Republic v National Land Commission & another; Asis Store Limited & another (Interested Parties) Ex parte Kenya National Trading Corporation [2020] KEELC 3356 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a National Land Commission decision made while the same land dispute was already pending in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission had jurisdiction to review the grant while Nakuru HCCC No. 11 of 2008 over the same parcel was pending before the High Court/ELC
The Commission lacked jurisdiction; its proceedings were void and a nullity as the matter was sub judice and the Commission usurped the jurisdiction of the Court.
The applicant had filed a preliminary objection before the Commission on 2nd June 2015 notifying it of the pending suit. The Commission neither inquired into nor disposed of that objection. Commencing a parallel process over the same subject matter before the same parties was irregular, usurped the Court's jurisdiction, offended the sub judice rule and amounted to abuse of the court process. The Commission was duty bound to establish whether the matter was pending before a court.
Whether the application fell within the purview of judicial review and whether the applicant was accorded a fair hearing
The challenge was properly one of process, not merits; the applicant was not accorded a hearing, breaching Article 47 and section 4(4) of the Fair Administrative Action Act, invalidating the decision.
Judicial review concerns the process, not the merits. No evidence showed any hearing date was communicated after the aborted hearing of 12th February 2015, and the impugned decision did not state hearing dates nor address the jurisdiction objection. The Commission's procedure was opaque and not transparent, breaching natural justice.
Legal principles established
#- A tribunal or commission cannot proceed to determine a matter that is pending before a court of competent jurisdiction; doing so offends the sub judice rule and the resulting decision is a nullity.
- Failure to accord a party a hearing before an administrative decision breaches the rules of natural justice, Article 47 of the Constitution and section 4(4) of the Fair Administrative Action Act, rendering the decision invalid.
Court orders
#- 1.An order of certiorari to remove into the Court and quash the proceedings and orders of the 1st Respondent titled 'Hearing Report on Review of Grants and Disposition of Public Land Nakuru County for Nakuru Municipality Block 6/158' dated 17th December 2015
- 2.An order of prohibition restraining the 1st and 2nd Respondents from executing, benefiting from, relying on or implementing the Decision of 17th December 2015
- 3.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court; order of certiorari and prohibition under Order 53 of the Civil Procedure Rules following leave granted on 9th May 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another; Asis Store Limited & another (Interested Parties) Ex parte Kenya National Trading Corporation [2020] KEELC 3356 (KLR)", Case Analysis (2020). ELC Misc Application No. 15 of 2019 (Formerly Misc Application No. 164 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3356/eng@2020-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.