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ELCDismissedELC JR No. 20 of 2018· [2020] KEELC 3286 (KLR)

Republic v National Land Commission & 2 others Exparte Gidjoy Investments Limited [2020] KEELC 3286 (KLR)

Environment and Land Court
5 February 2020
KBK. Bor
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court refused to quash a National Land Commission review because no decision existed and the Commission's mandate had already expired.

What this practically means

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Executive summary

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Gidjoy Investments Limited, the registered proprietor of 38 parcels of land in Nairobi (the Suit Properties), sought judicial review orders of certiorari and prohibition against the National Land Commission, the Chief Land Registrar and Nairobi City County. It sought to quash a public notice published in the Daily Nation on 14/1/2016 inviting it to public hearings for the review of grants of public land, together with any proceedings, determinations, gazettements or register entries affecting its title, and to restrain further inquiry. It argued that NLC lacked jurisdiction to review titles, its five-year mandate under Section 14 of the National Land Commission Act having expired on 2/5/2017, and that it had purchased the properties without notice of any defect. NLC's Vice-chairperson deponed that a complaint from the Nairobi Governor had triggered the review, but that owing to the volume of complaints nationwide and the pending court proceedings (leave having operated as a stay), no determination was ever approved or ratified before the mandate lapsed. The Attorney General and interested parties submitted that no decision existed capable of being quashed, that the mandate had expired, and that ownership disputes belonged in ordinary suits, several of which were pending, including ELC No. 301 of 2018 filed by the Ex parte Applicant itself, whose counsel conceded ownership could be determined there. The court agreed that no decision existed to quash and that the multiplicity of suits undermined the overriding objective. It dismissed the application and directed that ownership be determined in ELC No. 301 of 2018, with each party bearing its own costs.

Key legal issues

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01

Whether certiorari and prohibition could issue where NLC made no determination before the expiry of its statutory mandate

Holding

The orders were refused because NLC made no decision capable of being quashed and its mandate to review grants had lapsed

Reasoning

The court found it common ground that NLC's five-year mandate under Section 14 of the National Land Commission Act ended in May 2017. The Ex parte Applicant conceded that NLC never made a determination on the propriety of its titles despite the public hearings. In the absence of an extant decision, certiorari had nothing to act upon, and prohibition was pointless given the mandate had expired and no proceedings were pending before NLC.

p. 3
02

Whether judicial review was the appropriate remedy given multiple pending suits over the same Suit Properties

Holding

Judicial review was not the best remedy; ownership of the Suit Properties should be determined in ELC No. 301 of 2018

Reasoning

The court noted the same parties and subject matter were before other courts, including ELC No. 301 of 2018 filed by the Ex parte Applicant claiming ownership. Multiplicity of suits undermines the overriding objective under the Civil Procedure Act and the Constitution of just, expeditious, proportionate and affordable resolution. The ownership dispute belongs in the ordinary suit.

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Legal principles established

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  • Certiorari can only issue to quash a decision that exists; where no determination has been made by the decision-maker, judicial review orders do not lie
  • Filing a myriad of claims over the same subject matter in multiple courts militates against the overriding objective of civil litigation

Court orders

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  1. 1.The application dated 11/4/2018 is dismissed
  2. 2.Each party will bear its own costs of the suit
  3. 3.The dispute over the ownership of the Suit Properties will be determined by the court in ELC No. 301 of 2018 - Gidjoy Investments Limited v Zeropoint Construction Company Limited and 69 Others

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 47(1), 48, 50(2), 62, 64, 67
  • National Land Commission ActSections 5(1), 5(2), 14(1)
  • Law Reform Act, Cap 26Sections 8 and 9
  • Land Registration ActSections 24(A), 25, 26(1)
  • Fair Administrative Actions ActNo. 4 of 2015
  • Civil Procedure Actoverriding objective

Cases cited (4)

  • Alexander Hoops and others v Honourable Attorney General
    ELC No. 79 of 2018
  • Soweva Self Help Group v National Land Commission
    Petition 92 of 2018
  • Gidjoy Investments Limited v Zero Point Construction Company Limited and 69 Others
    ELC Civil Suit No. 301 of 2018
  • Gidjoy Investments Limited v National Land Commission
    ELC Judicial Review No. 81 of 2018
Jurisdiction invoked
Articles 40, 47(1), 48, 50(2), 62, 64 and 67 of the Constitution; Sections 8 and 9 of the Law Reform Act, Cap 26

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 Exparte Gidjoy Investments Limited [2020] KEELC 3286 (KLR)", Case Analysis (2020). ELC JR No. 20 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3286/eng@2020-02-05

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