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ELCAllowedELC Misc Application No. 15 of 2019 (Formerly Misc Application No. 164 of 2016)· [2020] KEELC 3356 (KLR)

Republic v National Land Commission & another; Asis Store Limited & another (Interested Parties) Ex parte Kenya National Trading Corporation [2020] KEELC 3356 (KLR)

Environment and Land Court of Kenya
5 March 2020
4,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex parte Applicant, Kenya National Trading Corporation, sought certiorari to quash a decision of the National Land Commission dated 17th December 2015 in which the Commission, on the 2nd Interested Party's complaint under section 14 of the National Land Commission Act, found the 2nd Interested Party a bona fide purchaser for value of Nakuru Municipality Block 6/158 and directed regularization of his occupation. The land was originally the Applicant's leasehold property, subdivided and allocated to the 1st Interested Party in 1996 and transferred to the 2nd Interested Party in 1999. Recovery proceedings over the same parcel (Nakuru HCCC No. 11 of 2008, brought by KACC) were pending before the High Court and later the ELC. The court framed two issues: the Commission's jurisdiction given the pending suit, and whether the matter was properly one for judicial review. It held that the Commission had been notified of the pending suit by a preliminary objection filed in June 2015 but proceeded anyway, usurping the Court's jurisdiction, offending the sub judice rule and amounting to an abuse of process; the Commission's proceedings were therefore void and a nullity. On process, the court found that no further hearing date was communicated after the aborted hearing of 12th February 2015 and the impugned decision ignored the jurisdiction objection, breaching Article 47 of the Constitution and section 4(4) of the Fair Administrative Action Act. The court allowed the Notice of Motion, issuing orders of certiorari and prohibition as prayed, and directed that each party bear their own costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether the application fell within the purview of judicial review and whether the applicant was accorded a fair hearing

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67
  • Constitution of Kenya, 2010Article 68(v)
  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Article 47
  • National Land Commission Act, No. 5 of 2012Section 14
  • Registration of Titles Act, Cap 281
  • Registered Land Act, Cap 300
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003
  • Fair Administrative Action Act, 2015Section 4(4)

Cases cited (3)

  • Owners of Motor Vessel "Lillian" -vs- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Azzuri Limited – vs- George Kadenge Ziro –vs- Kambi Kadenge Ziro & 5 others
    (2017) eKLR
  • Republic -vs- National Land Commission and 2 others
    (2015) eKLR
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

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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; 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.