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ELCPartially AllowedELC Judicial Review Case No. 43 of 2018· [2019] KEELC 337 (KLR)

Republic v National Land Commission; Gatamaiyu Trading Co. Limited(Interested Party); Ex-Parte Applicant; Nyakinyua Mugumo Kiambaa Company Limited [2019] KEELC 337 (KLR)

Environment and Land Court
13 November 2019
KBK. Bor
1,130 words in judgment
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The bottom line

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Kenya's Environment and Land Court quashed a National Land Commission decision because it re-litigated land ownership already decided by the High Court while an appeal was pending.

What this practically means

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Executive summary

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The Ex parte Applicant, Nyakinyua Mugumo Kiambaa Company Limited, sought an order of certiorari to quash a decision of the National Land Commission dated 18/04/2018 declaring that parcels L.R No. 89/4-89/20 (512 acres) do not belong to it, and an order of prohibition restraining the Respondent from interfering with its ownership or its right to obtain title documents. The dispute originated in Nairobi HCCC No. 4496 of 1994, in which judgment was entered for the Ex parte Applicant on 13/02/2012; the Interested Party's appeal (Civil Appeal No. 84 of 2013) was pending, with stay refused. The Respondent, relying on Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act, contended it had mandate to review grants and dispositions of public land, and asserted its independence. The Interested Party supported the decision, arguing fair hearing under Article 47 and that res judicata did not apply since the High Court case did not concern disposition of indenture. The court held that although Section 14(4) confers review powers over public land grants, the Respondent acted without jurisdiction by determining issues that were sub judice before the Court of Appeal, in disregard of the sub judice rule. The application dated 12/07/2018 was allowed to the extent that the decision of 18/04/2018 was quashed, with costs to the Ex parte Applicant borne by the Interested Party and the Respondent. Judgment was delivered by K. Bor, J on 13 November 2019.

Key legal issues

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01

Jurisdiction of the NLC under Section 14 of the NLC Act to review grants of land that is the subject of pending litigation

Holding

The Respondent exceeded its jurisdiction by hearing and determining the ownership dispute while the High Court judgment stood and an appeal was pending

Reasoning

The court accepted that Section 14(4) of the NLC Act empowers the NLC to investigate complaints over grants or dispositions of public land. However, the suit land's ownership had been determined by the High Court on 13/02/2012 and the appeal was pending before the Court of Appeal. The Respondent's determination of 18/04/2018 was made while the appeal was pending, contrary to the sub judice rule, and therefore without jurisdiction.

p. 2

Legal principles established

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  • The NLC has no jurisdiction to determine ownership of suit land already determined by the High Court while an appeal over the same property is pending before the Court of Appeal
  • A statutory body making a determination on issues that are sub judice before a court acts in disregard of the sub judice rule

Court orders

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  1. 1.An order of certiorari quashing the Respondent's decision made on 18/04/2018
  2. 2.Costs of the application awarded to the Ex parte Applicant, to be borne by the Interested Party and the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 47
  • National Land Commission ActSection 14
  • National Land Commission ActSection 14(4)

Cases cited (2)

  • Gatamayu Trading Company Ltd v Nyakinyua Mugumo Kiambaa Company Limited & Others
    Civil Appeal No. 84 of 2013
  • Nairobi HCCC No. 4496 of 1994 (Gatamaiyu Trading Co. Limited v Nyakinyua Mugumo Kiambaa Company Limited)
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under leave granted on 6/07/2018 (certiorari and prohibition)

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; Gatamaiyu Trading Co. Limited(Interested Party); Ex-Parte Applicant; Nyakinyua Mugumo Kiambaa Company Limited [2019] KEELC 337 (KLR)", Case Analysis (2019). ELC Judicial Review Case No. 43 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/337/eng@2019-11-13

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