Republic v National Land Commission & 2 others; Gitau & 6 others (Interested Parties); Kipchoge Keino Trustees National Olympic Committee-Kenya & 2 others (Exparte)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection is competent.
- 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
#Whether the preliminary objection on joinder and non-compliance with the Government Proceedings Act was competent
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.
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.
Whether the NLC's determination of 20th March 2018 was made outside its statutory mandate under Section 14 of the NLC Act
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.
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.
Whether the NLC could entertain the review while ELC 120 of 2008 was pending
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.
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.
Whether the NLC exceeded its powers by revoking the title itself
The NLC purported to revoke the title and directed the Chief Land Registrar to implement the decision, which was improper and tainted with illegality.
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.
Whether the Applicant was accorded a fair hearing
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.
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.
Legal principles established
#- 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
#- 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.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.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.Costs of the Application to be borne by the 1st Respondent and the Interested Parties.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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
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
The costs of the Application shall be borne by the 1st Respondent and the Interested Parties.
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.
Issues in the judgment
#Gazette notice date given inconsistently as 29th May 2018 (Respondent) and 9th November 2018 (Interested Parties) without reconciliation
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.