Republic v National Land Commission & another; Kibirgen Kimaiyo & 6 others Exparte Phillip Kiptoo Tunoi [2020] KEELC 3015 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the NLC over the historical land injustice claim
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.
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.
Observance of rules of natural justice
The NLC breached natural justice by delivering its decision on the main claim without notice to the Applicant.
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.
Entitlement to judicial review remedies
Judicial review concerns the decision-making process, not the merits; the Applicant established illegality and procedural impropriety and was entitled to certiorari and prohibition.
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.
Legal principles established
#- 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
#- 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.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.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.The 1st Respondent and the 1st to 7th interested parties to pay costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.