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Court of AppealDismissedCivil Appeal No. 234 of 1995

Commissioner Of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR)

Court of Appeal of Kenya
14 March 1997
AAA. M. AkiwumiGPG. S. PallSBS. E. O. Bosire
3,101 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that public officials must hear people affected by their land decisions, and judicial review cases don't need special statutory notice.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Akiwumi, Pall JJ.A. and Bosire Ag. J.A.) dismissed an appeal by the Commissioner of Lands against an order of certiorari quashing his allotment of a plot between Kunste Hotel and the Nakuru-Nairobi highway to K & K Trading Limited. In 1976 the hotel's predecessor, Mr. Kagiri, had asked the Commissioner either to consolidate the plots or to leave site 'C' as a road reserve; the Commissioner's 1977 reply accepted a revised plan in accordance with that request. The court held that the only alternative accepted was that site 'C' be left as a road reserve. On the statutory notice objection, the court held that an application for certiorari is not an 'action': the High Court issues prerogative orders in a special jurisdiction outside its civil or criminal jurisdiction, so notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act was unnecessary. On the merits, the court held that judicial review concerns the decision-making process, not private rights or merits. Because the exercise of the Commissioner's statutory discretion affected the hotel's legal rights, it was judicial in nature, obliging him to hear all persons likely to be affected; the hotel was improperly not consulted despite the Commissioner's awareness of the 1976 request and the hotel's occupation of the plot. The absence of a registered restrictive covenant did not defeat the right to a hearing. The court affirmed Rimita, J.'s decision and dismissed the appeal with costs, while criticising the use of public funds to pursue private interests.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an application for an order of certiorari is an 'action' requiring statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act
  2. 2.Whether the Commissioner of Lands was obliged to consult or hear Kunste Hotel Limited before allotting the subject plot to the interested party
  3. 3.Whether the assurance given to Mr. Kagiri in 1976-1977 that site 'C' would be left as a road reserve bound the Commissioner of Lands
  4. 4.Whether the decision of the High Court granting certiorari quashing the allotment should stand

Key legal issues

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01

Whether judicial review proceedings require statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act

Holding

An application for certiorari is not an 'action'; the High Court issues prerogative orders in a special jurisdiction outside its civil or criminal jurisdiction, so the statutory notice provisions do not apply.

Reasoning

The term 'action' is defined in the Interpretation and General Provisions Act as civil proceedings in a court. Section 8(1) of the Law Reform Act denies the High Court power to issue prerogative orders in the exercise of civil or criminal jurisdiction; following the Administration of Justice (Miscellaneous Provisions) Act 1938 (UK), writs became orders. Judicial review is therefore a special jurisdiction outside the ambit of the notice provisions, rendering the cases cited by the appellant irrelevant.

p. 4
02

Whether the Commissioner of Lands was obliged to consult Kunste Hotel Limited before allotting the subject plot

Holding

Yes. The exercise of the Commissioner's statutory discretion under the Government Lands Act affected the hotel's legal rights, making the exercise judicial in nature and requiring a hearing of all persons likely to be affected.

Reasoning

The evidence showed the subject plot was the one Mr. Kagiri had requested be left as a road reserve, and the Commissioner's 1977 reply accepted that request. The Commissioner consulted various parties but not the hotel, despite being aware of the 1976 request and the hotel's occupation and maintenance of the plot. The absence of a registered restrictive covenant did not disentitle the hotel to a hearing.

p. 5
03

Whether the 1976-1977 correspondence created an assurance that site 'C' would be left as a road reserve

Holding

Yes. Of the three alternatives proposed by Mr. Kagiri, the only one the Commissioner accepted was that site 'C' be left as a road reserve, since the plot was not consolidated and the hotel boundary did not extend to the highway.

Reasoning

The court analysed the correspondence: the revised allotment did not consolidate plots 'A', 'B' and 'C', and the hotel land does not abut the Nakuru-Nairobi highway. Only the road-reserve alternative remained. The court rejected the interested party's argument that an unregistered restrictive covenant meant no right was intended, since it was impossible to discern which other request the Commissioner's acceptance referred to.

p. 2

Legal principles established

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  • An application for an order of certiorari or any of the prerogative orders is not an 'action', so statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act is not required for judicial review proceedings
  • Where the exercise of a statutory discretion by a public officer affects the legal rights of a person, the exercise of that power is judicial in nature and the officer must hear all those likely to be affected by the decision
  • Judicial review is concerned with the decision-making process, not with private rights or the merits of the decision

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Decision of the High Court (Rimita, J.) granting an order of certiorari quashing the allotment of the plot to the interested party affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AA
majority
GP
majority
SB
majority
On appeal from
High Court of Kenya at Nakuru
Misc. Civil Case No. 79 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal against orders of the High Court in a judicial review motion (Order LIII rules 1 and 2 of the Civil Procedure Rules; Section 8 of the Law Reform Act, Cap 26)

Relief refused

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The appellant's request to set aside the order of certiorari quashing the allotment

The Commissioner was obliged to consult the hotel before allotting the plot, having been aware of the 1976 request that site 'C' be preserved as a road reserve

p. 5

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Rimita, J. was therefore, right in the conclusions he came to, and we accordingly affirm his decision and dismiss this appeal with costs.
p. 5Final orders - appeal dismissed and High Court decision affirmed
The exercise of that discretion clearly affected the legal rights of Kunste Hotel Ltd. The exercise of that power was therefore judicial in nature and he was therefore obliged to hear all those who were likely to be affected by his decision
p. 4Duty to hear persons affected by exercise of statutory discretion
judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process.
p. 4Purpose of judicial review
when looked at together with the provisions of S.8 of the Law Reform Act, Cap 26 Laws of Kenya, we are able to discern that an application for an Order of Certiorari or any of the prerogative orders is not an action.
p. 3Certiorari is not an action; statutory notice inapplicable
we are unable to appreciate why public funds and resources are being employed in the pursuit of privateinterests.
p. 1Court's criticism of the Commissioner litigating private interests with public funds

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Commissioner Of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR)", Case Analysis (1997). Civil Appeal No. 234 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/335/eng@1997-03-14

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