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ELCAllowedJudicial Review Notice of Motion dated 4th April, 2019 (Complaint No. NLC/HLI/046/2017)· [2020] KEELC 3015 (KLR)

Republic v National Land Commission & another; Kibirgen Kimaiyo & 6 others Exparte Phillip Kiptoo Tunoi [2020] KEELC 3015 (KLR)

Environment and Land Court
23 April 2020
6,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Land Commission cannot reopen land disputes already decided by courts, and must hear all parties before ruling against them.

What this practically means

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Executive summary

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The Ex parte Applicant, Hon. Justice (Rtd) Philip Kiptoo Tunoi, moved the Environment and Land Court at Eldoret by Notice of Motion dated 4th April 2019 seeking certiorari to quash the determination and recommendation dated 7th February 2019 of the National Land Commission's Historical Injustices Committee in Complaint No. NLC/HLI/046/2017 over L.R No. 8409/1, certiorari to quash Gazette Notice No. 1995 publishing that determination, and prohibition against the Chief Land Registrar from implementing it. The Applicant contended the dispute had been determined in Eldoret HCCC No. 34 of 1983 and was live in Eldoret HCCC No. 427 of 1997, so the NLC lacked jurisdiction under section 15(3) of the National Land Commission Act, and that the decision was made without notice or a hearing on the substantive claim. The 1st to 7th interested parties defended the NLC's mandate over historical land injustices; the NLC and the Registrar did not respond. The court framed four issues and held that the NLC acted ultra vires in hearing and recommending redress on a matter already determined by a competent court, that the claim failed the section 15(3)(b) criteria, and that the Committee breached natural justice by deciding the main claim without notifying the Applicant. Relying on the process-focused nature of judicial review, the court allowed the application as prayed, issuing the two certiorari orders and the prohibition order, with costs awarded against the 1st Respondent and the interested parties. Judgment delivered at Eldoret on 23rd April 2020 by M. A. Odeny, J.

Key legal issues

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01

Jurisdiction of the NLC over the historical land injustice claim

Holding

The NLC acted ultra vires in hearing and making recommendations on a matter already heard and determined by a competent court and pending in another suit.

Reasoning

Section 15(3)(b) of the NLC Act bars admission of claims that have been or are capable of being addressed through the ordinary court system. The subject matter had been determined in Eldoret HCCC No. 34 of 1983 and was also live in Eldoret HCCC No. 427 of 1997, a fact the interested parties acknowledged. Applying Robert Mutiso Lelli, the court held the NLC must exercise restraint where a court is seized of the dispute.

p. 7
02

Observance of rules of natural justice

Holding

The NLC breached natural justice by delivering its decision on the main claim without notice to the Applicant.

Reasoning

The Hansard proceedings of 3rd May 2018 showed the Committee decided to determine the preliminary objection first and to notify parties of further proceedings. There was no evidence the Applicant was notified of the main hearing or of the delivery of the decision, which he learnt of through the Kenya Gazette nearly a month later. This occasioned injustice to the Applicant.

p. 8
03

Entitlement to judicial review remedies

Holding

Judicial review concerns the decision-making process, not the merits; the Applicant established illegality and procedural impropriety and was entitled to certiorari and prohibition.

Reasoning

Citing Municipal Council of Mombasa v Republic and Pastoli v Kabale District Local Government, the court confined itself to the process: whether the decision-maker had jurisdiction, whether affected persons were heard, and whether the decision was tainted with illegality, irrationality or procedural impropriety. Both jurisdictional excess and breach of natural justice were established, warranting certiorari to quash and prohibition against implementation.

p. 8

Legal principles established

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  • Where a matter has been heard and determined by a competent court or is pending before it, the NLC has no mandate to hear and make recommendations on it unless the court has referred the matter to it for arbitration or expert evidence.
  • A historical land injustice claim that has been or is capable of being addressed through the ordinary court system does not meet the criteria in section 15(3)(b) of the National Land Commission Act.
  • Certiorari will issue where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.

Court orders

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  1. 1.An order of certiorari removing into the court for quashing the proceedings and determination/recommendation/order dated 7th February, 2019 of the 1st Respondent in respect of Complaint No. NLC/HLI/046/2017 with respect to Land parcel No. 8409/1
  2. 2.An order of certiorari quashing item Serial No.4 in Kenya Gazette Notice No. 1995 published in Kenya Gazette Vol. CXXI-No. 27 on 1st March, 2019 in so far as it purports to publish the determination and/or recommendations of the 1st Respondent dated 7th February, 2019
  3. 3.An order of prohibition against the 2nd Respondent, his agents/assigns/representatives/principals or any person acting on his behalf from acting upon, implementing and/or enforcing the determination dated 7th February, 2019 and gazette notice in any manner adverse to the ownership/proprietorship and/or possessory rights of the Applicant in the land titles exercised from L.R 8409/1
  4. 4.The 1st Respondent and the 1st to 7th interested parties to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47; Article 67(2)(e); Article 67(3); Article 68; Article 40
  • National Land Commission ActSection 15 (including 15(3)(a)-(e)); Section 14
  • Land Laws (Amendment) Act, 2016Section 38
  • Fair Administrative Action ActSection 4; Section 6
  • Limitation of Actions ActSection 7
  • Historical Land Injustices Claims RulesRule 29
  • Civil Procedure RulesOrder 53 (implied by judicial review motion)

Cases cited (11)

  • Robert Mutiso Lelli and Cabin Crew Investments Ltd v National Land Commission & 3 others
    [2017] eKLR
  • Republic v National Land Commission and 3 Others Ex-parte Samuel Githegi Mbugua and 5 Others
    [2018] eKLR
  • Sceneries Limited v National Land Commission
    [2017] eKLR
  • Republic v Vice Chancellor Jomo Kenyatta University of Agriculture and Technology
    [2008] eKLR
  • Chief Constable of North Wales Police v Evans
    [1982] I WLR 1155
  • Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others
  • Republic v National Land Commission & another
    [2018] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007
    (2002) eKLR
  • Pastoli v Kabale District Local Government Canal & Others
    (2008) 2 EA 300
  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No.266 of 1996
  • Al-Mehidswi v Secretary of State for the Housing Department
    (1990) AC 876
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under Order 53 of the Civil Procedure Rules; Article 47 of the Constitution and the Fair Administrative Action Act, 2015 invoked

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 & another; Kibirgen Kimaiyo & 6 others Exparte Phillip Kiptoo Tunoi [2020] KEELC 3015 (KLR)", Case Analysis (2020). Judicial Review Notice of Motion dated 4th April, 2019 (Complaint No. NLC/HLI/046/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3015/eng@2020-04-23

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