The Commissioner of Lands & 1 other v Kunste Hotel Limited & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that the Commissioner of Lands must hear anyone whose rights are affected before allotting public land, even without registration.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review proceedings require statutory notice under section 136(2) of the Government Lands Act and section 13A of the Government Proceedings Act
An application for certiorari is not an 'action'; the High Court issuing prerogative orders exercises special jurisdiction outside civil or criminal jurisdiction, so the statutory notice provisions do not apply
Section 3 of the Interpretation and General Provisions Act defines 'action' as civil proceedings including a suit. Section 8(1) of the Law Reform Act, read with section 7 of the UK Administration of Justice (Miscellaneous Provisions) Act 1938, converted writs to orders and shows the court is not exercising civil or criminal jurisdiction when issuing prerogative orders. The notice provisions contemplate a suit under the Civil Procedure Act. Cases cited on notice were therefore irrelevant.
Whether the Commissioner of Lands was obliged to consult Kunste Hotel Limited before allotting the subject plot
Yes. The exercise of the statutory power to allot clearly affected the hotel's legal rights, making the exercise judicial in nature and requiring a hearing of all persons likely to be affected
The Commissioner was aware of the 1976 request by Mr Kagiri that site 'C' be left as a road reserve, and the correspondence showed the appellant accepted that request. The hotel's interest was sufficient and obvious even though unregistered; it could not be argued that absence of registration extinguished the interest entitling the hotel to a hearing. Other parties were consulted but the hotel was not.
Whether the assurance that site 'C' would be a road reserve was ascertainable despite no registered restrictive covenant
The subject plot was clearly the one Mr Kagiri had requested be left as a road reserve, and the appellant's 1977 reply accepted that request; absence of registration did not negate the assurance
Only two plots lay between the hotel and the Nakuru-Nairobi highway; the subject plot was vacant and unalienated, so it was plainly the plot Mr Kagiri meant. The appellant's reply approving a revised plan 'in accordance with your request' could only refer to preserving site 'C' as a road reserve. Counsel's restrictive-covenant registration argument was rejected.
Legal principles established
#- An application for an order of certiorari or any prerogative order 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 a statutory decision-maker exercises a discretion that affects the legal rights of a person, the exercise is judicial in nature and the person likely to be affected must be heard before the decision
- Judicial review is concerned with the decision-making process, not with private rights or the merits of the decision
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
- 3.Order of certiorari quashing the allotment of the plot to the interested party affirmed
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal against an order of judicial review (certiorari) issued by the High Court under Order LIII rules 1 and 2 of the Civil Procedure Rules and section 8 of the Law Reform Act (Cap 26)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Commissioner of Lands & 1 other v Kunste Hotel Limited & 1 other", Case Analysis (1997). Civil Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/413/eng@1997-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.