Speaker of the National Assembly v Mombasa Cement Limited & 4 others (Civil Appeal 100 of 2019 & E021 of 2020 (Consolidated)) [2023] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that Parliament cannot overturn National Land Commission decisions on land titles — only courts can do that.
What this practically means
#Executive summary
#Key legal issues
#Abuse of process / res judicata in the interlocutory appeal
The trial judge did not err in refusing to set aside the conservatory orders or strike out the petition. The previous petition was struck out on a technicality, not on merits; the petition had been amended to disclose the previous suit; and the pending appeal had been withdrawn.
Res judicata requires a prior suit determined on merits. The previous petition was struck out for non-payment of filing fees, a technicality, and the only remedy was costs. The orders of amendment disclosing the previous suit were subsisting and unappealed, so non-disclosure grounds were overtaken. The withdrawal of the notice of appeal meant there was no pending appeal at the time of the ruling. The suits were not for an unlawful object and were thus not an abuse of process.
Non-joinder of Bambani Kilio as interested party
The failure to join Bambani Kilio, the original complainant, was an error, but not fatal to the proceedings; the petitioner or the court could have joined it, and the applicable rules bar defeat of a petition for non-joinder.
Bambani Kilio had an identifiable stake as the complainant whose complaint triggered the National Assembly's actions, and rule 7(2) of the Mutunga Rules permitted joinder on the court's own motion. However, rule 5(b) of the same rules and Order 1 rule 9 of the Civil Procedure Rules provide that a suit shall not be defeated by non-joinder, and Bambani Kilio retains the option of filing its own suit in the appropriate court.
Jurisdiction of the ELC over the constitutional petition
The ELC had jurisdiction because the petition raised a material constitutional question relating to title to land, ancillary to which was the question of the National Assembly's powers; this did not offend separation of powers.
Under article 162(2)(b) and section 13 of the Environment and Land Court Act, the ELC is granted broad jurisdiction over all disputes relating to land, including constitutional questions ancillary to land. The subject of the impugned report and decisions was the 1st respondent's registered title; the constitutionality of the National Assembly's actions was a material fact ancillary to that title dispute. Courts have a duty to interrogate whether Parliament acted within the Constitution.
Overlap between the National Assembly's deliberative powers and the National Land Commission's functions
Both institutions have overlapping constitutional powers to receive and investigate complaints, including on land matters; there was no constitutional infraction in the National Assembly receiving the complaint, but its role is political and deliberative, not adjudicative.
Article 95(2) obliges the National Assembly to deliberate on and resolve issues of concern to the people, and article 119 grants a right to petition Parliament; the NLC under article 67 investigates historical land injustices. In resolving the functional overlap, each institution must delineate its core function, respect the roles of other institutions, and avoid unwarranted intrusion into the roles of more competent institutions. Receiving the complaint was within the Assembly's political role; determining title was not.
Oversight over the National Land Commission's quasi-judicial decisions
The National Assembly's oversight role under article 95(5)(b) does not extend to reviewing and altering quasi-judicial decisions of the National Land Commission; review or appeal of such decisions is reserved to statutory mechanisms and the courts.
Oversight under article 95(5) is a review of the activities of state organs for results, value for money and compliance with laws, and for constitutional commissions principally through annual reports under article 254. The NLC decision on the 1st respondent's title was a quasi-judicial decision taken under section 14 of the NLC Act, and no review role is conferred on the National Assembly by the NLC Act, the Fair Administrative Action Act or the Constitution; supervisory jurisdiction over administrative and quasi-judicial bodies is reserved to the courts under article 165(6).
Legal principles established
#- Specialized courts such as the ELC and ELRC have jurisdiction to interpret the Constitution and redress constitutional rights violations in matters falling within their subject-matter jurisdiction, though not with the original unlimited jurisdiction of the High Court.
- The National Assembly may receive and consider complaints, including on land matters, in its deliberative role under article 95(2), but its oversight role under article 95(5)(b) does not extend to reviewing and altering quasi-judicial decisions of the National Land Commission.
- The core function of resolving disputes as regards title to land, and the attendant adjudicative role, is not a function of the National Assembly under article 95 but is primarily given to the courts and tribunals under article 159.
- A petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 should not be defeated by reason of mis-joinder or non-joinder of parties.
- Where a party did not appeal against an interlocutory order, such as an order allowing amendment of a petition, it cannot purport to challenge that order in an appeal against a later ruling.
Court orders
#- 1.The appellant's interlocutory appeal in Mombasa Civil Appeal 100 of 2019 is dismissed in its entirety with costs to the 1st respondent
- 2.Order (iii) of the ELC judgment of April 29, 2020 set aside and substituted with an order that the exercise of the powers under articles 95(2) and 95(5)(b) of the Constitution by the National Assembly and its Committees with respect to disputes over grants and dispositions of public land are subject to, and do not include, the constitutional powers and functions vested in the National Land Commission and the courts pursuant to articles 67, 159(1), 162(2)(b) and 165(6) of the Constitution
- 3.Order (iv) of the ELC judgment of April 29, 2020 set aside and substituted with an order that the exercise of the powers under articles 95(2) and 95(5)(b) of the Constitution by the National Assembly and its Committees with respect to disputes over title to, use and occupation of land are subject to, and do not include, the constitutional powers and functions vested in the courts pursuant to articles 159(1), 162(2)(b) and 165(6) of the Constitution
- 4.All the other declarations and orders by the ELC in orders (i), (ii), (v), (vi), (vii), (viii), (ix), (x) and (xi) of the judgment delivered on April 29, 2020 affirmed and upheld, save to the extent that they may have been modified or qualified by the findings made in the judgment
- 5.Each party to meet their own costs of the appeal in Mombasa Civil Appeal E021 of 2020 in light of the public interest issues raised therein
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Petition No 17 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over appeals from the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Speaker of the National Assembly v Mombasa Cement Limited & 4 others (Civil Appeal 100 of 2019 & E021 of 2020 (Consolidated)) [2023] KECA 33 (KLR)", Case Analysis (2023). Mombasa Civil Appeal 100 of 2019 and Mombasa Civil Appeal E021 of 2020 (with 1st respondent's cross-appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/33/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.