Republic v National Land Commission & 75 others Exparte Kibogy Properties Limited [2018] KEELC 2540 (KLR)
The bottom line
#A Kenyan landowner with a valid court judgment can stop the National Land Commission from re-examining their title through a court order of prohibition.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as between the court's determination and NLC proceedings
The claim before the NLC was the same claim litigated and determined in Eldoret E&LC No. 931 of 2012; the interested parties could not re-open it through the respondent
The parties and subject matter were identical; only the forum had changed to the NLC. The interested parties had claimed adverse possession, were found to be licences, and the title of the 2nd defendant was found proper. They never appealed the judgment of 30.10.2014, and having participated in those proceedings could not re-open the legality of the titles through the NLC.
Illegality, irrationality and procedural impropriety of the NLC's decision to investigate
The respondent's action to investigate the title was unlawful, irrational and procedurally improper
The court had already pronounced itself on the title; a dissatisfied litigant's remedy is an appeal to the Court of Appeal, not a complaint to the NLC. Investigating a title already judicially pronounced upon was shrouded in illegality and irrationality. The court adopted the holding in Republic v NLC Ex-parte Holborn Properties that the NLC cannot re-open issues litigated before its establishment.
Availability of certiorari against a summons
A summons in the nature of a notice of institution of proceedings is not amenable to quashing by certiorari
The court accepted the respondent's position that such summons are not available to be quashed, declining certiorari but granting prohibition instead, which reaches the substantive investigative process itself.
Legal principles established
#- A party dissatisfied with a decision of the Environment and Land Court must appeal to the Court of Appeal, not resort to the National Land Commission
- The National Land Commission cannot re-open issues already litigated and determined by a court merely because it did not participate in those proceedings
Court orders
#- 1.An Order of Prohibition issued prohibiting the respondent in any manner from investigating, adjudicating any claim, re-opening and hearing dispute over LR.8319 and 8321 pursuant to summons dated 31st August, 2016 and any other decision or orders giving ownership and/or possession of LR.8319 and 8321
- 2.Costs of the application awarded to the Exparte applicant
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court; Articles 67, 159(1) and 162(2)(b) of the Constitution of Kenya 2010; National Land Commission Act No. 5 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 75 others Exparte Kibogy Properties Limited [2018] KEELC 2540 (KLR)", Case Analysis (2018). Eldoret Judicial Review (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2540/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.