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ELCPartially AllowedConstitutional Petition dated 6th May 2019· [2025] KEELC 5308 (KLR)

Kenduiywo & 8 others v National Land Commission & 5 others (Constitutional Petition 15 of 2019) [2025] KEELC 5308 (KLR)

High Court of Kenya
14 July 2025
2,614 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed the National Land Commission's gazette revocation of private land titles because owners were never given notice or a fair hearing.

What this practically means

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Executive summary

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The Petitioners, registered proprietors of parcels subdivided from Cismara/Lemek/40 within the former Ntorobo Group Ranch in Narok County, challenged a Kenya Gazette Notice dated 1st March 2019 by which the National Land Commission revoked their titles and directed fresh adjudication in favour of Ndorobo Group Ranch. They alleged violations of Articles 40, 47 and 50(1) and ultra vires action under Section 14 of the National Land Commission Act, the land not being public land, and reliance on a prior High Court judicial review judgment quashing tribunal decisions affecting the same land. The Respondents justified the revocation under Article 67(2)(e) and Section 14, alleging irregular dissolution of the group ranch and asserting the Petitioners attended or were invited to public hearings. The Court first confirmed its own jurisdiction, holding the gravamen was a rights violation, not a title dispute for the ELC. It found that the Petitioners were never given notice, particulars or an opportunity to inspect documents, contrary to Section 14(3) of the NLC Act, Articles 47 and 50(1) and Section 4 of the Fair Administrative Action Act, rendering the decision ultra vires. Allegations of fraud were not proved to the required higher standard, the Petitioners demonstrating compliance with lawful acquisition processes. The revocation also disregarded a binding High Court judgment, undermining judicial authority contrary to Article 159(1). The Petition was allowed: the Gazette Notice was declared unconstitutional and quashed by certiorari; prohibitory orders issued against the Respondents; the Petitioners' titles declared valid and protected under Article 40(1); each party to bear its own costs.

Key legal issues

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01

Jurisdiction of the High Court over the petition

Holding

The High Court had jurisdiction because the gravamen was violation of constitutional rights under Articles 40, 47 and 50, not a title or boundary dispute for the ELC

Reasoning

The respondents suggested land matters belong exclusively to the ELC under Article 162(2)(b). The Court held the petition's gravamen was not ownership or boundaries but deprivation of titles without due process, in breach of a prior High Court judgment. Such rights-violation claims are justiciable before the High Court under Article 165(3)(b) and (d). The implied preliminary objection on jurisdiction was rejected.

p. 4
02

Fair administrative action and fair hearing

Holding

The NLC breached Articles 47 and 50(1) and Section 4 of the Fair Administrative Action Act by failing to give the Petitioners notice, particulars of the complaint, opportunity to inspect documents or participate in hearings, rendering its decision ultra vires and invalid

Reasoning

Section 14(3) of the NLC Act requires notice and an opportunity to appear and inspect documents. It was uncontroverted that the Petitioners received no notice, complaint details or invitation to inspect documents. The Court held the omission was both procedurally unfair and substantively unjust, rendering the decision ultra vires and invalid even if jurisdiction existed. Denial of both fair administrative process and the right to be heard was established.

p. 5
03

Fraudulent acquisition of titles and Article 40(6)

Holding

The Respondents failed to prove fraud to the required standard; the Petitioners demonstrated compliance with lawful processes, so the revocation without lawful justification or compensation violated Article 40

Reasoning

Relying on Kinyanjui Kamau v George Kamau, fraud must be proved to a standard higher than balance of probabilities. The allegation of dual dissolution meetings (1995 and 1996) was not conclusive proof of fraud. The Petitioners produced the certificate of incorporation, minutes, Land Control Board approval, mutation forms and adjudication register demonstrating lawful compliance. Suspected fraud should have been pursued in court or through criminal investigations, not unilateral administrative revocation.

p. 5
04

Finality of judicial decisions

Holding

The NLC's revocation disregarded a binding High Court judgment in JR Misc. Application No. 799 of 2007 and undermined judicial authority contrary to Article 159(1)

Reasoning

The High Court had quashed the tribunal decisions and affirmed the Petitioners' claims; that order was never overturned or appealed. The Court took judicial notice that final court orders bind public bodies, and any attempt to negate them must go through proper judicial channels; otherwise it amounts to contempt of court and breaches separation of powers. The revocation was therefore an abuse of administrative power and unlawful.

p. 6

Legal principles established

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  • The NLC's power to review titles under Section 14 of the NLC Act must be exercised strictly in accordance with natural justice and procedural fairness, including statutory notice under Section 14(3)
  • Allegations of fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities
  • A public body such as the NLC cannot make decisions that effectively reverse a final judgment of a superior court without seeking its setting aside through proper judicial channels

Court orders

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  1. 1.A declaration that the decision of the National Land Commission published in the Kenya Gazette of 1st March 2019 revoking the Petitioners' titles was unconstitutional, unlawful and procedurally unfair
  2. 2.An order of certiorari quashing the Gazette Notice published on 1st March 2019 purporting to revoke the Petitioners' titles
  3. 3.An order of prohibition restraining the 1st Respondent from hearing, entertaining or determining any complaint relating to the Petitioners' ownership unless proper notice and fair hearing under Articles 47 and 50(1) are guaranteed
  4. 4.An order of prohibition restraining the 3rd, 4th and 5th Respondents from acting upon, implementing or giving effect to the impugned decision
  5. 5.An order of prohibition restraining the 2nd Respondent from lodging, publishing or otherwise interfering with the Petitioners' title unless a competent court determines any claim in accordance with due process
  6. 6.A declaration that the Petitioners' titles over the parcels forming part of the subdivision of Cismara/Lemek/40 are valid, subsisting and protected under Article 40(1), subject only to lawful and fair process before a competent court
  7. 7.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20(1), 21(1), 23(1) and (3), 40(1), 40(3), 40(4), 40(6), 47, 50(1), 67(2)(e), 159(1), 162(2)(b), 165(3)(b), 165(3)(d)
  • Fair Administrative Action ActSection 4
  • National Land Commission ActSection 14, Section 14(3), Section 14(5)
  • Environment and Land Court ActSection 13

Cases cited (4)

  • Samwel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Ernest Kevin Luchidio v Attorney General & 2 Others
    [2015] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Nairobi Judicial Review Miscellaneous Civil Application No. 799 of 2007
Jurisdiction invoked
Articles 165(3)(b) and 165(3)(d) of the Constitution of Kenya, 2010, with relief under Article 23(1) and (3)

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, "Kenduiywo & 8 others v National Land Commission & 5 others (Constitutional Petition 15 of 2019) [2025] KEELC 5308 (KLR)", Case Analysis (2025). Constitutional Petition dated 6th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5308/eng@2025-07-14

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