Republic v National Land Commission, Registrar of the Ministry of Lands Housing and Urban Development, Cabinet Secretary of the Ministry of Lands Housing and Urban Development & Kenya Urban Roads Authority Ex-parte Safeway Hypermarkets Limited [2017] KEHC 9239 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 203 OF 2016

IN THE MATTER OF AN APPLICATION BY SAFEWAY HYPERMARKETS LIMITED FOR ORDERS OF CERTIORARI AND PROHIBITION AGAINST THE NATIONAL LAND COMMISSION, THE REGISTRAR OF THE MINISTRY OF LAND, HOUSING AND URBAN DEVELOPMENT AND THE CABINET SECRETARY OF THE MINISTRY OF LAND, HOUSING AND URBAN DEVELOPMENT

IN THE MATTER OF ARTICLES 22 AND 23 OF THE CONSTITUTION

IN THE MATTER OF ALLEGED CONTRAVENTION OF THE APPLICANTS RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 40, 47 AND 48 OF THE CONSTITUTION

IN THE MATTER OF THE NATIONAL LAND COMMISSION

IN THE MATTER OF ARTICLES 64 AND 68 OF THE CONSTITUTION

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT

AND

IN THE MATTER OF SECTIONS 7, 8 AND 9 OF THE FAIR ADMINISTRATIVE ACT, 2015

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

VERSUS

THE NATIONAL LAND COMMISSION………..................…1ST RESPONDENT

THE REGISTRAR OF THE MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT.….................…..2NDRESPONDENT

THE CABINET SECRETARY OF THE MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT….…..................3RDRESPONDENT

THE KENYA URBAN ROADS AUTHORITY….....................4TH RESPONDENT

EX-PARTE: SAFEWAY HYPERMARKETS LIMITED

JUDGEMENT

1. By an Amended Notice of Motion dated 31st October 2016, the ex parte applicant herein, Safeway Hypermarkets Limited, seeks the following orders:

1) THATan Order for Certiorari to remove into this honourable Court and quash the decision of the National Land Commission contained in the Kenya Gazette Notice number 307 Vol.CXVIII No.6 dated 22nd January, 2016 (hereinafter referred to as the Gazette Notice”) in which the NLC purported to revoke the title to LR. No. 209/19459 (original 209/11314/2).

2) THAT an Order of prohibition to prohibit the Registrar of the Ministry of Lands from registering the revocation in respect of the parcel of land known as LR. No.209/19459 (original 209/11314/2) hereinafter referred to as “the Property”) by making an entry into the Register whose effect is to revoke the title.

2A)  THAT an order of prohibition to prohibit the Kenya Urban Roads Authority (“KURA”) from trespassing, occupying, invading and/or interfering in any manner whatsoever with the applicant’s quiet possession of the property known as L.R. No.209/19459 (original 209/11314/2).

3) THATcosts of and occasioned by this Application be provided for.

Ex ParteApplicant’s Case

2. According to the applicant, on 15th April 1991 the Commissioner of Lands issued a Grant Number I.R. 52263 to Multi Purpose Co-operative Development Centre Limited for a term of 99 years from 1st April, 1987 in respect of all that parcel of land known as L.R. 209/11314 and which said Grant was registered on 16th April 1991 and in respect of which part Physical Development Plan number 335 was approved and registered in the year 1989.

3. It was averred that on 23rd February, 1995 the Multi-Purpose Co-operative Development Centre Limited transferred its interest in L.R. No.209/11314 to the National Social Security Fund (hereinafter referred to as “NSSF”) which undertook subdivision of L.R. No.209/11314.  The said subdivision plans provided for a railway reserve, a road reserve in respect of Outering Road and a power way leaves. According to the applicant, in the proposed amendment to the approved subdivision, NSSF surrendered part of its property to cater for public utilities and the said subdivision was duly approved by the city Council of Nairobi by a letter dated 2nd December, 2009.

4. Based on legal advice the ex parte applicant averred that representatives from various government agencies are involved in the approval of physical development plans and sub-division plans. Accordingly, the land reference number L.R. No. 209/11314 was sub-divided and the title to the Property issued to NSSF and registered in its name as the Lessee from the government of Kenya for the remainder of the term from 1st April, 1987.

5. By a letter of offer dated 25th August, 2005 and addressed to NSSF, the applicant expressed interest in purchasing the land parcel number 209/19459 (original number 209/11314/2) (hereinafter referred to as the “Property”) which was a subdivision of L.R. No.209/11314. Following subsequent negotiations, NSSF by a letter dated 19th October, 2005 offered to sell three decimal five (3. 5) acres for a consideration of Kenya Shillings thirty million, seven hundred and twelve thousand, three hundred and twenty (Kshs 30,712,320) and on 24th November, 2005 the applicant paid the sum of Kenya Shillings three million, nine Hundred and seventy eight thousand (Kshs 3,998,000) being a ten percent (10%) deposit for the Property. By a letter dated 12th April, 2011 the NSSF set out the terms of the payment of the balance of the purchase price which balance the applicant duly paid.

6.  It was averred that NSSF issued consent to transfer the property on 15th November, 2012, upon which all the necessary and requisite consents were obtained and the copies of receipts for the land rent and rates duly paid by NSSF were availed by NSSF. It was averred that on 16th January, 2013, the Board of Trustees of NSSF transferred its interest in the Property to the Applicant in consideration of the sum of Kenya Shillings thirty million, seven hundred and twelve thousand, three hundred and twenty(Kshs.30,712,320)and the applicant became a bona fide purchaser of the Property. Being such bona fide purchaser, the applicant, based on legal advice, believed that it acquired an indefeasible title form the Board of Trustees of NSSF by dint of the aforementioned transfer and section 23 of the Registration of Tiles Act.

7. As the applicant wished to develop the Property, it submitted copies of building plans for approval to the Kenya Railways Corporation as well as the National County Council and vide its letter dated 18th February, 2013, the said building plans were approved the Kenya Railways Corporation. Consequently, the Applicant had secured funding from a financial institution to develop the Property and while it was in the process of obtaining building approvals it came to learn that the Kenya Urban Roads Authority (hereinafter referred to as “KURA”) intended to construct an interchange over its Property.

8. It was averred that the National Land Commission (hereinafter “the NLC”) placed a notice in the Daily Nation Newspaper of Tuesday the 18th November, 2014, referring to the Property and other parcels of land and requesting all persons having interests in the parcels described in the Notice to appear before the NLC on 26th November, 2014 at 10 a.m. to make representations in response to a complaint from KURA. All the interested parties were also required to present written submissions to the Commission which the applicant duly presented through the firm of Macharia Ng’aru and Wetangula Advocates.

9. It was deposed that the parties made submissions on 26th November, 2014 before the NLC and on 27th October, 2015, the NLC reached a determination and in particular found that the Property was part of a transport corridor and that the applicant’s property was illegally acquired despite evidence being availed to the contrary. Based on legal counsel, the applicant averred that land in Kenya can only be classified as public or private land with provisions for road reserves, way leaves, railway and power leaves. However, it has not been shown that the Applicant’s Property falls within these divisions.

10. It was the applicant’s case that the NLC’s decision was unreasonable as it failed to consider relevant matters and in particular, failed to furnish the Applicant with copies of the documents that it relied on in reaching a determination that the Applicant’s property was acquired illegally. It was further its position that the NLC has no jurisdiction to undertake any hearings and/or review the applicant’s title to the suit property which is indefeasible and impeachable.

11. It was averred that by  Kenya Gazette Notice number 307 Vol. CXVIII No.6 dated 22nd January, 2016 (hereinafter referred to as “the Gazette Notice”) the NLC purported to revoke the Applicant’s title in the Property and that the said Gazette Notice purports to make two adverse findings against the applicant’s Property in entries numbers 77 and 187 as follows:

a. Entry number 77 in which the NLC purports to make the following determination and vesting:

“Title revoked Title to be regularised” with no vesting order being given; and

b. Entry number 187 in which the NLC purports to make the following determination and vesting:

“Title revoked” with the vesting order that “the title vested in the Nairobi County Government for road expansion”.

12. The applicant’s case was that the NLC’s determination is unfair as it purports to make two adverse findings against the Applicant’s Property. According to it, there is established in law a manner for compulsorily acquiring property which entitles the owner of property so acquired to compensation. In this case it was contended that the Property is private land/property thereby taking it away from the jurisdiction of the NLC. Further, the function of the NLC is to make recommendations as opposed to revoking the title.

13. The applicant disclosed that it had since come across documents showing that other parties that were affected by the decision of the National Land Commission and which parties bought some of the properties that formed part of the subdivision of L.R. No. 209/11314 have since been compensated for their property. According to the applicant, pursuant to a letter dated 22nd July, 2016 addressed to the Chairman of the National Land Commission; the Director of the Kenya Urban Roads Authority indicates that payment had been made to some of the petrol stations along the Outering Road Project and part payment for land compensation excluding the Ex-parte Applicant herein. It was erred that the aforesaid letter indicates that a sum of Kshs.620,195,000 was paid for three land parcels being land reference nos.209/11314/3 and 209/11314/4 that formed part of the revoked titles and sub-divisions that the Ex-parte Applicant’s Property formed part of. All the aforesaid titles including the Ex-parte Applicant’s title were nullified by Kenya Gazette Notice number 307 Vol. CXVIII NO.6 dated 22nd January, 2016. However the Ex-parte Applicant was not paid any compensation despite having purchased the Property.

14. It was averred that by a letter dated 7th September, 2016, the National, Social Security Fund (hereinafter “NSSF”) wrote to the National Land Commission regarding the review of its decision dated 27th October, 2015 regarding plots along Outering Road including the Ex-parte Applicant’s property which letter was written well after the payment was made to the other owners of the sub-divided properties to the exclusion of the Ex-parte Applicant. By a letter dated 18th October, 2016 the Vice Chairman of the National Land Commission wrote to the NSSF through its acting Chief Executive Officer and which letter was copied to the managing directors of the Ex-parte Applicant, Oil Libya Petrol Station, Gulf Energy Petrol Station and Jogoo Outering Petrol Station inviting them for a hearing of the appeal on 4th November, 2016 which appeal failed to take off.

15. In the applicant’s view, by compensating other parties whose titles were part of the same sub-divided properties as that of the Ex-parte Applicant and whose titles had been revoked, NLC and KURA have acted unfairly, unreasonably, unlawfully and in contravention of properly laid down procedures. It was therefore apprehensive that unless the orders sought herein are granted, the NLC and KURA would proceed to deprive the Applicant of the property.

16. It was submitted on behalf of the applicant that proceedings arise from what can be described as an almost steadfast predisposition of administrative agencies to go beyond the mandate given to them by parliament by venturing into areas in which they have no authority. This is a tendency which has attracted the attention of the Courts which has in response thereto crafted the concept of ultra viresto reign in such rogue exercise of power. This a cardinal principle of our Constitution – see Article 2(2)- that is of ancient vintage and finds it one of is most powerful expressions in the locus classicusof modern administrative law. In this respect the applicant relied on Anisminic vs. Foreign Compensation [1969] 2 AC 147 where it was held that:

“It cannot be for the commission to determine the limits of its powers. Of course if a party submits to a tribunal that its powers are wider than in fact they are, the tribunal must deal with that submission. But if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that- not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on the true construction of their powers, they had no right to deal.”­­

17. According to the applicant, the decision by the NLC blows both hot and cold. Firstly, on page 10 of the decision where the NLC finds that that the allocation was done after consultations with the City Engineer who confirmed that the future road development proposal would not affect the Property at all and makes reference to a letter dated 16th September, 1988 from the Director of Physical Planning to the Commissioner of Lands. The above position is reiterated in a subsequent paragraph at page 14 of the decision confirming that the NLC indicates that upon investigations of records at the Ministry of Lands Housing and Urban Development, it arrived at the finding that following consultations with all relevant parties, an agreement was reached to the effect that the allocation of the Property did not encroach on the proposed road development.

18. However, this is inconsistent with subsequent findings in the same decision where the NLC finds that the land was part of a transport corridor which has no basis in law and that there was collusion of the government officers to procure the approvals with the sole intention of selling the property to NSSF. The NLC fails to take into account the fact that the NSSF surrendered part of its property for public utilities prior to the sub-division of the property from which the Applicant’s Property originated from.

19. It was submitted that the NLC’s own findings are inconsistent and confusing as can be demonstrated at page 132Aof Exhibit SKT1 of Thuo’s Affidavit, where the NLC considers the definition of public land and states as follows:

“...the transportation corridor was reserved in physical planning for transport utilities owing to location and the safety risks posed. The parcel is affected by the current design of the Outer Ring Road dual carriage way under implementation. The parcels of land falls along a transport corridor hence the same was not available for allocation in the first place. ....The commission notes that although all the necessary approvals may have been procured there was collusion by officers to defeat the law with a view to creating plots from a section of the road that is reserved for transport utilities.......from our findings, it is noted that although the alienation and allocation of L. R. 209/11314 was carried out in a seemingly proper manner and the boundaries of the parcels did not encroach on any road reserve, railway reserve and power way leave”.

20. The NLC, it was submitted proceeds to find, despite stating that there is no legal provision in law for a transport corridor that the property forms part of the transport corridor and proceeds to revoke it. It also proceeds to state the Property was illegally acquired without providing any reasons on an alleged investigation by the KACC.

21. In their submissions the applicant relied on Article 47 of the Constitution whose scope, it submitted, and the unyielding rigour with which the protection it affords are to enforced have been the subject of several decisions of this Court. It relied on Geothermal Development Company Limited vs. Attorney General & 3 Others (2013) eKLR, Republic vs. Attorney General & Another Ex-parte Salome Nyambura Nyagah [2014] eKLR, Council of Civil Service Union & Others – vs.- Minister for the Civil Service (1984) 3 All ER 935, 936and Rex –vs– Electricity Commissioners (1924) 1 KB 171,at page 205 and submitted that the High Court’s supervisory jurisdiction is derived from Article165 (6) and (7) of the Constitution.

22. According to the applicant, the Respondent is a constitutional body established under Article 67 of the Constitution of Kenya and based on The Owners of  Motor   Vessel  “Lillian  S”   vs. Caltex Oil Kenya Ltd,[1989] KLR 1,it was submitted that sincejurisdiction is everything, an administrative body such as the National Land Commission, can only do that which it is expressly or by necessary implication authorised to do by statute which is to review the disposition of public land and establish their proprietary or legality.

23. It was submitted that pursuant to Article 67(1) of the Constitution which establishes the NLC, the main function of the NLC is to manage public land on behalf of the National and County Governments. Ancillary to this the NLC was mandated to:

“Initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.”

24. Article 68(c) (v) mandates parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality while section 14(1) of the National Land Commission Act, 2012 (“the NLC Act”) provides that subject to Article 68(c)(v) of the Constitution, the NLC shall within five years of the commencement of the NLC Act, on its own motion or upon complaint by the national or county government, a community or an individual, review all grants and disposition of public land to establish their propriety or legality.

25. According to the applicant, the wording of section 14(1) of the NLC Act makes reference to public land. The Constitution defines public land under Article 62 and there is no reference to a transport corridor.Notably, Article 62 defines public land to include land which was unalienated government land as defined by an Act of Parliament in force as at the effective date. It is the Applicant’s submission that the Property consisted of private land and that it had an indefeasible title as at the effective date and relied on the definition of private land in Article 64 of the Constitution. In this case it was submitted that the land was already alienated and it was already private land as at the effective date indicated in Article 260 of the Constitution as 10th August, 2010. It was therefore submitted that the NLC erred in purporting to exercise jurisdiction with regard to land that was registered under the Registration of Titles Act (hereinafter “the Act”) and which created an indefeasible title.

26. The applicant cited section 14 (7) of the NLC Act which provides that no revocation of title shall be effected against a bona fidepurchaser for value without notice of a defect in the title. In support of its submission the applicant relied on the decision in Republic exparte Cecilia Chepkoech Leting vs the National Land Commission JR Number 117 of 2016. (I must however point out that this decision was set aside on review). It was submitted that the Property which had already been registered could only be invalidated if at all it was unlawfully acquired and that this was for the Environment and Land Court to investigate and determine.

27. Accordingly, it was submitted that the NLC acted beyond its powers by undertaking investigations into private land when it is mandated to investigate the disposition of public land and the applicant relied on Republic vs. National Land Commission and 4 Others ex parte Fulson Company Limited and Another (2015) eKLR. Based on Kenya National Examinations Council vs. Republic (1997) eKLRit was submitted that an order of certiorari will issue where the public body acts without jurisdiction and that in this case the Respondent has acted without its legal authority in purporting to act without power and do that which it cannot do which according to Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300,amounts to an illegality.

28. Accordingly, it was submitted that the NLC, instead of making recommendations, proceeded to propagate an illegality by reviewing title to private land and proceeding to revoke the title when it is only a Court of Law which can revoke the title of land as earlier stated.

29. It was further submitted that the decision by the NLC is tainted with irrationality and unreasonableness. It finds that the Property was acquired unlawfully without giving cogent reasons for its decision and mentions the alleged investigations by the KACC with no regard to the findings as to whether or not the KACC found that indeed there was any illegality. Further, the decision is inconsistent and irrational as it appears to blow hot and cold.

30. It was the applicant’s submission that the NLC’s decision was unfair and biased the NLC and KURA proceed to make payments with respect to other titles which had been revoked to the exclusion of the Applicant and without due regard to the procedure on compulsory acquisition which is provided for in law.

31. It was submitted that is wholly within the jurisdiction of this Honourable Court in the exercise of its supervisory jurisdiction to authoritatively interpret the relevant statutory provisions and quash a decision of a statutory body which is contrary to and inconsistent with such interpretation. In this respect the applicant relied on Edwards (Inspector of Taxes) vs. Bairstow and Another [1955] 3 All ER 48at pages 53 and 57 and Lord Diplock’s authority in Council of Civil Servant Unions vs. Minister for the Civil Service, [1984] 3 All ER 935, 950-951 that:

“By ‘illegality’ as a ground for judicial review I mean the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it. Whether he has or not, is par excellence a justiciable question to be decided, in the event of dispute, by those persons, by whom the judicial power of the state is exercisable.”

32. The applicant’s case was that the right to property is a sanctified right that is protected in Article 40 of the Constitution that can only be taken way as provided for by the law and in accordance with due process which was not the case in the present case.  Since the Property was governed by section 23 of the Registration of Titles Act reproduced in section 26 of the Land Registration Act, it follows that a certificate of title vests indefeasible title in property which can only be challenged on the ground of fraud or misrepresentation to which the owner is proved to be a party.The legal standard for proving fraud is very high and more than the standard used in other civil proceedings as fraud is a crime. It must be proven beyond reasonable doubt as it is a very grave allegation. In this respect the applicant relied on Nairobi Permanent Markets Society and 11 Others versus Salima Enterprises & 2 Others, Civil Appeal Number 185 of 1997for the position that:

“Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy”

33. Consequently, the title of a registered proprietor of land can only be subjected to challenge on the grounds of fraud or misrepresentation to which the proprietor is proved to be a party and then, only be challenged in accordance with the process outlined by the law. In this case it was the applicant’s case that it was an innocent purchaser for value without notice of any defect and is protected vide the provision of section 14(7) of the National Land Commission Act.

34. With respect to the process of revoking titles, the applicant relied on  the Supreme Court of Kenya’s Advisory Opinion No. 2 of 2014 - National Land Commission vs. Attorney General & 7 Others (2015) eKLR in which the Court has enumerated the different roles of the NLC and the Executive on the issue of land held that the function of the NLC as an independent commission was an oversight function while the Executive’s function is implementation of policy; registration of title falls solely in this latter facet and not within NLC’s oversight function. It also held that the Executive has the exclusive function of guaranteeing validity and integrity of title and not the NLC. In the words of the Court:

“From those provisions, it is clear to us that the NLC bears a brains-trust mandate in relation to land grievances, with functions that are in nature consultative, advisory, and safeguard-oriented. As regards such functions, the NLC, on the basis of clearly-formulated statutes, should be able to design a clearly-structured agenda for regular operations and inter alia, should seek to devise a well-focused safeguard-mandate in relation to land issues…This principle must apply to the National Land Commission, notwithstanding the provisions of Article 67 (3), which allows Parliament to grant the Commission ‘other’ functions. To my mind, the language of Article 67(2)(b) to (h): as to the functions of the National Land Commission, is clear and specific… The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ – are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented.”

35. It was further submitted that it has since been established that a title cannot be cancelled or amended without involving the courts and reliance for this proposition was sought in Republic vs. The Registrar of Titles, Mombasa & 2 Ors ex Parte Emfill Ltd.,[2012] eKLR where the Court of Appeal held that:

“For these reasons, I find that the government cannot revoke title to land even “for public need or interest” or for alleged illegality.  The Government is obliged to move the Court for appropriate orders to revoke, cancel or rectify title in such circumstances.  A unilateral decision published in the Gazette will not do.  The considerations of public interest such as presented by the Respondent in this proceedings may only be used by the Court in an appropriate case in making an order for cancellation of title or in authorizing, subject to due compensation, the compulsory acquisition or take-over of the private property.”

36. As such, it was submitted that the decision by the NLC to proceed to revoke the titles in the Gazette notice as opposed to making recommendations for the revocation of the same is improper and tainted with illegality. Further, any decision taking away another person’s rights must be clear and without any ambiguity. The decision by the NLC is full of contradictory statements.

37. According to the applicant, it purchased property and had a legitimate expectation that it would enjoy its property and have uninterrupted quiet possession. Not only did the various government agencies grant their necessary consents but it has also been duly paying the land rent and land rates as and when the fell due and these land rates have been accepted at all times.

38. It was therefore the applicant’s case that the impugned acts of the 1st Respondent were grossly irrational and a gross abuse of power and should be quashed. While appreciating that judicial review cannot be used to curtail statutory bodies or public officers from the lawful exercise of power within their statutory mandate, the applicant however took the view that judicial review acts as a check mechanism to the abuse of power and authority. In this case it is not seeking to canvass the merits of the revocation of title but whether the NLC has the jurisdiction to inquire on the illegality of private property.

39. The Court was therefore urged to find that the actions of the 1st and 4th Respondents amount to acting in breach of natural justice and amount to acting without jurisdiction and allows this Application and grants the applicant the orders prayed for.

1st Respondent’s Case

40. The application was opposed by the 1st Respondent herein, the National Land Commission (hereinafter referred to as “the Commission”).

41. After setting out its constitutional and statutory mandate, the Commission averred that the Constitution provides under Article 40(3)(b) that the state shall not deprive a person of any property or rights or interests in property unless it is done for a public purpose or public interest and is carried out in accordance with the constitution and an act of parliament that requires full and prompt compensation of the said individuals and allows them access to a court of law. The Land Act, 2012 provides under part VIII provides for the compulsory acquisition of interests in land by the Commission and lays out the procedures to be followed when this is done.

42. In this case it was disclosed that the Commission received a complaint from the Kenya Urban Roads Authority (KURA) requesting for review of a number of parcels of land located along Outer Ring road which complaint, inter alia stated that KURA was being hindered from fulfilling its mandate under section 9 of the Kenya Roads Act due to encroachment of the road corridor which made it impossible to take possession of the parcels required for the road expansion.

43. The Commission averred that upon receipt of the complaint, it conducted its own preliminary investigations to ascertain the veracity of the claims before it invoked its jurisdiction under section 14 of the National Land Commission Act and initiated review of grants and dispositions proceedings to determine the legality of ownership for L.R. Number 209/11314/2 (presently registered in the name of the applicant as L.R. Number 209/19459. It was deposed that documents held in the Commission’s records indicate that the parcels are as a result of alienation and allocation of government land by the Commissioner of Lands. They are therefore grants of public land and fall under the description of ‘grant’ and as such fall under the jurisdiction of the Commission under section 14 of the National Land Commission Act.

44. It was averred that under section 14(3) of the National land Commission Act, the Respondent is required to give every person who appears to have an interest in the grant or disposition that is under review, notice of such review and an opportunity to appear before it and to inspect any relevant documents. In line with the above, the Commission gave public notice by way of running an advertisement appearing in the daily newspaper on 18th November 2014 requesting all persons having an interest in the said parcels to appear before it on 26th November 2014 at 10:00a.m and make their presentations and present their written submissions. Since publication of the notice of intention to review, there has been two hearings in respect of the matter which were held on the 26th of November 2014 and on 27th October 2015. The hearings were held in Nairobi and were attended by representatives of the complaint, the petitioner and the interested parties.

45. It was averred that in the course of its investigations and subsequently at the hearing, the Commission found that the original suit property was allocated to Rachuonyo Enterprises Limited vide allotment reference No. 118941/5 of 19th march 1987. Following this, an issue was raised over the proposed development of the Outering/Jogoo road roundabout through a letter to the City Engineer Nairobi City Commission on 2nd September 1987. As per the records maintained by the Ministry of Lands Housing and Urban Development and following consultations with other relevant parties, an agreement was reached to the effect that the allocation did not encroach on the proposed road development. It was also disclosed that there was an agreement between Kenya Power and Lighting Company and the allottees via letter from themselves rerouting the 11KV Donholm feeders. Further, another correspondence from the Director of Physical Planning to the Commissioner of Lands dated 16th September 1988 stated that the allocation was done in consultation with the City Engineer who confirmed that the future road development proposals would not affect the site at all. Accordingly, the Kenya Power and Lighting Company went ahead and rerouted the lines and another plan, vide PDP No. 42/17/89/1 illustrating the amended plan was forwarded to the Commissioner of Lands for approval which was granted on the 18th of July 1989.

46. It was revealed that valuation was done again and another letter of allotment was issued in the name of Endesha Multi Purpose Co operative Society Limited and payments for this fresh allocation were made to the Commissioner of Lands. The offer was accepted and a letter was written to the Director of Survey to carry out a survey, which was done and an indent done by the Commissioner of Lands for supply of the deed plan on 6th November 1990. The land was later known as L.R. 209/1/11314. The owners above made an application to do an informal transfer and it was granted and a title consequently issued to Multi Purpose Co operative Development Centre under condition that it was restricted for commercial use. However, on 23rd February 1995, the parcel was transferred to the Board of Trustees of the National Social Security Fund who caused it to be subdivided resulting in creation of parcels; L.R. No. 209/11314/2, 209/11314/3, 209/11314/4 and 209/11314/1 – which was a road reserve surrender. The National Social Security Fund later caused L.R. No.209/11314/2 now L.R. No. 209/19459 to be transferred to Safeway Supermarkets Ltd and L.R. No.209/11314/4 now 209/19461 to Regnol Oil and retained the remainder. Due to the above actions, the original L.R number does not exist in the register as it has since been subdivided.

47. It was averred that the Kenya Urban Roads Authority made an application to the Commission requesting for review of the grant contending that the parcel lies on a transport corridor, which was reserved in physical planning for transport utilities owing to the location and safety risks posed and as such should be revoked.

48. According to the Commission, whereas Article 67 of the Constitution only provides for roads and throughfares as public land and there is no express provision for transport corridors, it has defined public land to include land lawfully held, used or occupied by any state organ and this definition includes road reserves among others. It was averred that the Commission noted in the course of its investigations that, although all the necessary approvals may have been procured, there was collusion by officers to defeat the law with a view to creating plots from a section roads reserved for transport utilities. It also noted some glaring anomalies pointing to conflict of interest and likely abuse of office, the then Director of Physical Planning who approved the re-planning of the subject property is also the secretary of Endesha Multipupose Co operative Society Limited which was allocated the land. He signed the authentication slip, was allocated the land and then sold the same to National Social Security Fund who then subdivided and sold to the current holders.

49. It was contended that a grant is said to have been acquired legally where it complies with all administrative processes and approvals before being issued. A grant is said to have been acquired unlawfully when a title is issued to a piece of land which is not legally available for allocation or has been created as a direct result of one or more illegal acts. Therefore, in light of the above facts, the original title was not acquired legally. According to the Commission, the right to protection of property conferred under Article 40(1) of the Constitution is not an absolute right in itself as this protection does not extend to property that is found to have ben unlawfully acquired. Indeed, Article 68(c) (v) of the Constitution mandated parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality.

50. While the Commission appreciated that section 14(7) of the National Land Commission Act provides that no revocation of title shall be affected against a bona fide purchaser for value without notice of a defect in title and that when a party fraudulently conveys property to a bona fide purchaser, the purchase takes valid title despite another party’s disputing claims, this can however be lost where the original grant or disposition of public land was unlawful and or illegal, thus making the whole transaction void ab initio.

51. It was the Commission’s case that due to the above facts and statutory provisions, the Commission made the following determination:

i. The grant with respect to this parcel was acquired unlawfully because the approvals before issuance were acquired through the commission of illegal acts.

ii. The parcels are located on a transport corridor which is not legally available for allocation and falls under the definition of public land as provided under Article 62 of the Constitution.

iii. The allocation and subsequent titles issued in respect of L.R No. 209/11314 are illegal and void ab initio.

iv. All the titles to the properties in dispute be revoked by the registrar.

52. According to the Commission, in the course of carrying out its mandate it adheres to the provisions of the Constitution of Kenya, the Fair Administrative Action Act, the Land Acquisition Act, the Land Act, the National Land Commission Act and all other relevant statutes and as such denied the allegations made under paragraphs 30, 31, 34, 36, 39, 41 and 45 of the Applicant’s Statutory Statement.

53. It was therefore the Commission’s position that this application is an abuse of the court process and does not warrant issuance of the orders sought.

54. Based on the constitutional and statutory provisions it was submitted that the Respondent is mandated to review grants and dispositions of public land with the aim of establishing their propriety or legality. Where land has been registered as private, this can only be done by investigating the process by which public land was converted to private land. Therefore, the fact that a piece of land is registered as private should therefore not put it out of the reach of the Commission if it was illegally acquired. The Commission relied on Republic vs. National Land Commission Exparte Krystalline Salt 334 of 2014, Republic vs. National Land Commission & Another Exparte Muktar Saman Olow Miscellaneous Application No. 376 0f 2014 [2015]eKLR and Republic vs. National Land Commission Ex-Parte Holborn Properties Limited [2016] eKLR

55. According to the Commission, in a literal and technical sense, the meaning of the term “Grant” as used in the land sector denotes the title document issued as evidence of ownership of land under the repealed Registration of Titles Act. Secondly, the term can also denote the act of giving or allocating in this sense, land. Grants would be issued for a term after the Commissioner of Land had allocated public land by way of a letter of allotment. The term ‘Disposition’ has been defined under section 2 of the Land Act to include;

any sale, charge, transfer, grant, partition, exchange, lease, assignment, surrender, or disclaimer and includes the disclaimer or the creation of an easement, a usufructuary right, or other servitude or any other interest in land or a lease and any other act by the owner of land or under a lease where the owner’s rights over that land or lease are affected or an agreement to undertake any of the dispositions.

56. It was therefore submitted that the Court has a wide mandate to look at various processes involved in the conversion of public land to private land and determine whether the conversion process leading to the issuance of a Grant, Lease or Certificate of Title was lawful. The Commission contended that it acted in line with its mandate as provided for under Kenyan statute and any claims that it overstepped its mandate are false.

57. It was the Commission’s submission that it is mandated under the Constitution and the National Land Commission Act to initiate Review of Grants and Dispositions proceedings upon receipt of a complaint or on its own motion. When the commission receives a complaint or determines on its own motion that a particular grant warrants Review, it will publish a notice of intended review in the dailies notifying all interested parties the dates and venue of the scheduled review, as well as the period within which interested parties are required to submit their documents. After expiry of the notice, review of a particular grant commences at the scheduled date and venue prescribed in earnest, wherein all interested parties are established after which parties are directed to disclose and exchange all documents. Furthermore,section 14(3) of the National Land Commission Act requires the Commission to give every person who appears to have an interest in the subject property/land notice that the same is under review and give them an opportunity to appear before it to produce and inspect any relevant documents. To the Commission, it is standard operating procedure for the Commission to publish adverts in the dailies whenever it intends to review any grants of land anywhere in the country. These adverts contain the location where the hearings are to be conducted and all the titles that are to be the subject of proceedings. The Commission also goes on to send follow up letters which invite the subject to attend public hearings to make their presentations regarding their interest in the land and how it was acquired. It also informs them of the right to legal representation and gives an opportunity for them to submit to the Commission any documents that they may rely on during the hearings and the consequences of their nonappearance.

58. In this case, it was contended that the Commission notified the Ex parte applicant that it had received a complaint from KURA regarding their land. They were given the opportunity to appear before the Commission and present the documents that they would be relying on to support their claim on the suit property and the Ex parte Applicant was given a chance to appear before the Commission and they did so, attending all hearings until they concluded. At no point did the Commission fail to accord them the rights under the rules of natural justice and Fair Administrative Action Act.

59. According to the Commission, in the course of carrying out its mandate it adheres to the provisions of the Constitution of Kenya, the Fair Administrative Action Act, the Land Acquisition Act, the Land Act, the National Land Commission Act and all other relevant statutes that guide it in the performance of its duties. It was its case that due process was accorded to all the interested parties including the Ex parte Applicants herein and that all parties that had an interest in this matter had an opportunity to be heard by way of oral evidence during the Review of Grants and Dispositions hearings and in the same vein, present documents supporting their position with regards to the suit properties. The determination that was eventually made by the Commission relied on and referred to the said evidence and documentation produced by all the parties and any assertion to the contrary is false.

60. With respect to the status of the applicant as a bona fide purchaser, it was submitted that the right to ownership of property that is conferred under Article 40(1) of the Constitution of Kenya is not an absolute right in itself. There are exceptions to it and one of them is that it does not extend to land which is found to have been improperly acquired. Indeed, Article 68(c)(v) mandated parliament to enact legislation (the National Land Commission Act, 2012) which would enable the review of grants and dispositions of public land to establish their propriety or legality. In this respect the Commission relied on Isaac Gathungu Wanjohi & Another vs. Attorney General & 6 Others Petition 154 of 2011 [2012] eKLR where it was stated that:

“...Article 40 must be read as a whole so that protections afforded by Article 40 which protects the right to property must be read to exclude property found to be unlawfully acquired under Article 40(6). This requirement is an extension of the fact that the Constitution protects higher values which are to be found in the preamble to the Constitution and Article 10. Values such as human rights and social justice cannot countenance a situation where the Constitution is used to rubberstamp what is in effect unlawful…”

61. It was the Commission’s contention that it is therefore important to take into consideration the process through which property has been acquired when protecting the right to ownership of property to prevent situations where the law is used to legitimise illegal acts. In this case though instruments of conveyance could establish the Ex parte Applicants as a bona fide purchaser of the suit property, they have to pass the test of a bona fide purchaser as laid out in the case of Samuel Kamere vs. Lands Registrar, Kajiado Civil Appeal Number 28 of 2005 and on the decision of Lenaola, J (as he then was), in Gitwany Investment Limited vs. Tajmal Limited & 3 Others [2006] eKLR, where it was stated as follows:

“Without attempting to modernize the law, all I am saying is that as is stated in Mullah, the Transfer of Property, 9th edition 2003, at page 358, “the expression believing in good faith merely means honestly believing. Honest belief is not incompatible with negligence or with a mistake of law.”

62. Therefore, the Commission submitted, any party claiming the rights of a bona fide purchaser for value must prove that, besides its declaration of an honest belief in the sanctity of the title, it exercised reasonable due diligence in ascertaining that sanctity of title. Where a title was unlawfully acquired, and therefore null and void, it cannot be protected and in the same vein cannot confer or pass any interests since the title passed will be void ab initio and as a result no interest whatsoever shall be conveyed. It was contended that whereas pursuant to section 14(7) of the National Land Commission Act no revocation of title shall be affected against a bona fide purchaser for value without notice of a defect in title and that when a party fraudulently conveys property to a bona fide purchaser, the purchase takes valid title despite another party’s disputing claims, this can be lost where the original grant or disposition of public land was unlawful and or illegal, thus making the whole transaction void ab initio. In this respect the Commission relied on Kenya Anti Corruption Commission vs. Ahmed Karama Said & 2 Others (2011) eKLR, where the court held that;

“... although the 2nd defendant has taken the position that it was an ‘innocent purchaser for value without notice of irregularity’, that principle is in my opinion, incapable of protecting the land acquisition. Generally as already noted, the innocent purchaser for value without notice of defect of title, will be treated as the darling of equity and will be allowed to retain ownership. But this is subject to the qualification that the creation of the title is not in flagrant breach of statute law so that it amounts to a nullity ab initio…”

63. Based on the foregoing, the Commission prayed that the Application herein be dismissed with costs.

2nd and 3rd Respondents’’ Case

64. In opposition to the application, the 2nd and 3rd Respondents filed the following grounds of opposition:

1) THAT the Registered Land Act mandates the Respondents to deal with the matter which is the subject of this Application.

2) THAT Judicial review cannot be used to curtail or to stop statutory bodies or public officers from the lawful exercise of power within their stator mandate.

3) THAT the merits of the revocation of Title cannot be determined in Judicial Review proceedings.

4) THAT findings on legality or lack thereof of the suit Title and whether the same was acquired fraudulently and irregularly or not can only be made in a civil court after receiving direct and viva voce evidence on the issue.

5) THAT this court is not equipped to deal with disputed matters of facts where as in this case, would involve fact finding on the issue of fraud which requires proof to a stand higher than the ordinary balance of probabilities in civil litigation.

The 4th Respondent’s Case

65. The 4th Respondent herein, The Kenya Urban Roads Authority(hereinafter referred to as KURA) opposed the application.

66. According toKURA,it has been for some time now overseeing implementation of the Outer Ring Road Expansion Project, and the suit parcel herein was at the design stage of the said project identified as one of those parcels that was created within the transportation corridor that lies in the triangle between Jogoo Road, Outer Ring Road, Electricity Power Wayleave and the Kenya Railways Reserve. Upon such discovery KURA promptly referred the matter to the National Lands Commission (NLC), which is the constitutional body mandated with the task of reviewing such titles for purposes of establishing their propriety or otherwise, and which review NLC indeed carried out, and by its reasoned determination of 27th October 2016 revoked the ex-parte Applicant’s purported title.

67. KURA associated itself with the facts averred in the replying affidavit sworn on behalf of the Commission which according to it spelled out how NLC’s extensive inquiry uncovered the corrupted nature in which the suit land et-al was irregularly and illegally established within the Transportation Corridor and hence their decision to revoke the title. It was its case that NLC’s finding upon review that suit parcel was irregularly established on public land completely vitiated its title.

68. KURA’s case was that the doctrine of bona fide purchaser for value without notice of fraud or defect does not cover or apply to transactions involving unlawfully alienated public utility lands.

69. According to it, judicial review jurisdiction of the court mainly looks at the decision making process and not the merits thereof, and the ex-parte Applicant has not demonstrated any or any anomaly or shortcoming nature of the review process to warrant disturbance of the NLC’s decision to revoke the title to the suit parcel.

70. On behalf of the 2nd to 4th Respondents, it was submitted that the National Land Commission is vested with Jurisdiction. Section 14 of the National Lands Commission Act mandates the commission to review all grants and dispositions of public land, either on its own motion or upon receipt of a complaint with a view to establish their legality or propriety. The Commission had records that indicated that the suit land was a result of alienation and allocation of government land by the commissioner of Lands. They are therefore grants of public land and fall under the description of “grant” and as such fall under the commission’s jurisdiction.

71. While adopting the same position as the Commission, the said Respondents contended that proper procedures were followed by the commission before coming to the decision in question to wit; issuance of a notice for review through a national newspaper on the 18th November,2014. The concerned parties attended two hearings before the commission and presented their submissions and the commission thereafter made its decision.

72. In addressing the prayer for prohibition this Court was urged to be persuaded by the findings by the High Court inRepublic vs. Kenya Revenue Authority & Another Ex-Parte Bear Africa (K) Limitedwhere Majanja J. quoting with approval the decision of Githua, J in Republic vs. Commissioner of Customs Services ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of 2012[2012]eKLR as follows:

“It must always be remembered that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself. once it has been established that a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the said decision is shown to be so unreasonable that it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court. The court cannot substitute its own decision with that of the Respondent. Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and function or acting outside of their jurisdiction. Judicial review cannot be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandates.”

73. It was contended that the respondents acted within their statutory mandate and the orders sought by the applicants herein are calculated to curtail the respondents from exercising their statutory mandate. According to them, the matter before this court involves the revocation of an illegally acquired title and restoration of the title that rightfully belongs to the government as a public land for public utilities. The bona fides and merits of the cancellation cannot be determined in Judicial review proceedings. To them, this court’s mandate is clear in statute, common law and case law and that the same does not include making a finding as to whether the Ex-parte Applicant’s title was regularly and lawfully acquired or not as doing so would be tantamount to delving into the merits of the decision sought to be quashed rather than looking into the process through which the decision was made.

74. Again according to this common law doctrine findings on the legality or lack thereof of the Ex-parte applicant’s title and whether the same was procured fraudulently and irregularly or not can only be made by a civil court after receiving direct andviva voce evidence on the issue and reliance was sought in Republic vs. Land Registrar Taita Taveta District & Another [2015] eKLR and Livingstone Kunini Ntutu vs. Minister of Lands & 4 Others [2014] eKLR.

75. The 4thRespondent further submits that it being a state corporation in the state department of Infrastructure established under the Kenya Urban Roads Act,2007 and tasked with the mandate to construct, maintain, manage develop and rehabilitate Urban National Road, commenced the project of expanding the Outering Road. The 4th Respondent carried out due diligence and referred the subject matter to the National Lands Commission which is the body with jurisdiction to determine the proprietary rights of the suit land. The 4th respondent then relied on the decision of the National Land Commission and commenced its mandate of expanding the suit road. These Judicial review proceedings cannot therefore be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandate.

76. The said Respondents therefore prayed that the application be dismissed with costs.

Determination

77. I have considered the issues raised in this application.

78. According to Article 67(2)(e) of the Constitution one of the functions of the Commission is:

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

79. Article 67(3) also empowers the Commission to perform any other functions prescribed by national legislation. Article 68(c)(v) of the Constitution empowers Parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality.  Section 3(b) of the National Land Commission Act provides that one of the objects of the Act is to provide for the operations, powers, responsibilities and additional functions of the Commission pursuant to Article 67(3) of the Constitution. No doubt therefore that the National Land Commission Act is the legislation contemplated under Article 67(3) of the Constitution.

80.  Section 14 of the National Land Commission Act, on the other hand provides that:

(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 allgrants or dispositions of public land to establish their propriety or legality.

(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 abona fidepurchaser 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 Parliamentto extend the period for undertaking the review specified in subsection (1).

81. In this case it is contended that the suit property was public land before it as alienated to private institutions from whom the applicants herein acquired their interest. According to the applicants, the wording of section 14(1) of the NLC Act makes reference to public land. The Constitution defines public land under Article 62 and there is no reference to a transport corridor.Notably, Article 62 defines public land to include land which was un-alienated government land as defined by an Act of Parliament in force as at the effective date. It is the Applicant’s submission that the Property consisted of private land and that it had an indefeasible title as at the effective date and relied on the definition of private land in Article 64 of the Constitution. In this case it was submitted that the land was already alienated and it was already private land as at the effective date indicated in Article 260 of the Constitution as 10th August, 2010. It was therefore submitted that the NLC erred in purporting to exercise jurisdiction with regard to land that was registered under the Registration of Titles Act (hereinafter “the Act”) and which created an indefeasible title.

82.  Article 62(1) of the Constitution defines public land as:

(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.

83. Private land on the other hand is defined by Article 64 as consisting 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 ofParliament.

84. It is therefore clear that if the suit land was set aside as transport corridor by a legal instrument, then it would follow that it would fall under the definition of public land pursuant to Article 62(1)(b) and (n) of the Constitution. It is however not within the powers of the judicial review court make a determination whether or not the said land was actually set aside as such. It follows that this Court is not the right forum to reconcile the alleged inconsistent findings by the Commission.

85. I have however reviewed the decisions cited before me and I must with respect associate myself with the position adopted in Republic vs. National Land Commission Ex-Parte Holborn Properties Limited [2016] eKLR, where Angote, J at expressed himself as follows:

“…I will now deal with the issue of whether the Respondent's mandate is confined to dealings in public land as defined by the Constitution or private land that is land which has been registered under a freehold or leasehold tenure…….Although it is true, as submitted by the Applicant's counsel, that for the first time, the 2010, Constitution comprehensively defined at Article 62 what public land entails, the same Constitution recognises the fact that there were other definitions of “public land” even before its promulgation in the year 2010. I say so because the Constitution has defined “public land” in Article 62 (1) (n) (i) as follows:-

“62 (1) Public land is-

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

(i) in force at the effective date;....”

Having recognised the fact that even before it defined in detail what “public land” entailed there still existed “public land”, the review of grants or dispositions of public land to establish their property or legality was retrospective. The body that was to be given the mandate to review such grants or dispositions by Parliament was not only supposed to deal with public land that was illegally or irregularly allocated after the promulgation of the Constitution but even before.  That is what the Kenyan people wanted as discerned from the Ndung'u Commission Report and the National Land Policy, which preceded the Constitution. Although the Constitution has defined private land to consist of land registered under any freehold or leasehold tenure, and whereas Section 14(1) of the National Land Commission Act gives the Respondent the powers to review all grants or disposition of public land, it follows that such a review can only entail land that has been converted from public land to private land. I say so because the Respondent cannot review what is, still, according to the records, public land. One must have acquired land that was initially public land and issued with a title document, either as a freehold or leasehold, for a review to be done. It is therefore not true that once land falls under the purview of the definition of “private land”, the same cannot be reviewed.  Indeed, it is only such parcels of land that can be reviewed by the Respondent with a view of recommending to the Registrar to revoke the title…”

86. Since the Commission would have no business reviewing public land that has not allegedly changed its status, it would only follow that the Commission’s powers of review must be directed at public land that has been alienated. In arriving at this position I adopt the views of the Court of Appeal in Kimutai vs. Lenyongopeta & 2 Others Civil Appeal No. 273 of 2003 [2005] 2 KLR 317; [2008] 3 KLR (EP) 72 while citing with approval The Discipline of Law1979London Butterworthat page 12 byLord Denningthat:

“The grammatical meaning of the words alone, however is a strict construction which no longer finds favour with true construction of statutes. The literal method is now completely out of date and has been replaced by the approach described as the “purposive approach”. In all cases now in the interpretation of statutes such a construction as will “promote the general legislative purpose” underlying the provision is to be adopted. It is nolonger necessary for the judges to wring their hands and say, “There is nothing we can do about it”. Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind.”

87. It is an elementary principle of statutory interpretation that in order to arrive at the true intention of the legislature, a statute must be considered as a whole and sections of an Act are not to be read in isolation and that when a question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read that provision as a whole. All the constituents’ parts of a statute are to be taken together and each word, phrase or sentence is to be considered in light of the general purpose of the Act itself hence the words, phrase occurring in a statute are to be taken not in isolation or in a detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.

88. This was the position adopted in Padfield vs. Minister of Agriculture Fisheries & Food [1968] AC 997, where it was held that:

“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act. The policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court.”

89. I therefore agree that the National Land Commission is mandated to review grants and dispositions of public land with the aim of establishing their propriety or legality. Therefore where land has been registered as private, this can only be done by investigating the process by which public land was converted to private land. Accordingly, the mere fact that a piece of land is registered as private does not put it beyond the reach of the Commission if it was illegally acquired. I therefore agree with the decisions in Republic vs. National Land Commission Exparte Krystalline Salt 334 of 2014 and Republic vs. National Land Commission & Another Exparte Muktar Saman Olow Miscellaneous Application No. 376 0f 2014 [2015]eKLR that:

“…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 and 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…”

90. It was contended that pursuant to section 14(7) of the NLC Act no revocation of title shall be effected against a bona fidepurchaser for value without notice of a defect in the title. The applicants’ case was that they were bona fide purchasers of the suit land without notice of the defect in the title. However, the Commission’s position was that the very allocation of the land in question was illegal and fraudulent. This being a judicial review court, such issues as fraud that require viva voce evidence cannot be determined in these proceedings. That was the position in Republic vs. Land Registrar Taita Taveta District & Another [2015] eKLR, where Muriithi, J. addressed himself to the issue as follows:

“The Judicial Review Court is particularly ill-equipped to deal with disputed matters of facts where, as in this case, it would involve fact finding on the issue of fraud which requires proof to a standard higher than the ordinary balance of probabilities in civil litigation. To prove fraud there is need for direct evidence to be adduced and tested through cross-examination of the witnesses before the court can conclude that fraud has been committed and the applicant had participated in it to warrant revocation of title.”

91. I also reiterate what was stated by this Court in Livingstone Kunini Ntutu vs. Minister of Lands & 4 Others [2014] eKLR that:

“We would align ourselves with the school of thought which holds that Judicial Review is not the most efficacious remedy where the process under which a title is obtained is in dispute. In such a situation, a civil suit in which the parties can call witnesses and adduce evidence is most appropriate remedy.”

92. In other words the issue whether or not the applicants were bona fide purchasers of the suit land without notice of the defect in the title can only be determined by the Environment and Land Court. This was the position in Samuel Kamere vs. Lands Registrar, Kajiado Civil Appeal Number 28 of 2005 where the Court of Appeal which held that:

“…in order to considered a bona fide purchaser for value, they must prove; that they acquired a VALID and LEGAL title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”

93. Such proof cannot be attained by way of cold-print affidavits which is the usual mode of determining judicial review applications.

94. Similarly the issue whether other proprietors of suits of lands originating from the mother title were compensated by KURA should be dealt with by that same court since this Court cannot properly delve into issues pertaining to compensation arising from compulsory acquisition of land.

95. The applicants however contended that the NLC, instead of making recommendations, proceeded to propagate an illegality by reviewing title to private land and proceeding to revoke the title when it is only a Court of Law which can revoke the title of land as earlier stated. As such, it was submitted that the decision by the NLC to proceed to revoke the titles in the Gazette notice as opposed to making recommendations for the revocation of the same is improper and tainted with illegality.

96. This contention calls for the interrogation of the powers of the National Land Commission. Section 14(5) and (6) of the National Land Commission Act provides as follows:

(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.

97. In this case vide Kenya Gazette Notice No. 307 of 22nd January, 2016, the NLC made a determination with respect to the suit parcel of land that the title be revoked and that the same be vested in the county government for road expansion and that the title be regularised. I agree that the proper decision would have been to direct the Registrar to revoke the title.

98. However, in in Halsbury’s Laws of England 4th Edn. Vol. 1(1) para 12 page 270 it is stated that:

“The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus)…are all discretionary. The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. The Court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow ‘contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.”[Emphasis added].

99. This position was reiterated by this Court in Joccinta Wanjiru Raphael vs. William Nangulu – Divisional Criminal Investigation Officer Makadara & 2 Others [2014] eKLR where it was held that:

“… it must always be remembered that judicial review orders being discretionary are not guaranteed and hence a court may refuse to grant them even where the requisite grounds exist since the Court has to weigh one thing against another and see whether or not the remedy is the most efficacious in the circumstances obtaining and since the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles...The court does not issue orders in vain even where it has jurisdiction to issue the prayed orders. Since the court exercises a discretionary jurisdiction in granting judicial review orders, it can withhold the gravity of the order where among other reasons there has been delay and where the a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realized, even if merited. The would refuse to grant judicial review remedy when it is no longer necessary; or has been overtaken by events; or where issues have become academic exercise; or serves no useful or practical significance.”

100. In this case it is contended which contention is not seriously disputed that the 4th Respondent in execution of its mandate entered into a contract with an independent contractor Messer’s Sinohydro Tianjin Engineering Co Ltd for the expansion of the Outer Ring Road and at the time of filing this suit the road expansion project had commenced and the same was underway. The contractor is on site, and having concluded works on the undisputed portions of land, is now stuck at the suit land parcel.

101. It is therefore clear that in this case there are competing interests between the public right to the road on one hand and the interests of the applicants on the other hand. As is appreciated in Black’s Law Dictionary, 9th Edn. “public interest” is the general welfare of the public that warrants recognition and protection and it is something in which the public as a whole has a stake; especially an interest that justifies governmental regulation.

102. In Re McBride’s Application [1999] NI 299the Court expressed itself as follows:

“…it appears to me that an issue is one of public law where it involves a matter of public interest in the sense that it has an impact on the public generally and not merely on an individual or group…..it seems to me to be equally clear that a matter may be one of public law while having a specific impact on an individual in his personal capacity.”

103. Article 1(1) of the Constitution provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution while under Article 1(3)(c) sovereign power under the Constitution is delegated interalia to the Judiciary and independent tribunals. Dealing with a similar provision in Rwanyarare & Others vs. Attorney General [2003] 2 EA 664, it was held with respect to Uganda that Judicial power is derived from the sovereign people of Uganda and is to be administered in their names.  Similarly, it is my view and I so hold that in Kenya under the current Constitutional dispensation judicial power whether exercised by the Court or Independent Tribunals is derived from the sovereign people of Kenya and is to be administered in their name and on their behalf. It follows that to purport to administer judicial power in a manner that is contrary to the expectation of the people of Kenya would be contrary to the said Constitutional provisions. I therefore associate myself with the decision in Konway vs. Limmer [1968] 1 All ER 874 that there is the public interest that harm shall not be to the nation or public and that there are many cases where the nature of the injury which would or might be done to the Nation or the public service is of so grave a character that no other interest public or private, can be allowed to prevail over it.

104. It is therefore my view and I so hold that in appropriate circumstances, Courts of law and Independent Tribunals are properly entitled pursuant to Article 1 of the Constitution to take into account public or national interest in determining disputes before them where there is a conflict between public interest and private interest by balancing the two and deciding where the scales of justice tilt. Therefore the Court or Tribunals ought to appreciate that in our jurisdiction, the principle of proportionality is now part of our jurisprudence and therefore it is not unreasonable or irrational to take the said principle into account in arriving at a judicial determination.

105. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.

106. InEast African Cables Limited vs. The Public Procurement Complaints, Review & Appeals Board And Another [2007] eKLR the Court of Appeal set out the principle of public interest in the following terms:

“We think that in the particular circumstances of this case, if we allowed the application the consequences of our orders would harm the greatest number of people. In this instance we would recall that advocates of Utilitarianism, like the famous philosopher John Stuart Mill, contend that in evaluating the rightness or wrongness of an action, we should be primarily concerned with     theconsequences of our action and if we are comparing the ethical quality of two ways of acting, then we should choose the alternative which tends to produce the greatest happiness for the greatest number of people and produces the most goods. Though we are not dealing with ethical issues, this doctrine in our view is aptly applicable”

107. As was recognised by Ojwang, J(as he then was) in Nairobi Misc. Civil Case (Judicial Review) No. 109 of 2004 – Republic vs. The Minister for Transport & Communications & Others ex parte Gabriel Limion Kaurai & Another:

“the Court, in coming to its decision, must strike a balance between the two scenarios described above – the public yearning for an effective, humane and civilised passenger transport sector, and the juridical imperatives of compliance with the law as it has been enacted. Such an attempt to find a balance will show that there are no cut and dried borderlines between the social purpose, on the one side, and the sacrosanct law, on the other. Social purposes are more dynamic, sometimes feeding into the domain of legal norms, and their earning acceptance and sanctification by the jurist; but sometimes not getting quite there, and so remaining pre-legal, even though they still represent part of normal human venture and endeavours towards improved quality of life.”

108. I also defer to Baseline Architects Limited & 2 Others vs. National Hospital Insurance Fund Board Management [2008] eKLR where the court held as follows:

“It is, I think a principle which commands general acceptance that there are circumstances in which the public interests must be dominant over the interest of a private individual.  To the safety or the well being of the general public, the claims of a private litigant motivated by profit may have to be subservient.  It is therefore vital to protect the public from private interest peril – i.e. interests of a litigant must give way to that of the general public.”

109. In my view this is a matter in which public interests ought to prevail, at least in so far as these proceedings are concerned. According to Francis Bennionin Statutory Interpretation,3rd Edition at page 606:

“it is the basic principle of legal policy that law should serve the public interest. The court…should therefore strive to avoid adopting a construction which is in any way adverse to the public interest”.

110. Therefore even if I had found that the decision of the Commission was tainted with illegality with respect to the exercise of its powers, I would still, in the exercise of the discretionary powers of this Court declined to grant the orders sought taking into consideration the ramifications of the orders sought herein on the public. In my view, the applicants if they are able to satisfy the Environment and Land Court that they were bona fide purchasers may well be entitled to compensation.

Order

111. In the foregoing premises, I decline to grant the prayers sought herein. However in light of my finding as regards the issue of the determination made by the National Land Commission there will be no order as to costs.

Dated at Nairobi this 18th day of September, 2017.

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Barasa for the applicant

Miss Ngelichei for the 2nd and 4th Respondents

CA Ooko