Stanley & Son Limited v Attorney General,National Land Commission,County Assembly of Makueni,County Government of Makueni & William Nduse Matheka Sued In His Capacity As Chairman of Kiu-Kalanzoni And Mukaa (Kiamuka) Society (? 5 of 2018) [2019] KEELC 131 (KLR)
The bottom line
#A Makueni court blocked the National Land Commission from investigating a land claim and surveying private property because the law it relied on had been suspended.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner established a case for conservatory orders pending the petition
The application met the threshold for conservatory orders because the statutory procedure the 2nd Respondent sought to rely on (Section 15 of the NLC Act) had been suspended by the court in Malindi ELC Petition No.19 of 2016, and public interest favours the sanctity of the Petitioner's title.
The court accepted the undisputed facts that the Petitioner is the registered absolute owner of the suit property and that Section 15 of the National Land Commission Act was suspended in Malindi Petition No.19 of 2016. Since the 2nd Respondent's own grounds of opposition relied on Section 15 as the procedure for its mandate and sought a stay pending the Malindi petition, the court found that investigations under a suspended procedure would be unlawful, and that prima facie case, real danger, constitutional values and public interest all favoured conservatory relief.
Whether the National Land Commission may proceed with historical land injustice investigations under a suspended statutory provision
The NLC cannot purport to act under Section 15 of the NLC Act while that section stands suspended; continuing investigations under it would be inconsequential in law.
Despite the 5th Respondent's argument that the NLC's jurisdiction is donated by Article 67(2) of the Constitution rather than by statute and that the Malindi orders do not bind this court, the judge held that the procedure under which the Commission would act is Section 15, which is suspended. The Commission's own grounds of opposition conceded the need to await the outcome of the Malindi petition, confirming that investigations could not lawfully proceed under the suspended procedure.
Legal principles established
#- A constitutional commission cannot carry out its investigative mandate under a statutory procedure that has been suspended by a court.
- Public interest is better served by upholding the sanctity of a registered title, which can only be impeached by due process of law.
Court orders
#- 1.A conservatory order restraining the 2nd Respondent from commencing, continuing or otherwise completing the process of hearing, investigating or considering claim No.NLC/HLI/541/2018 or any other claim relating to historical land injustice complaints in relation to L.R. No.1748 Kiima Kiu/Kalonzoni, Mukaa Ward, Makueni County under Section 15(3) of the National Land Commission Act, pending hearing and determination of the petition (prayer 5)
- 2.A conservatory order staying the 2nd Respondent's decision, through the 4th Respondent or otherwise, to carry out a survey of L.R. No.1748 Kiima Kiu/Kalonzoni contained in the 2nd Respondent's letter dated 30th October, 2018, pending hearing and determination of the petition (prayer 6)
- 3.Costs of the application awarded to the Petitioner (prayer 7)
- Jurisdiction invoked
- Articles 23, 40, 47, 50, 67 and 162(2) & (3) of the Constitution of Kenya, 2010 (as read with the Environment and Land Court Act) - application for conservatory orders in a constitutional petition before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley & Son Limited v Attorney General,National Land Commission,County Assembly of Makueni,County Government of Makueni & William Nduse Matheka Sued In His Capacity As Chairman of Kiu-Kalanzoni And Mukaa (Kiamuka) Society (? 5 of 2018) [2019] KEELC 131 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/131/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.