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ELCPartially AllowedNotice of motion dated 7/11/2017 (Judicial Review)· [2025] KEELC 3118 (KLR)

Republic v National Land Commission & 2 others; John Mihiu Kimani, Patrick Kangere Kimani and Edith Nduta Kimani (Suing as the Administrators of the Estate of Stephen Kimani Mihiu - Deceased) (Exparte Applicant) (Judicial Review Application 11 of 2017) [2025] KEELC 3118 (KLR)

Environment and Land Court
1 April 2025
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed the National Land Commission's revocation of a Ruiru land title because it was made without a fair hearing and after its legal review powers had expired.

What this practically means

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Executive summary

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This Environment and Land Court judgment by Eboso J determines a judicial review notice of motion dated 7/11/2017 brought by the late Stephen Kimani Mihiu, later substituted by the three administrators of his estate, challenging a decision of the National Land Commission published in the Kenya Gazette on 17/7/2017 directing revocation of his title to Ruiru Township/20 and vesting of the land in the County Government of Kiambu. The motion had earlier been allowed by Gacheru J in 2018, but that judgment was set aside on 25/6/2024 following the County Government's successful application for joinder, and the matter was heard afresh. The court framed three issues: fair hearing, lapse of the Commission's review mandate, and mistaken identity. On the first, the uncontroverted evidence showed the deceased was condemned unheard, offending Articles 47 and 50(1) of the Constitution and Section 14 of the National Land Commission Act. On the second, the court held the Commission's five-year grants review jurisdiction under Section 14(1) lapsed on or about 2/5/2017, so the decision published on 17/7/2017 was made without mandate, applying Likizo Limited. On mistaken identity, the applicant failed to exhibit the underlying complaint and did not discharge the burden of proof. The court granted an order of certiorari quashing the impugned decision, clarified that judicial review was not the platform to determine the validity of the deceased's title, which requires a normal civil suit by plaint, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the impugned decision was made without a fair hearing

Holding

Yes - the deceased was condemned unheard

Reasoning

The deceased deposed that he attended two scheduled hearings which did not take off, that the complaint was withdrawn, and that he only learned of the decision through the Gazette Notice. Those depositions remained uncontroverted because the National Land Commission elected not to respond. As a quasi-judicial body the Commission was bound by Articles 47 and 50(1) of the Constitution, Section 14 of the NLC Act and Section 4 of the Fair Administrative Action Act.

p. 4
02

Whether the Commission's grants review mandate had lapsed

Holding

Yes - the five-year period expired on or about 2/5/2017 and the decision published on 17/7/2017 was outside the mandate

Reasoning

Section 14(1) of the National Land Commission Act vested review jurisdiction for five years from commencement of the Act on 2/5/2012. The Commission did not disclose the exact date of the decision, so the presumption is it was made on the publication date of 17/7/2017, outside the statutory window. The Court of Appeal in Likizo Limited confirmed that actions outside the five-year period and without extension of time are unlawful and ultra vires.

p. 5
03

Whether there was mistaken identity as to the property subject of the decision

Holding

No - the applicant failed to discharge the burden of proving mistaken identity

Reasoning

On the face of the impugned decision the subject property was Ruiru Township/20. The ex-parte applicant, as the party alleging mistaken identity, was obliged to exhibit the complaint the Commission was seized of and the invitation documents, but did not do so. He therefore failed to provide conclusive evidence that the complaint related to a different title.

p. 6

Legal principles established

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  • Violation of the requirements for a fair hearing renders the resultant administrative decision untenable
  • The National Land Commission's grants review jurisdiction under Section 14(1) of the National Land Commission Act lapses after five years and decisions made outside that period are without mandate

Court orders

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  1. 1.An order of certiorari quashing the impugned decision of the National Land Commission in terms of prayer 1 of the notice of motion dated 7/11/2017
  2. 2.Declaration that the order of certiorari does not settle the dispute on the validity or legality of the title, which must be adjudicated in a normal civil suit by way of plaint
  3. 3.Each party to bear their respective costs of the suit
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review)

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 & 2 others; John Mihiu Kimani, Patrick Kangere Kimani and Edith Nduta Kimani (Suing as the Administrators of the Estate of Stephen Kimani Mihiu - Deceased) (Exparte Applicant) (Judicial Review Application 11 of 2017) [2025] KEELC 3118 (KLR)", Case Analysis (2025). Notice of motion dated 7/11/2017 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3118/eng@2025-04-01

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