Diocese of Embu Trustees, Registered v National Land Commission & 2 others [2019] KEELC 586 (KLR)
The bottom line
#Kenya's National Land Commission can review and revoke unlawfully acquired public land titles, and filing a court case does not stop that review.
What this practically means
#Executive summary
#Key legal issues
#Whether the NLC had jurisdiction to review the Petitioner's title and direct revocation
The NLC had jurisdiction; Section 14(5) and (6) of the NLC Act plainly empowers it to direct the Registrar to revoke unlawfully acquired titles, and the NLC did not itself revoke the title but directed the Chief Land Registrar.
Article 68(c)(v) mandated Parliament to legislate for review of grants of public land; the NLC Act vested that mandate on the NLC. The court adopted purposive and holistic constitutional interpretation and the plain-language rule of statutory interpretation, holding that a review mechanism was deliberately introduced as an additional constitutional mechanism to combat rampant land grabbing. Section 14(5) and (6) give the NLC power to direct revocation and make consequential orders, and the gazette notice shows the Chief Land Registrar was directed to revoke under Section 14(5).
Whether the NLC could direct registration of the suit property in the name of the 2nd Respondent
Yes; the NLC was empowered to make consequential orders under Section 14(6) upon finding the acquisition irregular and unlawful.
Having found that the Petitioner's acquisition failed the test of propriety and legality, the NLC was entitled to deal completely with the matter by restoring the property to the entity it found to be the rightful allottee. The court held it would be futile for a constitutional organ to undertake a rigorous review only for its determinations to be of no consequence.
Whether pendency of a civil suit ousted the NLC's review jurisdiction
No; the NLC's constitutional and statutory mandate is not dependent on the unilateral actions of disputing parties, though courts retain supervisory jurisdiction over NLC processes.
Both the NLC and the Environment and Land Court derive their mandate from the Constitution. There is no exception or exclusion of the NLC's jurisdiction under the Constitution or the NLC Act conditioned on the filing of a civil suit. The court respectfully disagreed with the Robert Mutiso case but noted courts may still intervene by way of judicial review over NLC processes, following the Compar Investments and Karume line of authority.
Whether the 2nd Respondent's cross-petition raised constitutional issues
No; the alleged violation of property rights amounts at best to trespass, which has adequate civil remedies, so a constitutional petition was inappropriate.
Applying the principle that the Constitution is not a general substitute for normal procedures, the court held that claims for eviction and damages arising from an alleged violation of property rights belong in an ordinary civil action. The declaration sought validating the NLC's decisions was also superfluous since the NLC's constitutional functions require no judicial seal of approval.
Whether the Petitioner's unpleaded natural justice/fair hearing complaint could be entertained
No; the allegation of denial of a hearing was never pleaded in the petition and was an irregular attempt to expand the petition through a replying affidavit to the cross-petition.
The court noted the Article 47 and 50 complaints appeared only in the replying affidavit sworn on 24th June 2019 and not in the petition of 16th March 2018. In any event, the record of NLC proceedings showed the Petitioner's officials, agents and advocates made oral and written representations which were taken into account in the determination of 5th October 2015.
Legal principles established
#- The NLC's mandate to review grants and dispositions of public land is not ousted by the pendency of a civil suit between the affected parties.
- Section 14(5) and (6) of the NLC Act empowers the NLC to direct the Registrar to revoke unlawfully acquired titles and to make consequential orders restoring the property to the rightful allottee.
- A party who participates before a tribunal without raising a jurisdictional objection may be precluded from raising it after the decision.
- Not every violation of the law gives rise to a constitutional petition; where a claim can found a claim under substantive law, the proper course is to bring it under that law.
Court orders
#- 1.The petition dated 16th March 2018 is dismissed.
- 2.The cross-petition dated 20th May 2019 is dismissed.
- 3.Each party shall bear its own costs.
- Jurisdiction invoked
- Articles 22(1), 40, 60, 67 and 68 of the Constitution of Kenya 2010; Sections 24, 25 & 26 of the Land Registration Act; Sections 5 & 6 of the National Land Commission Act No. 5 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diocese of Embu Trustees, Registered v National Land Commission & 2 others [2019] KEELC 586 (KLR)", Case Analysis (2019). E.L.C. Petition No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/586/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.