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ELCDismissedJudicial Review Motion dated 22nd May 2017 (Malindi)· [2018] KEELC 3240 (KLR)

Republic v Chairman National Land Commission & 5 others Ex Parte Cordison International (K) Limited [2018] KEELC 3240 (KLR)

Environment and Land Court
25 May 2018
6,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that county governments cannot allocate public land directly - only the National Land Commission can, so Cordison's claim failed.

What this practically means

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Executive summary

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Cordison's International (K) Limited, an ex-parte applicant, sought judicial review orders of certiorari, mandamus and prohibition to quash a Letter of Allotment issued by the National Land Commission to Kenwind Limited over land in Kiongwe/Mpeketoni, Lamu County, and to compel issuance of lease instruments to itself over approximately 11,100 acres for a wind power project. The applicant relied on a Letter of Award dated 2nd September 2013 and directions from the County Government of Lamu, contending the NLC and other Respondents acted unprocedurally, in bad faith and in breach of the Fair Administrative Action Act. The Respondents maintained that under Sections 12 and 14 of the Land Act the NLC allocates public land on behalf of the National and County Governments, and that Kenwind's application followed the prescribed process including County Assembly approval and public notice under Section 14(1). The 3rd and 4th Respondents also raised a jurisdictional objection based on the Law Reform Act and Order 53 of the Civil Procedure Rules. Relying on the Supreme Court's Advisory Opinion in the matter of the National Land Commission, the Court held that the NLC administers county public land independently and is not an agent of the County Government; the County Government of Lamu had no power to allocate the land directly or direct preparation of a PDP, so its purported allocation to Cordison's was unprocedural, illegal and of no legal consequence. No ultra vires conduct, abuse of power or breach of natural justice was found. The Motion dated 22nd May 2017 was dismissed with costs.

Key legal issues

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01

Relative roles of the County Government and the National Land Commission in allocating public land

Holding

Administration of county public land is by the NLC on behalf of the County Government; the County Government cannot allocate the land itself and direct the NLC

Reasoning

Article 62(2) vests unalienated public land in the County Government to hold in trust, but Article 62(3) provides it shall be administered on the County's behalf by the NLC. The Supreme Court's Advisory Opinion in the matter of the NLC held the Commission independent and not an agent of either level of government. Sections 8, 12 and 14 of the Land Act assign management and allocation of public land to the NLC. The County Government's purported allocation and PDP were therefore unprocedural and illegal.

p. 8
02

Whether the allocation to the 1st Interested Party was lawful

Holding

The allocation followed the prescribed process under Sections 12 and 14 of the Land Act and Article 62

Reasoning

Kenwind applied to the NLC; the application was referred to the Lamu County Assembly which approved it on 22nd July 2015; the NLC's Land Administration committee approved the allocation; notice under Section 14(1) of the Land Act was published inviting public comments; objections were considered before the Letter of Allotment issued on 7th February 2017. The Court found no ultra vires act, abuse of power or breach of natural justice.

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Whether judicial review orders were warranted

Holding

No evidence of breach of natural justice or abuse of power; the Motion fails

Reasoning

Judicial review remedies target procedural impropriety, illegality and irrationality. The Court found the Applicant's allocation claim rested on an invalid allocation by the County Government, and the Respondents' process complied with the Land Act and the Fair Administrative Action Act requirements, so certiorari, mandamus and prohibition could not issue.

p. 8

Legal principles established

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  • Public land vested in a County Government under Article 62(2) is administered on the County's behalf by the National Land Commission; a County Government cannot itself allocate such land and direct the NLC to issue documents
  • The National Land Commission is an independent Commission not subject to direction or control by any person or authority and is not an agent of the National or County Government
  • Sections 12 and 14 of the Land Act empower the National Land Commission to allocate public land on behalf of the National and County Governments subject to the prescribed procedure

Court orders

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  1. 1.The Motion dated 22nd May 2017 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 61, 62, 67, 260
  • Land ActSections 8, 12, 14(1)
  • National Land Commission Actgeneral provisions on management and administration of public land
  • Land Registration Actnot specified
  • Fair Administrative Action ActSection 4(4)
  • Physical Planning ActSections 4, 5, 16, 24, 25
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53

Cases cited (4)

  • Advisory Opinion Reference No. 2 of 2014; In the Matter of the National Land Commission
    (2015) eKLR
  • Malindi JR Case No. 2 of 2017; Cordison's International Ltd v The Chairman, National Land Commission & Others
  • ELC No. 18 of 2016; Omar Abdalla Mohamed & 20 Others v The County Government of Lamu & Others
  • ELC Constitutional Petition No. 10 of 2015; James Gachichio Gitau & 6 Others v The Honourable Attorney General & Others
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Chairman National Land Commission & 5 others Ex Parte Cordison International (K) Limited [2018] KEELC 3240 (KLR)", Case Analysis (2018). Judicial Review Motion dated 22nd May 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3240/eng@2018-05-25

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