

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 National Land Commission & another; Kimani & 2 others (Exparte); Eastleigh Residents Community Association & another (Interested Parties) (Environment and Land Judicial Review Case 8 of 2019) [2025] KEELC 2844 (KLR)", Case Analysis (2025). Judicial Review Application (Notice of Motion dated 25th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2844/eng@2025-03-19

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