Iimbani Dispensary Project v Abdulrahaman Mohamed Abdi [2021] KEELC 1705 (KLR)

The Commission is an independent constitutional commission established under Article 67 and operationalized by the National Land Commission Act, 2012. Section 14 empowers it to review grants or dispositions of public land, on its own motion or upon complaint, to establish their propriety or legality. The Applicant lodged a complaint concerning the alienation and allocation of the suit property; after hearing the parties, the Commission found the allocation irregular and unlawful and recommended compensation. The decision has never been challenged in any judicial proceedings, so the Commission acted within its mandate.

The National Land Commission is one of the independent constitutional commissions under Articles 248 and 249 of the Constitution. By virtue of its constitutional status, it was clothed with the mandate to make binding recommendations capable of enforcement under the law. Relying on the Court of Appeal decision in Commission on Administration of Justice v Kenya Vision 2030 Delivery Board, recommendations of constitutional commissions have the force of law and are amenable to enforcement by a court of law. The Recommendation herein binds the parties and creates rights and obligations actualizable through court proceedings.

Neither Article 67 and 68 of the Constitution nor the National Land Commission Act, 2012 contains an express provision for adoption and enforcement of the Commission's recommendations. However, the absence of such an express provision does not bar the court from adopting and enforcing a binding recommendation with the force of law. Where an act is not expressly prohibited, and unless it relates to jurisdiction, it can be attended to pursuant to the court's inherent powers as explained in Kenya Power & Lighting Company Limited v Benzene Holdings Limited, and under Section 13(7) of the Environment and Land Court Act which empowers the court to make any order and grant any relief it deems fit and just.