Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEldoret Judicial Review (not stated in judgment)· [2018] KEELC 2540 (KLR)

Republic v National Land Commission & 75 others Exparte Kibogy Properties Limited [2018] KEELC 2540 (KLR)

Environment and Land Court
28 June 2018
1,877 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

#

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

#
Kibogy Properties Limited, the ex parte applicant and registered owner of LR.8319 and 8321, moved the Environment and Land Court at Eldoret by Notice of Motion for judicial review orders of certiorari and prohibition against the National Land Commission. The Commission had, on the complaint of Wellington Barasa Lusweti and 74 others, issued summons dated 31st August, 2016 to review the legality of the applicant's titles. The applicant argued the same dispute had been litigated and determined in Eldoret E&LC No. 931 of 2012, where the interested parties' adverse possession claim was dismissed, and that the NLC's intervention was res judicata, unlawful and ultra vires, contrary to section 30(b) of the National Land Commission Act. The interested parties contended the NLC had power under Articles 67 and sections 13, 14 and 17 of the NLC Act to investigate historical injustices, and questioned the applicant's locus standi. The respondent maintained its summons were validly issued under Article 67. The court held the claim before the NLC was identical to that determined in Eldoret E&LC No. 931 of 2012; the interested parties, having participated and not appealed, could not re-open the legality of the titles through the NLC. Following Holborn Properties, the court found the investigation shrouded in illegality, procedurally improper and irrational. The application was allowed in part: certiorari was refused because the summons were processes not amenable to quashing, but an order of prohibition issued restraining the NLC from investigating, adjudicating or re-opening the dispute over the suit lands. Costs were awarded to the ex parte applicant. Judgment delivered at Eldoret on 28th June, 2018 by A. Ombwayo J.

Key legal issues

#
01

Res judicata as between the court's determination and NLC proceedings

Holding

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

Reasoning

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.

02

Illegality, irrationality and procedural impropriety of the NLC's decision to investigate

Holding

The respondent's action to investigate the title was unlawful, irrational and procedurally improper

Reasoning

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.

p. 2
03

Availability of certiorari against a summons

Holding

A summons in the nature of a notice of institution of proceedings is not amenable to quashing by certiorari

Reasoning

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.

p. 3

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. 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. 2.Costs of the application awarded to the Exparte applicant

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 67
  • Constitution of Kenya 2010Article 159(1)
  • Constitution of Kenya 2010Article 162(2)(b)
  • National Land Commission Act No. 5 of 2012Sections 14, 13, 17 and 30(b)

Cases cited (1)

  • Republic v National Land Commission Ex-parte Holborn Properties Limited
    [2016] eKLR
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.