Republic v National Land Commission & 2 others; Baker Street Investments Limited

1. Judgement was entered in this matter on 2 nd December 2021, dismissing the suit. Subsequently, the Ex-parte Applicant filed the instant Notice of Motion application dated 27 th January 2022, which is for determination. It seeks the following Orders: a) Spent. b) Spent. c) Spent. d) That the Honourable Court be pleased to review/vary the judgement of 2nd December 2021 and all the consequential orders. e) The costs of this Application be awarded to the Applicant. 2. The application is premised on grounds on its face and on the supporting affidavit of Vittorio Veneziani, a director of the Ex parte Applicant. He avers that the Ex parte Applicant is the registered proprietor of LR No. 209/7383/35 and vide a Gazette Notice published in the Kenya Gazette on 17 th July ELC JR NO. 37 OF 2018 Page 2 of 20 Ruling

page 2 of 20

2017, the 1st Respondent purported to review its title to the said property by revoking it. Further, that subsequently, the Ex parte Applicant instituted the instant suit which was dismissed pursuant to this Court’s decision of 2 nd December 2021. Thereafter, strangers and hooligans moved in to forcefully evict it and violently take over the suit property. 3. He insists that the said dismissal Order is premised on fundamental mistakes which are apparent on the face of the record, being that the Court was on the erroneous assumption that himself as a director of the Ex parte Applicant alongside its advocate (Mr. Stephen Ligunya) appeared before the 1st Respondent on 15th August 2014 and made submissions while on the said day, the Ex parte Applicant's advocate requested for an adjournment to prepare for the case but the 1 st Respondent’s Commissioners insisted that the complainants proceed with their case. Further, that the Court was also under the assumption that the 1st Respondent had adduced a copy of the minutes and/or ELC JR NO. 37 OF 2018 Page 3 of 20 Ruling

page 3 of 20

proceedings indicating that the Ex Parte Applicant accompanied by its advocate, appeared before it and made submissions yet the same were not produced despite the Ex parte Applicant filing a Notice to produce and to crossexamine one Mr. Brian Ikol, on his affidavit to that effect. 4. He also claims that the Court was also in the erroneous assumption that the suit property is public land. Further, that the 1st Respondent’s mandate was to run from 2 nd May 2012 and expired on 2nd May 2017 yet it made the decision to revoke the suit property’s title through the gazette notice dated 17th July 2017, when its mandate had already expired. He also contends that under section 15 of the National Land Commission Act, the 1st Respondent lacks the mandate to revoke a title in the manner that it did and it also failed to keep an accurate record of the review proceedings and minutes thereby contravening section 5 of the Fourth Schedule to the National Land Commission Act. ELC JR NO. 37 OF 2018 Page 4 of 20 Ruling

page 4 of 20

5. He contends that the 1st Respondent cannot review a Grant when there is a pending suit in Court, yet it did so when HCCC NO. 1132 of 2013 Baker Street Investments Limited v Bernard K Njau was pending in Court. Further, that the impugned review of Grant violated the Ex parte Applicant's rights, including the right to fair administrative action, the right to a fair trial, the right to property and the right to access to information. Response 6. The application is opposed by the 1st Respondent vide the replying affidavit of Brian Ikol, its Director Legal Affairs and Dispute Resolution and a member of its Committee on Review of Grants and Dispositions. He avers that in addition to the functions denoted to the 1 st Respondent under the Constitution, it was also mandated under Section 14 of the National Land Commission Act, to review all Grants and dispositions of public land, either on its own motion or upon receipt of a complaint with a view to establish their legality ELC JR NO. 37 OF 2018 Page 5 of 20 Ruling

page 5 of 20

or propriety. Further, that in the exercise of the said mandate, it received a complaint from Nairobi County Government regarding the suit property alleging that the said property been transferred into private ownership whereas it was land set aside for public use, including a playground for residents of Kimathi Estate. 7. He explains that the 1st Respondent then gave parties a chance to submit in respect of their claims by way of oral or written submissions. He confirms that the Ex-parte Applicant was represented in the hearings and upon conclusion, the 1 st Respondent determined that LR NO. 209/7383/356 was reserved for public use but it was later illegally allocated and registered in the name of the Ex-Parte Applicant thus revoked its title and reinstated the said suit property to the County Government of Nairobi to hold in trust for the residents of Kimathi Estate for public use. 8. He reiterates that dissatisfied, the Ex-parte Applicant moved this Court and after hearing the case on merit, the suit was ELC JR NO. 37 OF 2018 Page 6 of 20 Ruling

page 6 of 20

dismissed with costs. He contends that the instant application is unmerited as there is no existence of an error on the face of the record and if at all there was any, it is not of such a magnitude to warrant the review of the impugned judgment and decree. He terms the application as an attempt to invite the Court to sit on Appeal of its own decision and urges the Court to dismiss it. He also urges the Court to consider the holding of the Court of Appeal in Civil Appeal Number 8 of 2004, Kepha Maobe & 365 Others v Benson I. Mwangi & Another [2015] eKLR, where the Court pronounced itself on all public utility properties in Kimathi estate and found them to be public land. 9. In response, the Ex parte Applicant filed a supplementary affidavit, in which it reiterates the averments in its affidavit in support of the motion. It also contends that the 1 st Respondent’s reference to Civil Appeal No. 8 of 2015 was not brought to light during hearing of this suit thus it cannot be introduced at review stage, as it shifts focus from ELC JR NO. 37 OF 2018 Page 7 of 20 Ruling

page 7 of 20

procedural review to a merit based argument, which is not the function of this Court sitting as a judicial review court. 10. The application was canvassed by way of written submissions which were highlighted by the Ex parte Applicant and Interested Party’s Counsels. Submissions 11. The Ex parte Applicant’s Counsel reiterated their averments in support of its application and submitted that it had demonstrated that there were errors apparent on the face of the record and other sufficient reasons to warrant review of this Court’s impugned judgement under Order 45 of the Civil Procedure Rules. It called on the Court to correct its oversight of critical evidence demonstrating procedural impropriety on the part of the 1 st Respondent. It insisted that the Court made an assumption that the 1 st Respondent had adduced proceedings that confirmed that the Ex parte Applicant fully participated in the proceedings before it, but the same were not supplied. Further, that the Court also ELC JR NO. 37 OF 2018 Page 8 of 20 Ruling

page 8 of 20

overlooked overwhelming evidence that it was not heard by the 1st Respondent and it proceeded on a belief that its Grant was revoked within statutory timelines. 12. It also submitted that there are also sufficient reasons to warrant review, being that the 1st Respondent had no jurisdiction to revoke its title and its mandate had expired. Further, that the 1st Respondent violated its right to fair administrative action by revoking its title without according it a hearing. It argued that anything done without jurisdiction is void ab initio. 13. To buttress its averments, the Ex parte Applicant relied on the following decisions: National Bank of Kenya Limited v Ndungu Njau [1997] KECA 71 (KLR); Tokesi Mabilili and Others v Simon Litsang [2004] eKLR; Republic v Medical Practitioners and Dentists Board and others [2013] KEHC 3861 (KLR); Kiarie v Waiganjo [2004] eKLR and Patrick Thaithi Kanyuira v Kenya Airports ELC JR NO. 37 OF 2018 Page 9 of 20 Ruling

page 9 of 20

Authority [2017] eKLR, among others which the Court has carefully considered. 14. On its part, the Interested Party’s Counsel relied on the replying affidavits filed by the 1st Respondent and Interested Party including submissions, which he proceeded to highlight. He argued that the Ex Parte Applicant does not meet the threshold for review of the impugned judgment, set under Order 45 of the Civil Procedure Rules, which restricts the grounds for review to an error apparent on the face of the record, discovery of new material facts/evidence or establishment of sufficient cause. Further, that the land in question does not exist, Deed Plan was revoked and the title the Ex parte Applicant seeks is a nullity. 15.He further submitted that the Ex parte Applicant has not demonstrated discovery of new and important matter or evidence, but seeks a review on the basis of evidence that is on record. Further, that it also failed to point out an error on the face of the record, and it is actually seeking an Appeal ELC JR NO. 37 OF 2018 Page 10 of 20 Ruling

page 10 of 20

disguised as an Application for review as the issues raised are questions that relate to interpretation of facts and law. He reiterated that the Ex parte Applicant has failed to demonstrate any sufficient reason to warrant issuance of any of the Orders sought and insists that the Court of Appeal already pronounced itself on all the public utility properties in Kimathi Estate in Civil Appeal Number 8 of 2004: Kepha Maobe & 365 others v Benson I. Mwangi & another [2015] eKLR, wherein the suit property is included. 16. To buttress its submissions, he relied on the following authorities: Mangera v Ondari & 2 others [2025] KEHC 1123 KLR, Republic v Advocates Disciplinary Tribunal Ex-Parte Applo Mboya 2019 and Nyamogo & Nyamogo v Kogo (2001) EA 170. Analysis and Determination 17. I have considered the instant Notice of Motion application including the respective affidavits and rivalling submissions ELC JR NO. 37 OF 2018 Page 11 of 20 Ruling

page 11 of 20

and the only issue for determination is whether the Ex parte Applicant has satisfied the threshold for review of the judgment dated 2nd December 2021. 18. The Ex parte Applicant seeks a review of the judgment dated the 2nd December, 2021 on the basis that the Court committed an error apparent on the face of the record, being that it erroneously concluded that it participated in the proceedings before the 1st Respondent and wrongly assumed that proceedings and minutes had been produced when they had not. It also contends that there are other sufficient reasons to warrant review, being that the Court failed to appreciate that the 1st Respondent’s statutory mandate had expired before it revoked its title vide a Gazette Notice thus it had no jurisdiction to purport to hear the dispute before it. Further, that the Court ought to have also considered that the 1st Respondent had no jurisdiction to revoke title. 19. On its part, the 1st Respondent and Interested Party contends that the reasons advanced by the Ex parte Applicant for ELC JR NO. 37 OF 2018 Page 12 of 20 Ruling

page 12 of 20

review do not identify an obvious error apparent on the face of the record, they would be grounds of an Appeal as the Court is invited to revisit the merits of the impugned judgment. 20. Section 80 of the Civil Procedure Act gives this Court jurisdiction to determine an application for review and provides that: “Any person who considers himself aggrieved; (a) By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 21.Order 45 of the Civil Procedure Rules stipulates as follows on review: “(1) Any person considering himself aggrieved; ELC JR NO. 37 OF 2018 Page 13 of 20 Ruling

page 13 of 20

(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can ELC JR NO. 37 OF 2018 Page 14 of 20 Ruling

page 14 of 20

present to the appellate court the case on which he applies for the review.” 22. The Court of Appeal stated as follows in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] eKLR; “….an order for review is restricted to parameters set out by the law..” 23. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) the Court considered what amounts to error apparent on the face of record and stated thus: “… Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, ELC JR NO. 37 OF 2018 Page 15 of 20 by lengthy and Ruling complicated

page 15 of 20

arguments, such an error cannot be cured by an order or review. The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.” 24. In Nyamogo & Nyamogo v Kogo (2001) EA 170 the Court observed as follows on the same ground for review: “…. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature , it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An ELC JR NO. 37 OF 2018 Page 16 of 20 Ruling

page 16 of 20

error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.” 25. In this instance, the Court dismissed the Ex parte Applicant’s prayer for judicial review and found that it participated in the proceedings before the 1st Respondent. Further, that the issue in dispute revolved around validity of title which could not be handled in the forum before 1st Respondent. 26. I have considered the proceedings which culminated in the impugned judgement sought and I note the Ex parte Applicant indeed participated in the proceedings before the 1st Respondent. Further, by the time the 1st Respondent was considering the claim by the Ex parte Applicant, it still had ELC JR NO. 37 OF 2018 Page 17 of 20 Ruling

page 17 of 20

the mandate to review Grants. It is worthnoting that the Ex parte Applicant’s claim actually revolves around validity of its title and whether it is public land or not. It is trite that judicial review proceedings are mainly concerned with the process and not the merit of the decision. 27. From the Court record including proceedings before the 1 st Respondent culminating in the judicial review proceedings, at this juncture, I find that the Ex parte Applicant including its advocate were actually granted an audience by the 1st Respondent. Further, I find that the Ex parte Applicant has not fulfilled the parameters for this Court to review its judgement as there is no error apparent on the face of record nor discovery of new and important information to warrant the review of the impugned judgment. Further, in the case of the Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo [2015] eKLR, it was held that: ELC JR NO. 37 OF 2018 Page 18 of 20 Ruling

page 18 of 20

“It follows therefore that where the resolution of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review. The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.” 28. In the foregoing, while associating myself with the decision quoted, I opine that the Ex parte Applicant being aggrieved with the impugned judgement seeks for this Court to sit on Appeal of its own decisions. 29. In the circumstances, I find the instant Notice of Motion application unmerited and will proceed to dismiss it. ELC JR NO. 37 OF 2018 Page 19 of 20 Ruling

page 19 of 20

30. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ometto holding brief for Ligunya for Ex parte Applicant Ombwayo Andrew for Interested Party Ms Njuguna for Osoro for 1st Respondent Court Assistant: Joan ELC JR NO. 37 OF 2018 Page 20 of 20 Ruling

page 20 of 20