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ELCDismissedJudicial Review Application (Notice of Motion dated 8th June 2018)· [2021] KEELC 1473 (KLR)

Republic v National Land Commission & 3 others Ex-Parte Kingsway Industrial Park Limited [2021] KEELC 1473 (KLR)

High Court of Kenya
14 October 2021
6,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled the National Land Commission could review historically public land titles, but its five-year review power has now expired unless Parliament extends it.

What this practically means

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Executive summary

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Kingsway Industrial Park Limited (formerly Real Industrial Park Limited), registered proprietor of L.R No. 209/11289, Nairobi, sought judicial review orders of prohibition and certiorari to stop the National Land Commission from reviewing its title following an application by Mukami Kimathi Foundation for allocation of the property. The Applicant argued the suit property was private land outside the NLC's jurisdiction under Articles 62, 64 and 162(2)(b) of the Constitution, that the revocation was predetermined and biased, that it was denied fair administrative action, and that the NLC's five-year review mandate under section 14 of the National Land Commission Act, 2012 had expired. The NLC maintained the property had three conflicting titles and that section 14 empowered it to investigate the legality of grants over land that had been public land before alienation, relying on section 23(3)(e) of the Interpretation and General Provisions Act to continue pending reviews. The court held that the NLC had jurisdiction because the property was public land before alienation, and that review entailed probing the conversion process. It found the Applicant was notified of the investigations, invited to be heard, and declined to attend, so no breach of natural justice or the Fair Administrative Action Act occurred; no revocation decision had been made when the application was filed. However, the court agreed the NLC could not continue the review after expiry of its five-year mandate unless Parliament extended it, and that the saving provisions of the Interpretation and General Provisions Act did not apply. Despite this, the Applicant failed to establish grounds for review, the application was dismissed with costs to the Respondents.

Key legal issues

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01

Jurisdiction of the NLC over titles to land that was public land before alienation

Holding

The NLC had jurisdiction to review the multiple titles over the suit property, including the Applicant's, because the property was public land before alienation and section 14 empowers review of the alienation process

Reasoning

The court agreed with W. Korir J in Muktar Saman Olow and with Holborn Properties that section 14 review entails probing the process by which public land was converted to private land. It rejected the argument that registered private land is beyond the NLC's reach, holding the concern was anomalies in the titles, not ownership.

p. 7
02

Fair hearing and fair administrative action

Holding

The Applicant was accorded fair administrative action; it was notified of the investigations, invited to be heard, and declined to participate, so it could not complain of non-involvement or lack of a report

Reasoning

The NLC had, from March 2016, informed the Applicant's advocates of the anomalies and invited it to appear. The February 2017 summons offered a further opportunity to be heard before any adverse decision. No revocation decision had been made when the Applicant came to court.

p. 9
03

Continuation of review after lapse of the five-year mandate

Holding

The NLC must lay down its tools after expiry of its section 14 mandate unless Parliament extends it; section 23(3)(e) of the Interpretation and General Provisions Act does not save pending reviews

Reasoning

The court held this issue was raised only in submissions but expressed its view: Parliament would have provided for pending complaints if intended; section 14(9) provided the extension route, showing the intention that reviews end within five years absent extension.

p. 9

Legal principles established

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  • The National Land Commission's power under section 14 of the National Land Commission Act, 2012 to review grants and dispositions extends to land that was public land before alienation, i.e. land converted from public to private land
  • The NLC cannot continue reviewing grants or dispositions of public land after the expiry of its five-year mandate under section 14, whether on new or pending complaints, unless Parliament extends the mandate
  • The saving provisions of the Interpretation and General Provisions Act do not preserve the NLC's lapsed review mandate where the National Land Commission Act contains a contrary intention

Court orders

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  1. 1.The Applicant's Notice of Motion dated 8th June 2018 is dismissed
  2. 2.The Applicant shall bear the costs of the suit, awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 24, 40, 47, 60, 62, 64, 67, 68, 169(1), 162(2)
  • Fair Administrative Action Act, 2015Sections 4, 7, 8, 11, 12
  • National Land Commission Act, 2012Sections 5, 8, 14 (incl. 14(1), 14(3), 14(5), 14(9))
  • Land Act, 2012Section 9(2)
  • Interpretation and General Provisions Act, Chapter 2 Laws of KenyaSections 23(3)(e), 26
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (12)

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Council of Civil Servants Unions v Minister for the Civil Service
    (1985) AC 2
  • Republic v National Land Commission exparte Holborn Properties Ltd
    [2016] eKLR
  • Republic v Commissioner for Co-operatives exparte Kirinyaga Tea Growers
    [1999] 1 EA 245
  • Republic v National Land Commission & 2 others Exparte Biren Amrital Shah
    [2019] eKLR
  • Sceneries Limited v National Land Commission
    [2017] eKLR
  • Beatrice Wanjiru Kimani v Evanson Kimani Njoroge
    Civil Appeal No. 79 of 1998 [1995-1998] 1 E.A 134
  • Republic v National Land Commission Exparte Krystalline Salt Limited
    [2015] eKLR
  • Mwangi Stephen Muriithi v National Land Commission & 3 Others
    [2018] eKLR
  • Republic v National Land Commission & another, Exparte Muktar Saman Olow
    [2015] eKLR
  • Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Attorney General v Ryath
    [1980] AC 718
Jurisdiction invoked
Judicial review jurisdiction of the High Court; Article 23 of the Constitution and the Fair Administrative Action Act, 2015

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 & 3 others Ex-Parte Kingsway Industrial Park Limited [2021] KEELC 1473 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 8th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1473/eng@2021-10-14

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