Mansur Naji & 2 others v National Land Commission; Rashid Kajela Ngolo (Interested Party) [2019] KEELC 4886 (KLR)
The bottom line
#The High Court stopped the National Land Commission from re-opening land disputes that Kenyan courts had already finally decided.
What this practically means
#Executive summary
#Key legal issues
#Scope of the judicial review remedy of prohibition
Prohibition lies to prevent an inferior tribunal from continuing proceedings in excess of jurisdiction or contrary to law, but cannot quash a decision already made.
Relying on the Court of Appeal decision in Kenya National Examinations Council v Republic Ex-Parte Geoffrey Gathenji Njoroge, the court set out the parameters of prohibition: it looks to the future, prevents contemplated or ongoing proceedings in excess of jurisdiction or in breach of natural justice, but does not correct errors of procedure or wrong decisions on the merits.
Whether the National Land Commission could review titles already adjudicated upon by the High Court
The Commission's Notice of Intention to review the Grants and the summons to the Applicants were misconceived and exceeded its mandate, as the same matter had been judicially determined and a subsequent attempt to re-litigate had been struck out as res judicata.
The consolidated suits over the suit properties were struck out by Ouko J in 2004; the Interested Party's constitutional petition on the same land was struck out by Majanja J on 18th January 2013 as res judicata and an abuse of process. The appeal against that decision was withdrawn, leaving the decision valid and binding. The Commission therefore could not review what a competent court had adjudicated upon, as that would amount to second-guessing the court.
Res judicata and finality of litigation
The doctrine of res judicata brings finality to litigation and protects parties from being vexed by issues already determined by a competent court.
Quoting the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, the court emphasized that res judicata protects against wastage of time and resources in endless litigation, resting in the public interest for swift, sure and certain justice. The Applicants had been hounded from court to court since 1994 over the same properties and deserved an order of prohibition to end the litigation.
Effect of withdrawal of the appeal against the res judicata decision
Upon withdrawal of Nairobi Civil Appeal No. 197 of 2013, Majanja J's decision of 18th January 2013 remained valid and binding; errors therein could not be ventilated before this court.
The Interested Party argued the suits were struck out on technicalities and never determined on merit. The court held that if the Interested Party considers the decision erroneous, the proper forum is not this court; the withdrawal of the appeal left the judgment intact and binding on the parties.
Legal principles established
#- Prohibition is an order of the High Court directed to an inferior tribunal forbidding it to continue proceedings in excess of jurisdiction, in contravention of the law, or in breach of natural justice, but it cannot quash a decision already made.
- Where a court has already exercised jurisdiction over a land matter, the National Land Commission must not proceed to review that which a competent court has judicially determined, as that would amount to second-guessing the court.
- The Commission is not barred from dealing with land merely because it has passed through the courts; each case must be assessed on its own circumstances.
- Upon withdrawal of an appeal, the decision appealed against remains valid and binding on the parties.
Court orders
#- 1.An order of Prohibition prohibiting the Respondent from hearing and determining claims in respect of Plot Nos. 4416, 4417, 5465 and 5466 within Malindi County
- 2.An order of Prohibition prohibiting the Respondent from further hearing and determining the complaint lodged by Rashid Kajela Ngolo alleging double allocation and fraudulent activities on the suit properties
- 3.Costs of the judicial review application awarded to the Ex-parte Applicants
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of prohibition), following leave granted on 30th March 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mansur Naji & 2 others v National Land Commission; Rashid Kajela Ngolo (Interested Party) [2019] KEELC 4886 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 18th April 2017), Malindi High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4886/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.