SBM Bank (Kenya) Limited v National Land Commission & 2 others; Muguga Greens Apartments Management Limited (Interested Party) [2021] KEELC 1930 (KLR)
The bottom line
#A Kenyan court dismissed SBM Bank's bid to stop revocation of its land title, ruling the National Land Commission acted lawfully and the property was not compulsorily acquired.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission to conduct review of grants and dispositions
The Commission began the review proceedings under Section 14 of the National Land Commission Act before its statutory mandate lapsed, and was therefore entitled to conclude them.
Section 14 of the National Land Commission Act mandated review of grants and dispositions of public land. The complaint was received and investigations and hearings commenced, with the petitioner participating and being directed to file submissions, before the five-year mandate lapsed. The petitioner did not controvert the account given in Brian Ikol's affidavit.
Whether the petitioner was afforded fair administrative action and a fair hearing
The petitioner was invited to and participated in the review proceedings, so its rights under Articles 47 and 50(1) were not violated.
The detailed and uncontroverted affidavit of Brian Ikol showed the petitioner was invited to the review proceedings, attended hearings, and was directed to file submissions. The Interested Party's submissions also showed the hearing of 20 April 2017 was attended by all parties who were given an opportunity to be heard.
Whether the petitioner is entitled to the reliefs sought
The reliefs were not available because ownership of the suit property had been finally determined in ELC 2195 of 2007, and this court could not issue orders contradicting that judgment, being a court of concurrent jurisdiction.
ELC 2195 of 2007 was heard to conclusion and judgment delivered on 18 June 2020, declaring the land public utility and ordering cancellation of the title. Granting the petition's reliefs would contradict those orders. Following Kenya Hotel Properties Ltd v Attorney General, a constitutional division is not superior to a judge of the High Court sitting alone. The petitioner's remedy is its pending appeal to the Court of Appeal.
Whether the petitioner is entitled to compensation of Kshs 117,000,000
Compensation was not available because the property was not compulsorily acquired.
Compensation applies to compulsory acquisition proceedings. The suit property was subject to a review of grants and dispositions under Section 14 of the National Land Commission Act, not compulsory acquisition, so no compensation was owed.
Legal principles established
#- A court of concurrent jurisdiction cannot grant reliefs that would contradict a final decision already made by a court of concurrent jurisdiction.
- Compensation under Article 40 arises only where property is compulsorily acquired, not where a title is revoked following a review of grants and dispositions.
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs
- Jurisdiction invoked
- Article 22(1) of the Constitution of Kenya 2010; Articles 40, 47 and 50 of the Constitution; Fair Administrative Action Act (Sections 4, 7, 9 and 11); National Land Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SBM Bank (Kenya) Limited v National Land Commission & 2 others; Muguga Greens Apartments Management Limited (Interested Party) [2021] KEELC 1930 (KLR)", Case Analysis (2021). ELC Constitutional Petition No 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1930/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.