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ELCAllowedMisc. Civil App No. 5 of 2017· [2018] KEELC 3725 (KLR)

Republic v National Land Commission & another Ex-Parte Arif Bayusuf [2018] KEELC 3725 (KLR)

Environment and Land Court
19 April 2018
JOJ. O. Olola
4,984 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped the National Land Commission from re-investigating a land title that a court had already ruled was lawfully issued.

What this practically means

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Executive summary

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The Ex-parte Applicant, Arif Bayusuf, registered proprietor of LR No. 27378 (CR No. 41945), sought judicial review orders of certiorari and prohibition against the National Land Commission's decision to summon him to a public hearing into the legality of his title, following a complaint by the Interested Party, Lucy Tofani. The Applicant argued that the dispute over the premises had been conclusively determined in his favour in three prior suits, culminating in the judgment of Angote J in Malindi ELC No. 99 of 2012, delivered on 16th May 2014 and never appealed, and that the Commission's review proceedings would amount to sitting on appeal over the Court's decision, contrary to res judicata and natural justice. The Respondent maintained that under Section 14 of the National Land Commission Act it had a mandate to review grants and dispositions of public land, and that it was not sitting on appeal but assessing legality of the grant. The Interested Party, a long-time occupier who had lost the earlier suit, supported the Commission's jurisdiction. The Court, J.O. Olola J, held that having fully litigated the legality of the title in ELC No. 99 of 2012, the Interested Party's only recourse was an appeal, and that the Respondent, a quasi-judicial body subordinate to the Court, could not second-guess the Court's finding that the title was lawfully issued. Continuing the review proceedings amounted to failing to take relevant considerations into account and acting contrary to legitimate expectations, and prohibition lies against a body exceeding its jurisdiction. The motion dated 17th March 2017 was allowed as prayed, with certiorari quashing the summons and related decisions and prohibition restraining further proceedings, and costs awarded to the Ex-parte Applicant.

Key legal issues

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01

Whether the NLC's review of a grant already adjudicated upon by the High Court/ELC was lawful

Holding

It was improper, unreasonable and ultra vires for the NLC to re-open the question of legality of a title whose acquisition the Court had already found lawful; the Respondent cannot review or sit on appeal over the Court's decision.

Reasoning

The Court perused the Judgment of Angote J in Malindi ELC No. 99 of 2012, which had conclusively found that the title was lawfully granted and not fraudulently procured, and which had not been appealed. Counsel's assertion that the court cases were not about legality of title was inconsistent with the findings at paragraphs 9 and 107 of that Judgment. Having ventilated her case, the Interested Party's only recourse was appeal; the NLC, a subordinate quasi-judicial tribunal, could not second-guess the Court's determination.

p. 6
02

Whether certiorari and prohibition ought to issue against the NLC

Holding

The Notice of Motion dated 17th March 2017 was allowed as prayed: certiorari to quash the summons and related decisions and prohibition to restrain further proceedings.

Reasoning

Applying Article 47 and the Fair Administrative Action Act, the Respondent's conduct in continuing to summon the Ex-parte Applicant despite a recent court determination showed failure to take into account relevant considerations and acting contrary to legitimate expectations. Following R vs Electricity Commissioners, prohibition lies to restrain a body exceeding its jurisdiction. Allowing the hearing to reach a different result would result in a lesser authority varying the orders of the Court, an outcome that would be embarrassing, ultra vires and illegal.

p. 7
03

Fair administrative action under Article 47 and the Fair Administrative Action Act

Holding

Administrative action must be expeditious, lawful, reasonable and procedurally fair; the Respondent's failure to respond to the Applicant's letters and insistence on the hearing fell short of this standard.

Reasoning

The Court cited Article 47 and the Court of Appeal's exposition in Judicial Service Commission v Mbalu Mutava that administrative action is now subject to the principle of constitutionality. It noted the Respondent ignored the Applicant's advocates' objections and did not furnish the substance of accusations, and continued to act contrary to legitimate expectations despite the court's judgment.

p. 7

Legal principles established

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  • A quasi-judicial body subordinate to the High Court cannot sit on appeal over or second-guess that Court's determination of the legality of a land grant.
  • An order of prohibition lies against a body exceeding its jurisdiction by entertaining matters already determined.
  • A party who litigated and lost before a court of competent jurisdiction must appeal, not re-litigate the same issue before an administrative body.

Court orders

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  1. 1.An order of certiorari to remove and quash the Respondent's decision dated 21st February 2017 summoning the Ex-parte Applicant to a public hearing before the National Land Commission on 13th March 2017 in respect of LR 27378 CR No. 41945
  2. 2.An order of certiorari quashing the Respondent's decision to summon the Ex-parte Applicant and subject the ownership, title and proprietary status of the Suit Premises to a public hearing
  3. 3.An order of certiorari quashing any proceedings, authority, ruling, decision or order of the Respondent and any issuance of land or publication of any notice touching on the Suit Premises
  4. 4.An order of prohibition restraining the Respondent and its officers from taking any further steps in furtherance of the summons or hearing representations with respect to the Suit Premises
  5. 5.An order of prohibition restraining the Respondent from hearing, considering, investigating or collecting evidence with respect to ownership or registered proprietorship of the Suit Premises
  6. 6.Costs of the application awarded to the Ex-parte Applicant

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure Rules, 2010Order 53
  • Constitution of Kenya 2010Articles 25(c), 35, 40, 47, 50, 60, 62, 64, 67(1), 68(c)(v), 162(2), 169(1), 22(3)
  • National Land Commission ActSection 14 (and s.14(3))
  • Fair Administrative Action ActSections 2 and 9

Cases cited (6)

  • Judicial Service Commission –vs- Mbalu Mutava & Another
    (2015) eKLR
  • Noor Maalim Hussein & 4 others –vs- Minister of State for Planning, National Development and Vision 2030 & 2 Others
    (2012) eKLR
  • R-vs Electricity Commissioners, Ex parte London Electricity Joint Committee Company
    (1924) 1 KB 171
  • Malindi ELC No. 99 of 2012; Arif Bayusuf –vs- Lucy Tofani
  • CMCC No. 372 of 2004; Arif Bayusuf –vs- Lucy Tofani
  • Mombasa HC Misc Civil Application No. 28 of 2012 (JR): Republic –vs- The Chief Magistrate & Arif Bayusuf Ex parte Lucy Tofani
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 27 and Order 53 of the Civil Procedure Rules, 2010; judicial review jurisdiction of the High Court/ELC over administrative action under Article 47 of the Constitution

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 National Land Commission & another Ex-Parte Arif Bayusuf [2018] KEELC 3725 (KLR)", Case Analysis (2018). Misc. Civil App No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3725/eng@2018-04-19

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