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ELCPartially AllowedEnvironment & Land Petition 13 of 2021· [2022] KEELC 13521 (KLR)

Karama & 13 others v National Land Commission & 21 others

Environment and Land Court of Kenya
28 September 2022
13,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~54 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled the National Land Commission cannot decide historical injustice claims over private land, voiding its decision.

What this practically means

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Executive summary

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This petition by administrators and beneficiaries of the estates of Yahya Karama Laabdi and Hassan Karama Al-Beid challenged the decision of the National Land Commission delivered on February 7, 2019 and published in the Kenya Gazette on March 1, 2019, which allowed a historical land injustice claim by the 2nd to 20th respondents and directed transfer of plots Mombasa/Block XII/320-356 to them. The petitioners argued the NLC lacked jurisdiction over private land, that the estates had no administrators when the proceedings were held, that the estate of deceased-2 was never notified, and that the claims did not qualify as historical injustices. The respondents countered that the NLC had jurisdiction, the petitioners participated in the hearing, and the proper remedy was an appeal within 28 days under regulation 29 of the NLC (Investigation of Historical Land Injustices) Regulations, 2017. The court held it had jurisdiction under article 162(2)(b) and the ELC Act, but that the NLC's mandate under article 67(2)(e) and section 14 of the NLC Act extends to public land, not private land; the dispute was essentially a breach of sale agreement over private land and no historical injustice was established. The court further found the NLC breached natural justice and the Fair Administrative Action Act, intermeddled with estates of deceased persons contrary to section 45 of the Law of Succession Act, and gave no evidence of proper publication or service of its decision. The petition was allowed in its entirety with six declarations granted, the NLC decision declared a nullity incapable of implementation, and the consolidated originating summons seeking enforcement dismissed. Given the public interest, each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELC

Holding

The ELC has jurisdiction over present and historical land matters under article 162(2)(b) and sections 3 and 13 of the ELC Act

Reasoning

The court found its jurisdiction anchored in article 162(2)(b) of the Constitution and sections 3 and 13 of the ELC Act, allowing it to determine both the petition and the consolidated originating summons.

p. 19
02

NLC jurisdiction over private land

Holding

The NLC lacked jurisdiction to adjudicate a historical injustice claim over private land; the dispute was a breach of sale agreement properly suited in an ordinary court

Reasoning

The court held the NLC's mandate under article 67(2)(e) and section 14 of the NLC Act covers public land; the suit property was private land under article 64, and the claim was essentially a breach of sale agreement, not a historical injustice.

p. 22
03

Natural justice and fair administrative action

Holding

The NLC proceedings of August 28, 2018 and its decision of February 7, 2019 breached natural justice, particularly regarding the estate of deceased-2 which was never notified

Reasoning

The court found no proper proceedings were conducted, the estate of deceased-2 was not invited, no evidence of service of the decision in the prescribed manner existed, and the 28-day appeal window was unrealistic given publication only on the NLC website.

p. 22
04

Intermeddling with estates of deceased persons

Holding

The NLC erred in proceeding with a claim over land of deceased persons while succession causes were pending and without administrators

Reasoning

Relying on section 45(1) of the Law of Succession Act, the court held the NLC persisted in the matter despite knowing no duly appointed administrators existed for the estates.

p. 22
05

Entitlement to relief

Holding

The petitioners were entitled to all the relief sought in the petition

Reasoning

Having found the NLC acted ultra vires and in breach of natural justice, the court granted all six declaratory reliefs sought and dismissed the consolidated originating summons seeking enforcement of the NLC decision.

Legal principles established

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  • The NLC's mandate to investigate historical land injustices extends to public land, not private land, save where land was previously public and converted to private
  • A tribunal cannot intermeddle with the free property of a deceased person where no grant of representation exists
  • State organs including the NLC must observe natural justice and the Fair Administrative Action Act in their proceedings

Court orders

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  1. 1.The petition dated March 8, 2021 be and is hereby allowed
  2. 2.A declaration that plot Nos Mombasa/Block XII/320-356 constituting the assets of the estates of Yahya Karama Laabdi (deceased) and Hassan Karama Al-beid (deceased) are private land within the definition of article 64 of the Constitution
  3. 3.A declaration that under article 67(2)(e) of the Constitution and sections 6 and 15 of the National Land Commission Act No 5 of 2012, the National Land Commission has no jurisdiction to adjudicate claims of historical injustice over private land
  4. 4.A declaration that the proceedings of August 28, 2018 and the decision/award of the NLC delivered February 7, 2019 and published in the Kenya Gazette of March 1, 2019, table 3 item 4 breached the petitioners' rights under articles 40 and 50 of the Constitution
  5. 5.A declaration that the NLC decision is against public policy and breached article 165 of the Constitution by attempting to override orders of the High Court in HCC succession cause No 142 of 2009 and HC succession cause No 174 of 2016
  6. 6.A declaration that the NLC decision is a nullity and incapable of implementation
  7. 7.A declaration that the proceedings leading to the NLC decision did not qualify as a historical claim contemplated under article 67(2)(e) of the Constitution and sections 6 and 15 of the National Land Commission Act
  8. 8.The originating summons No 87 of 2020 Abdulkader Mohamed Awadh Salim & 19 others v Karama Yahya Karama be and is hereby dismissed with no orders as to costs
  9. 9.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 50, 61, 62, 63, 64, 67, 68(c), 159(2)(c), 162(2)(b), 165
  • National Land Commission Act No 5 of 2012Sections 5, 6, 8, 14, 15, 16
  • Environment and Land Court Act No 19 of 2011Sections 3, 13(4)
  • Fair Administrative Action Act 2015Sections 9(2), 9(3)
  • Law of Succession Act cap 160Section 45(1)
  • Limitation of Actions Act cap 22Section 7
  • Evidence Act cap 80Section 83
  • Civil Procedure Act cap 21Section 27(1)
  • Civil Procedure Rules, 2010Order 50 rule 7
  • Land Registration Act, 2012Section 14
  • National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017Rules 3, 12, 13, 14, 15, 18, 20, 22, 27, 29
  • National Land Commission (Investigations of Historical Injustices) Rules 2016Regulation 7(3)
  • Registration of Land Act cap 300 (repealed)

Cases cited (27)

  • Anarita Karimi Njeru v Republic
    (1976-80) 1 KLR 1283

    Precision required in pleading constitutional violations

  • Trusted Alliance Society of Human Rights v Attorney General and others
    (2015) eKLR

    Manner of pleadings in constitutional petitions

  • Ali Noor Abdi Elmi Ali & 2 others v Wilson Kipyegon Chelule & 2 others
    (2021) eKLR

    Meddling with estates of deceased persons

  • The Registered Trustee of the Arya Pratinidhi Sabha, Eastern Africa v The National Land Commission and another
    (2016) eKLR

    NLC mandate to be construed narrowly

  • In the Matter of the National Land Commission advisory reference No 2 of 2014
    (2015) eKLR

    NLC role to be construed as narrowly as possible

  • Fredricks & others v MEC for Education and Training, Eastern Cape & others
    (2002) 23 ILJ 81 (CC)

    Mere quoting of constitutional provisions does not raise pure constitutional issues

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    (2014) eKLR

    Constitutional avoidance principle

  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR, Nbi Civil Application No 92 of 1992

    Where a procedure is provided, it must be followed

  • Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others
    SC (Appl) No 2 of 2011

    A court's jurisdiction flows from the Constitution or legislation or both

  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    1989 eKLR

    Court without jurisdiction acts as a nullity

  • Benson Ambuti Adeja & 2 others v Kibos Distillers Limited & 5 others
    (2020) eKLR

    Court lacks jurisdiction over issues determinable by other properly constituted tribunals

  • Henry Wambega & 4 others v Attorney General & 6 others

    ELC's appellate jurisdiction over historical injustices claims

  • Mwangi Stephen Murithi v NLC & 3 others
    (2018) eKLR

    NLC jurisdiction limited to public land

  • Nicholas Mwatika Mulei v National Land Commission and 3 others
    2018 eKLR

    NLC jurisdiction limited to public land

  • Republic v NLC Ex-parte Krystalline Salt Ltd
    (2015) eKLR

    NLC jurisdiction over public land only

  • Republic v NLC & 4 others ex-parte P Futson Company Limited
    2015 eKLR

    NLC jurisdiction over public land only

  • Judicial Service Commission v Mbalu Mutava & another
    (2012) eKLR

    Fair administrative action and due process

  • Republic v the National Environment Management Authority
    CC No 84 of 2010

    Exhaustion of statutory remedies

  • Vamia Investment Pool Limited v Capital Markets Authority & 8 others
    CA No 92 of 2014

    Exhaustion of statutory remedies

  • William Mutuara Kairiba v Samuel Nkari & 2 others
    (2018)

    Tribunal without jurisdiction is dead

  • Tom Dola & 2 others v Chairman, National Land Commission & 5 others
    (2010) eKLR

    NLC may inquire over privately owned land

  • Republic v National Land Commission & another
    (2018) eKLR

    NLC mandate over private and public land

  • Paul Koinange v Donald Kipkorir
    HCCC No 2040 of 2000

    Suits pegged on non-disclosure of material facts

  • Pop-in (K) Ltd & 30 others v Habib Bank, AG, Zurich
    Civil Appeal No 80 of 1988

    Non-disclosure of material facts

  • Aviation & Airport Services Workers Union (K) v Kenya Airport Authority & another
    (2014) eKLR

    Non-disclosure of material facts

  • Reids Heweet & Company v Joseph
    AIR 1918 Cal 717

    Costs follow the event

  • Myres v Defries
    (1880) 5 Ex D 180

    Meaning of 'costs shall follow the event'

Jurisdiction invoked
Article 162(2)(b) of the Constitution and sections 3 and 13 of the Environment and Land Court Act No 19 of 2011; Articles 22, 23, 40, 50, 67 and 165 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Karama & 13 others v National Land Commission & 21 others", Case Analysis (2022). Environment & Land Petition 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13521/eng@2022-09-28

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