[2021] KEELC 2909 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC MISC. CIVIL APPLICATION NO. 35OF 2018

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

IN THENATURE OF CERTIORARI AND PROHIBITION

BETWEEN

REPUBLIC.....................................................................................................APPLICANT

AND

THE NATIONAL LAND COMMISSION.........................................1STRESPONDENT

THE CHIEF LAND REGISTRAR....................................................2ND RESPONDENT

EX-PARTE

SAMUEL WACHIRA WANJA.........................................1STEX-PARTE APPLICANT

DAVIS MALOMBE..........................................................2ND EX-PARTE APPLICANT

JOSEPH WAWERU..........................................................3RD EX-PARTE APPLICANT

AND

KIAMBU DANDORA FARMERSCO. LTD.......................1ST INTERESTED PARTY

AMBOSELI COURT LIMITED..........................................2ND INTERESTED PARTY

JUDGMENT

Introduction:

At all material times, all that parcel of land known as L.R No. 11397/3 (hereinafter referred to only as “the original parcel”) was registered in the name of the 1st interested party. The 1st interested party acquired the original parcel on 7th April, 1970. Through Kenya Gazette Notices Nos. 840 and 841 dated 15th March, 1974, the Government of Kenya expressed an intention to acquire the original parcel compulsorily under the Land Acquisition Act, Chapter 295 Laws of Kenya (now repealed). A dispute arose thereafter between the 1st interested party and another company known as Dandora Housing Scheme Limited over the ownership of the original parcel which dispute was taken to court for determination. Since the Government was not sure as to which of the two companies owned the original parcel for the purposes of compensation, it deposited the compensation amount in the sum of Kshs. 1,316,980/- in court in the suit in which the ownership dispute was to be determined for the same to be released to whichever of the two companies the court would determine to be the owner of the property. The Government thereafter took over possession of the property.

After taking possession of the original parcel, the Government allocated portions thereof to various entities and individuals. One of the beneficiaries of the portions of the original parcel was the 2nd interested party. The 2nd interested party was allocated a portion of the original parcel known as L.R No. 15400 measuring 18. 55 hectares on 16th July, 1998. Upon sub-division, L.R No. 15400 gave rise to L.R No. 15400/1 to 15400/595. The 2nd interested party sold and transferred L. R. Nos. 15400/5 to 15400/8, 15400/10 to 15400/31, 15400/33, 15400/35 to 15400/41, 15400/43 to 15400/53, 15400/56 to 15400/63, 15400/67 to 15400/70, 15400/73 to 15400/76, 15400/78 to 15400/85, 15400/88 to 15400/91, 15400/94 to 15400/95, 15400/97 to 15400/98, 15400/102 to 15400/104, 15400/106 to 15400/107, 15400/110 to 15400/111, 15400/113, 15400/117 to 15400/122, 15400/ 124, 15400/125, 15400/127 to 15400/ 144, 15400/146 to 15400/ 151, 15400/154, 15400/156 to 15400/ 160, 15400/ 163 to 15400/ 169, 15400/175, 15400/195, 15400/196, 15400/204, 15400/206, 15400/207, 15400/210, 15400/213 to 15400/214 to 15400/215, 15400/225 to 15400/232, 15400/235, 15400/238, 15400/240, 15400/241, 15400/244 to 15400/247, 15400/250 to 15400/251, 15400/257, 15400/258, 15400/262 to 15400/264, 15400/270, 15400/275, 15400/279, 15400/289, 15400/304, 15400/306, 15400/315, 15400/360, 15400/369, 15400/376, 15400/411, 15400/417, 15400/459 and 15400/465 (hereinafter together referred to only as “the suit properties”) to the ex-parte applicants and other persons whom they represent (hereinafter together referred to only as “the applicants”). The suit properties are situated in an area known as Sosian Estate, Embakasi, Nairobi. The applicants acquired the suit properties from the 2nd interested party between 2009 and 2014 at valuable consideration.

The 1st interested party and its members have over the years contended that the compulsory acquisition of the original parcel by the Government of Kenya was never completed and as such the original parcel continued to be owned by the 1st interested party. The 1st interested party has maintained that the allotment of portions of the original parcel by the Government of Kenya to third parties was illegal. This stand by the 1st interested party has led to the filing of numerous suits involving the 1st interested party, the Government, the persons to whom portions of the original parcel were allocated by the Government and those who purchased portions of the original parcel from the original allottees and subsequent purchasers. Some of these cases have been disposed of while others are pending. Of the many suits, the notable one is Nairobi ELC Petition No. 47 of 2011, Abdulahi Muiruri & others v Attorney General & others. In this petition, the 1st interested party and its members have challenged the compulsory acquisition of the original parcel and have sought various reliefs among them compensation for the loss of the property. The 1st respondent is a party to that suit. The suit is part heard before this court.

Background to the present application:

On 18th August, 2015, the 1st interested party and the 1st respondent purported to enter into a settlement agreement whose purpose was to settle Nairobi ELC Petition No. 47 of 2011, Abdulahi Muiruri & others v Attorney General & othersaforesaid. The said agreement provided in clause 2 thereof as follows:

“The Respondent undertakes to review all grants and Dispositions under Section 14 of the National Land Commission Act unlawfully or irregularly issued over L.R No. 11379/3(I.R 23514) within a period of six months from the date of execution of this agreement with a view of causing such grants and dispositions to be revoked or regularized as the commission may determine.”

In accordance with the terms of the said agreement, the 1st respondent issued a public notice that was published in The Standard Newspaper on 2nd December, 2015 in which the 1st respondent informed the public that it would be conducting a review of grants and dispositions of among others the suit properties pursuant to the provisions of Article 68(v) of the Constitution and section 14 of the National Land Commission Act, 2012 with a view to establishing their legality or propriety thereof. The 1st respondent called upon the owners of the suit properties or any person interested in the same to submit to the it a written representation and documentary evidence on how they acquired or came to be in possession of the suit properties.

Following that public notice, the applicants through their advocates on record wrote to the 1st respondent challenging its jurisdiction to review the grants relating to the suit properties. The applicants also asked the 1st respondent to furnish them with the particulars of the complaints that had been lodged with the 1st respondent in respect of the suit properties pursuant to which the 1st respondent had moved to review the grants and dispositions relating thereto. The applicants indicated that they required that information to enable them respond to the said complaints. From the material on record, the 1st respondent did not respond to the applicants’ request and as such the applicants appears not to have made any representations in response to the 1st respondent’s said public notice save for that which challenged the 1st respondent’s jurisdiction to review the grants and dispositions in respect of the suit properties.

Despite the protest by the applicants over its failure to furnish them with the particulars of the complaints that had been lodged with it in relation to the suit properties and its alleged lack of jurisdiction to review the grants in respect of the suit properties, the 1st respondent allegedly proceeded with the review of grants and dispositions relating to the suit properties.

In a letter dated 10th May, 2018 addressed to the County Commissioner, Nairobi, the County Commander of Kenya Police, the Nairobi Commander of Administration Police, the Deputy County Commissioner, Njiru, the Deputy County Commissioner Embakasi District, the Officer Commanding Police Division, Buruburu, the Officer Commanding Police Division, Kayole and copied to the 1st interested party and “all interested parties to the dispute”, the 1st respondent informed them that it had finalized the review of grants and dispositions in respect of various properties and that it had resolved to uphold the title relating to L.R No. 11379/3(the original parcel). The 1st respondent stated further in the said letter that it had directed the 2nd interested party to revoke the titles of the other properties whose grants and dispositions it had reviewed. The 1st respondent indicated that the particulars of properties whose grants and dispositions it had reviewed and whose titles it had recommended to be cancelled was attached to the said letter.

The applicants were not served with a copy of this letter dated 10th May, 2018 or the determination referred to therein. The applicants were also not aware that the suit properties were affected by the said determination. The applicants became aware of the said letter on 17th May, 2018 when the 1st interested party’s directors and members in the company of police officers invaded the suit properties claiming that the same belonged to them and threatened to demolish the structures that the applicants had put up thereon. It was upon making inquiry from the police officers who had accompanied the invaders as to whose instructions they were acting that the applicants were given an incomplete copy of the said letter dated 10th May, 2018 from the 1st respondent about the determination that the 1st respondent had made and which the applicants were told affected their titles to the suit properties.

On 31st May, 2018, the applicants wrote to the 1st respondent challenging the alleged determination on various grounds and called upon the 1st respondent to withdraw and suspend the gazettement of the same. The applicants also demanded that they be supplied with a copy of the alleged determination together with the records and other documents that were used by the 1st respondent in arriving at the said determination. The 1st respondent did not respond to the applicants’ demand letter.

The application before the court:

The applicants sought and obtained leave of the court on 12th June, 2018 to apply for an order of certiorari to move to this court and quash the determination, decision and/or orders published by the 1st respondent on 10th May, 2018 and any Kenya Gazette Notice relating to the said determination in which the 1st respondent purported to uphold the title for the original parcel and directed the 2nd respondent to revoke all other titles including the titles to the suit properties. The applicants were also granted leave to apply for an order of prohibition to stop and/or restrain the respondents or their agents, servants and/or employees or any of them from implementing the said determination, decision and/or order dated 10th May, 2018 and to prohibit the respondents from publishing the said determination in the Kenya Gazette or elsewhere to the extent that the said determination and/or order relates to the suit properties.

Upon obtaining leave as aforesaid, the applicants brought a judicial review application by way of Notice of Motion dated 13th June, 2018 seeking the said orders in respect of which leave had been granted. The applicants’ application was brought on the grounds set out on the face thereof and on the statutory statement and verifying affidavit of the 1st applicant, Samuel Wachira Wanja both dated 8th June, 2018.

The applicants’ case:

The applicants sought the quashing of the said determination by the 1st respondent communicated through a letter dated 10th May, 2018 and a prohibition prohibiting the enforcement thereof on the following grounds;

1. The 1st respondent’s determination had the effect of nullifying the titles held by the applicants in respect of the suit properties.

2. The 1st respondent intended to publish the impugned determination in the Kenya Gazette.

3. The jurisdiction and legal mandate of the 1st respondent to review grants and dispositions of public land and to make a determination in respect thereof expired on 1st May, 2017 and the same had not been extended.

4. The purported determination was made without jurisdiction.

5. The 1st respondent had no jurisdiction to direct the 2nd respondent to revoke the applicants’ titles in respect of the suit properties since the applicants were bona fide purchasers of the suit properties for value without notice of any defect in their titles.

6. The power granted to the 1st respondent under section 14(4) of the National Land Commission Act, 2012 is unconstitutional the same being contrary to Article 67(2) (e) of the Constitution.

7. The applicants were not accorded a fair hearing by the 1st respondent before the impugned determination was made contrary to Articles 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act, 2015.

8. The 1st respondent had no jurisdiction to review grants relating to private land.

9. The 1st respondent had refused to furnish the applicants with a copy of the purported determination despite demand having been made for the same contrary to Article 47(2) of the Constitution and section 6 of the Fair Administrative Action Act, 2015.

10. The 1st respondent’s determination amounted to an abuse of the process of the court the 1st respondent having assumed jurisdiction over a dispute concerning the original parcel while there were numerous suits over the same subject matter pending before various courts.

11. The 1st respondent had failed to suspend the impugned decision.

1. 12. Following the impugned determination, the 1st interested party’s directors, servants and agents have from time to time entered the suit properties and threatened the applicants with eviction therefrom.

12. The impugned determination was made without jurisdiction and/or in excess of jurisdiction, was illegal, irregular, null and void.

In the verifying affidavit, the 1st applicant narrated how the applicants acquired the suit properties from the 2nd interested party. The 1st applicant stated that the applicants had titles to the suit properties, had developed the same and were residing thereon. The 1st applicant stated that they learnt of the impugned determination on 17th May, 2018 when the 1st interested party’s directors, servants and agents invaded the suit properties which are inside an enclosed estate (Sosian Estate) in the company of hired goons and police officers, knocked down the estate gate and threatened them with eviction. The 1st applicant stated that the police officers who had accompanied the 1st interested party’s directors and those who came with them gave them an incomplete copy of the 1st respondent’s letter dated 10th May, 2018. The 1st applicant stated that the 1st respondent did not furnish them with a complete copy of the letter or its impugned determination that was referred to in the said letter. The 1st applicant stated that the purported determination affected the suit properties which were being claimed by the 1st interested party. The 1st applicant reiterated that the purported determination was made without jurisdiction and in violation of the applicant’s right to a fair administrative action. The 1st applicant annexed several documents to his affidavit in proof of the applicants’ titles to the suit properties. The 1st applicant also annexed photographs showing the developments made by the applicants on the suit properties and the frequent invasion of the properties by the 1st interested party. Also annexed to the said affidavit was the 1st respondent’s letter dated 10th May, 2018. The 1st applicant stated that in view of the various suits that were pending concerning the ownership of the original parcel, the impugned determination amounted to an abuse of the court process as it resulted from an attempt at forum shopping. The 1st applicant stated that the applicants were apprehensive that their houses on the suit properties could be demolished by the 1st interested party in collusion with the 1st respondent. The 1st applicant urged the court to grant the reliefs sought.

The 1st respondent’s case:

The 1st respondent opposed the application through a replying affidavit sworn by its Deputy Director of Surveys, Sospeter Ohanya on 19th November, 2018. The 1st respondent averred that the 1st respondent received numerous complaints and petitions from the 1st interested party that third parties had unlawfully occupied and dispossessed it of L.R No. 11379/3(the original parcel) without compensation. The 1st respondent averred that from the available records, the original parcel was registered in the name of the 1st interested party and that it measured 818 acres. The 1st respondent averred that on 15th March, 1974, the Government issued a Notice of intention to acquire the original parcel compulsorily under the Land Acquisition Act (now repealed) for future urban development. The 1st respondent averred that pursuant to the said compulsory acquisition, an award of Kshs. 1,316,980/- was made as compensation for the original parcel which amount was deposited in court by the Ministry of Lands in view of the many suits that had been filed over the ownership of the original parcel. The 1st respondent averred that after depositing the said amount in court, the Government of Kenya took possession of the original parcel in accordance with the Land Acquisition Act.

The 1st respondent averred that the 1st interested party retained title to the original parcel and that during the uncertainty that was created by the compulsory acquisition and the many court cases that had been filed in respect of the original parcel, some unlawful allocation and excisions were done on the original parcel. The 1st respondent averred that the applicants had admitted that the suit properties originated from the original parcel which was still registered in the name of the 1st interested party.

The 1st respondent averred that upon receipt of the said complaints by the 1st interested party, the 1st respondent published a notice in the newspapers on 2nd December, 2015 calling upon all parties who had interest in the suit properties to make representations in writing on how they acquired the same. The 1st respondent averred that most of the applicants made representations and the same were considered by the 1st respondent. The 1st respondent averred that it made a finding that the original parcel was still owned by the 1st interested party and that the same was excised illegally without the consent of the 1st interested party. The 1st respondent contended that L.R No. 15400 from which the suit properties were created was illegally allocated to the 2nd interested party which irregularly subdivided the same and sold portions thereof (the suit properties) to the applicants.

The 1st respondent averred that judicial review was not the most efficacious way of resolving disputes over title to land. The 1st respondent averred that due to the defects in the manner the suit properties were created, the applicants could not claim to be bona fide purchasers for value without notice. The 1st respondent averred that the suit properties were born out of an illegal process and as such the applicants could not claim to have valid titles in respect thereof. The 1st respondent averred that it had jurisdiction to review the grants in respect of the suit properties since the same were leasehold titles from the Government of Kenya and as such public land.

The 1st respondent averred further that since the applicants had not lodged in court a copy of the determination sought to be quashed, the order of certiorari could not issue. The 1st respondent averred that its letter dated 10th May, 2018 did not amount to a determination or a decision capable of being quashed. The 1st respondent averred that since its determination had not been published, the applicants’ application was premature. The 1st respondent urged the court to dismiss the applicants’ application.

The 2nd respondent’s and the 1st interested party’s cases:

The 2nd respondent and the 1st interested party did not file any response to the application.

The 2nd interested party’s case:

The 2nd interested party supported the application through a replying affidavit sworn by its director, Patrick Munene on 5th March, 2019. The 2nd interested party averred that after the original parcel was acquired compulsorily by the Government of Kenya, an entry was made on its register on 20th November, 1974 vesting the property on the Government. The 2nd interested party denied that the original parcel was still in existence and that it was registered in the name of the 1st interested party. The 2nd interested party averred that the original parcel had over the years been subdivided and allocated by the Government to various persons who were in occupation of the same. The 2nd interested party averred that it was one of the beneficiaries of a portion of the original parcel which he applied for and was allocated by the Government of Kenya. The 2nd interested party averred that the portion of the original parcel that was allocated to it gave rise to the suit properties upon subdivision. The 2nd interested party averred that even the 1st interested party was allocated a portion of the original parcel measuring 120 acres adjacent to Mama Lucy Hospital which it subdivided and allocated to its members.

The 2nd interested party averred that on 10th May, 2018 and 22nd May, 2018, the 1st interested party’s members in the company of police officers and people who claimed to be from Nairobi County Government invaded the 2nd interested party’s parcels of land and the suit properties with an excavator with the intention of commencing excavation in the said properties. The 2nd interested party averred that the police officers who accompanied the members of the 1st interested party to the 2nd interested party’s land and the suit properties claimed that they were acting under the authority that was given to them by the 1st respondent in its letter dated 10th May, 2018.

The 2nd interested party averred that despite the existence of several suits touching on the original parcel and the fact that the same had been subdivided and allocated to various parties who had developed the same and were in occupation thereof, the 1st respondent purported to restore the ownership of the property to the 1st interested party. The 2nd interested party averred that when the 1st respondent published a notice in the newspapers on 2nd December, 2015 of its intention to review the titles that originated from the original parcel, the 2nd interested party through its advocates brought to the attention of the 1st respondent the fact that there were several suits concerning the 1st interested party’s claim over the said parcels of land and that it was better if the disputes were left to the courts to resolve.

The 2nd interested party averred that in purporting to review the titles in respect of the said parcels of land, the 1st respondent and the 1st interested party acted in contempt of court. The 2nd interested party averred that the 1st interested party’s claim that the court had nullified the compulsory acquisition of the original parcel by the Government was not correct in that the decree that was purportedly issued in Nairobi HCCC No. 1555 of 1984 was found to be a forgery in a ruling that was made by Mohamed K. Ibrahim J. on 7th October, 2005 in Misc. Application No. 1507 of 2004.

The 2nd interested party averred that in 2011, the 1st interested party filed Constitutional Petition No. 47 of 2011, Abdulahi Muiruri & 5 others v Attorney General & others seeking Kshs. 17 billion as compensation for the original parcel which it claimed that the Government had wrongfully acquired from them in 1974. The 2nd interested party averred that the said petition was pending hearing. The 2nd interested party averred that the 1st respondent and the 1st interested party did not involve the other parties to the said petition in the settlement agreement which they purportedly reached on 18th August, 2015. The 2nd interested party averred that when the 1st respondent purported to review the grants in respect of the suit properties, it had no jurisdiction to do so its review powers having ceased on 2nd May, 2017. The 2nd interested party averred further that in purporting to review grants in respect of the suit properties while there were suits pending in court over the same subject matter amounted to abuse of power and contempt of court on the part of the 1st respondent. The 2nd interested party urged the court to grant the reliefs sought by the applicants.

The submissions:

The applicants’ application was heard by way of written submissions. The applicants filed their submissions on 2nd August, 2019. The respondents and the interested parties did not file submissions even after time was extended for them to do so. The applicants submitted that the 1st respondent had no jurisdiction to make the impugned determination since its powers of review lapsed on 1st May, 2017. The applicants submitted further that since the applicants were bona fide purchasers of the suit properties for value, the 1st respondent had no power to direct the 2nd respondent to revoke the titles in respect thereof. The applicants contended further that the Constitution only gave the 1st respondent power to recommend appropriate redress while reviewing grants and dispositions of public land and not to make a determination. The applicants contended that the power that was conferred upon the 1st respondent by section 14(4) of the National Land Commission Act to make a determination was in the circumstances unconstitutional.

The applicants submitted further that the powers of review of grants and dispositions that was conferred upon the 1st respondent was limited to public land. The applicants submitted that the 1st respondent had no power to review grants in respect of the suit properties since the same were private land. The applicants submitted further that the proceedings that were undertaken before the 1st respondent amounted to abuse of power and due process and violated the sub-judice rule in that the same were conducted while there were various suits pending in court touching on the same subject matter. The applicants submitted further that they were not accorded a fair hearing and a fair administrative action guaranteed under Articles 47 and 50(1) of the Constitution and sections 4, 6 and 7 of the Fair Administrative Action Act, 2015.

The applicants submitted that they were not granted an opportunity to be heard and to make representation in response to the complaints that had been lodged against them by the 1st interested party. The applicants submitted that the 1st respondent failed, refused and/or neglected to serve them with hearing notices in respect of its proceedings and the particulars of the complaints that had been made by the 1st interested party. The applicants submitted that in further violation of their right to a fair hearing, the 1st respondent failed and/or refused to furnish them with a reasoned and complete copy of the impugned determination despite written request.

The applicants submitted that the purported hearing that was conducted by the 1st respondent was biased and was intended to serve an ulterior motive. The applicants contended that by the time the 1st respondent purported to conduct a review of the applicants’ grants, the 1st respondent had already entered into an agreement with the 1st interested party on 18th August, 2015 in which the 1st respondent had undertaken to review the said grants. The applicants submitted that the 1st respondent and the 1st interested party had a premeditated and predetermined outcome of the review of grants that the 1st respondent purported to undertake. The applicants submitted further that the purported determination violated the applicants’ right to property and sanctity of title in respect of the suit properties. The applicants submitted that the 1st respondent had no power to cancel or order the cancellation of a validly issued certificate of title. The applicants submitted that the 1st respondent’s failure to disclose the material on which it based its determination and the reasons for the determination demonstrated that the impugned determination was unreasonable, an abuse of power and was made with ulterior motive.

The applicants urged the court to grant the prayers sought in their application dated 13th June, 2018. The applicants cited several authorities in support of their submissions.

Analysis and determination of the issues arising:

I have considered the applicants’ application together with the statutory statement and verifying affidavit filed in support thereof. I have also considered the affidavit filed by the 2nd interested party in support of the application and the affidavit filed by the 1st respondent in opposition to the application. The main issues that I need to determine in the application are; whether sufficient grounds have been placed before the court to warrant the grant of the orders of judicial review sought by the applicants and, whether the orders should be granted. The following is my view on the matter. Section 13(7)(b) of the Environment and Land Court Act, 2011 gives this court power to grant prerogative orders. The nature and purpose of judicial review orders are now settled. Judicial review is now both a statutory and a common law remedy. Section 4 of the Fair Administrative Action Act, 2015(the Act) provides as follows:

4. (1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him.

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable;

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to-

(a) attend proceedings, in person or in the company of an expert of his choice;

(b) be heard;

(c) cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.”

Section 7 of the Act provides as follows:

7. (1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to-

(a) a court in accordance with section 8; or

(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.

(2) A court or tribunal under subsection (1) may review an administrative action or decision, if-

(a) the person who made the decision-

(i) was not authorized to do so by the empowering provision;

(ii) acted in excess of jurisdiction or power conferred under any written law;

(iii) acted pursuant to delegated power in contravention of any law prohibiting such delegation;

(iv) was biased or may reasonably be suspected of bias; or

(v) denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action or decision was procedurally unfair;

(d) the action or decision was materially influenced by an error of law;

(e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;

(f) the administrator failed to take into account relevant considerations;

(g) the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;

(h) the administrative action or decision was made in bad faith;

(i) the administrative action or decision is not rationally connected to-

i. the purpose for which it was taken;

ii. the purpose of the empowering provision;

iii. the information before the administrator; or

iv. the reasons given for it by the administrator;

(j) there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;

(k) the administrative action or decision is unreasonable;

(l) the administrative action or decision is not proportionate to the interests or rights affected;

(m) the administrative action or decision violates the legitimate expectations of the person to whom it relates;

(n) the administrative action or decision is unfair; or

(o) the administrative action or decision is taken or made in abuse of power.”

Section 11 of the Act provides as follows:

11(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order-

(a) declaring the rights of the parties in respect of any matter to which the administrative action relates;

(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

(c) directing the administrator to give reasons for the administrative action or decision taken by the administrator;

(d) prohibiting the administrator from acting in particular manner;

(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;

(g) prohibiting the administrator from acting in a particular manner;

(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;

(i) granting a temporary interdict or other temporary relief; or

(j) for the award of costs or other pecuniary compensation in appropriate cases.

(2) In proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just and equitable, including an order-

(a) directing the taking of the decision;

(b) declaring the rights of the parties in relation to the taking of the decision;

(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or

(d) as to costs and other monetary compensation.”

Section 12 of the Act provides that:

This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice.

In OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others NRB CA 28 of 2016, [2017] eKLR, the Court of Appeal stated as follows:

“The law on the jurisdiction of the High Court to entertain judicial review proceedings are encapsulated in several decisions, some of which were cited before us while the learned Judge applied others in his judgment. The law, from these decisions is to the following effect;

That the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies; that it is the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court in a judicial review proceeding. Put another way, judicial review is concerned with the decision making process, not with the merits of the decision itself. In that regard, the court will concern itself with such issues as to whether the public body in making the decision being challenged had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision, the public body took into account irrelevant matters or did not take into account relevant matters”.

As mentioned earlier in this judgment, the applicant has sought orders of Certiorari and prohibition. In Halsbury’s Laws of England, 4th Edition, page 150 at paragraph 147, the authors have stated as follows regarding the nature of certiorari as a remedy:

“It will issue to quash a determination for excess or lack of jurisdiction, error of law on the face of the record or breach of the rules of natural justice or where the determination was procured by fraud, collusion or perjury”.

In Halsbury’s Laws of England, 4th Edition at paragraph 46, the author has stated as follows:

“The courts have inherent jurisdiction to review the exercise by public bodies or officers of statutory powers impugning on legally recognized interests. Powers must not be exceeded.”

In the text H. W. Wade and 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 complementing remedies, based upon common law principles …..A quashing order issues to quash a decision which is ultravires. A prohibiting order issues to forbid some act or decision which will be ultravires. A quashing order looks to the past, a prohibiting order to the future.”

In Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the court stated as follows on the scope and efficacy of remedies of Prohibition and Certiorari:

“…..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.”

In the book; Public Law in East Africa published by Law Africa, the author Ssekaana Musa has stated as follows at page 250;

“Judicial review is a discretionary jurisdiction. The prerogative remedies, the declaration and the injunction are all discretionary remedies with exception of habeas corpus which issues ex debito justitiae on proper grounds being shown. A court may in its discretion refuse to grant a remedy, even if the applicant can demonstrate that a public authority has acted unlawfully.”

I am satisfied that the applicants have established valid grounds for the grant of the orders sought. I am convinced that as at the time the 1st respondent purported to review the grants in respect of the suit properties, the 1st respondent had no jurisdiction to do so its review powers having expired on 2nd May, 2017. I am also persuaded that in view of the many suits that were pending before various courts touching on the ownership of the original parcel and particularly ELC Constitutional Petition No. 47 of 2011 in which both the 1st respondent and the 1st interested party were parties, in which petition the issue whether the original parcel was lawfully acquired compulsorily by the Government of Kenya had been raised for determination, it amounted to abuse of power and contempt of court for the 1st respondent to purport to determine the ownership of the said parcel of land. I am also persuaded that the applicants were not accorded affair hearing by the 1st respondent and that the 1st respondent was biased against the applicants.

The 1st respondent was established under section 67 of the Constitution of Kenya which also spelt out some of its functions. Article 68 of the Constitution directed Parliament to enact legislation providing for among others the review of all grants or dispositions of public land to establish their propriety or legality. The National Land Commission Act, 2012 was enacted pursuant to the provisions of Articles 67(3) and 68 of the Constitution. Pursuant to Article 68(c) (v) of the Constitution, the 1st respondent was given power under the National Land Commission Act, 2012(hereinafter referred to only as “the Act” where the context so permits) to review grants and dispositions of public land. Section 14 of the Act provides as follows:

14. (1) Subject to Article 68 (c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.

(2) Subject to Articles 40, 47 and 60 of the Constitution, the Commission shall make rules for the better carrying out of its functions under subsection (1).

(3) In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.

(4) After hearing the parties in accordance with subsection (3), the Commission shall make a determination.

(5) Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.

(6) Where the Commission finds that the title was irregularly acquired, the Commission shall take appropriate steps to correct the irregularity and may also make consequential orders.

(7) No revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title.

(8) In the exercise of its power under this section, the Commission shall be guided by the principles set out under Article 47 of the Constitution.

(9) The Commission may, where it considers it necessary, petition Parliament to extend the period for undertaking the review specified in subsection (1).

This court had an occasion to deal with an application similar to the one before me in R v National Land Commission & others Exparte Samuel Mbugua Githegi[2018]eKLR where the court stated as follows:

“There is no dispute that the respondent had power under section 14 of the National Land Commission Act, 2012 (the Act) on its own motion or upon a complaint to review all grants or dispositions of public land to establish their propriety or legality. This mandate has since come to an end. It is arguable whether the respondent can continue with the review of grants or dispositions of public land in respect of complaints that were pending before it when its mandate under that section expired. I am of the view that the respondent cannot purport to review any grant or disposition of public land after the expiry of its mandate under Section 14 of the Act whether such review is pursuant to a new complaint or a complaint that was pending as at the time its mandate expired unless Parliament extends its mandate under that section of Act.

In my view, if it was the intention of Parliament to empower the respondent to continue processing complaints pending before it after the expiry of its mandate, it would have provided for such eventuality in the Act. In the absence of such provision in the Act, the respondent would be exercising powers it does not have if it purports to continue with review of grants and disposition of public land after the expiry of its mandate. Parliament provided for the extension of the respondent’s mandate under section 14 of the Act. If the respondent had pending reviews or investigations at the expiry of its mandate, that would be a proper basis for seeking extension of its mandate under section 14 of the Act. However, until the extension is granted by Parliament, the respondent must lay down its tools with regard to the exercise of the powers that were granted to it under the said section of the Act.”

On the 1st respondent’s assumption of jurisdiction on matters pending before the court, the court stated as follows in the same decision:

“As to whether the respondent could proceed with the review of the said grants and dispositions in respect of the suit properties at the instance of the 1stinterested party while there were pending proceedings that had been instituted by the 1st interested party before this court touching on the same subject matter, I am in agreement with the ex parte applicants that it would amount to an abuse of judicial process for the respondent to engage in such exercise. I am of the view that once a court of competent jurisdiction is seized of a matter, the court must be given an opportunity to pronounce itself on such matter before any other or further proceedings relating to the same matter are considered.”

I still hold the views that I expressed in the above suit. The National Land Commission Act, 2012(the Act) commenced on 2nd May, 2012. The 1st respondent was given power to review grants and dispositions of public land within 5 years of commencement of the said Act. That window closed on 2nd May, 2017 at the expiry of 5 years from the date of commencement of the Act and was not extended. It is not disputed that the impugned decision of the 1st respondent was made on or about 10th May, 2018. By that time, the 1st respondent had no power to review grants and dispositions of public land. In purporting to make the said determination, the 1st respondent was exercising a power that it did not have. The applicants had also contended that the 1st respondent’s review powers were limited to public land and as such the 1st respondent had no jurisdiction to review the titles for the suit properties which were private land. Once unalienated public land is alienated for private use, it becomes private land. See, section 9(2) of the Land Act, 2012. In my view, the powers that were conferred upon the 1st respondent under section 14 of the National Land Commission Act, 2012(the Act) were intended to enable it examine the propriety and legality of alienation of public land for private use. It follows therefore that the 1st respondent could only review titles for public land that had already been alienated and as such converted to private land. Although the suit properties are registered in the names of the applicants as the owners thereof, the titles are leasehold from the Government of Kenya. In Republic v National Land Commission & another, Exparte Muktar Saman Olow[2015] eKLR the court stated as follows:

“47. Under Section 14 of the National Land Commission Act, 2012 the Respondent is given jurisdiction to enforce Article 68(c)(v) of the Constitution and review all grants or dispositions of public land to establish their propriety or legality. In my view, the Respondent can only fulfil this mandate by probing the process under which public land was converted to private land. It would defeat the purpose of the Constitution to imagine that unlawfully and irregularly acquired land once registered as private property is no longer within the reach of the Respondent.”

Since the suit properties were public land before they were alienated for private use, the process of alienation of the same was subject to review by the 1st respondent under section 14 of the National Land Commission Act, 2012. I have however made a finding that as at the time the 1st respondent purported to review the said grants, its review mandate had expired and as such it had no jurisdiction to do so. I am also in agreement that the 1st respondent assumed jurisdiction over a dispute that was sub-judice and as such it acted in contempt of court and abused its powers of review that it did not even have at the material time.

These findings alone would have been sufficient to dispose of this application. I will however consider two other issues that were raised by the applicants. I have restrained myself from considering other issues raised by the parties such us the validity of the applicants’ titles and whether or not the original parcel is still owned by the 1st interested party because these are live issues in the many suits that are pending in court and a determination of the same in this judicial review may embarrass the courts handling the said matters.

The applicants had contended that the 1st respondent did not accord them a fair administrative action and a fair hearing. Sections 14(3) and (8) of the National Land Commission Act, 2012 provides as follows:

(3) In the exercise of the powers under subsection (1), the Commission shall give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.

(8) In the exercise of its power under this section, the Commission shall be guided by the principles set out under Article 47 of the Constitution.

Article 47 (1) and (2) of the Constitution provides that:

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

I am not satisfied from the material before the court that the applicants were accorded fair hearing and fair administrative action by the 1st respondent. The evidence before the court shows that the 1st respondent published a notice in a newspaper of its intention to review grants and dispositions in respect of the suit properties. As I mentioned earlier, in the said notice, the 1st respondent called upon members of the public and other persons who had interest in the suit properties to make representations. There was no indication in the said notice that the review was being undertaken on the 1st respondent’s own motion or on a complaint and if it was on a complaint the complainant and the particulars of the complaint.

The evidence before the court shows that the applicants became aware of the intended review of their grants by the 1st respondent and engaged the 1st respondent on the same. It is clear from the evidence before the court that the 1st respondent refused to supply the applicants with the particulars of the complaints that formed the basis of the said review to enable the applicants to respond to the same. In its replying affidavit, the 1st respondent contended that it carried out the review of the grants in respect of the suit properties following numerous complaints from the 1st interested party. The 1st respondent did not place before the court any of the said complaints. The 1st respondent did not also demonstrate that it informed the applicants of the said complaints. There was also no evidence that the 1st respondent conducted any hearing and that the applicants were notified of the same. I am satisfied from the foregoing that the applicants were not given an opportunity by the 1st respondent to defend themselves against the complaints that were allegedly made against them by the 1st interested party. I am in agreement with the applicants that the 1st respondent acted contrary to the provisions of section 14(3) of the National Land Commission Act and violated the applicants right to a fair administrative action guaranteed under Article 47 of the Constitution. The procedure that was adopted by the 1st respondent in the impugned determination was therefore unfair. The same was unlawful and unconstitutional. The 1st respondent was aware that its decision would affect the applicants’ rights to property. Under Article 47(3) of the Constitution, the applicants had a right to be supplied with a copy of the 1st respondent’s determination containing reasons for the same. The evidence before the court shows that despite written request, the 1st respondent refused to supply the applicants with the impugned determination. In the absence of such determination, the applicants’ contention that there were no reasons for the 1st respondent’s decision to revoke the applicants’ titles to the suit properties are not far-fetched.

The applicants had also contended that the 1st respondent was biased against them in its impugned determination. The applicants contended that the 1st respondent had a premeditated decision on the 1st interested party’s alleged complaints against the applicants in relation to the validity of the titles to the suit properties. The applicants’ argument on this issue was based on an agreement dated 18th August, 2015 between the 1st respondent and the 1st interested party in which the 1st respondent undertook to allocate to the 1st interested party some land that formed part of the suit properties and also to review the titles of the suit properties. This agreement was produced in court by the 1st respondent and was not disputed by the 1st interested party. It was not disputed that the agreement was confidential and that the applicants who were to be affected by the same were not parties thereto and were not consulted in respect thereof. After perusing the said agreement, I am in agreement with the applicants’ contention that the 1st respondent had made up its mind as far back as 18th August, 2015 before initiating the review process that the 1st interested party was the lawful owner of the original parcel and that the portion of the original parcel that was allocated to the 2nd interested party which was subsequently sold to the applicants was illegally created. In the absence of complaints that were made to it by the 1st interested party, it cannot be ruled out that the review of the applicants’ titles to the suit properties were carried out pursuant to this agreement and not otherwise. Since the 1st respondent had a predetermined outcome on the alleged complaints by the 1st interested party, it could not purport to conduct a hearing on those complaints. It was against the rules of natural justice to do so. It could not arrive at an impartial determination. In view of its prior agreement with the 1st interested party on the alleged complaints, it could not be said of its determination that justice was done and was seen to have been done.

Conclusion.

I have held that the 1st respondent had no jurisdiction to review the titles for the suit properties and that the applicants were not given a fair hearing during the purported review. I have also held that the 1st respondent abused it power by assuming jurisdiction over a dispute that was pending in court. I have held further that the 1st respondent was biased against the applicants. For the foregoing reasons, the impugned determination by the 1st respondent was unconstitutional, illegal, null and void. A court of law cannot allow it to stand. I am satisfied that the applicants are entitled to the orders sought in the Notice of Motion application dated 13th June, 2018. I therefore enter judgment for the applicants against the respondents in terms of prayers 1 and 2 of the application. The applicants and the 2nd interested party shall have the costs of the application to be paid by the 1st respondent and the 1st interested party assessed at Kshs. 750,000/- for the applicants and Kshs. 200,000/- for the 2nd interested party exclusive of court fees and other disbursements which shall be taxed by the taxing officer of the court if not agreed.

Delivered and Dated at Nairobi this 10th Day of June 2021

S. OKONG’O

JUDGE

Judgment delivered through Microsoft Teams Video Conferencing Platform in the presence of:

Mr. Nderitu for the Applicants

N/A for the 1st Respondent

N/A for the 2nd Respondent

N/A for the 1st Interested Party

N/A for the 2nd Interested Party

Ms.C. Nyokabi-Court Assistant