Joab Kamau Njoroge v National Land Commission & 3 others [2021] KEELC 3008 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the NLC had jurisdiction to review the Petitioner's grant under Section 14 of the National Land Commission Act
The review power lapsed on 2/5/2017; the determination published on 17/7/2017 was ultra vires and unlawful and was quashed
Section 14 confers on the Commission a five-year mandate to review grants of public land to establish their propriety. The Gazette Notice revoking the Petitioner's title was published on 17/7/2017, after the mandate had lapsed. Parliament had not extended the period, so the Commission could not lawfully review the grant or recommend revocation. The decision was therefore a nullity and had to be removed by certiorari.
Whether the Petitioner's registered title entitled him to a declaration of indefeasible ownership
No; the Court declined to declare him absolute and indefeasible proprietor because the land had been consumed by the Outer-Ring Road construction, a fact the Petitioner did not controvert
Although the Petitioner held a certificate of lease, the 1st Respondent's uncontroverted evidence showed the property sat between a road reserve and power wayleave and had been used up in constructing the Outer-Ring Road. Since the property right encompasses possession and occupation and not a bare title, a declaration of ownership would serve no useful purpose; equally, conservatory orders over the land records were pointless.
Whether the Court of Appeal judgment in the earlier Tena Residents litigation determined ownership of the Suit Property
No; that suit was dismissed for want of prosecution and no finding was made on ownership or whether the land was public
The Petitioner relied on the dismissal of the suit against him by Tena Residents, upheld on appeal, as affirming his ownership. The Court examined the Court of Appeal judgment and found no determination on ownership or on whether the land was public. The suit having been dismissed for want of prosecution after the residents failed to meet court directions, no adjudication on the merits bound the parties.
Legal principles established
#- The National Land Commission's mandate under Section 14 of the National Land Commission Act to review grants of public land was limited to five years and lapsed on 2/5/2017; the Commission could not lawfully exercise that mandate after the lapse unless Parliament extended the period
- The right to property under Article 40 requires possession or occupation, not merely a title document
- Article 40 protection does not extend to property unlawfully acquired
Court orders
#- 1.The decision of the 1st Respondent published in the Kenya Gazette of 17/7/2017 is quashed
- 2.The other reliefs sought in the petition dated 18/9/2017 are declined
- 3.Each party will bear its own costs
- Jurisdiction invoked
- Articles 20, 23, 27, 40, 47, 50(1), 60 and 67 of the Constitution; Section 14 of the National Land Commission Act (original constitutional petition invoking the court's fundamental rights jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joab Kamau Njoroge v National Land Commission & 3 others [2021] KEELC 3008 (KLR)", Case Analysis (2021). ELC Petition No. 17 of 2018 (Formerly Constitutional Petition No. 525 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3008/eng@2021-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.