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ELCDismissedELC Petition No. 520 of 2015· [2021] KEELC 2946 (KLR)

Market Plaza Limited v National Land Commission [2021] KEELC 2946 (KLR)

Environment and Land Court
12 May 2021
KBK. BOR
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, a limited liability company, petitioned the National Land Commission seeking to restrain it from reviewing the grant of L.R. No. 209/1855/2, allocated to it in 1992 by the City Council of Nairobi. It argued its certificate of title was indefeasible under Sections 23 of the repealed Registration of Titles Act and 26 of the Land Registration Act; that the 1994 ruling in HCCC No. 72 of 1994 had conclusively determined ownership; and that the Commission's review mandate under Section 14 of the NLC Act lapsed on 2/5/2017. It sought declarations that the advertised public hearing violated Articles 19, 20, 21, 27, 40, 47, 48 and 50, prohibitory orders and an injunction. The Respondent did not participate. The court (K. Bor J) held that the 1994 suit was struck out on locus standi without a merits hearing and never upheld the Petitioner's title, and that the 2010 Constitution relaxed locus standi in public-interest cases. It agreed the Section 14 review period lapsed on 2/5/2017 but noted the petition was filed in 2015 when the power subsisted, and that Article 68(c)(v) set no time limit, leaving Parliament discretion to extend the review. The suit property, having belonged to the City Council, was public land amenable to review. As there was no evidence the Commission convened any hearing after its powers lapsed, no basis existed for the orders sought. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the 1994 ruling in HCCC No. 72 of 1994 conclusively determined ownership of the suit property

Holding

No - the suit was struck out on a preliminary objection on locus standi without a hearing on the merits, so it never upheld the Petitioner's title

Reasoning

The judge in the 1994 suit found the plaintiffs lacked locus standi and struck out the suit on a preliminary objection. The matter was never heard on its merits, so no finding was made on the validity of the Petitioner's title. Further, the pre-2010 locus standi rigidity no longer applies under the 2010 Constitution, especially in public-interest cases.

p. 2
02

Whether the Respondent could still review the Petitioner's title under Section 14 of the NLC Act

Holding

The Respondent's power to review grants lapsed on 2/5/2017, but at the date of filing (24/11/2015) it still had the power, and the title remains amenable to review since Article 68(c)(v) set no time limit

Reasoning

The court accepted the Petitioner's submission that the Section 14 review window lapsed on 2/5/2017. However, the petition was filed in 2015 when the power subsisted. Parliament retained discretion to extend the period because Article 68(c)(v) imposed no time limit on the review of grants or dispositions of public land.

p. 2
03

Whether the impugned advertisement and threatened public hearing violated the Petitioner's constitutional rights

Holding

No relief was warranted because there was no evidence the Respondent convened any hearing or called for presentations after its review powers lapsed

Reasoning

The court found the Respondent did not participate in the proceedings and that nothing happened after filing in 2015 until 2020. Although served, the Respondent gave no indication of convening a public hearing or receiving presentations after 2/5/2017, so no actionable threat to the Petitioner's rights existed.

p. 2

Legal principles established

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  • A certificate of title over land previously held by a local authority is public land amenable to review under Article 68(c)(v) of the Constitution
  • The National Land Commission's mandate under Section 14 of the NLC Act to review grants of public land lapsed on 2/5/2017, but Parliament retained discretion to extend the period as Article 68(c)(v) set no time limit

Court orders

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  1. 1.The court declines to grant the orders sought in the Petition
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 27, 40, 47, 48, 50, 67, 68(c)(v)
  • Registration of Titles Act (repealed)Section 23
  • Land Registration ActSection 26
  • National Land Commission ActSection 14
  • Local Government Actnot specified

Cases cited (4)

  • Prof Wangari Mathai and 2 Others v City Council of Nairobi and 2 Others
    HCCC No. 72 of 1994
  • Ngamau Limited v Commissioner of Lands and 2 Others
    High Court Petition No. 89 of 2014
  • Shimoni Resort v Registrar of Titles and 5 Others
    [2016] eKLR
  • Charles Karathe Kiarie and 2 Others v Administrators of the Estate of John Wallace Mathare (Deceased) and 5 others
    [2013] eKLR
Jurisdiction invoked
Articles 20, 22 and 23 of the Constitution

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, "Market Plaza Limited v National Land Commission [2021] KEELC 2946 (KLR)", Case Analysis (2021). ELC Petition No. 520 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2946/eng@2021-05-12

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