Dola & 2 others v Chairman, National Land Commission & 5 others (Civil Appeal 17 of 2017) [2020] KECA 432 (KLR)
The bottom line
#The Court of Appeal confirmed Kenya's National Land Commission can review and recommend revocation of private titles created from illegally allocated public land.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission over land that has been converted from public to private through irregular grants
The Commission's jurisdiction extends to reviewing grants and dispositions of public land to establish their propriety or legality, even where the land has since been registered as private land.
The Constitution created the Commission to address widespread theft of public land. Article 67(e) empowers it to investigate present or historical land injustices, and Article 68(c)(v) directed legislation enabling review of all grants of public land. Article 40(6) excludes protection of unlawfully acquired property. Interpreting the Constitution to shield land merely because it is now registered privately would defeat a major plank of the Constitution and the purpose, values and principles of the Constitution under Article 259. The High Court decisions holding otherwise were not followed.
Retrospective application of the Constitution of Kenya 2010 and the National Land Commission Act to dispositions made before their commencement
As regards review of grants and dispositions of public land illegally or irregularly acquired, the Constitution is not merely prospective; the Commission's review mandate applies to historical land injustices.
Relying on the Supreme Court's principles in Samuel Kamau Macharia, the Court noted that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. The mischief the Constitution addressed was land grabbing and rampant theft of public land. Article 67(e) expressly covers historical land injustices, and section 14 of the National Land Commission Act establishes mechanisms for reviewing grants already made out of public land.
Whether the appellants were afforded a fair hearing by the Commission
Mr Dola was afforded a fair hearing through repeated notices and an appearance before the Commission; whether a fair hearing was given depends on the circumstances of each case.
The record showed the Commission wrote to Mr Dola on 24th March 2016, invited him to hearings on 14th June and 23rd August 2016, published a newspaper notice, and that Mr Dola actually appeared before it. His claim that he learnt of the proceedings only on the morning of the hearing was contradicted by the record and by his own disciplinary proceedings and dismissal by LBDA over the same property.
Whether failure to separately hear Mrs Dola and Samuel nullified the Commission's decision
The complaint was a red herring; hearing the prime mover, Mr Dola, sufficed where Mrs Dola was a mere cog in the wheel and Samuel was a minor who knew nothing of the registration.
The evidence showed Mrs Dola applied for allocation of the property well aware it belonged to LBDA, effectively acting for her husband, while Samuel was a minor at registration. In the circumstances the trial court correctly concluded that the three registered owners were heard when Mr Dola, the prime mover, was heard.
Whether Mr Dola could claim protection as a bona fide purchaser for value without notice
Mr Dola was not a bona fide purchaser; he had express notice of LBDA's ownership, misled his employer about the acquisition, and disregarded its instruction not to deal with the property.
Applying the Black's Law Dictionary definition, the Court found Mr Dola had express notice that the property belonged to LBDA, occupied it as his official residence, knew his wife had applied for its allotment, told LBDA it had been acquired by 'some Kalenjins', and proceeded with dealings despite LBDA's express instruction. He was an active participant in the illegal transfer of public land.
Legal principles established
#- The National Land Commission has jurisdiction, vested in it by the Constitution and the National Land Commission Act, to inquire into the process and legality of how public land ended up registered as private land; that jurisdiction cannot be ousted on the bare argument that previously public land has since become private land.
- Transformation of public land into private land through irregular or illegal grants cannot defeat the Commission's constitutional mandate to review such grants and dispositions.
- The constitutional right to property under Article 40 does not extend to property found to have been unlawfully acquired, and this provision applies to review of dispositions and grants of public land that were illegally or irregularly acquired, including historical injustices.
- Courts will not readily interfere with the discharge of constitutional mandates vested in state institutions unless it is demonstrated that the institution acted ultra vires or in breach of the Constitution or the law.
Court orders
#- 1.Dismissal of the appeal in its entirety
- 2.Costs of the appeal to the Commission, its chairman, and LBDA
- On appeal from
- Environment and Land Court at Kisumu
- Jurisdiction invoked
- First appeal / appeal against judicial review decision of the Environment and Land Court pursuant to the appellate jurisdiction of the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohamed & 5 others v Masinde Muliro University of Science and Technology & 8 others (Environment and Land Case 48 of 2019) [2026] KEELC 4360 (KLR)[2026] KEELC 4360 (KLR)8 Jul 2026
- Mastajabu (Suing as the Legal Administrator of the Estate of the Late Mastajabu Athumani Suleiman ) & another v Chief Land Registrar, Kwale & 3 others (Civil Appeal E083 of 2021) [2025] KECA 1319 (KLR)[2025] KECA 1319 (KLR)18 Jul 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Dola & 2 others v Chairman, National Land Commission & 5 others (Civil Appeal 17 of 2017) [2020] KECA 432 (KLR)", Case Analysis (2020). Not stated in judgment (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/432/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.