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ELCAllowedELC JR Application No. E002 of 2023

Hezekiah Cherorot Ngerechi v County Government of Bomet & another; National Land Commission (Interested Party)

Environment and Land Court of Kenya
24 September 2026
4,844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a county's 14-day demolition notice because only the National Land Commission can order evictions from public land, and it must give three months' notice.

What this practically means

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Executive summary

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The Ex parte Applicant sought certiorari to quash and prohibition to restrain enforcement of a notice dated 16th January 2023 issued by the County Government of Bomet directing him to remove buildings on Plot No. 5 Tenwek Market within 14 days, on the ground that it encroached on public land. He claimed standing as a personal allottee in possession, paying rent and rates, with permanent developments on the plot. The 1st and 2nd Respondents raised a preliminary objection asserting he lacked locus standi because a licence is personal and extinguished on the licensee's death, a claim premised on the original Applicant suing as personal representative of a deceased licensee. The Respondents and the National Land Commission (interested party) filed no responses or submissions. The court, L. A. Omollo J, dismissed the preliminary objection: it was directed at a party already struck out, and whether an allotment was made to the remaining Applicant is a factual question unfit for a preliminary point of law; further, the right to review under Article 47 and Section 7(1) of the Fair Administrative Action Act is not confined to holders of registered title. On the merits, the court held the notice ultra vires because Section 152C and Section 155 of the Land Act vest the eviction-notice mandate exclusively in the National Land Commission; the 14-day notice period breached the statutory minimum of three months; and the decision violated Article 47 for want of a hearing. Certiorari quashed the decision and prohibition restrained its implementation, with costs to the Respondents.

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 merited
  2. 2.Whether the Respondents have met the threshold for grant of Judicial Review Orders of certiorari and Prohibition
  3. 3.Who should bear the costs of the Preliminary Objection and of the Application

Key legal issues

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01

Whether the preliminary objection on locus standi was merited

Holding

The objection failed: it was directed at a party (Stephen Mosonik, personal representative of the deceased licensee) who had been struck out, and whether an allotment was made to the remaining Applicant is a factual question unsuitable for a preliminary point of law. The Applicant, as an allottee in possession paying rates and threatened with demolition, has standing under Article 47 and Section 7(1) FAAA.

Reasoning

The objection rested on the personal nature of licences and their extinction on death, authorities aimed at a derivative claim through the deceased licensee. The remaining Applicant claims under a personal allotment. Whether that allotment exists requires documentary and oral evidence, so it is not a pure point of law; the objection was also overtaken by the amendment striking out the deceased's representative.

p. 21
02

Whether the Respondents had statutory mandate to issue the impugned notice

Holding

The notice was ultra vires: Section 152C and Section 155 of the Land Act vest the mandate to issue eviction notices over public land exclusively in the National Land Commission, and the impugned notice was issued by the 2nd Respondent's Chief Officer.

Reasoning

Section 152C of the Land Act requires the National Land Commission to cause an eviction decision to be notified in the Gazette, a nationwide newspaper and local radio at least three months before eviction. The impugned notice was issued by the County Chief Officer, not the Commission, so the Respondents acted in excess of their mandate and the decision was illegal.

p. 26
03

Whether the impugned notice complied with Section 152C of the Land Act

Holding

It did not: the notice allowed only 14 days instead of the statutory minimum of three months, and there was no evidence of publication as required.

Reasoning

Section 152C is couched in mandatory terms requiring Gazette and newspaper publication and at least three months' notice before eviction. The impugned notice gave 14 days. Non-compliance with a statutory procedural requirement constitutes procedural impropriety, a recognised ground for judicial review under Pastoli.

p. 27
04

Whether the decision violated Article 47 of the Constitution and the Fair Administrative Action Act

Holding

Yes: the notice was issued without prior notice, opportunity to be heard, or written reasons, violating Article 47 and Sections 4, 5 and 7 of the FAAA.

Reasoning

Procedural impropriety arises where a decision-maker fails to act fairly or observe statutory procedure. The Respondents afforded the Applicant no opportunity of explanation before directing demolition, and filed no response to contradict his averments, which must be taken at face value. The decision was therefore procedurally unfair and unlawful.

p. 27
05

Whether the threshold for certiorari and prohibition was met

Holding

Both orders were merited: certiorari quashes the extant decision of 16th January 2023; prohibition lies because an apprehension of demolition is a live, continuing threat.

Reasoning

Certiorari is backward-looking and removes into the High Court to quash an existing decision; prohibition is forward-looking and restrains continuing or imminent unlawful acts. The notice remained in force since 16th January 2023, and the threat of demolition of the Applicant's developments was a live threat warranting prohibition.

p. 29

Legal principles established

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  • A preliminary objection must raise a pure point of law and must not depend on facts requiring proof or the exercise of judicial discretion.
  • The right to apply for review of administrative action under Section 7(1) of the Fair Administrative Action Act and Article 47(1) is not confined to persons with registered proprietary interests in land.
  • A person in possession, paying rates, and threatened with demolition has sufficient interest to invoke the Court's judicial review jurisdiction.
  • Notices of eviction from public land must be issued by the National Land Commission with at least three months' notice under Section 152C of the Land Act.

Court orders

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  1. 1.The 1st and 2nd Respondents' Notice of Preliminary Objection dated 27/5/2024 is dismissed
  2. 2.Certiorari: the Respondents' decision directing the Ex parte Applicant to remove his building and/or structures comprised in Plot No. 5 Tenwek Market within 14 days from 16th January 2023 is quashed
  3. 3.Prohibition: the Respondents and/or any other person and/or authority acting on the instructions of the Respondents are prohibited from causing the removal of the Ex parte Applicant's building comprised in Plot No. 5 Tenwek Market
  4. 4.The costs of the Application and the Preliminary Objection shall be borne by the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under Order 53 of the Civil Procedure Rules, Section 8 of the Law Reform Act, Articles 23, 47 and 165(6) of the Constitution and the Fair Administrative Action Act

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.

I find that the Notice of Preliminary Objection dated 27th May, 2024 does not raise a pure point of law capable of disposing of the proceedings in limine and is, in any event, overtaken by the amendment to the Notice of Motion Application
p. 22preliminary objection - pure point of law
A person in possession, paying rates, and threatened with demolition of developments on account of an administrative decision has sufficient interest to invoke this Court’s Judicial Review jurisdiction notwithstanding the ultimate strength of his proprietary claim.
p. 22locus standi of an allottee in possession
It is evident that a notice of eviction from public land is to be issued by the National Land Commission and the notice period is three months.
p. 26statutory mandate and notice period under Section 152C Land Act
Taking the foregoing into consideration, I find that the Respondents’ decision was ultra vires hence illegal. It was not within the powers of the 1st and 2nd Respondent to issue an eviction notice in respect of public land.
p. 29ultra vires administrative action
The Respondents’ decision directing the Ex Parte Applicant to remove his building and/or structures comprised in the property known as Plot No. 5 Tenwek Market within 14 days from 16th January 2023 is hereby quashed.
p. 31final orders - certiorari
The Respondents and/or any other person and/or authority acting on the instructions of the Respondents are hereby prohibited from causing the removal of the Ex Parte Applicant’s building comprised in the property known as Plot No. 5 Tenwek Market.
p. 3final orders - prohibition
The costs of this Application and the Preliminary Objection shall be borne by the Respondents.
p. 32final orders - costs

Issues in the judgment

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minor

Case number inconsistency between caption and footer

minor

Date of amended application inconsistent between body and disposition

minor

Preliminary objection dated 27th May 2024 postdates the original motion of 29th May 2023 but is described as filed in response; chronology unclear

minor

Judgment refers to '1st Applicant' and 'Stephen Mosonik' as struck out, though the caption names only Hezekiah Cherorot Ngerechi as Applicant

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, "Hezekiah Cherorot Ngerechi v County Government of Bomet & another; National Land Commission (Interested Party)", Case Analysis (2026). ELC JR Application No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5669/eng@2026-09-24

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