Mohammed Kasim Mohamud & another v National Land Commisison & 3 others [2020] KEELC 379 (KLR)
The bottom line
#Kenya's National Land Commission cannot revoke private land titles — its review power only covers public land, so a private title dispute is outside its mandate.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission to review grants under Section 14(1) of the National Land Commission Act
The Commission lacked jurisdiction because there was no allegation that the property was converted from public to private land; the dispute was purely between private parties over competing titles.
Section 14(1) of the National Land Commission Act empowers the Commission to review grants or dispositions of public land to establish their propriety or legality, and to investigate how land which was public was converted to private land. Here the complaint concerned a private property and a private dispute over competing titles, with no conversion issue. Acting outside this mandate, the Commission acted ultra vires, rendering its decision a nullity ab initio.
Res judicata
Res judicata did not arise because the earlier suit (HCCC No.1130 of 1999, later ELC 925 of 2016) was dismissed for want of prosecution and not heard on its merits.
The petitioners argued the title dispute had been resolved in prior High Court proceedings. The court noted it was not disputed that the suit was dismissed for want of prosecution, meaning it was never heard on its merits. Since res judicata requires a prior determination on the merits, the plea failed. The 3rd and 4th Respondents relied on MWK v AMW (2016) eKLR in support.
Violation of Article 40 (protection of property)
The petitioners' Article 40 rights were violated; they purchased from the rightful registered owner and were never found to have unlawfully acquired the property.
The petitioners bought the property from Ndirangu Karanja, whose registration had been restored by court order after Magere's fraudulent registration was reversed. There was no evidence the petitioners were party to the earlier irregular transfers, and no court or tribunal had found they unlawfully acquired the property. Depriving them of their property by a body without jurisdiction violated Article 40.
Violation of Article 47 (fair administrative action)
The petitioners' right to a fair hearing was violated as they were not afforded an opportunity to be heard before the revocation was recommended.
The Fair Administrative Action Act, enacted pursuant to Article 47, requires that a party affected by an administrative action be given an opportunity to be heard. The petitioners learned of the decision only through the Gazette Notice, and their requests for proceedings went unanswered. The alleged letter of 17th June 2016 was not put in evidence, so there was no basis to find they participated in the review.
Legal principles established
#- The National Land Commission's power under Section 14(1) of the National Land Commission Act extends only to grants or dispositions of public land, and does not empower it to adjudicate disputes over purely private titles.
- A decision made by a body without jurisdiction is a nullity from the outset.
- The protection of the right to property under Article 40 does not apply to property found to have been unlawfully acquired, and innocent purchasers for value retain protection where no finding of unlawfulness has been made against them.
Court orders
#- 1.A declaration that the petitioners are duly registered and bonafide proprietors of LR No.36/VII/436 Nairobi
- 2.A declaration that under Section 14(1) of the National Land Commission Act, the 1st Respondent can only review grants of public land and that mandate does not extend to private property
- 3.An order of certiorari quashing Gazette Notice No.6862 dated 17th July 2017 which recommended revocation of the petitioners' indenture
- 4.An order of prohibition prohibiting the 2nd Respondent from revoking the petitioners' indenture of conveyance over LR No.36/VII/436 Nairobi
- 5.A permanent injunction restraining the Respondents and their agents from interfering with the petitioners' proprietorship and occupation of LR No.36/VII/436 Nairobi
- 6.Costs of the petition to be paid by the 1st, 3rd and 4th Respondents
- Jurisdiction invoked
- Sections 3, 4 and 11 of the Fair Administrative Action Act; Section 13(1) of the Environment and Land Court Act; Articles 40, 47 and 68 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Kasim Mohamud & another v National Land Commisison & 3 others [2020] KEELC 379 (KLR)", Case Analysis (2020). ELC Petition No. 63 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/379/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.