https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3755

Mangeli & another v National Land Commission & 3 others (Miscellaneous Application 16 of 2019) [2026] KEELC 3755 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3755 (KLR) Republic of Kenya In the Environment and Land Court at Thika Miscellaneous Application 16 of 2019 JA Mogeni, J June 17, 2026 IN THE MATTER OF ARTICLES 22, 23, 40, 50 AND 67 OF THE CONSTITUTION AND IN THE MATTER OF LAND REGISTRATION ACT NO. 2 OF 2012 AND IN THE MATTER OF FAIR ADMINISTRATIVE ACT OF 2015 Between John Kilolo Mangeli 1st Applicant Nova Industries Ltd 2nd Applicant and The National Land Commission 1st Respondent The Chief Land Registrar Of Titles 2nd Respondent County Government Of Kiambu 3rd Respondent Attorney General 4th Respondent Judgment 1.Pursuant to the leave that was granted herein on 08/04/2019, the ex-parte Applicant filed the Notice of Motion dated 23/04/2019 seeking the following orders:-a.An order of Certiorari removing to the High Court for purposes of being quashed and quashing the 1st Respondent decision issued on 7/02/2019 and purporting to revoke the 1st Applicant’s title no. LR Nguirubi/Nduini/1534 and 2nd Applicant’s titles Nos LR Nguirubi/Thigio/1699, LR Nguirubi/Thigio/1698 and LR Nguirubi/Thigio/1582b.An order of prohibition precluding the Respondents and any of their respective officers, commissioners, servants, agents and or, employees from alienating, revoking the titles to, making any recommendation for the revocation of the titles or taking any step or action with regard to LR Nguirubi/Thigio/1534 and 2nd Applicant’s titles Nos LR Nguirubi/Thigio/1699, LR Nguirubi/Thigio/1698 and LR Nguirubi/Thigio/1582c.That costs of and incidental to these proceedings be borne by the 1st Respondentd.Any such other further or incidental orders or direction as the Honorable Court may deem fit and expedient in the circumstances. 2.The application was supported by a verifying affidavit sworn on 23/04/2019 by John Kilolo Mangeli the 1st Applicant and also a co-director of the 2nd Applicant, and a statutory statement of even date. The Applicants’ case is the they are the lawful registered owners of title nos. LR Nguirubi/Nduini/1534 and 2nd Applicant’s titles Nos LR Nguirubi/Thigio/1699, LR Nguirubi/Thigio/1698 and LR Nguirubi/Thigio/1582 as evidenced by annexure JKM-1. 3.That the 1st Respondent through a newspaper advertisement in the Daily Newspaper of 13/03/2019 as shown in annexure JKM-2 revoked over 200 acres of land titles alleging them to have been grabbed including the titles of parcels title no. LR Nguirubi/Nduini/1534, LR Nguirubi/Thigio/1582, LR Nguirubi/Thigio/1698 and LR Nguirubi/Thigio/1699. Following which the Applicant made inquiries since he did not understand the action of the 1st Respondent at the offices of the 3rd Respondent as per the letter written by his advocates dated 21/03/2019 addressed to the 1st Respondent attached hereto as annexure JKM-3. 4.That the 1st Respondent on 7/02/2019 made a determination revoking the Applicants’ titles and stated that they should revert to the 3rd Respondent as per the attached copy of determination marked as annexure JKM-4. The decision by the 1st Respondent was gazette vide a gazette notice dated 1/03/2019 as shown as annexure JKM-5. 5.The Applicants contend that from the 1st Respondent’s determination the Applicants were condemned unheard since they were not given adequate notice to appear at the hearing conducted on 27th and 28th September 2019 and the advertisement calling for the meeting was carried in a local newspaper on 26/09/2019 for the meeting scheduled for a day after the advertisement. 6.The depose that the action and conduct of the 1st Respondent was contrary to Fair Administrative of Actions Act. According to the Applicants, they have a good defence to the unmerited claim of the 3rd Defendant and they seek just and equal opportunity to challenge the claim by the 3rd Defendant labelling them grabbers of public land. 7.That the economic livelihood of Applicants is threatened since they rely on raw materials (Diatomite) obtained from the parcels in issue for production of their products. 8.They aver that they have always complied with statutory requirements as evidenced in annexure JKM-6. The state that the 1st Respondent’s action has led to exposure of the Applicants property to theft and vandalism that infact one person has been arrested and charged in Kikuyu Law Court on 27/03/2009. 9.The 1st Applicant swore a further affidavit on 3/02/2026 avers that the crux of the dispute lies in the 1st Respondent’s unilateral and unfair conclusion that the said titles were defective without considering any substantive record from the Applicants. This arbitrary action is characterized as a blatant abuse of the rules of natural justice and a violation of the Applicants' fundamental rights and freedoms as enshrined under the Constitution of Kenya, 2010. 10.In addressing the 1st Respondent's claim regarding the legality of the review process, the Deponent contends that the notice provided was grossly insufficient and failed to accord the Applicants a fair opportunity to be heard. It is deponed that while the notice was published in the Daily Nation on 26/09/2018, the hearing allegedly commenced only a day later, on 27/09/2018, rendering it impossible for the Applicants to prepare or appear. In support of this contention, the Deponent refers to the attachment marked ‘JKM-1’, being a true copy of the said newspaper advertisement. The Deponent further clarifies that the Applicants remain unaware of the specific particulars of the complaint lodged by the 3rd Respondent, as they were never served with the same, and they continue to engage with the Kiambu County Government through the acquisition of permits, as evidenced by the payments annexed to the previous affidavit of 23/04/2026 marked ‘JKM-6’. 11.The Deponent further challenges the jurisdiction of the 1st Respondent, stating that the Commission acted outside its statutory mandate and the prescribed timelines set forth in Section 14(1) of the National Land Commission Act. It is argued that the Commission is required to review grants or dispositions of public land within five years of the commencement of the Act, and therefore the impugned actions were undertaken outside the statutory window. Consequently, the Deponent maintains that the proceedings are ultra vires and prejudicial to the Applicants' interests. The Applicants urge the Court to grant the prayers sought in the Notice of Motion dated 23/04/ 2019. 12.The Application is opposed. Only the 1st Respondent filed a Replying Affidavit sworn on 27/01/2026. The 3rd Respondent did not file any documents in response to the application. 13.The 1st Respondent, the National Land Commission, through its Director of Legal Affairs and Dispute Resolution, Brian Ikol, swore a Replying Affidavit on 27/01/2026 and avers that the Commission is mandated under Sections 14 and 15 of the said Act to review all grants and dispositions of public land to determine their legality or propriety, acting as a quasi-judicial body. That therefore the Commission acted within its statutory jurisdiction after receiving a formal complaint from the Kiambu County Government alleging that the suit property, originally reserved for public use as a grazing area, had been irregularly transferred into private ownership. 14.In response to the allegations of procedural impropriety, the Deponent states that the Commission strictly adhered to the dictates of Article 50 of the Constitution and the Fair Administrative Action Act. It is deponed that the Commission, in compliance with Section 14(3) of the National Land Commission Act, notified all interested parties of the intended review through a newspaper advertisement to afford them an opportunity to be heard. The 1st Respondent points out that despite this notification, the Applicant failed to attend the hearing or submit any documentation regarding the suit property. Consequently, after due investigative hearings, the Commission rendered its determination and recommendations, which were published in the Kenya Gazette Vol. CXXI-No. 27 dated 1/03/2018, a copy of which is annexed and marked as ‘NLC1’. 15.The 1st Respondent further contends that the Applicant's claim of infringement of property rights under Article 40 is unfounded, as constitutional protection does not extend to property found to have been illegally acquired. The Deponent maintains that the Commission’s recommendation for the suit property to revert to the County Government of Kiambu and the subsequent revocation of private titles was a lawful exercise of its mandate. It is the 1st Respondent's position that the Applicant has failed to demonstrate any violation of constitutional rights and that the prayers sought in the Application are legally unmaintainable. Therefore, the Deponent prays that the Notice of Motion dated 23/04/2019 be dismissed with costs. 16.The Application was canvassed by way of written submissions. The Applicant filed submissions dated 30/01/2026 the 1st Respondent did not file any submissions. I scanned the CTS and never spotted any submissions filed by the Respondents. Applicant’s Submissions 17.It is the Applicants' submission that the impugned decision is a nullity, being tainted with gross procedural impropriety and illegality. Citing the locus classicus on judicial review, Pastoli v. Kabale District Local Government Council & Others (2008) 2 EA 300, the Applicants contend that the 1st Respondent committed an error of law by acting ultra vires and in total defiance of logic. They further rely on Al-Mehdawi v. Secretary of State for the Home Department (1990) AC 876 to emphasize that the failure of a decision-making authority to adhere to express statutory procedural rules constitutes a fatal procedural impropriety that warrants the intervention of this Court. 18.The Applicants further argue that the 1st Respondent violated the twin pillars of natural justice and the non-derogable right to a fair hearing as enshrined under Article 50 of the Constitution. They maintain that the notice published in the Daily Nation on 26/09/2018 for a hearing scheduled the very next day, 27/09/2018, was grossly insufficient and failed to meet the thirty-day threshold required under Regulation 19 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations. Citing the Supreme Court of Kenya in Evans Odhiambo Kidero & 4 Others v. Ferdinand Ndungu Waititu & 4 Others [2014] eKLR, the Applicants assert that the right to a fair hearing must be given an expansive construction to ensure justice is not only done but seen to be done. This position is reinforced by the Court of Appeal in Judicial Service Commission v. Hon. Mr. Justice Mbalu Mutava & Another [2014] eKLR, which applied the principle in Ridge v. Baldwin [1964] AC 40, holding that no person should be condemned unheard or dismissed without being told what is alleged against them. 19.Finally, the Applicants submit that the 1st Respondent acted without jurisdiction as the statutory period for the review of grants under Section 14(1) of the National Land Commission Act had lapsed. Since the Act commenced on 2/05/2012, the Commission's mandate to review titles on its own motion or upon complaint expired on 1/05/ 2017, rendering any subsequent proceedings legally untenable. In support of this, the Applicants cite Republic v. National Land Commission & 2 Others; Gitau & 6 Others (Interested Parties) [2018] eKLR, which adopted the Canadian Supreme Court's reasoning in Baker v. Canada (Minister of Citizenship & Immigration) [1999] 2 S.C.R. 817, affirming that procedural fairness requires an open and impartial process appropriate to the statutory context. Consequently, the Applicants pray that the 1st Respondent’s determination be quashed and the Respondents be condemned to pay costs pursuant to Section 27 of the Civil Procedure Act, particularly as the application remains largely unopposed by the 2nd, 3rd, and 4th Respondents. Analysis and Determination 20.From the pleadings, it is clear that the matter before this Honourable Court concerns a Judicial Review application seeking to quash the decision of the National Land Commission (NLC) which revoked several land titles held by the Applicants in the Nguirubi/Thigio area. After a fastidious perusal of the pleadings and the rival submissions, the Court finds that the dispute centers on the delicate balance between the State's power to correct historical land injustices and the constitutional guarantees of fair administrative action and the right to property. 21.From the pleadings, affidavits and written submissions filed I find that there are there that crystallize for determination:1.Whether the 1st Respondent (NLC) violated the rules of natural justice, specifically the audi alteram partem rule, by providing insufficient notice for the review hearing.2.Whether the NLC’s actions were undertaken within the five-year statutory window prescribed by Section 14(1) of the National Land Commission Act.3.Whether the revocation of the titles constituted an unlawful infringement of the Applicants' right to property under Article 40. 22.The Applicants' grievance is anchored on the bedrock of procedural fairness. They contend that a newspaper advertisement placed on 26/09/2018 for a hearing scheduled on 27/09/2018 is a mockery of the right to be heard. This ambush style of administration is precisely what the Fair Administrative Action Act and Article 47 of the Constitution seek to prevent. As established in the case of Pastoli v. Kabale District Local Government Council & Others (supra), the Court noted:“Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision." 23.The words of Justice Mativo (as he then was) in Republic v National Land Commission & another Ex-parte Robert Gichuru & 2 others [2017] eKLR resonate here:“The rules of natural justice are not mere formalities. They are the very essence of justice. A body such as the 1st Respondent, charged with the solemn duty of determining the fate of property rights, must act with the highest degree of procedural integrity. To condemn a person unheard by providing a notice of less than 24 hours is to act arbitrarily and in a manner that offends the very Constitution that created the Commission." 24.Furthermore, the Applicants raise a potent jurisdictional point: the NLC's power to review grants was intended to be a time-bound exercise. Under Section 14(1) of the NLC Act, this mandate was to be exercised within five years of the Act's commencement (2012–2017). By acting in 2018/2019, the Applicants argue the Commission was functus officio. 25.Additionally I would like to refer to the Supreme Court’s decision on jurisdiction where it has previously addressed the temporal limits of the NLC. In the Advisory Opinion No. 2 of 2014, the Court emphasized the statutory limits of the Commission. If the law says the Commission shall within five years review grants, any action beyond that period without a legislative extension is ultra vires. 26.The Applicant’s contention is that they were not afforded an adequate opportunity to prepare and present their case before a decision to revoke their titles was made. Section 14 of the National Land Commission Act, 2012 enjoins the Respondent to give every person who appears to have an interest in a grant or disposition under review, a notice of such review and an opportunity to appear before the Respondent and to inspect any relevant documents. 27.However the NLC, through Brian Ikol, justifies its actions as a necessary exercise of its quasi-judicial mandate to recover public land. They argue that the land was originally set aside for communal grazing and was irregularly alienated. Their defense rests on the principle that the right to property under Article 40(6) does not extend to property that was unlawfully acquired. In the eyes of the Commission, the newspaper advertisement was sufficient public notice, and the Applicants' failure to appear was at their own peril. 28.The Applicant has sought an order of certiorari and prohibition. Certiorari, Prohibition and Mandamus are public law remedies which are available to persons whose legally recognized interests have been infringed by public bodies or officers exercising statutory powers. In, Halsbury’s Laws of England, 4th Edition at paragraph 46, the authors have stated as follows;“the Courts have inherent jurisdiction to review the exercise by public bodies or officers of statutory powers impinging on legally recognized interests. Powers must not be exceeded or abused”. 29.In the book, H.W.R Wade & C.F. Forsyth, Administrative Law, 10th Edition the authors have stated as follows at page 509 on the remedies of Certiorari and Prohibition:“the quashing order and prohibiting order are complementary remedies, based upon common principles……….A quashing order issues to quash a decision which is ultra vires. A prohibiting order issues to forbid some act or decision which will be ultra vires. A quashing order looks to the past, a prohibiting order to the future.” 30.In the case of Kenya National Examination council –vs- Republic, Exparte Geoffrey Gathenji Njoroge & 9 others [1997] e KLR the Court did to set out the scope and efficacy of the remedies of certiorari, mandamus and prohibition. In that case the Court described the remedies of prohibition and certiorari as follows:“…….prohibition is an order from the High Court directed to an inferior tribunal or body which prohibits that tribunal or body to continue proceedings in excess of its jurisdiction or in contravention of the laws of the land………Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons….” 31.I am in agreement with the Applicant that in addition to section 14 of the National Land Commission Act, 2012, the decision of the Respondent violated the provisions of Articles 40 and 47 of the Constitution of Kenya and section 4 of Fair Administrative Action Act, 2015. Justice must not only be done but must be seen to be done through a fair and transparent process. The NLC’s shortcut was a bridge to nowhere. 32.By proceeding to make a decision adverse to the Applicant in relation to the suit property without notifying the Applicant of the complaint that had been made against it and affording it an opportunity to respond to the same, the Respondent acted in breach of the rules of natural justice. Any decision which is arrived at by a public authority or body in excess of or without jurisdiction and/or in breach of the rules of natural justice is null and void. It follows therefore that the purported revocation of the Applicant’s titles to the parcels stated above is a nullity and as such liable to be quashed by this Court. 33.I am however a live to the fact that the legality or otherwise of the allocation of the suit property to the Applicant remains unresolved. In these proceedings the Court is only concerned with the process through which the Applicant’s letter of allotment was revoked. The Court is in no way saying that the Applicant has a valid title to the suit property or that the property was allocated to it regularly. As I have stated above, the Respondent had jurisdiction to review and cancel the allocation of the suit property to the Applicant. The Court cannot therefore prohibit the Applicant generally from questioning the legality of the process through which the suit property was allocated to the Applicant. 34.The Court must address the quality of the notice provided. In Kenyan jurisprudence, a notice that does not allow a party sufficient time to prepare and respond is no notice at all. The NLC Review of Grants and Dispositions of Public Land Regulations require a thirty-day notice. Placing an advert today for a hearing tomorrow is a clear violation of Section 14(3) of the NLC Act. 35.This Court finds that the 1st Respondent’s decision was fatally flawed. Even if the land was grabbed as alleged the NLC cannot use illegal or unconstitutional means to correct a past illegality. Two wrongs do not make a right. The provision of a one-day notice is a gross violation of the Fair Administrative Action Act and Article 50(1) of the Constitution. 36.Moreover, having occurred after the lapse of the five-year window provided under Section 14 of the NLC Act, the decision was made without jurisdiction. 37.For the foregoing reasons, I am satisfied that the Notice of Motion application dated 23/04/2019 has merit. The application is allowed on the following terms:i.An Order of Certiorari is hereby issued to quashing the 1st Respondent’s determination dated 7/02/2019 and the subsequent Gazette Notice of 1/03/2019 regarding the suit properties.ii.An Order of Prohibition is issued precluding the Respondents from implementing the said revocation.iii.Costs are awarded to the Applicants, to be borne by the 1st Respondent.iv.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 17TH DAY OF JUNE, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Lawi for the 1st and 2nd ApplicantsMs. Kemunto for the 1st RespondentMr. Motari for the 2nd and 4th RespondentMs. Lillian - Court Assistant………………………MOGENI JJUDGE