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ELCPartially AllowedPetition dated 18th May 2016 as amended on 28th February 2018· [2020] KEELC 3950 (KLR)

Caroline M. Mwandiku v National Land Commission [2020] KEELC 3950 (KLR)

Environment and Land Court
23 January 2020
JOJ. O. Olola
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, who resides on and has developed Plot No. 533 Section III MN in Kikambala, Kilifi County, had filed Mombasa HCCC No. 251 of 2013(OS) with one Monika Herta Elfriede Behran seeking to be registered as proprietor of the suit property by adverse possession against Mubia Holdings Ltd. While that suit was pending, the National Land Commission, acting on a complaint by one Joseph Malindi Lengurie, instituted proceedings over the property. On 12th May 2017 Angote J granted the Petitioner conservatory orders restraining the Commission from hearing, deliberating upon, reviewing or making recommendations regarding the suit property. The Commission nonetheless published a determination on 17th July 2017 under Gazette Notice No. 6862 directing the Chief Land Registrar to revoke the Petitioner's title. The Petitioner amended her Petition to seek certiorari and various declarations. The Commission never entered appearance; Mubia Holdings Ltd and Anne Wanjiru Wairagu, styling themselves the 2nd and 3rd Respondents, agreed with the Petitioner that the Commission had acted without jurisdiction. The Court held that the matter was sub-judice, that under Article 162(2)(b) jurisdiction over title to land vests in the ELC, and that certiorari lies to quash ultra vires decisions of inferior tribunals. The Petition was allowed only to the extent that the Commission's decision in Gazette Notice No. 6862 of 17th July 2017, in so far as it related to the suit property, was quashed, with costs to the Petitioner.

Key legal issues

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01

Whether the Commission could determine the complaint while conservatory orders were in place

Holding

It was not open to the Commission to adjudicate the complaint once aware of the proceedings and of the conservatory orders; its subsequent determination was made in disregard of the Court and was ultra vires

Reasoning

The Commission had participated in the hearing of the application in which the conservatory orders were granted on 12th May 2017 restraining it from hearing, deliberating upon, reviewing or making recommendations on the suit property. It nonetheless proceeded to publish its determination on 17th July 2017 directing revocation of the Petitioner's title, rendering the decision liable to be quashed by certiorari.

p. 3
02

Jurisdiction over disputes on title to land

Holding

Jurisdiction over use, occupation and title to land vests in the Environment and Land Court under Article 162(2)(b); the Commission could only participate in such proceedings and abide by the Court's decision

Reasoning

Once the parties had filed the adverse possession suit in Mombasa ELC Case No. 251 of 2013(OS), that Court was seized of the dispute over title. The Commission, if its mandate was engaged, could join or participate in those proceedings but could not run a parallel adjudication and issue its own determination revoking the title.

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Legal principles established

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  • Where a land dispute is pending before the Environment and Land Court, the National Land Commission cannot proceed to adjudicate the same dispute, which is sub-judice
  • Under Article 162(2)(b) of the Constitution, the Environment and Land Court is mandated to hear disputes relating to the use and occupation of, and title to, land

Court orders

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  1. 1.An order of certiorari issued quashing the Respondent's decision communicated pursuant to Gazette Notice No. 6862 of 17th July 2017 to the extent that it relates to the suit property
  2. 2.The Petitioner to have the costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 67
  • National Land Commission ActSection 14
Jurisdiction invoked
Article 162(2)(b) of the Constitution

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, "Caroline M. Mwandiku v National Land Commission [2020] KEELC 3950 (KLR)", Case Analysis (2020). Petition dated 18th May 2016 as amended on 28th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3950/eng@2020-01-23

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