Japheth Kipkemobi Magut v National Land Commission & 2 others [2017] KEELC 2158 (KLR)
The bottom line
#A Kenyan court confirmed the National Land Commission can review titles to formerly public land, but stopped its investigation because the same ownership dispute was already in court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission over land converted from public to private
The Commission has jurisdiction under section 14 of the National Land Commission Act to review grants of public land that has been converted to private land, before or after the promulgation of the Constitution, and the power is retrospective
Article 67 establishes the Commission and Article 68(c)(v) contemplates legislation to enable review of grants of public land. Section 14 of the National Land Commission Act was enacted pursuant to those provisions. Review necessarily targets land converted from public to private, since land still recorded as public cannot be 'reviewed'. Following Justice Angote in Holborn Properties, the court held the Commission's mandate covers such converted land, retrospectively, as an exception to the presumption against retrospectivity justified by the need to cure historical land injustices identified by the Ndungu and TJRC reports.
Whether the Commission's proceedings were sub judice
Yes - the subject matter before the Commission was the same as that pending in Eldoret E&L Case No. 38 of 2012, and the parties are the same or litigate in the same name, so prohibition issued
The sub judice principle rests on public policy against conflicting decisions by courts or bodies of equal jurisdiction. The court found the same subject matter - proprietorship of Eldoret Municipality Block 10/48 - was before both the Commission and the Environment and Land Court in Case No. 38 of 2012, with substantially the same parties, the petitioner being the purchaser from Ndala Shop Ltd. The pending suit's determination of ownership should therefore proceed in that court.
Whether the Commission breached fair hearing and fair administrative action principles
The issue became moot as the Commission's proceedings and decision had been nullified by consent of the parties
Counsel for the 1st respondent pointed out that the decision of the National Land Commission was nullified by consent in the earlier petition. Given that the alleged bias and unfairness related to proceedings and a decision that no longer existed, the court found nothing to adjudicate on this issue, mooting the fair hearing and fair administrative action claims, and consequently declining declarations on those heads.
Petitioner's entitlement to constitutional protection of property
The registered proprietor of the suit property was entitled to the protection of Article 40, subject to confirmation that the property was not illegally acquired or acquired through a corrupt scheme
The court perused the certificate of lease issued on 3.8.2010 certifying the petitioner as registered proprietor of the leasehold interest. Being the registered proprietor, he could approach the court by petition to protect his rights, though that protection is qualified by section 26 of the Land Registration Act and Article 40(6), which do not protect illegally or corruptly acquired titles.
Legal principles established
#- The National Land Commission's power under section 14 extends to reviewing grants of land that was formerly public land and later converted to private land, and is retrospective
- The presumption against retrospectivity may be rebutted by necessary implication where a law is made to cure an acknowledged evil
- Sub judice bars a body of equal jurisdiction from trying a matter pending before a court of competent jurisdiction
Court orders
#- 1.A declaration that under Section 14 of the National Land Commission Act, 2012 the 1st Respondent can review grants of public land as defined under Article 62 of the Constitution of Kenya that has been converted from public land to private land
- 2.An Order of Prohibition against the 1st Respondent, staying permanently the proceedings before the National Land Commission investigating the proprietorship of, or recommending revocation of title to, Land Reference No. Eldoret Municipality/Block 10/48 for being res sub judice, with the issue of ownership to be determined in Eldoret Environment and Land Court Case No. 38 of 2012
- 3.The petitioner is awarded half costs of the petition
- Jurisdiction invoked
- Articles 40, 47, 50(1), 60, 62, 64, 67 and 68(c)(v) of the Constitution of Kenya, 2010; Section 14 of the National Land Commission Act, No. 5 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth Kipkemobi Magut v National Land Commission & 2 others [2017] KEELC 2158 (KLR)", Case Analysis (2017). Petition (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2158/eng@2017-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.