Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedJudicial Review Application dated 27th October, 2016 (Machakos)· [2017] KEELC 2540 (KLR)

Republic v National Land Commission Ex-Parte Kijiji Properties Limited & others [2017] KEELC 2540 (KLR)

Environment and Land Court
30 June 2017
2,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Ex-parte Applicant, the registered proprietor of L.R. No. 21215 Mavoko, Machakos, moved the court by Notice of Motion dated 27th October 2016 seeking certiorari to quash and prohibition to restrain the National Land Commission from reviewing, investigating and adjudicating third-party claims over its title pursuant to Section 14 of the National Land Commission Act. The Applicant argued that the Commission had no authority to review private title, that Parliament had yet to enact legislation under Article 68(c)(v) of the Constitution, that the process lacked rules, and that the investigations were sub-judice Nairobi HCCC No. 428 of 2009, in which the Interested Parties claimed the title was fraudulently issued. The Commission maintained it was mandated to review grants and dispositions of public land and that its investigations had revealed irregularities in the original allocation. The Interested Parties contended the court lacked Article 165(6) jurisdiction, that the matters were materially different from the pending suit, and that the title was a forgery. Applying Republic v National Land Commission, Ex-parte Holborn Properties Limited, the court held that the issues the Commission purported to discover were identical to those pending before the High Court, and that the Commission, as successor to the Commissioner of Lands, was already implicated in that suit. It therefore lacked locus standi to conduct parallel proceedings; its proper role was to avail its evidence to the court. The court allowed the application as prayed, quashing the Commission's notice and prohibiting further parallel investigation.

Key legal issues

#
01

Whether the NLC's Section 14 review process was sub-judice Nairobi HCCC No. 428 of 2009

Holding

The investigations were sub-judice because the issues the Commission purported to discover were the same issues pending in the pending suit, in which the Commission is the successor of the 2nd Defendant (Commissioner of Lands).

Reasoning

The court compared the issues raised in the Commission's investigations with the Plaint in Nairobi HCCC No. 428 of 2009 and found them identical - namely that the grant to Baywater Investments Limited was fraudulently issued. The Commission is the successor of the Commissioner of Lands, already a defendant in that suit. Parallel adjudication of the same title question would therefore offend the sub-judice principle.

p. 4
02

Whether the NLC has locus standi to commence parallel review proceedings under Section 14

Holding

The Commission lacks locus standi to commence parallel proceedings where the propriety of the title can only be interrogated by the court in the pending suit.

Reasoning

Applying its earlier decision in Republic v National Land Commission, Ex-parte Holborn Properties Limited, the court held that once a land dispute is filed in court, the Commission is obliged to participate in those proceedings or abide by the court's decision. Its proper role is limited to availing its evidence to the court, not conducting parallel adjudication.

p. 5
03

Whether the distinction between ownership of land and legality of title divides the Commission's mandate from the court's

Holding

The court rejected the distinction, holding the two issues are one and the same.

Reasoning

The Respondent argued that reviewing the legality of the grant was unrelated to the ownership dispute before the High Court. The court held that since the Commission admitted it was investigating the propriety of the Applicant's title following complaints by the same parties litigating ownership in HCCC No. 428 of 2009, the issues could not be separated. The other issues raised were therefore not addressed.

p. 5

Legal principles established

#
  • Once a dispute over title to land is before the court, the National Land Commission must participate in or abide by those proceedings and cannot reopen the issue of legality of title in parallel proceedings.
  • Where the issues a commission is investigating are the same issues pending before a court, the commission lacks locus standi to conduct parallel proceedings.

Court orders

#
  1. 1.Judicial review orders of certiorari to quash the Respondent's Notice contained in the letter dated 18th October, 2016
  2. 2.Judicial review orders of prohibition restraining the Respondent from investigating, reviewing and/or adjudicating any claims relating to the Ex-parte Applicant's ownership of L.R. 21215 Mavoko
  3. 3.Application dated 27th October, 2016 allowed as prayed
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court (orders of certiorari and prohibition); Article 165(6) of the Constitution raised by the Interested Parties

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Land Commission Ex-Parte Kijiji Properties Limited & others [2017] KEELC 2540 (KLR)", Case Analysis (2017). Judicial Review Application dated 27th October, 2016 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2540/eng@2017-06-30

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