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ELCPartially AllowedELC Petition No. 6 of 2019· [2021] KEELC 3009 (KLR)

Karaini Investment Limited v National Land Commission & 2 others [2021] KEELC 3009 (KLR)

Environment and Land Court
26 April 2021
KBK. BOR
3,833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's National Land Commission had no power to revoke this private land title, and its unheard decision was declared void.

What this practically means

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Executive summary

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The petitioner, Karaini Investment Limited, held title to LR No. 36/I/14 in Eastleigh, Nairobi, transferred to it in 1986 by Njeru Munge, who had died on 14/10/1978. The estate complained to the National Land Commission that the title was fraudulently obtained. NLC purported to hear the complaint on 8/7/2016 and issued a determination dated 28/4/2017 directing that the property be reverted to the estate, with a directive to the Chief Land Registrar conveyed by letter of 18/12/2018. The petitioner petitioned the ELC under Articles 22, 23, 40, 47 and 50, alleging violations of its property rights and rights to fair administrative action and fair hearing. The court found that documents NLC relied on had been filed after the purported hearing date, that the petitioner was not heard, and that the decision cited a judicial review judgment delivered on 26/7/2018 by Mativo J, proving the decision was backdated. On jurisdiction, the court held that Section 14 of the NLC Act empowered NLC only to review grants of public land within five years of 2/5/2012, that the Suit Property had long ceased to be public land, and that disputes over transactions between private parties over private land fall within the ELC and subordinate courts. NLC's determination was therefore made without jurisdiction. The court declared that NLC violated Article 47 and nullified the decision and directive as offending natural justice. However, it refused the injunction against the interested parties and made no orders for a fresh hearing, leaving the parties to move the court as they deemed fit. Costs were awarded to the petitioner against the respondent.

Key legal issues

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01

Whether NLC had jurisdiction over the 1st Interested Party's complaint

Holding

NLC lacked jurisdiction; the complaint concerned transactions over private land between private entities, not the initial conversion of public land, and the decision was also made after the statutory review period lapsed on 2/5/2017

Reasoning

Article 68(c)(v) and Section 14 of the NLC Act empowered NLC only to review grants or dispositions of public land to establish their propriety or legality, within five years of 2/5/2012. The Suit Property had long ceased to be public land by the time of the disputed 1978 and 1986 transfers. The court also found the decision dated 28/4/2017 was backdated, since it cited a judgment (Mativo J, 26/7/2018) delivered after that date, so the determination was made after the mandate lapsed and was therefore without jurisdiction.

p. 4
02

Whether NLC violated the Petitioner's rights to fair administrative action and fair hearing

Holding

Yes; the process was flawed and the decision, taken without hearing the Petitioner and communicated almost two years later, violated Article 47

Reasoning

The court found that documents NLC purported to rely on had been filed after the date it claimed to have heard the dispute, that the Petitioner did not participate in any hearing despite NLC's ruling of 20/4/2017 directing a hearing on 14/6/2017, and that the decision referred to a judgment not yet delivered. The Petitioner only learned of the determination through NLC's letter of 18/12/2018, demonstrating a process that offended natural justice and fair administrative action.

p. 4
03

Whether an injunction should issue against the Interested Parties

Holding

No; the petition succeeded on the procedural/jurisdictional issues but the court declined to restrain the Interested Parties

Reasoning

The court made findings on jurisdiction and the nullity of NLC's decision but considered that no basis was established for an injunction over the Suit Property. It also declined to order a fresh hearing, leaving the parties to institute appropriate proceedings before the ELC or subordinate courts as they deemed fit.

p. 4

Legal principles established

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  • NLC's mandate under Section 14 of the National Land Commission Act to review grants of public land lapsed on 2/5/2017 and a decision made after that date was made without jurisdiction
  • NLC's review jurisdiction did not extend to disputes over transfers between private parties of private land; such disputes fall within the ELC and subordinate courts
  • A decision rendered without affording a party a hearing violates Article 47 and is null and void

Court orders

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  1. 1.Declaration that the Respondent's conduct of the proceedings violated the Petitioner's right to fair administrative action under Article 47
  2. 2.Nullification of NLC's decision dated 28/4/2017 and its directive of 18/12/2018 to the Chief Land Registrar as offending the rules of natural justice
  3. 3.Refusal of an injunction restraining the Interested Parties from trespassing on or interfering with the Suit Property
  4. 4.No orders regarding a fresh hearing; parties free to move the court
  5. 5.Costs of the petition granted to the Petitioner, borne by the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 3, 22, 23, 25(c), 40, 47, 50(1), 62, 64, 67, 68(c)(v), 162(2)
  • Fair Administrative Actions ActSection 4
  • National Land Commission ActSection 14
  • Environment and Land Court Actnull
  • Land Registration ActSections 6, 101
  • Land ActSections 7, 150, Part II, Part III, Part VIII
  • Government Lands Act (repealed)null
  • Ethics and Anti-Corruption Commission Actnull

Cases cited (6)

  • Patrick Musimba v National Land Commission & Others
    [2016] eKLR
  • Republic v National Land Commission: Estate of Fred Kubai (Interested Party); Ex parte Comply Industries Limited
    [2018] eKLR
  • Republic v National Land Commission, Ex parte Krystalline Salt Limited
    [2015] eKLR
  • Republic v National Land Commission, Ex parte Holborn Properties Limited
    [2016] eKLR
  • Compar Investments Limited v National Land Commission & 3 Others
    [2016] eKLR
  • Republic v National Land Commission and the Estate of Njeru Munge, Ex parte Karaini Investments Limited
    High Court Judicial Review Case No. 172 of 2017
Jurisdiction invoked
Articles 22, 23, 40, 47, 50, 64, 67 and 162(2) of the Constitution; Fair Administrative Actions Act; National Land Commission Act Section 14; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karaini Investment Limited v National Land Commission & 2 others [2021] KEELC 3009 (KLR)", Case Analysis (2021). ELC Petition No. 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3009/eng@2021-04-26

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