Kenya Anti-Corruption Commission v Sarah Maria Lobo & Myrte Mary Desa & 2 others [2021] KEELC 1154 (KLR)

Applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct. The court found the issues raised - the NLC's first-instance mandate over dispositions of public land and the ELC's jurisdiction - were serious, pure issues of law, not fanciful or remote, and did not require ascertainment of facts. The 12-year delay was not fatal because filing a preliminary objection is not time-bound.

Section 14(1) of the NLC Act allowed the Commission five years from 2nd May 2012 to review grants and dispositions of public land; that mandate lapsed on 2nd May 2017 and Parliament has not extended it, so the NLC must lay down its tools. The cause of action is recovery of public land alienated through corrupt and illegal means, with prayers for cancellation of title and rectification of the register - remedies outside Sections 14 and 30 of the NLC Act. Section 13 of the ELC Act confers exclusive and original jurisdiction over suits under Section 51 ACECA and Section 11(1)(j) EACC Act, making this case an exemption to the doctrine of exhaustion. Section 28 of the EACC Act also bars subjecting the EACC to the control of any other authority, including the NLC.

The court distinguished review of grants/dispositions of public land (NLC mandate) from recovery of corruptly alienated public property (EACC mandate and ELC jurisdiction). The NLC can only inquire and recommend revocation to the Registrar; the power to revoke titles is vested in the Registrar. Section 80(1) and (2) of the Land Registration Act empowers the ELC to order rectification of the register where registration was obtained by fraud or mistake.