Hezekiah Cherorot Ngerechi v County Government of Bomet & another; National Land Commission (Interested Party)
The bottom line
#A Kenyan court quashed a county's 14-day demolition notice because only the National Land Commission can order evictions from public land, and it must give three months' notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on locus standi was merited
The objection failed: it was directed at a party (Stephen Mosonik, personal representative of the deceased licensee) who had been struck out, and whether an allotment was made to the remaining Applicant is a factual question unsuitable for a preliminary point of law. The Applicant, as an allottee in possession paying rates and threatened with demolition, has standing under Article 47 and Section 7(1) FAAA.
The objection rested on the personal nature of licences and their extinction on death, authorities aimed at a derivative claim through the deceased licensee. The remaining Applicant claims under a personal allotment. Whether that allotment exists requires documentary and oral evidence, so it is not a pure point of law; the objection was also overtaken by the amendment striking out the deceased's representative.
Whether the Respondents had statutory mandate to issue the impugned notice
The notice was ultra vires: Section 152C and Section 155 of the Land Act vest the mandate to issue eviction notices over public land exclusively in the National Land Commission, and the impugned notice was issued by the 2nd Respondent's Chief Officer.
Section 152C of the Land Act requires the National Land Commission to cause an eviction decision to be notified in the Gazette, a nationwide newspaper and local radio at least three months before eviction. The impugned notice was issued by the County Chief Officer, not the Commission, so the Respondents acted in excess of their mandate and the decision was illegal.
Whether the impugned notice complied with Section 152C of the Land Act
It did not: the notice allowed only 14 days instead of the statutory minimum of three months, and there was no evidence of publication as required.
Section 152C is couched in mandatory terms requiring Gazette and newspaper publication and at least three months' notice before eviction. The impugned notice gave 14 days. Non-compliance with a statutory procedural requirement constitutes procedural impropriety, a recognised ground for judicial review under Pastoli.
Whether the decision violated Article 47 of the Constitution and the Fair Administrative Action Act
Yes: the notice was issued without prior notice, opportunity to be heard, or written reasons, violating Article 47 and Sections 4, 5 and 7 of the FAAA.
Procedural impropriety arises where a decision-maker fails to act fairly or observe statutory procedure. The Respondents afforded the Applicant no opportunity of explanation before directing demolition, and filed no response to contradict his averments, which must be taken at face value. The decision was therefore procedurally unfair and unlawful.
Whether the threshold for certiorari and prohibition was met
Both orders were merited: certiorari quashes the extant decision of 16th January 2023; prohibition lies because an apprehension of demolition is a live, continuing threat.
Certiorari is backward-looking and removes into the High Court to quash an existing decision; prohibition is forward-looking and restrains continuing or imminent unlawful acts. The notice remained in force since 16th January 2023, and the threat of demolition of the Applicant's developments was a live threat warranting prohibition.
Legal principles established
#- A preliminary objection must raise a pure point of law and must not depend on facts requiring proof or the exercise of judicial discretion.
- The right to apply for review of administrative action under Section 7(1) of the Fair Administrative Action Act and Article 47(1) is not confined to persons with registered proprietary interests in land.
- A person in possession, paying rates, and threatened with demolition has sufficient interest to invoke the Court's judicial review jurisdiction.
- Notices of eviction from public land must be issued by the National Land Commission with at least three months' notice under Section 152C of the Land Act.
Court orders
#- 1.The 1st and 2nd Respondents' Notice of Preliminary Objection dated 27/5/2024 is dismissed
- 2.Certiorari: the Respondents' decision directing the Ex parte Applicant to remove his building and/or structures comprised in Plot No. 5 Tenwek Market within 14 days from 16th January 2023 is quashed
- 3.Prohibition: the Respondents and/or any other person and/or authority acting on the instructions of the Respondents are prohibited from causing the removal of the Ex parte Applicant's building comprised in Plot No. 5 Tenwek Market
- 4.The costs of the Application and the Preliminary Objection shall be borne by the Respondents
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Order 53 of the Civil Procedure Rules, Section 8 of the Law Reform Act, Articles 23, 47 and 165(6) of the Constitution and the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekiah Cherorot Ngerechi v County Government of Bomet & another; National Land Commission (Interested Party)", Case Analysis (2026). ELC JR Application No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5669/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.