Republic v National Land Commission & another; Edifice Real Estate Limited (Exparte) (Environment and Land Judicial Review Case 25 of 2017) [2018] KEELC 4878 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether NLC acted in excess of jurisdiction by issuing the revocation directive after 1/5/2017
Yes - certiorari granted quashing the Gazette Notice decision, because section 14 of the NLC Act required the review to be completed within five years, lapsing on 1/5/2017, while the Gazette Notice issued on 17/7/2017.
Section 14 of the NLC Act, enacted pursuant to Article 68(c)(v) of the Constitution, gave NLC five years from 2/5/2012 to review all grants or dispositions of public land. That period lapsed on 1/5/2017. The Gazette Notice directing revocation was published on 17/7/2017, after the lapse, so NLC acted without the statutory power it purported to exercise. The impugned decision was therefore quashed.
The consequence of the lapse of the five-year period under section 14 of the NLC Act
The lapse of the statutory period does not mean public land improperly acquired becomes lawfully held; the constitutional purpose of review under Article 68(c)(v) is ongoing, but the enquiry whether the suit land is private or public land cannot be conducted in judicial review proceedings.
The court reasoned that Article 68(c)(v) set no time frame itself, only requiring Parliament to legislate; the Constitution envisaged an ongoing review process until the propriety of all grants was established, consistent with Article 40(6) excluding unlawfully acquired property from protection. However, determining whether the suit property is public land by surrender or private land requires fact-finding beyond judicial review.
Whether prohibition should issue against NLC and the Chief Land Registrar
No - the court declined the order of prohibition since judicial review is not the forum to pronounce on the legality of the title.
The court held it was not the proper forum to determine whether the Applicant's title was legally and properly acquired. The Applicant's remedy, if it wished to protect its proprietorship, was to file an ordinary suit where documents and evidence can be tested by cross-examination and interrogation. Prohibition was therefore refused.
Legal principles established
#- Although the five-year window in section 14 of the NLC Act lapsed on 1/5/2017, the constitutional mandate to review grants of public land is an ongoing process and the lapse of the statutory period does not extinguish the review of grants under Article 68(c)(v); however, NLC could not lawfully direct revocation of title after that date.
- Whether land is private land or public land cannot be determined in judicial review proceedings; that inquiry lies elsewhere.
Court orders
#- 1.An order of certiorari removing into the court and quashing the decision of the National Land Commission contained in Gazette Notice No. 6862 dated 17/7/2017 directing the Chief Land Registrar to revoke the Applicant's title
- 2.Refusal of the order of prohibition sought against NLC and the Chief Land Registrar
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court; sections 8 and 9 of the Law Reform Act and the Fair Administrative Action Act invoked through the Notice of Motion seeking certiorari and prohibition (Constitution Articles 47, 67 and 68(c)(v) discussed).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another; Edifice Real Estate Limited (Exparte) (Environment and Land Judicial Review Case 25 of 2017) [2018] KEELC 4878 (KLR)", Case Analysis (2018). Judicial Review application (Notice of Motion dated 16/8/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4878/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.