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Court of AppealDismissedCivil Appeal No. 91 of 2018

Cordison International (K) Limited v Chairman National Land Commission & 44 others [2019] KECA 830 (KLR)

Court of Appeal of Kenya
7 March 2019
AVAlnashir VisramWKW. KaranjaDMD. K. Musinga
5,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that only the National Land Commission—not county governments—can allocate public land, so get your allocation from the right authority.

What this practically means

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Executive summary

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This appeal arose from competing claims over approximately 11,100 acres of public land at Kiongwe in Lamu County intended for wind power projects. Cordison International (K) Limited claimed it had been allocated the land by the County Government of Lamu, while the National Land Commission allotted the same land to Kenwind (K) Limited. The Environment and Land Court at Malindi (Olola, J.) dismissed Cordison's judicial review application seeking certiorari, mandamus and prohibition. The Court of Appeal, in a single judgment of the court, identified the fundamental issue as who between the National Land Commission and the County Government is lawfully mandated to allocate public land. The court held that under Article 67 of the Constitution and section 12 of the Land Act, it is the Commission, not a county government, that allocates public land, though alienation under section 5(2) of the National Land Commission Act requires governmental consent. The Commission's allocation to Kenwind complied with the statutory procedure in section 14 of the Land Act, including notice and publication. The court found the appellant had failed to appreciate the new land regime introduced by the Constitution of Kenya, 2010, had not exhausted the statutory remedy of appeal to the Liaison Committee under section 13 of the Physical Planning Act as required by section 9(2) of the Fair Administrative Actions Act, and had not established illegality, irrationality, procedural impropriety, breach of natural justice or bias. The appeal was dismissed in its entirety with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who, between the National Land Commission and the County Government, is lawfully mandated to allocate public land and what is the appropriate procedure thereof?
  2. 2.Whether the learned judge erred in his interpretation and application of Articles 61, 62 and 67 of the Constitution
  3. 3.Whether the learned judge erred in failing to adequately consider the discrepancies raised in the approval process in favour of the 5th respondent
  4. 4.Whether the respondents were in breach of the rules of natural justice
  5. 5.Whether the 1st respondent caused a reasonable apprehension of bias in his decisions and directions

Key legal issues

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01

Power to allocate public land

Holding

The National Land Commission, not the County Government, allocates public land; the County Government holds it in trust but administration is the Commission's role

Reasoning

Article 67 gives the Commission power to manage public land on behalf of national and county governments. The suit land is public land under Article 62(1)(a), held by the County Government in trust, but under Article 62(2) it is administered by the Commission. Section 5(1)(a) of the National Land Commission Act and section 12 of the Land Act confirm this allocation mandate, with section 14 prescribing the procedure.

p. 5
02

Distinction between alienation and allocation of land

Holding

Alienation of public land under section 5(2) of the National Land Commission Act requires the consent of the national or county government, but allocation under section 12 of the Land Act does not

Reasoning

Section 2 of the Land Act defines alienation as sale or other disposal of rights to land, while allocation is the legal process of granting rights to public land. The Commission may alienate public land only on behalf of, and with the consent of, the national and county governments, but allocation is its own statutory function conducted per section 14 of the Land Act.

p. 5
03

Scope of judicial review

Holding

Judicial review concerns the legality, rationality and procedural fairness of the decision-making process, not the merits

Reasoning

Citing the Supreme Court in Peninah Nadako Kiliswa v IEBC, the court held that an applicant for judicial review must show the decision was illegal, irrational or procedurally defective. Here the appellant established no such defect: the County Assembly approval, Ministry of Energy approval, section 14 notice and PDP were all in place.

p. 5
04

Exhaustion of alternative remedies

Holding

A party aggrieved by a PDP must exhaust the statutory appeal to the Liaison Committee under section 13 of the Physical Planning Act before resorting to judicial review

Reasoning

Section 9(2) of the Fair Administrative Actions Act bars courts from reviewing administrative action unless the mechanisms for appeal or review and all remedies under other written law are first exhausted. Since a statutory procedure existed for questioning the PDP and the appellant did not use it, judicial review would have been procedurally wrong.

p. 6
05

Natural justice and bias

Holding

The right to be heard may be satisfied in writing; written responses to objections satisfy natural justice, and allegations of bias were unsubstantiated

Reasoning

The Commission dealt with all the appellant's concerns by letter dated 17th June 2016 and proposed a PDP accommodating both parties. Audience may be granted in written form; oral hearing is not mandatory. The allegations of manifest bias by the 1st respondent lacked substantiation as the PDP was prepared to cater for both interests.

p. 6

Legal principles established

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  • It is the National Land Commission, not a county government, that is mandated to allocate public land, subject to the procedure in section 14 of the Land Act
  • Judicial review courts examine the decision-making process, not the merits of the decision

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Respondents granted costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
DM
majority
On appeal from
Environment and Land Court at Malindi
ELC JR Misc. Application No. 11 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate framework governing Environment and Land Court decisions (Constitution of Kenya, 2010 framework; Land Act and Environment and Land Court Act)

Relief refused

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Certiorari to quash the letter of allotment issued to the 5th respondent

The allocation substantively adhered to the constitutional and statutory procedure; no illegality, irrationality or procedural impropriety established

p. 5

Mandamus compelling the National Land Commission to issue lease instruments to the appellant

The County Government had no power to allocate public land in the manner it did; the appellant failed to follow the correct procedure under the new land regime

p. 5

Costs

The respondents are granted costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is therefore clear beyond any peradventure that it is the role of the Commission, and not a county government, to allocate public land. The allocation must however comply with the laid down constitutional and statutory procedure as stated above.
p. 5Mandate to allocate public land
Section 9(2) of the Fair Administrative Actions Act bars a Court from reviewing any administrative action or decisions unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
p. 6Exhaustion of alternative remedies
In our view, the appellant did not establish any illegality, irrationality or procedural impropriety in the procedure followed by the 1st respondent in allocating the suit land to the 5th respondent.
Outcome of the judicial review challenge
We have said enough, we believe, to demonstrate that this appeal is devoid of merit, even without addressing ourselves to each and every ground of appeal. Consequently, we hereby dismiss it in its entirety. The respondents are granted costs of the appeal.
p. 6Final orders and costs

Issues in the judgment

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minor

The judgment variously refers to the 1st respondent as the Chairman of the National Land Commission and treats the 2nd respondent (the Commission) as the allocating body, and in the trial court extracts the County Government appears as '2nd Interested Party' while Kenwind appears as '1st Interested Party', though on appeal Kenwind is the 5th respondent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cordison International (K) Limited v Chairman National Land Commission & 44 others [2019] KECA 830 (KLR)", Case Analysis (2019). Civil Appeal No. 91 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/830/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.