Republic v National Land Commission & another Ex parte Eastern Produce Kenya Limited; Kimasas Farmers Co-operative society & another (Interested Parties) [2021] KEELC 342 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over the transferred suits given the contention that the High Court lacked jurisdiction
The court has jurisdiction; the issue of the validity of the High Court's transfer is res judicata, and the leave granted by the High Court remains valid.
The preliminary objection on the High Court's jurisdiction was already canvassed and decided by Nyamweya J, who transferred the matters in exercise of concurrent jurisdiction between courts of equal status. Re-opening it would amount to sitting on appeal over a decision of a court of equal status, which the court declined. The 45-day timeline argument goes to the merits.
Whether the three Judicial Review applications should be consolidated
Yes; the three suits raise common questions of law and fact and seek similar reliefs arising from the same series of NLC proceedings published in the same Gazette Notice.
The common questions are whether the NLC proceedings were a nullity for want of regulations and whether the applicants were afforded a fair hearing. Consolidation would avoid conflicting decisions, hasten disposal, and the presence of different advocates does not establish prejudice. Judicial review being determined on affidavit evidence simplifies joint hearing.
Whether the matters should be certified as raising substantial questions of law for empanelment of a bench under Article 165(4)
No; the questions are neither novel nor complex and are governed by settled principles which a single judge can apply.
Applying the Chunilal Mehta and NASA tests, the issue of fair hearing under Articles 47 and 50 and the Fair Administrative Action Act has been the subject of numerous decisions. The contention that NLC proceedings absent regulations are a nullity has also been litigated repeatedly. Certification is an exception, mindful of scarce judicial resources and the need to dispense justice without delay.
Legal principles established
#- A question of whether a court of equal status could validly transfer suits to the ELC, having been decided by the High Court, is res judicata and cannot be re-determined.
- Consolidation will be ordered where there is a common question of law or fact, reliefs arising from the same series of transactions, or for convenience, and does not require identical parties.
- Novelty and complexity alone do not justify certification for an expanded bench under Article 165(4); certification is an exception rather than the rule.
Court orders
#- 1.ELC J.R numbers 3, 4 and 5 be and are hereby consolidated
- 2.The prayer for empanelment of a bench of an uneven number of Judges to hear the consolidated suits is declined
- 3.The Preliminary Objections dated 16th July 2020 and 23rd June 2020 are dismissed with no order as to costs
- 4.Each party to bear its/his own costs
- Jurisdiction invoked
- Article 165 of the Constitution; Article 165(4) invoked for certification; the ELC's jurisdiction as a superior court of equal status with the High Court under Article 162(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another Ex parte Eastern Produce Kenya Limited; Kimasas Farmers Co-operative society & another (Interested Parties) [2021] KEELC 342 (KLR)", Case Analysis (2021). ELC J.R No. 5 of 2020 (consolidating ELC J.R Nos. 3 and 4 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/342/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.