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ELCStruck OutJudicial Review Notice of Motion dated 9/4/2019· [2020] KEELC 470 (KLR)

Republic v National Land Commission & 2 others Ex-Parte Almer Farm Limited [2020] KEELC 470 (KLR)

Environment and Land Court
1 December 2020
5,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A company lost its land dispute case because it skipped the required 28-day appeal process and went straight to court instead.

What this practically means

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Executive summary

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Almer Farm Limited, the ex-parte applicant, moved the Court by a notice of motion dated 9/4/2019 seeking certiorari to quash a decision of the National Land Commission dated 7/2/2019 in case No. NLC/HL1/112/2017 and a subsequent Gazette Notice of 1/3/2019, together with prohibition restraining the NLC from interfering with its ownership of LR No. 8940. The NLC determination had recommended restitution of 400 acres to the estate of the late David Rono, to be excised from Almer Farm and registered in favour of Betty Rono, the 3rd respondent. The applicant contended that the NLC lacked jurisdiction because the dispute was an internal company matter governed by the separate corporate personality principle, and that its director Abraham Kiptanui was denied a fair hearing as he was compelled to make restitution though not a party. The 1st respondent maintained its mandate under Article 67(1)(e) and Section 15 of the NLC Act, while the 3rd respondent supported the determination and argued the applicant was inviting the court into a merit review and had bypassed the appeal route under Regulation 29. The court framed five issues and, after finding that the NLC decision was gazetted on 1/3/2019 and the judicial review filed on 27/3/2019 - within the 28-day appeal window prescribed by Regulation 29 - held that the applicant should have appealed rather than resort to judicial review. Applying the exhaustion doctrine, the court struck out the notice of motion with costs to the 1st and 3rd respondents. It declined to determine whether Kiptanui was denied a fair hearing, holding that he is not a party and only he as a natural person may complain of violation of his rights.

Key legal issues

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01

Whether the judicial review application was properly before court given the existence of a statutory appeal under Regulation 29 of the NLC Regulations

Holding

The application was improperly before the court as the applicant should have exhausted the appeal mechanism within 28 days of the gazettement

Reasoning

The court found that the NLC's decision was gazetted on 1/3/2019 and the judicial review was filed on 27/3/2019, within the window for the prescribed appeal. Citing Speaker of National Assembly v Karume and Geoffrey Muthinja Kabiru, the court held that where a specific procedure is provided for redress, that procedure must be strictly followed. Judicial review is not an appeal and cannot substitute the prescribed appellate route.

p. 6
02

Whether Abraham Kiptanui was accorded a fair hearing

Holding

The court declined to determine this issue as Kiptanui is not a party to the proceedings; only he as a natural person may complain of violations of his rights

Reasoning

The applicant relied on Salomon v Salomon to argue its distinct personality, but the 3rd respondent turned that argument on its head, submitting that the company cannot litigate on behalf of its director. The court agreed, holding that a claim of violation of a director's personal rights can only be raised by the director himself, who is not the ex-parte applicant.

p. 7

Legal principles established

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  • Where a specific procedure for redress is prescribed by statute, it must be strictly followed before resorting to the court
  • A company is a legal person distinct from its subscribers/directors and cannot litigate a director's personal grievances

Court orders

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  1. 1.The notice of motion dated 9/4/2019 is struck out with costs to the 1st and 3rd respondents only

Authorities

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Legislation

  • Constitution of Kenya 2010Article 67(1)(e), 67(3), 40, 50, 159(2)(d) and (e)
  • National Land Commission ActSection 15
  • National Land Commission (Investigation of Historical Land Injustices) Regulations 2017Regulation 29
  • Fair Administrative Action Actnot specified
  • Limitation of Actions Act (Cap. 22)Section 7
  • Companies Act 2015Section 37(2)(b), Section 782
  • Political Parties Actnot specified
  • Election (General) Regulations 2012not specified

Cases cited (17)

  • Daniel Toroitich Arap Moi Vs Mwangi Stephen Mureithi & Another
    2014 eKLR
  • Salomon Vs Salomon & Co Ltd
    1897 AC 22
  • Guo Dong Vs Multi Win Trading Company Limited & 6 Others
    2015 eKLR
  • Robert Mutiso Lelli and Cabin Crew Investments Ltd -vs- National Land Commission & 3 Others
    [2017] eKLR
  • Halbury Laws of England Judicial Review (Volume 61) 2010, 5th Edition para 639
  • Republic -vs- Public Procurement Administrative Review Board & 2 Others Ex parte Pelt Security Services Ltd
    [2018] eKLR
  • Republic -vs- Ministry of Planning & Another, Ex parte Professor Mwangi S. Kimenyi
    HCC Misc. Appl. 1769 of 2003
  • Republic -vs- Commissioner for Co-operative Ex parte Kirinyaga Tea Growers
    [1991] 1 EA 245
  • Republic -vs- Chairman Emuhaya Land Disputes Tribunal & another Ex-parte Alfred Esitiba Ebita
    [2014] eKLR
  • Republic v Business Premises Rent Tribunal & another Ex parte Albert Kigera Karume
    [2015] eKLR
  • Republic -vs- Kenya Power & Lighting Company Ltd
    [2013] eKLR
  • Leo Investments Ltd vs Trident Insurance Company Ltd
    (2014) eKLR
  • Republic Vs Registrar General & 13 Others
    2005 eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others Ex parte Rongo University
    [2018] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR, NBI Civil Application No. 92 of 1992
  • Geoffrey Muthinja Kabiru & 2 Others -vs- Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Wachira Martin Ngiri & 3 others v Independent Electoral and Boundaries Commission & 5 others
    [2013] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under the Fair Administrative Action Act and the Law Reform Act; NLC's mandate under Article 67(1)(e) of the Constitution and Section 15 of the National Land Commission Act

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 & 2 others Ex-Parte Almer Farm Limited [2020] KEELC 470 (KLR)", Case Analysis (2020). Judicial Review Notice of Motion dated 9/4/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/470/eng@2020-12-01

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