Republic v National Land Commission Ex Parte Giraffe Estate Ltd; City County Government of Nairobi & 5 others (Interested Parties) [2020] KEELC 2364 (KLR)
The bottom line
#Kenya's National Land Commission lost power to review public land grants in May 2017, so its reopened complaint over Langata plots was quashed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the NLC to review grants or dispositions of public land after 2nd May 2017
The NLC's mandate under section 14(1) of the National Land Commission Act lapsed on 2nd May 2017 and was not extended under section 14(9); it therefore lacked jurisdiction to entertain the 2nd interested party's complaint seeking review of the grant/surrender of the suit properties.
Section 14(1) required the Commission to review grants or dispositions of public land within five years of commencement of the Act, subject to extension by Parliament under section 14(9). It was not in dispute that the period lapsed on 2nd May 2017, and neither the respondent nor any interested party pleaded or demonstrated an extension. The court associated itself with the decision in Republic v NLC Exparte Samuel Githegi Mbugua.
Character of the suit properties - public or private land
The suit properties are public land, having been voluntarily surrendered by the 2nd interested party to the 1st interested party as a condition for subdivision approval, for a public access road reserve and public utility purposes.
The 1st interested party's surveyor deposed, unchallenged, that subdivision approval was conditional on surrender of two plots at no cost for a public road reserve and public utility plot. Under Article 62(1)(c) land transferred to the State by surrender is public land. The claim of compulsory acquisition was found misleading; the surrender was voluntary, and the absence of executed instruments of surrender did not alter the position (Joreth Ltd case).
Whether the complaint before the NLC was a historical land injustice claim under section 15
The complaint was not based on a historical land injustice; the respondent's assertion that it was exercising its section 15 mandate was unsustainable.
The 2nd interested party's complaint alleged compulsory acquisition without due process and sought redress for violation of Article 40 and Article 47 rights. The court found the premises were voluntarily surrendered, so the complaint did not rest on historical injustice and could not sustain the section 15 route the respondent relied on.
Consequence of late service of the notice of motion
Late service outside the 21 days ordered was excused; the application was not struck out.
The delay was occasioned by the applicant's former advocates, all parties were served before the mention date of 27th November 2018 without prejudice or objection, and the court invoked Article 159(2)(d) of the Constitution in declining to strike out the application.
Legal principles established
#- The National Land Commission's statutory five-year mandate to review grants or dispositions of public land under section 14(1) of the National Land Commission Act expired on 2nd May 2017 and, not having been extended by Parliament under section 14(9), the Commission lacks jurisdiction to entertain complaints seeking review of grants or dispositions of public land.
- Land voluntarily surrendered to a county government as a condition for subdivision approval, for a public road reserve and public utility, is public land even where no instruments of surrender were executed.
Court orders
#- 1.Order of certiorari issued to remove into the court and quash the proceedings, directions/orders and notices by the respondent directing hearing, inquiry or review of grant, dispositions or surrender of LR No. 2250/8/6 and LR No. 2250/71 pursuant to Complaint No. NLC/HLI/138/2017
- 2.Order of prohibition issued against the respondent from proceeding with, conducting or presiding over any hearing, inquiry or review of, or in any manner interfering with the grants, dispositions or surrender of the suit properties pursuant to Complaint No. NLC/HLI/138/2017
- 3.Order of prohibition issued against the respondent from interfering with the grants, dispositions or surrender of the suit properties whether on its own motion or pursuant to the complaint, except as otherwise provided by law
- 4.Each party to bear own costs
- Jurisdiction invoked
- Judicial review jurisdiction under order 53 of the Civil Procedure Rules (leave granted 3rd October 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission Ex Parte Giraffe Estate Ltd; City County Government of Nairobi & 5 others (Interested Parties) [2020] KEELC 2364 (KLR)", Case Analysis (2020). Notice of motion dated 20th October 2018 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2364/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.