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ELCDismissedPetition dated 30th March 2016 (Kisii ELC)· [2021] KEELC 4268 (KLR)

Esther Mogaka v National Land Commission & another [2021] KEELC 4268 (KLR)

Environment and Land Court
10 February 2021
2,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisii confirmed that Kenya's National Land Commission can lawfully invite landowners to a review of their title grants before any rights are violated.

What this practically means

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Executive summary

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The Petitioner, Esther Kemuma Mogaka, petitioned the Environment and Land Court at Kisii complaining that the National Land Commission had published a newspaper advertisement on 16th March 2016 in the Star inviting representations concerning parcels L.R Nos KISII MUNICIPALITY/BLOCK III/358 and 359, allegedly on the basis that they sat on a riparian reserve. She sought declarations that the publication and the intended review of her grants were unconstitutional, an order of certiorari to quash the advertisement, and a permanent injunction restraining the Commission from conducting review proceedings over the suit properties. The Respondents did not file a response and the matter proceeded ex parte on written submissions. The court framed four issues: the lawfulness of the allocation, the propriety of the NLC's review, res judicata, and entitlement to relief. It found the original allotment lawful under the Government Lands Act, and held that the advertisement was a lawful exercise of the NLC's mandate under section 14 of the National Land Commission Act, which requires notice and an opportunity to be heard. The prior consent decree in Kisii ELC Case No. 166 of 2011 did not trigger res judicata because the present respondents were not parties to that suit. Applying the Anarita Karimi Njeru principle, the court held the petition premature and lacking precision in pleading constitutional violations. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Lawfulness of the allocation of the suit properties

Holding

The allotment was proper and lawful, following the procedure under the Government Lands Act (now repealed).

Reasoning

The Petitioner was allocated two un-surveyed plots by the Commissioner of Lands, later registered as L.R Nos KISII MUNICIPALITY/BLOCK III/358 and 359. The uncontroverted affidavit evidence showed necessary payments were made before registration. Under the Government Lands Act the Commissioner had power to allocate un-alienated government land, and in the absence of contrary evidence the court found the statutory procedure was followed.

p. 2
02

Whether the NLC's advertisement for review of the grants was lawful

Holding

The advertisement was a lawful exercise of the NLC's powers under section 14 of the National Land Commission Act and did not violate the Petitioner's rights.

Reasoning

The impugned advertisement made no reference to riparian land; it merely invited owners of the listed parcels to appear before the Commission with their title documents. Section 14(3) requires notice and an opportunity to be heard. Had the Commission acted without advertisement, the Petitioner could have complained of breach of due process under Article 47. If her titles were lawfully obtained, she has nothing to fear from the review.

p. 3
03

Res judicata arising from the prior Kisii ELC suit

Holding

Res judicata does not apply because the respondents in the present petition were not parties to the earlier suit.

Reasoning

The earlier decree in Kisii ELC Case No. 166 of 2011, entered by consent, restrained the defendants therein from interfering with the suit properties and remains in force. However, the principle of res judicata binds only parties and their privies. Since the respondents in the instant petition were not parties to the earlier suit, the review proceedings are not barred by the doctrine of finality.

p. 3
04

Whether the Petitioner is entitled to the constitutional reliefs sought

Holding

The petition fails for prematurity and failure to plead with precision the constitutional violations alleged.

Reasoning

The Petitioner did not demonstrate how her constitutional rights were violated or threatened by a mere invitation to appear before the Commission. Applying the Anarita Karimi Njeru principle, a party seeking redress on a constitutional matter must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement. The suit was premature as the review process had not concluded.

p. 3

Legal principles established

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  • The National Land Commission has power under section 14 of the National Land Commission Act to review grants and dispositions of public land, and notice by advertisement inviting interested parties to a hearing is a lawful exercise of that mandate.
  • A constitutional petition must plead with precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru principle).
  • Res judicata does not arise where the parties in the subsequent proceedings were not parties to the earlier suit.

Court orders

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  1. 1.The Petitioner's suit is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 60, 67, 68(c)(v)
  • National Land Commission ActSection 14(1)-(9)
  • Government Lands Act (now repealed)Procedure for allocation of un-alienated government land

Cases cited (2)

  • Independent, Electoral and Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
  • Anarita Karimi Njeru v Republic
    1979 eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - constitutional petition under the Bill of Rights (Articles 40, 47, 67, 68(c) invoked)

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, "Esther Mogaka v National Land Commission & another [2021] KEELC 4268 (KLR)", Case Analysis (2021). Petition dated 30th March 2016 (Kisii ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4268/eng@2021-02-10

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