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ELCAllowedPetition number not stated in the judgment; the application is a Notice of Motion dated 10th December 2018 (related matter: Eldoret ELC Constitutional Petition No. 7 of 2016)· [2019] KEELC 1000 (KLR)

Japeth Kipkemboi Magut v National Land Commission; Kestem Company Limited (Interested Party) [2019] KEELC 1000 (KLR)

Environment and Land Court
24 October 2019
6,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a Kenya Gazette notice revoking an Eldoret landowner's title, holding the National Land Commission acted beyond its legal powers.

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 Eldoret (M. A. Odeny J) on a Notice of Motion dated 10th December 2018 by the petitioner, Japheth Kipkemboi Magut, arising from a protracted dispute over LR No. Eldoret Municipality/Block 10/48 with the National Land Commission (1st respondent), the Attorney General (2nd respondent) and Kestem Company Limited (interested party). The petitioner sought a conservatory order staying implementation of Serial No. 12 of Special Issue Kenya Gazette No. 11714 of 9th November 2018, an order compelling publication of a corrigenda recording the court's prior orders, and quashing of the impugned Gazette notice. The court called for and perused the file in Eldoret ELC Constitutional Petition No. 7 of 2016 and confirmed that no ruling revoking the petitioner's title existed. It held that the NLC decision of 4th August 2016 had been nullified by the consent order of 9th December 2016 and could not be enforced without setting that order aside; that the Commission's review powers under section 14 of the NLC Act and Article 68(c)(v) are time-bound, confined to public land, and must be exercised within the law and in compliance with natural justice; and that the petitioner had demonstrated a prima facie case with real danger of prejudice. The application was allowed: a conservatory order issued staying the Gazette notice, the respondents were ordered to publish a corrigenda within fourteen days, the impugned Gazette notice was quashed, and the respondents were ordered to pay costs.

Key legal issues

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01

Existence of the alleged court ruling revoking the petitioner's title

Holding

No ruling revoking the petitioner's title and vesting it in the interested party exists in the court file in Eldoret ELC Petition 7 of 2016; the court so clarified upon perusal of the file.

Reasoning

The court called for the file in Eldoret ELC Petition 7 of 2016 and confirmed no ruling or order revoking the petitioner's title existed. This factual finding settled the first issue, undermining the basis of the impugned Gazette publication which asserted that title had been revoked and vested in the interested party pursuant to such a decision.

p. 6
02

Effect of the consent order of 9th December 2016 nullifying the NLC decision of 4th August 2016

Holding

The NLC report and proceedings of 4th August 2016 were nullified by the consent order and could not be enforced or revived without setting that order aside; enforcement of the nullified decision violated the consent order.

Reasoning

The decision of 4th August 2016 was made in violation of the injunction of 31st May 2016 and was nullified by consent recorded as a court order on 9th December 2016. A consent order can only be set aside on grounds justifying setting aside a contract, and the petitioner had not consented to its setting aside. Enforcement of the nullified decision through the Gazette notice of 9th November 2018 was therefore unlawful.

p. 6
03

Jurisdiction of the NLC to review grants and publish the impugned notice

Holding

The Commission has powers under Article 67(2)(e) and section 14 of the NLC Act, but these are time-bound, restricted to public land under Article 68(c)(v), and must be exercised within the law with due regard to natural justice; it should not act ultra vires.

Reasoning

Section 14 required the review to be completed within five years of commencement (expiring 1st May 2017 on counsel's calculation), to be confined to public land, and to afford affected persons notice and a hearing. The Commission must exercise its powers within the law and adhere to constitutional principles, and any decision made without hearing the affected party is void.

p. 7
04

Entitlement to conservatory orders

Holding

The petitioner demonstrated a prima facie case and real danger of prejudice; the application was allowed and conservatory orders issued, the respondents suffering no prejudice if due process is followed.

Reasoning

Applying the principles in Board of Management of Uhuru Secondary School, Gatirau Peter Munya and CREAW, the court found the petitioner would suffer prejudice absent the orders. The respondents would suffer no prejudice if due process is followed involving all parties in accordance with natural justice. Conservatory orders have a higher threshold than interlocutory injunctions, which the petitioner met.

p. 8

Legal principles established

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  • A decision made in violation of the rules of natural justice is void, and a decision of a public body rendered null and void by a consent order of the court cannot be revived unilaterally by that body.
  • The National Land Commission's power to review grants is time-bound and subject to Article 68(c)(v) of the Constitution, and must be exercised within the law and not ultra vires.

Court orders

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  1. 1.A conservatory order staying implementation of Serial No. 12 of Special Issue Kenya Gazette No. 11714 dated 9th November 2018 concerning Land Reference No. Eldoret Municipality/Block/10/48 pending the hearing and determination of this petition
  2. 2.The Respondent to publish a Corrigenda in the Kenya Gazette within fourteen (14) days publishing the substance of the Decree and orders issued in Eldoret ELC Constitutional Petition No. 7 of 2016, including that the National Land Commission was permanently barred from reviewing or determining proprietorship of the property and that the property is registered to Japheth Kipkemboi Magut
  3. 3.The decision of the Respondent borne serial No. 12 of Special Issue Kenya Gazette No. 11714 dated 9th November 2018 concerning LR No. Eldoret Municipality/Block 10/48 is hereby quashed
  4. 4.The respondents to pay costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 67(1), 67(2)(e)
  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)(g)
  • Constitution of Kenya, 2010Articles 24, 25 (Land Registration Act provisions on indefeasibility cited by counsel as sections 24 and 25)
  • National Land Commission Act, 2012Section 14
  • Land Registration Act, 2012Sections 24 and 25
  • Fair Administrative Action Act, 2015

Cases cited (14)

  • Flora N. Wasike vs. Destimo Wamboko
    (1988) eKLR
  • General Medical Council v Sparckman
    [1943] 2 All E.R. 337
  • Mirugi Kariuki vs The Attorney General
    Nairobi Civil Application No. 70 of 1991
  • Republic v National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 others
    [2016] eKLR
  • Clarke and Others vs Chadburn & Others
    [1985] 1 All E.R. (PC) 211
  • Kenya Tea Growers Association v Francis Atwoli & 5 others
    [2012] eKLR
  • Harrikissoon v Attorney-General of Trinidad and Tobago
    [1980] AC 265
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Olympic Company Trading TD & Another vs Said Mohamed & 4 Others
  • Macharia Mwangi Muna & 87 others vs Davidson Mwangi Kagiri
    (2014) eKLR
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 Others
    (2015) eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Kenya Breweries Limited and Another vs Washington Okeyo
    (2002) EA 109
  • Centre for Rights Education and Awareness (CREAW) & 7 Others v The Attorney General & Others
    Petition No. 16 of 2011
Jurisdiction invoked
Constitution of Kenya, 2010, Articles 40, 47, 67 and 68(c)(v); National Land Commission Act, 2012; article 165 jurisdiction of the High Court/ELC

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, "Japeth Kipkemboi Magut v National Land Commission; Kestem Company Limited (Interested Party) [2019] KEELC 1000 (KLR)", Case Analysis (2019). Petition number not stated in the judgment; the application is a Notice of Motion dated 10th December 2018 (related matter: Eldoret ELC Constitutional Petition No. 7 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1000/eng@2019-10-24

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