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ELCAllowedEnvironment and Land Judicial Review Case 32 of 2018

Republic v National Land Commission & 2 others; Gitau & 6 others (Interested Parties); Kipchoge Keino Trustees National Olympic Committee-Kenya & 2 others (Exparte)

Environment and Land Court of Kenya
22 June 2023
8,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed the National Land Commission's revocation of a Nairobi title because the Commission acted after its legal deadline expired.

What this practically means

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Executive summary

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The Ex-parte Applicants, trustees of the National Olympic Committee-Kenya, sought certiorari and mandamus to quash a decision of the National Land Commission dated 20th March 2018 declaring their title to L.R No 209/15290 (Original 209/14151/2) Nairobi illegal and fraudulent, revoking it and directing a new grant to the Interested Parties. The Interested Parties raised a preliminary objection on joinder and non-compliance with the Government Proceedings Act, which the court rejected, holding that non-joinder is not a true preliminary objection and causes no prejudice, and that the Section 13A notice requirement had been declared unconstitutional. On the merits, the court held that the NLC's five-year mandate under Section 14 of the NLC Act expired on 1st May 2017, and rejected the claim that the determination was made in April 2017, finding an attempt to hoodwink the court. The court further held that the NLC acted illegally in entertaining the review while ELC 120 of 2008 was pending between the same parties, that it exceeded its powers by purporting itself to revoke the title rather than directing the Registrar, and that although the Applicant had notice of the proceedings, the NLC failed to produce minutes or proceedings proving a hearing, so the Applicant was denied a fair hearing. Certiorari issued quashing the determination and the review decision; mandamus issued directing the Respondents to rescind the decision, reinstate the title and expunge the proceedings from their records. Costs were awarded against the 1st Respondent and the Interested Parties.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection is competent.
  2. 2.Whether the Ex-Parte Applicant has met the grounds or threshold for granting of Judicial Review Orders of Certiorari and Mandamus.

Key legal issues

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01

Whether the preliminary objection on joinder and non-compliance with the Government Proceedings Act was competent

Holding

The objection failed; questions of joinder call for probing of evidence and are not true preliminary objections, and the omission of the Attorney General caused no prejudice.

Reasoning

The court applied Mukisa Biscuits and Hassan Ali Joho on the threshold for preliminary objections, holding that non-joinder/misjoinder requires ascertainment of facts. It further noted that Section 13A of the Government Proceedings Act had been declared unconstitutional in Council of Governors v Senate, and that the Chief Land Registrar was effectively represented by the AG before the Commission, causing no prejudice.

p. 9
02

Whether the NLC's determination of 20th March 2018 was made outside its statutory mandate under Section 14 of the NLC Act

Holding

The determination was made on 20th March 2018, after the mandate expired on 1st May 2017, and was therefore invalid; the claim that it was made in 2017 was rejected as an attempt to hoodwink the court.

Reasoning

Section 14(1) gives the Commission five years from 2nd May 2012 to review grants. The court found the assertion of an April 2017 determination irreconcilable with the letter of 23rd January 2018, the amended complaint filed 12th January 2018 and the gazette notice of 9th November 2018, concluding the decision was rendered in 2018 when the mandate had lapsed.

p. 12
03

Whether the NLC could entertain the review while ELC 120 of 2008 was pending

Holding

The NLC acted illegally in proceeding with the complaint while the court case was alive; it should have exercised restraint after the court declined a stay.

Reasoning

Adopting Robert Mutiso Lelli, the court held that where a court is seized of an ownership dispute, the NLC may only avail evidence before that court, not oust its jurisdiction. The Interested Parties only withdrew the ELC suit long after the Commission's decision, so the Commission could not proceed.

p. 13
04

Whether the NLC exceeded its powers by revoking the title itself

Holding

The NLC purported to revoke the title and directed the Chief Land Registrar to implement the decision, which was improper and tainted with illegality.

Reasoning

Section 14(5) requires the Commission, on finding a title unlawfully acquired, to direct the Registrar to revoke the title. The determination instead declared the title revoked and directed implementation, exceeding the statutory scheme.

p. 13
05

Whether the Applicant was accorded a fair hearing

Holding

Although the Applicant had notice of the proceedings, no hearing was proved; in the absence of minutes or proceedings, the court found the Applicant was not accorded a fair hearing.

Reasoning

The letters of 16th August and 5th October 2016 showed the Applicant knew of the proceedings. However, the Commission, claiming a hearing occurred, bore the burden of demonstrating due process; it produced no minutes or Hansard, so the court could not say with certainty that a hearing took place and held the process procedurally improper.

p. 16

Legal principles established

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  • The NLC's five-year mandate under Section 14 of the NLC Act to review grants and dispositions of public land expired on 1st May 2017; a determination made thereafter is invalid.
  • Where a court is seized of a dispute over ownership of land, the NLC cannot hear and determine an inquiry touching on the same dispute.
  • Where a party claims it accorded another a hearing, the burden lies on it to demonstrate due process; absent proceedings or minutes, the court will find no hearing occurred.
  • Non-joinder or misjoinder of parties is not a true preliminary objection and does not defeat a suit where no prejudice is caused.

Court orders

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  1. 1.An order of Certiorari removing into the Court and quashing the decision of the National Land Commission made on 20th March 2018 declaring the Applicant's title to L.R No 209/15290 illegal, fraudulent and revoked and directing a new grant in the names of the Interested Parties.
  2. 2.An order of Certiorari quashing the decision of the 1st Respondent to review the Applicant's grant/title to L.R No 209/15290 and directing that a new grant be prepared in the names of the Interested Parties.
  3. 3.An order of Mandamus directed to the 1st, 2nd and 3rd Respondents to rescind the decision of 20th March 2018, reinstate the title in the register of titles, and vacate, erase and delete the proceedings leading to that decision from their records.
  4. 4.Costs of the Application to be borne by the 1st Respondent and the Interested Parties.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules, Article 47 of the Constitution and the Fair Administrative Actions Act; Environment and Land Court Act, 2011

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.

In conclusion, the Court is persuaded that the proceedings that culminated in the determination of 20th March, 2018 were vitiated by illegality and procedural impropriety.
p. 16Conclusion on illegality and procedural impropriety
An order of Certiorari does hereby issue removing into this Court for purposes of being quashed the decision by the 1st Respondent, the National Land Commission, made on 20th March, 2018
p. 16Final orders - certiorari quashing the NLC determination
An order of Mandamus does hereby issue directed to the 1st, 2nd and 3rd Respondents to rescind the decision made on 20th day of March, 2018
p. 16Final orders - mandamus to reinstate the title
The costs of the Application shall be borne by the 1st Respondent and the Interested Parties.
p. 16Costs order
The determination herein was rendered on 20th March, 2018, which was not a valid determination as the 1st Respondent's mandate in this respect had lapsed.
p. 12Expiry of NLC's Section 14 review mandate

Issues in the judgment

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minor

Gazette notice date given inconsistently as 29th May 2018 (Respondent) and 9th November 2018 (Interested Parties) without reconciliation

minor

Affidavit of Francis K Paul described as one of the office bearers of the 1st Respondent though he is the Applicant's office bearer

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, "Republic v National Land Commission & 2 others; Gitau & 6 others (Interested Parties); Kipchoge Keino Trustees National Olympic Committee-Kenya & 2 others (Exparte)", Case Analysis (2023). Environment and Land Judicial Review Case 32 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18374/eng@2023-06-22

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