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ELCDismissedPetition (Nairobi), notice of motion dated 16/6/2020· [2021] KEELC 4097 (KLR)

Kenya Civil Aviation Authority v National Land Commission & 3 others; Kenya Commercial Bank Limited (Interested Party) [2021] KEELC 4097 (KLR)

Environment and Land Court
3 March 2021
BEB M Eboso
7,573 words in judgment
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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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This Environment and Land Court judgment at Nairobi, delivered by B M Eboso J on 3 March 2021, decides a notice of motion dated 16/6/2020 by the 2nd respondent (Weston Hotel Limited) seeking dismissal of a petition by the Kenya Civil Aviation Authority for want of jurisdiction and abuse of process. The petition challenged a report of findings and recommendations of the National Land Commission dated 21/1/2019 concerning LR 209/14372, in which the Commission found Weston Hotel to be a bona fide purchaser but directed it to pay the current market value of the land to the petitioner before the Commission could regularise its title. The petitioner sought certiorari, declarations of ownership, rectification of the register, mandamus, vacant possession, damages, mesne profits and costs. The applicant argued the only remedy against the report was an appeal to this court under Regulation 30 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations 2017. The court held that the report was made, on its face, under Section 6 of the National Land Commission Act because the Commission's Section 14 review mandate had expired, so Regulation 30 - which applies only to Section 14 decisions - did not govern it. Alternatively, the word 'may' in Regulation 30 is permissive and did not oust the court's jurisdiction under Articles 22, 23 and 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to entertain rights-enforcement and judicial review petitions concerning land. The application was declined with costs in the cause; the petition itself awaits full hearing.

Key legal issues

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01

Whether an appeal under Regulation 30 was the exclusive remedy against the Commission's report

Holding

No. The report was made under Section 6, not Section 14, so the Regulation 30 appeal mechanism did not apply to it.

Reasoning

The court examined the report and forwarding letter and found the Commission expressly acknowledged its Section 14 mandate had lapsed and purported to act under Section 6. Since Regulation 30 governs appeals only from decisions made under Section 14, the report was not appealable under it, and the doctrine of exhaustion of remedies was not triggered on those facts.

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02

Whether Regulation 30 ousted the court's original constitutional and judicial review jurisdiction

Holding

No. The word 'may' in Regulation 30 is permissive, and the petition under Articles 22 and 23 for certiorari and mandamus was properly before the court.

Reasoning

Article 23(3)(f) with Article 162(2)(b) and Section 13 of the Environment and Land Court Act empower the court to grant judicial review orders in rights-enforcement petitions concerning land. The legislating authority's use of 'may' allowed aggrieved parties to choose the most efficacious redress; an appeal would be academic where the Commission rendered no binding Section 14 decision and the dispute would remain unresolved.

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Legal principles established

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  • The appeal mechanism in Regulation 30 applies only to decisions made by the Commission in exercise of its review mandate under Section 14 of the National Land Commission Act
  • The permissive word 'may' in Regulation 30 did not completely oust the court's constitutional jurisdiction under Articles 22 and 23 or its judicial review jurisdiction under the Fair Administrative Action Act

Court orders

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  1. 1.The application dated 16/6/2020 brought by the 2nd respondent is declined for lack of merit
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 23(3)(f), 40, 47, 48, 50, 60, 62, 67, 67(2)(e), 67(3), 68(c)(v), 159, 162(2)(b), 165(6)
  • National Land Commission ActSections 2, 6, 6(2), 14, 15
  • National Land Commission (Review of Grants and Dispositions of Public Land) Regulations 2017Regulation 30
  • Interpretation and General Provisions ActSections 23, 26
  • Fair Administrative Action ActSection 7(2)
  • Environment and Land Court ActSection 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4 and 10

Cases cited (10)

  • Compar Investments Ltd v National Land Commission & 3 others
    (2016) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 6 others
    [2013] eKLR
  • Supreme Court of Kenya Advisory Opinion No 2 of 2011
  • Owners of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Ltd
    (1989) KLRI
  • Communications Commission of Kenya v Royal Media Services and Others
  • Republic v National Land Commission & 3 Others ex parte Samuel Githegi Mbugua & 5 Others
    [2018] eKLR
  • Macfoy v Limited Africa Co Ltd
    (1961) 3 ALL LR 1169
  • Desai v Warsam
    (1967) I EA 35
  • Republic v Firearms Licensing Board & another ex-parte Boniface Mwaura
    [2019] eKLR
  • Samuel Kamau Macharia v Kenya Kenya Bank Ltd
    [2012] eKLR
Jurisdiction invoked
Articles 22, 23 and 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act

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, "Kenya Civil Aviation Authority v National Land Commission & 3 others; Kenya Commercial Bank Limited (Interested Party) [2021] KEELC 4097 (KLR)", Case Analysis (2021). Petition (Nairobi), notice of motion dated 16/6/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4097/eng@2021-03-03

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