Land commission reversed after “monumental, unmitigated” breach of natural justice

22 February 2019 · Carmel Rickard

LAND issues are causing storms in many African countries as politicians, courts and ordinary people struggle to work out a just solution to problems of land ownership. While in Uganda the issue of how the judiciary handles land issues is currently causing a spat between judges themselves, in Kenya a new decision has seen the National Land Commission thoroughly trounced by the high court because of the way it has handled a matter.

Read the judgment here

THE case, brought by the Kenya Reinsurance Corporation (KRC), puts the spotlight on a decision by the National Land Commission, with the court ultimately holding that the commission violated the rules of natural justice and that its decision has to be set aside.

The enabling Act gives the commission five years to review all grants of public land to establish whether the land was obtained lawfully. The commission’s work was due to start in May 2012, and thus lapsed in May 2017. But, as the court would later hear, the commission’s actions against the KRC took place some time outside that time-frame.

KRC’s MD Jadiah Mwarania told the court that KRC is the registered owner of a piece of land seven hectares in size. It was allotted to the corporation in 1993 and it was registered in KRC’s name in 1997.

Then, in 2010 the Prisons Service Department indicated that it had an interest in the land. KRC got in touch with the heads of various government departments to inquire and sort out the situation, but had no success.

Without any hearing on the issue, the KRC discovered via a local newspaper that an eviction notice had been issued by the land commission on 30 January 2018, in terms of which KRC was required to hand over its land ownership documents to the commission within 14 days and prepare to leave the land within 90 days. If KRC did not comply, it would be “forcefully removed”, said the notice.

KRC told the court that before the notice was issued it had not been invited to any hearing at which a “valid legal decision” was made ordering its eviction from the property of which it was the registered owner. Its ownership of the land had never been declared unlawful by a competent body, nor had the prisons department been given any rights to the land.

During February 2018 KRC’s lawyers tried to obtain information about the origins of the eviction notice, and the basis on which it had been issued, but there had not been any response.

KRC then threw the book at the commission: its decision had been a “monumental, unmitigated breach of the rules of natural justice, ultra vires, without jurisdiction, abuse and misuse of statutory and constitutional power, malicious, unreasonable, biased, grossly illegal, oppressive, a breach of the constitutional right to own property”. Moreover, the resulting decisions were “of no consequence and legal effect, invalid, null and void”.

Unpacking this claim, KRC said it had been denied a chance to participate in the proceedings resulting in the eviction notice, and that this breached its constitutional rights to own property. The commission could not deprive the corporation of its property without a fair hearing and a fair decision taken after due process.

The commission’s response was almost as strongly worded: the application was “scandalous, frivolous, vexatious and an abuse of the court’s process”. The commission had jurisdiction to make the decision, and KRC had been given a fair opportunity to be heard, claimed its legal team.

Judge Charles Yano of the Environment and Land Court said that in a review matter, the court could only consider the process followed in reaching the decision, and not whether the land title was genuine as this was a question that could only be resolved in a trial on the merits.

The constitution made clear that its protection only applied to property “found to have been unlawfully acquired”. This meant there had first to be “a finding” that the property in question was unlawfully acquired.

And that in turn meant that the registered owned had first to be given “an opportunity of being heard”. Failure to give proper notice was a denial of natural justice and of fairness. And any notice had to be timely and communicated to the interested party “preferably in writing”, so that the party could respond.

In this case, the notice was published in a local paper, with only the land reference number indicated. “To me, that did not constitute sufficient notice,” said the judge. It did not qualify as adequate notice complying with the principles of natural justice.

No notice was served on KRC, nor was it given details of the complaint: “The alleged publishing of the Land Reference Number in a local daily is in my view not proper notice.”

“It is my finding that (the commission) violated the rules of natural justice by failing to serve (KRC) with adequate notice and the details of the complaint, and on those grounds alone, I am inclined to allow (the application).”

In addition, the commission’s decision, published in the newspaper, did not show “how the matter was determined”. Rather, it showed that the decision was arrived at without giving KRC an opportunity to defend itself, thus infringing the constitution, and voiding the decision.

And there was something else: the enabling act gave the commission the power to “investigate and recommend” appropriate remedial action. In the published notice concerning KRC, however, the commission “purported to render a ‘determination’ as opposed to a ‘recommendation’.

The court thus quashed the notice and issued a notice prohibiting the commission from conducting any hearing or other action related to the land in dispute – and ordered that the commission should pay the costs of the case.

Carmel Rickard

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