Republic v National Land Commission Ex-parte Holborn Properties Limited [2016] KEELC 941 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission has jurisdiction to review grants and dispositions within Chembe Kibabamshe Settlement Scheme, including the suit properties
The Commission has jurisdiction to review the grants or dispositions within Chembe Kibabamshe if it finds as a fact that the area was declared a settlement scheme by Government and is not Trust land; whether the land was initially public land must be established first.
The court traced the history of the Ndung'u Commission Report and the National Land Policy, showing the people of Kenya intended the Commission to review grants of land illegally allocated even before the 2010 Constitution. Section 14 of the National Land Commission Act confers the review mandate; it covers land converted from public land to private land. However, land that was Trust land (community land) which went through adjudication is outside the mandate unless shown to have been set apart by Government or County Councils.
Whether the Commission's review mandate is retrospective to allocations before the 2010 Constitution
The review mandate is retrospective; it covers allocations of public land made even before the promulgation of the Constitution, as Article 62(1)(n)(i) recognises land declared public by Acts of Parliament in force at the effective date.
The court held that the Constitution itself recognised pre-existing definitions of public land through Article 62(1)(n)(i), referring to land declared public by Acts in force at the effective date. Reading section 14 of the NLC Act together with the historical context (Ndung'u Report and Sessional Paper No. 3 of 2009), Parliament intended the review to reach historical illegal and irregular allocations, not merely those after 2010.
Whether the Respondent's public notices in respect of the suit properties are res judicata Malindi Petition Number 11 of 2012
The Commission, though served, failed to participate in Malindi Petition No. 11 of 2012 in which the court determined the propriety of the suit properties; it cannot re-open those issues by purporting to review the titles, and in issuing the notices it exceeded its jurisdiction.
The court held that once a land dispute is filed in the Environment and Land Court, the Commission is obliged to participate if issues fall within its mandate, or abide by the decision. Having been served and failed to participate, the Commission cannot re-open the legality of the initial allotments. Its only recourse was appeal. Since a court had already pronounced itself on the propriety of the grants, the Commission exceeded its jurisdiction by issuing the review notices, warranting prohibition.
Legal principles established
#- The National Land Commission's mandate under section 14 of the National Land Commission Act extends to reviewing grants or dispositions of land initially held as public land, including allocations made before the promulgation of the 2010 Constitution, until such time as Parliament establishes another body.
- Land converted from public land to private land under freehold or leasehold tenure remains subject to the Commission's review; it is not true that registration as private land immunises a title from review.
- The Commission may recommend revocation of title only in respect of the initial allottee; a bona fide purchaser for value without notice is protected.
- The Commission must first establish as a fact whether the land under review was initially public land (e.g. a settlement scheme) before making recommendations; land that was Trust land that went through adjudication is outside its review jurisdiction unless set apart by Government.
- Where a court has already determined the propriety or legality of a grant, the National Land Commission has no jurisdiction to re-open the issue by purporting to review the disposition; its only recourse is an appeal.
- The absence of rules under section 14(2) of the National Land Commission Act does not stop the Commission from exercising its review functions since the Act prescribes the procedure.
Court orders
#- 1.An order of Prohibition issued restraining the Respondent from in any manner whatsoever investigating, adjudicating or reviewing the Title Deeds or dispositions arising out of the initial allocation and subsequent transfers of parcels of land known as Chembe Kibabamshe 396, 637, 638, 401, 423, 425, 428, 394 and 379 situated in Kilifi County
- 2.The Respondent to pay to the Ex-parte Applicant the costs of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (mandate of the Environment and Land Court to hear disputes relating to the environment and the use and occupation of, and title to land); judicial review jurisdiction of the High Court / superior court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission Ex-parte Holborn Properties Limited [2016] KEELC 941 (KLR)", Case Analysis (2016). Notice of Motion dated 11th September, 2015 (Ex parte Applicant's application; Judicial Review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/941/eng@2016-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.