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ELCAllowed· [2019] KEELC 131 (KLR)

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)

Environment and Land Court
28 November 2019
11,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the Petitioner's Notice of Motion dated 8th November, 2018 seeking conservatory orders pending the hearing of a constitutional petition challenging the constitutionality of Section 15(3) of the National Land Commission Act. The Petitioner, the registered owner of L.R. No.1748 Kiima Kiu/Kalonzoni (5.048 acres), Makueni County, sought to restrain the National Land Commission from hearing and investigating historical land injustice claim No.NLC/HLI/541/2018 lodged by the Kiamuka Society (5th Respondent) at the instance of the County Government of Makueni, and to stay the Commission's decision to survey the suit property. All Respondents opposed the application. The 5th Respondent argued the Commission's jurisdiction is constitutional under Article 67(2) and not dependent on the suspended statute, that the claim had been deferred to a yet-to-be-constituted commission, and that the Petitioner had not shown a prima facie case, real danger or public interest. The Petitioner relied on the suspension of Section 15 of the NLC Act by the court in Malindi ELC Petition No.19 of 2016, the absence of limitation thresholds, and alleged breaches of Articles 27, 40, 47 and 50. The court framed one issue: whether the Petitioner had made out a case for conservatory orders. Holding that Section 15, the very procedure the Commission invoked, stands suspended, and that public interest favours the sanctity of registered title impeachable only by due process, the court found the threshold met and granted prayers 5, 6 and 7: conservatory orders restraining the hearing and investigation of the claim and staying the survey, with costs to the Petitioner.

Key legal issues

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01

Whether the Petitioner established a case for conservatory orders pending the petition

Holding

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.

Reasoning

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.

p. 14
02

Whether the National Land Commission may proceed with historical land injustice investigations under a suspended statutory provision

Holding

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.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application awarded to the Petitioner (prayer 7)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 40, 40(2), 40(6), 47, 47(1), 50, 66(1), 67, 67(1)(e), 67(2)(e), 67(3), 162(2) & (3), 169(1)
  • National Land Commission Act (No.5 of 2012)Sections 5(1)(e), 6(1), 6(2)(b), 14, 14(1), 14(7), 15, 15(2), 15(3)
  • Limitation of Actions Act (Cap.22)Section 7
  • Registration of Titles Act (repealed)Sections 23(1), 23
  • Interpretation and General Provisions ActSection 23(3)
  • Environment and Land Court Act (No.19 of 2011)Section 13
  • Land Registration Act (No.3 of 2012)Sections 4, 26, 101

Cases cited (25)

  • Kevin K. Mwiti & others vs. Kenya School of Law & Others
    [2015] eKLR
  • Malindi Law Society vs. The Hon. Attorney General and The National Assembly (Malindi ELC Petition No.19 of 2016)
  • Wellington Nzioka Kioko v Attorney General
    [2018] eKLR
  • Joseph Mungai Gichuru & another vs Mathaara Mwangi & 4 Others (Constitutional Petition No.530 of 2016)
  • Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & Another (Petition No.167 of 2016)
  • Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General (Nairobi HC Pet. No.16/2011)
  • Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission (Mombasa HC Pet. No.7 of 2011)
  • V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others
    [2012] eKLR
  • The Centre for Human Rights and Democracy & Others vs. The Judges and Magistrates Vetting Board & Others (Eldoret Petition No.11 of 2012)
  • Judicial Service Commission vs. Speaker of the National Assembly & Another
    [2013] eKLR
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others (S.C. Application No.5 of 2014)
  • Latema Sacco & 33 others vs. National Transport & Safety Authority & 7 others; Uber Chap Chap & 2 Others (Interested Parties)
    [2019] eKLR
  • Republic vs. National Commission & another
    [2018] eKLR
  • Kipsiwo Community Self Help Group vs. Attorney General and 6 others
    [2013] eKLR
  • Chief Land Registrar & 4 others vs. Nathan Koech & 4 others
    [2018] eKLR
  • Peter N. Kariuki vs. Attorney General (Civil Appeal No.79 of 2012)
    [2014] eKLR
  • Kamlesh Mansuklal Damji Pattni & another vs. Republic
    [2013] eKLR
  • Kariuki Kiboi vs. Attorney General (Nairobi Civil Appeal No.90 of 2015)
    [2017] eKLR
  • Metal Box Co. Ltd vs. Curry’s Ltd.
    (1988) 1 All ER 341
  • Dominic Arony Amolo vs. Attorney General (Nairobi HC Misc. Civil Case No.1184 of 2003 (O.S.))
    [2010] eKLR
  • Otieno Mak’Onyango vs. Attorney General & Another (Nairobi HCCC No.845 of 2003)
  • Mwangi Stephen Muriithi vs. National Land Commission & 3 others
    [2018] eKLR
  • Farmers Company Limited vs. The National Land Commission & Twiga Estate Squatters Society
  • Mahesh Shah vs. Chief Land Registrar & 5 others (Judicial Review No.10 of 2017, ELC Case No.539 of 2016)
  • Martin Nyaga Wambora v. Speaker of the County Assembly of Embu & 3 others
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

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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, "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.