[2015] KEHC 7730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 334 OF 2014

REPUBLIC……........…………………………………………………APPLICANT

VERSUS

THE NATIONAL LAND COMMISSION……….......…………….RESPONDENT

EX PARTE

KRYSTALLINE SALT LIMITED

JUDGEMENT

1. Pursuant to the leave granted to the ex parte Applicant Krystalline Salt Limited on 4th September, 2014, the Applicant filed the Notice of Motion application dated 9th September, 2014 seeking orders as follows:

“1. The Honourable Court be pleased to grant an:

a)ORDER OF CERTIORARI to remove into this Court for the purposes of being quashed the decision of the Respondent to excise 34 ha from all that parcel of land known as L.R. No. 13427 situated in Kilifi County (hereinafter referred to as the suit property) that was conveyed by the letter dated 17th July 2014.

b)ORDER OF PROHIBITION to prevent the Respondent by themselves, their agents or persons acting under them from reviewing, revoking, evicting, excising, resurveying or from taking any action on the suit property in any manner that interferes with the Applicant’s quiet possession of the suit properties.

2. The cost of this application be provided for.”

2. From the papers filed in Court, the Applicant’s case is that it is the proprietor of all that parcel of land known as LR. No. 13427 situated in Kilifi County (hereinafter referred to as the suit property) which was allotted to it in the year 1984 after fulfilling the necessary requirements.

3. It enjoyed vacant possession of the suit property until sometime in the year 2000 when it realized that a certain person known as Mr Katana Fondo (hereinafter referred to as the Interested Party) had started erecting a structure on the suit property claiming to be the owner of a portion measuring 16 hectares.

4. Upon further enquiry, the Applicant realized that its portion of land had been irregularly allotted to the said Interested Party. The Applicant immediately informed the Ministry of Lands of this anomaly and the Ministry wrote back on the 7th November, 2001 informing the Applicant that the anomaly had been noted and the title issued to the Interested Party would be cancelled.

5. The Ministry of Lands did indeed write to the Interested Party informing him that the allotment had been revoked owing to the fact that the land belonged to the Applicant as the registered owner.

6. It is the Applicant’s case that everything returned to normal thereafter. The Applicant was therefore shocked when it received a letter from the Respondent (the National Land Commission) on 17th July, 2014 conveying the information that that 34 hectares would be excised from its parcel of land. The Applicant asserts that no reasons were given for the decision.

7. According to the Applicant the letter also claimed that the decision was made based on previous correspondences between the Applicant and the Ministry of Lands. The Applicant asserts that it has not seen any correspondences and demands for the same have been ignored by the Respondent.

8. It is the Applicant’s case that the Respondent’s decision is illegal and irrational for reasons that:

a. The decision of the Respondent is an affront to the Constitution and in particular Article 40 which guarantees right to property;

b. The said decision made by the Respondent was unilateral and an abuse of Article 47 of the Constitution as the Applicant was never given a chance to be heard;

c. The Respondent’s decision is unreasonable owing to the fact that it is purportedly made based on previous correspondences which the Respondent has refused to show the Applicant;

d. The decision is further unreasonable owing to the fact that the only correspondence between the Applicant and the Ministry of Lands was to the effect that they had rescinded the allocation that was issued to the Interested Party and acknowledged that the allocation was done by mistake;

e. The decision of the Respondent is ultra vires as the Respondent is not empowered by the Constitution, statute law or any other law to delve into matters concerning private land;

f. The Respondent’s action is an attempt to usurp the powers of the Environment and Land Court by purporting to make declarations on ownership of private land;

g. The only way the government can acquire land in the manner purported by the Respondent was vide compulsory acquisition but the same can only be done if the parcel of land is being acquired for public good; and

h. The Respondent made a decision based on gross error of law as it assumed it had powers to review title to private land and revoke titles to the private land.

9. In support of the Applicant’s case, counsel submitted that according to the Constitution of Kenya every person has the right to own property of any description in any part of the country. The right to property includes the right to enjoyment of the property. It includes the right to quiet possession of property that is legally and procedurally acquired. Any decision that purports to interfere with the quiet possession inevitably affects and limits the right to property.

10. It is the Applicant’s position that the Respondent has no power to limit the right to property and any purported exercise of such jurisdiction is tainted with illegality, procedural impropriety and irrationality. According to the Applicant, the instant case is about a constitutional body exceeding its jurisdiction and purporting to interfere with the right to quiet possession of property by a citizen. It is the Applicant’s assertion that the Respondent’s decision is thus made in defiance of logic, utterly unreasonable, irrational,ultra vires and grounded on gross error of law and fact.

11. The Applicant’s position is that the decision by the Respondent is ultra vires for the reason that it seeks to give it powers it does not have and the Respondent sought to exercise jurisdiction where it had none and further that the decision is clearly contrary to the provisions of the Land Act and the Constitution; that the decision was grounded on fundamental error of law as the Respondent misinterpreted the law; that the decision was based on fundamental error of fact in that the Respondent assumed the Applicant’s property fell within the definition of public land and therefore subject to its jurisdiction; and that the decision was utterly unreasonable. The Applicant also contends that the Respondent never gave it a chance to be heard over the issue which is in contravention of principles of natural justice.

12. It is the Applicant’s contention that the right to property is jealously guarded by the law. In support of this argument the Applicant referred to Section 26 of the Land Registration Act, 2012 which provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facieevidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

13. The Applicant averred that its title has never been challenged for having been procured through fraud nor has it (the Applicant) been proved to be a party to any fraudulent acquisition of the suit property. It’s the Applicant’s case that the decision by the Respondent to excise part of its land ought to be quashed asthedecision was grounded on gross error of law and fact, erroneous, unreasonable, irrational and made in excess of jurisdiction.

14. In support of this argument the Applicant cited the decision in the case of Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300 that:

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…

Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction orultra vires, or contrary to the provisions of a law or its principles are instances of illegality….

Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards....

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 or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

15. Citing the decision in Re Bivac International SA (Bureau Veritas) [2005] 2 EA 42the Applicant submitted that although judicial review stems from the doctrine of ultra viresand the rules of natural justice it has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness.

16. The Applicant asserted that jurisdiction is given by statute and a body cannot purport to exercise jurisdiction which is not conferred on it by the statute establishing it. Any action or decision made without jurisdiction is a nullity, and the courts have held that such a decision amounts to nothing. In support of this submission the Applicant cited the decision in Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195in which it was stated that:

“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied.”

17. In pursuit of this line of argument, the Applicant submitted that the Respondent obtains its jurisdiction from Article 67 of the Constitution and the National Land Commission Act which was enacted to give effect to Articles 67 and 68 of the Constitution. According to the Applicant, Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act limits the mandate of the Respondent to review of titles to public land.

18. The Applicant proceeded to contend that public land is defined by Article 62 of the Constitution which clearly distinguishes it from private land as defined by Article 64 of the Constitution. By purporting to review title to private land, the Respondent acted in excess of jurisdiction and therefore its decision was tainted with illegality. The Applicant therefore urged this Court to adopt the decision of Nyarangi, JA in the celebrated case ofOwners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 in which the learned Judge expressed himself as follows:

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

19. Another line of argument pursued by the Applicant is that the Respondent’s decision to excise 34 hectares from its parcel of land is an attempt to usurp powers that are wholly held by the Environment and Land Court as per Article 162(2)(b) of the Constitution of Kenya. It is the Applicant’s case that the Constitution established the Environment and Land Court to determine all land related disputes and the case at hand being a dispute between two private individuals over private land falls within the jurisdiction of the Court.

20. Still on the question of jurisdiction, the Applicant asserted that the Respondent took over functions that were carried out exclusively by the Commissioner of Lands and partly by the Ministry of Lands. The Applicant is of the view that the Respondent is a party to this matter and has interests in the suit. For instance, the Respondent can be called upon to give evidence concerning allotment, title and shed light to communication between itself and other parties concerned. In certain instances the Respondent may even be adjudged to have been on the wrong say in allocating land to a wrong individual or letting a party rely on wrong records at the registry. For this reason, the Court cannot allow the Respondent to preside over private land disputes. This will make the Respondent the prosecutor, the investigator and the judge thus going against the rules of natural justice.

21. Turning to the ground of unreasonableness, the Applicant submitted that the Respondent’s decision was irrational considering the facts that were before it. According to the Applicant, a decision that is unreasonable is one that no person directing himself both on the law and the facts would make. It is one made in defiance of logic. The decisions in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 and R v Minister of State for Immigration and Registration of Persons J.R. 361 of 2012 are cited in support of this argument.

22. It is the Applicant’s submission that the decision by the Respondent was unreasonable as the same was made in defiance of the law and facts. The principle underlining reasonable exercise of power as stated in Republic v Institute of Certified Public Accountants of Kenya ex parte Vipichandra Bhatt t/a J V Bhatt & Company Nairobi HCMA No. 285 of 2006was cited by the Applicant. In that case it was stated that:

“It is axiomatic that that statutory power can only be exercised validly if they are exercised reasonably. No statute can ever allow anyone on whom it confers a power to exercise such power arbitrarily and capriciously or in bad faith.”

23. The Applicant submitted that in seeking to exercise its statutory power, the Respondent failed to validly and reasonably do so. In fact it sought to exercise powers it did not have.

24. The Applicant also contended that the Respondent’s purported review of title to private property was based on a gross error of law. Firstly, the Applicant asserted that the Constitution does not give power to the Applicant to review title to private land. Secondly, the Respondent has no powers to excise part of an individual’s land unless it is through compulsory acquisition where there are preconditions that have to be met that were never met in the instant case.

25. The case of Peter Okech Kadamas v Municipal Council of Kisumu Civil Appeal No. 109 of 1984 [1985] KLR 954; [1986-1989] EA 194 was cited by the Applicant to demonstrate that a decision made in error of law is amenable to judicial review

26. Moving to another ground, the Applicant submitted that the Respondent’s decision was also based on gross error of facts in that the Respondent concluded that the suit property was public land whereas for all intents and purposes, the suit property fell within the constitutional definition of private property. The Applicant asserted that its property is held under leasehold tenure and is thus private land as per the constitutional definition of private land.

27. On the ground of procedural impropriety, the Applicant submitted that even if the Respondent did indeed have powers to review its title, it did not comply with the procedure established under Section 14 of the National Land Commission Act. It is the Applicant’s position that the said Section sets out what should be done before grants are reviewed.

28. The Applicant submitted that the first requirement is that there should be rules to guide the entire procedure but the Respondent has never formulated rules to guide its execution of this mandate. The Applicant submitted that such rules would provide on how evidence is to be adduced, time lines, modes of service and how hearings are to be conducted thus ensuring orderly and fair proceedings. It was the Applicant’s position that in the current case there were no such rules.

29. Secondly, under subsection (3) a party has to be given a notice of such a review and an opportunity to be heard. In this case none of the above was done. What the Respondent did was simply to communicate a decision to the Applicant. The decision was made without giving the Applicant a chance to be heard at all. According to the Applicant, although the Respondent claims that its decision was based on previous correspondences between the company and the Ministry of Lands, the company has never received such letters.

30. It is the Applicant’s position that the Respondent was obliged to afford it an opportunity to be heard before making the decision since the decision affected its interest namely the right to the enjoyment of property. The Applicant relied on the decision by the Court of Appeal in Onyango Oloo v Attorney General [1986-1989] EA 456 to demonstrate that judicial review is available where a decision has been reached in violation of the rules of natural justice.

31. The Respondent opposed the application through an affidavit sworn by its Vice Chairperson Abigael Mbagaya on 6th March, 2015. Through the affidavit, it is averred that the Respondent is a constitutional commission established by Article 67 of the Constitution and its mandate is to, inter alia, manage public land on behalf of national and county governments; conduct research related to land and use of natural resources and make recommendations to appropriate authorities; and initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress. The Respondent may also perform other functions prescribed by national legislation.

32. It is the Respondent’s disposition that in addition to the functions delegated to the Respondent under Article 67(2) of the Constitution, Section 14(1) of the National Land Commission Act, 2012, specifically mandates it, either on its own motion or upon a complaint by the national government or a county government, a community or an individual, to review all grants or dispositions of public land in order to establish their propriety or legality.

33. Turning to the facts of this matter, the Vice Chairperson averred that the suit property was allocated as an “unsurveyed salt plot E” to one General J.K. Mulinge vide letter of allotment number 75894/III/35 of 18th January, 1984. As the area in question was unsurveyed a land development plan number 75894/III/34a was prepared showing the area under allocation. Under the said letter of allotment the area of land under allocation was 2000 hectares of which the said allottee was requested to make payments of Kshs. 19,003. 35 which he did.

34. Ms Mbagaya swore that before survey could be carried out, the allottee through a letter dated 8th January, 1985 applied to the Commissioner of Lands to have the development plan amended to facilitate the intake and collection of sea water. This application was approved subject to the new area being uncommitted government land. According to Ms Mbagaya, the records held by the Respondent shows that no formal amendment of the development plan was carried out.

35. It is the Respondent’s case that on 5th August, 1985 a new letter of allotment referenced 112192/16 in respect of the suit property was issued in the name of Krystalline Salt Ltd (the ex parte Applicant) to hold for a term of 99 years with effect from 1st February, 1984. Following survey of the suit property, it became known as L.R. No. 13427 with an area measuring 2034 hectares. There was therefore an increase of about 34 hectares from the original 2000 hectares that had been contained in the letter of allotment thereby causing a shift in the boundary of the initial allocation. This shift in the boundary of the initial allocation affected an existing development indicated as Giriama Village Island occupied and developed by various local communities.

36. The Vice Chairperson’s averment is that sometime in the 1990s the Government initiated deliberate efforts towards regularisation of land occupation in the Giriama Village Island which culminated in the issuance of letters of allotments to various locals who had made substantial developments and occupied the village island. Specifically, a letter of allotment was issued to the Interested Party Katana Fondo who had developed a tourist resort thereon. However, soon after the issuance of a letter of allotment to the said Katana Fondo, it was realised that the area allocated to him fell within the suit property. Following various consultations with the relevant government offices, the letter of allotment was withdrawn.

37. It is the Respondent’s disposition that a report filed by the Malindi District Survey office on 20th May, 2011 revealed that the existing area covered by the suit property depicted Giriama Village Island as being part of the suit property. However, on the ground, the suit property and Giriama Village Island were separated by mangroves and a gulf.

38. The Respondent’s position is that there are no records to show that the survey of the parcel of land and consequent addition of 34 hectares was carried out prior to the amendment of the letter of allotment and land development plan. According to the Respondent, this was highly irregular and unprocedural. It is the Respondent’s position that letters of allotment are guided by the ordinary rules of contract and it was therefore unprocedural to add 34 hectares to the ex parte Applicant’s title while the letter of allotment only gave the Applicant 2000 hectares. The Applicant was requested to surrender its title for excision of the 34 additional hectares based on the above finding.

39. The Respondent asserted that as the custodian of all public land, it had a right to demand the surrender of the Applicant’s title for excision of 34 hectares as that portion of land had never available for allocation. The Respondent’s position is that since the suit property was an alienation of government land, it was entitled to review the title in order to establish its legality or propriety.

40. The Respondent’s view is that the right to property enshrined under Article 40 of the Constitution does not extend to property found to have been acquired in an unlawful manner and this position is confirmed by Section 26(1)(b) of the Land Registration Act.

41. According to the Respondent, it has not and has never directed the revocation of the Applicant’s title to the suit property as it is yet to review its legality under Section 14 of the National Land Commission Act. It is the Respondent’s view therefore that it is misleading for the Applicant to claim that the contents of the letter dated 17th July, 2014 purported to revoke its title.

42. The Respondent submitted that the Applicant’s contention that the actions of the Respondent amounted to usurpation of the powers of the Environment and Land Court is based on an erroneous interpretation of the law since under Section 14(5) of the National Land Commission Act, the Respondent is mandated by law to direct the Registrar to revoke any title found to have been unlawfully acquired.

43. It is the Respondent’s statement that an order of certiorari cannot issue under the circumstances as no excision of 34 hectares from the Applicant’s title has been carried out and a resurvey of the suit property has not carried out. Further, that an order of prohibition cannot issue under the circumstances as it would have the import of preventing the Respondent from carrying out its constitutional mandate to review the legality of all grants and dispositions of public land.

44. Finally, the Respondent denied that it did not respond to the Applicant’s letters and exhibited a letter dated 29th September, 2014 which was a reply to the Applicant’s letter dated 13th August, 2014.

45. In summary therefore, the Respondent’s opinion is that this matter is an abuse of the court process and does not warrant issuance of the orders sought as the Applicant has no justiciable dispute against the Respondent. The Respondent therefore prayed for the dismissal of the Applicant’s case.

46. Upon review of the pleadings and submissions of the parties herein, I find that the question for the determination of this Court is whether the Respondent had jurisdiction to deal with the Applicant’s title and if so, whether it followed the laid down procedure in exercising its powers.

47. It is the Respondent’s position that the Constitution and the National Land Commission Act, 2012 gives it powers to review all grants or dispositions of public land to establish their propriety or legality. The Applicant’s case is that its property falls into the category of private land and the Respondent has no mandate to review the legality and propriety of the title to its parcel of land.

48. The Respondent is a constitutional commission established by Article 67(1) of the Constitution. Under Article 67 (2) it is given functions as follows:

“(2) The functions of the National Land Commission are—

(a) to manage public land on behalf of the national and county governments;

(b) to recommend a national land policy to the national government;

(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;

(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;

(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;

(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;

(g) to assess tax on land and premiums on immovable property in any area designated by law; and

(h) to monitor and have oversight responsibilities over land use planning throughout the country.”

49. Article 67(3) of the Constitution provides that the Respondent may perform any other functions prescribed by national legislation.

50. Under Article 68(c)(v) of the Constitution, Parliament is authorized to enact legislation “to enable the review of all grants or dispositions of public land to establish their propriety or legality.”

51. As per Article 62 of the Constitution, public land consists of:

“62. (1) Public land is—

(a) land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;

(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;

(c) land transferred to the State by way of sale, reversion or surrender;

(d) land in respect of which no individual or community ownership can be established by any legal process;

(e) land in respect of which no heir can be identified by any legal process;

(f) all minerals and mineral oils as defined by law;

(g) government forests other than forests to which Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;

(h) all roads and thoroughfares provided for by an Act of Parliament;

(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;

(j) the territorial sea, the exclusive economic zone and the sea bed;

(k) the continental shelf;

(l) all land between the high and low water marks;

(m) any land not classified as private or community land under this Constitution; and

(n) any other land declared to be public land by an Act of Parliament—

(i) in force at the effective date; or

(ii) enacted after the effective date.”

52. On the other hand private land is defined by Article 64 of the Constitution as:

“64. Private land consists of —

(a) registered land held by any person under any freehold tenure;

(b) land held by any person under leasehold tenure; and

(c) any other land declared private land under an Act of Parliament.”

53. Article 40 of the Constitution protects the right to property in the following words:

“40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”

54. Article 40(6) of the Constitution is clear that any property that has been found to have been unlawfully acquired does not enjoy constitutional protection.

55. Even Section 26 of the Land Registration Act, 2012 which provides for the sanctity of title to land has a proviso. The said Section states that:

“26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

(2)……”

56. In compliance with Article 68 of the Constitution, Parliament enacted the National Land Commission Act, 2012 and at Section 5(1) of that Act the functions of the Respondent as set out in the Constitution are reiterated. Under Sub-section (2) additional functions are given to the Respondent as hereunder:

“(2) In addition to the functions set out in subsection (1), the Commission shall, in accordance with Article 67(3) of the Constitution—

(a) on behalf of, and with the consent of the national and county governments, alienate public land;

(b) monitor the registration of all rights and interests in land;

(c) ensure that public land and land under the management of designated state agencies are sustainably managed for their intended purpose and for future generations;

(d) develop and maintain an effective land information management system at national and county levels;

(e) manage and administer all unregistered trust land and unregistered community land on behalf of the county government; and

(f) develop and encourage alternative dispute resolution mechanisms in land dispute handling and management.”

57. Section 14 of the same Act provides for review of grants and disposition of public land as per Article 68(c)(v) of the Constitution. The Section states:

“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).”

58. What I have reproduced above is the law that will guide the determination of this matter. A reading of all the provisions cited above points to the fact that the Respondent has power to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress (Article 67(2) (e) of the Constitution). In regard to this matter, I do not think that the Respondent was executing its mandate of addressing historical injustices since Section 15 of the National Land Commission Act requires the passing of legislation by Parliament to “provide for investigation and adjudication of claims arising out of historical land injustices for the purposes of Article 67(2)(e) of the Constitution.” I am not aware that such legislation has been passed by Parliament and neither was it stated by the Respondent that it was acting on the strength of this particular mandate.

59. Under Section 14 of the National Land Commission Act 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 responsibility by querying the process under which public land was converted to private land. I do not see how an unlawfully and irregularly acquired parcel of land becomes out of the reach of the Respondent for the mere reason that it is registered as private property.

60. The mandate to review disposals of public land in order to establish their legality or otherwise belongs to the Respondent. I get support for this position from the decision of Lenaola, J in Compar Investments Limited v Kenya Urban Roads Authority [2014] eKLR in which he stated that:

“I am in agreement and to my mind, it is not the duty of this Court at this stage and the manner it has been approached to inquire into whether or not the Petitioner's title to property is clothed with illegalities. The Respondent must use the relevant body to so determine. To my mind and noting the existing legal regime, that body is the National Land Commission and the Environment and Land Court. The Commission and the Court would be in my view be able to put to rest all the issues raised and incidental to the ownership of the suit property.”

61. The law (Article 40 of the Constitution and Section 26 of the Land Registration Act) only protects lawfully acquired property. Any title acquired illegally, unprocedurally or through a corrupt scheme is not protected and so is property acquired fraudulently or through misrepresentation. The Respondent is mandated by the law to enquire into allegedly unlawfully acquired public land and direct the revocation of the title or regularise the disposition where it finds the land to have been illegally or irregularly converted to private property.

62. The Applicant contended that the Respondent exceeded its jurisdiction and usurped the role of the Environment and Land Court. That argument is not supported by the law. As already demonstrated, the Respondent has jurisdiction to enquire into the legality and propriety of disposal of public land. It is not disputed that the jurisdiction of the Environment and Land Court as provided under by Section 13 of the Environment and Land Court Act, 2011 is wide and includes the jurisdiction granted to the Respondent but that does not in any way take away the mandate of the Respondent.

63. Did the Respondent have jurisdiction in this particular case? It is not disputed that the Respondent did indeed, through its letter dated 17th July, 2014, inform the Applicant that it was “now proceeding to excise 34 ha. from your L.R. NO. 13427 for the Giriama Village for one Mr. Katana Fondo.” The letter proceeded to ask the Applicant “to resurvey the land and exclude the 34 ha. – occupied by the Giriama village. We will advise you on the way forward thereafter.”

64. The letter does not disclose the basis of the Respondent’s decision apart from stating in the 1st paragraph that “[w]e refer to various correspondences to you by the former Ministry of Lands regarding the above matter.”

65. The Vice Chairperson of the Respondent conceded in Paragraph 21 of her replying affidavit that the Respondent’s title had not been revoked as the title was yet to be reviewed for its legality under Section 14 of the National Land Commission Act. If that is the position then what powers was the Respondent exercising in purporting to direct the excision of 34 hectares from the Respondent’s title? That answer was not provided by the Respondent and the presumption is that the Respondent had no authority to make the decision conveyed through the letter dated 17th July, 2014.

66. It must be remembered that the Applicant had applied for an additional 34 hectares of land and that application had been approved. A title of 2034 hectares had been issued to the Applicant. The Respondent now claims, that in respect of the 34 hectares, the procedure for allotment had not been followed. That is a good ground for reviewing the disposal of public land with a view to either revoking the title or regularizing it. The Respondent admitted it had not done a review of the Applicant’s title. The Respondent did not disclose the law that authorized it to do what it did in regard to the Applicant’s title.

67. Even assuming that the Respondent acted within the law, the question is whether it complied with the laid down procedure before making its decision. Section 14 of the National Land Commission Act provides that before a decision is made on the legality or propriety of disposal of public land, the registered owner of the property should be given an opportunity to be heard.

68. The Respondent in its letter to the Applicant referred to various correspondences but the contents thereof were never disclosed to the Court. This Court cannot therefore conclude that those letters gave the Applicant an opportunity to be heard. This becomes pertinent considering that the Applicant denied exchange of any letters and this denial was not rebutted by the Respondent.

69. For completeness of record, it is noted that the parties are agreed that the allocation of 34 hectares was done following an application by the Applicant so as to facilitate the intake and collection of sea water. This application was allowed and a new letter of allocation was issued in 1985. There was therefore an increment in the size of the parcel of land from the original 2000 hectares to 2034 hectares. In the 1990s the 34 hectares that had been added to the Applicant’s original 2000 hectares was allocated to the Interested Party (Katana Fondo). Following protestations by the Applicant the allocation to Katana Fondo was revoked and the 34 hectares reverted to the Applicant.

70. Returning to the question of procedure, it appears that the Respondent did not hear the Applicant before making the decision to excise 34 hectares from its parcel of land. The right to a hearing is very important cornerstone to our legal structure. The importance of giving a party an opportunity to be heard was succinctly stated by Megarry, J in the case of John v Rees [1970] Ch 345 (as cited with approval by Nyamu, J (as he then was) in Re Bivac International SA (Bureau Veritas) [2005] 2 EA 42) that:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. When something is obvious, they say, ‘why force everybody go through the tiresome waste of time involving in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with open and shut cases which, somehow, were not, of unanswerable charges which, in the event were completely answered; of inexplicable conduct which was fully explained: of fixed unalterable determinations that, by discussion suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

71. Judicial review is available where a public body or tribunal has acted illegally, unreasonably or failed to comply with the rules of natural justice- see the already cited case of Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300and also the case ofCivil Service Union v Minister for Civil Service [1985] A.C. 374.

72. In the case before me, the Applicant’s case succeeds on two grounds. The first ground is that the Respondent did not demonstrate under which law it proceeded to order the excision of a portion of the Applicant’s land. The Respondent therefore acted without jurisdiction. Secondly, the Applicant was not heard before the decision was taken.

73. An order of certiorari is therefore issued calling into this Court the decision contained in the Respondent’s letter dated 17th July, 2014 and quashing it.

74. I have alluded to the Respondent’s mandate in this judgement and issuing an order of prohibition in the terms of the Applicant’s Notice of Motion will amount to fettering the Respondent’s constitutional and statutory powers. I therefore reject the prayer for an order of prohibition and that prayer is dismissed.

75. In view of the outcome of this matter, I direct each party to meet own costs of these proceedings.

Dated, signed and delivered at Nairobi this 30th day of Sept., 2015

W. KORIR,

JUDGE OF THE HIGH COURT