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ELCStruck OutEnvironment & Land Miscellaneous Case E019 of 2022· [2023] KEELC 16808 (KLR)

Owinyo & 3 others (Appealing for and on behalf of the Communities of Alego and Yimbo) v National Land Commission & another; Lake Agro Limited & others (Interested Party)

Environment and Land Court
13 April 2023
3,889 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled it has no power to hear appeals against National Land Commission land allocation decisions, striking out the community's challenge.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Siaya (A.Y. Koross, J) determined a Notice of Motion dated 19/12/2022 by four Applicants appealing for and on behalf of the Communities of Alego and Yimbo against a decision of the National Land Commission released on 24/11/2022, recommending allocation of parcels Usonga/Usonga/Block 1/4, 1/7 and 1/8 to Lake Agro Limited. The Applicants sought conservatory orders suspending the NLC determination and leave to admit the appeal out of time, invoking Regulation 30 of the NLC (Review of Grants and Dispositions of Public Land) Regulations 2017 and Section 16A of the Environment and Land Court Act. All Respondents and the 6th Interested Party filed preliminary objections attacking the court's jurisdiction, the Applicants' locus standi, authority, and compliance with procedural rules. The court framed eight issues but resolved the motion on jurisdiction alone. It held that the NLC, in making the impugned decision, was exercising its mandate under Section 14 of the Land Act; that the NLC is not a tribunal within Section 13(4) or Section 16A of the ELC Act; that Regulation 30 was inapplicable and had lapsed; and that the Land Act and the Land (Allocation of Public Land) Regulations 2017 contain no appellate mechanism to the ELC. The court therefore concluded it was bereft of jurisdiction, struck out the motion, and ordered each party to bear their own costs in light of the public interest nature of the matter. The remaining issues - locus standi, res judicata, exhaustion and conflict of interest - were left undetermined.

Key legal issues

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01

Whether the ELC can exercise appellate jurisdiction over an NLC decision made under Section 14 of the Land Act

Holding

No. The court lacks appellate jurisdiction over such decisions; the only avenues are original jurisdiction or judicial review.

Reasoning

The court examined Section 14 of the Land Act, the Land (Allocation of Public Land) Regulations 2017, Section 14 of the NLC Act with Regulation 30, and Section 16A of the ELC Act. It found the NLC is not a tribunal under Article 169, that Regulation 30 was inapplicable and had lapsed, and that the Land Act provisions contain no appellate mechanism to the ELC. Jurisdiction is conferred by Constitution or statute and cannot be assumed.

p. 9
02

Whether the Applicants' invocation of Regulation 30 of the NLC (Review of Grants and Dispositions of Public Land) Regulations and Section 16A of the ELC Act was competent

Holding

No. Both provisions were misapprehended; Regulation 30 was inapplicable to allocation under Section 14 of the Land Act and had lapsed in any event.

Reasoning

The impugned decision concerned allocation of land under Section 14 of the Land Act, not review of grants under Section 14 of the NLC Act. The court noted that even if Regulation 30 applied, it had lapsed with a bill pending in Parliament to extend its timelines. Section 16A applies to appeals from subordinate courts and local tribunals, which the NLC is not.

p. 8
03

Whether the Applicants' challenge to the outcome rather than the process of the NLC decision could be entertained

Holding

The Applicants' express challenge to the outcome of the decision confirmed the matter was not amenable to judicial review and the court had no appellate jurisdiction over it.

Reasoning

The Applicants were categorical they were not challenging the process by which the NLC carried out its mandate but the outcome of the decision. The court held the Respondents' argument that judicial review was the proper route did not hold water, but since no appellate jurisdiction existed either, the motion had to fail.

p. 8

Legal principles established

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  • A court's jurisdiction flows only from the Constitution or legislation and cannot be arrogated beyond what is conferred by law
  • The Environment and Land Court cannot exercise appellate jurisdiction over decisions of the National Land Commission made under Section 14 of the Land Act, as neither the Land Act nor the Land (Allocation of Public Land) Regulations 2017 provide appellate mechanisms to the ELC
  • The National Land Commission is not a tribunal within the meaning of Section 13(4) of the Environment and Land Court Act or Section 16A

Court orders

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  1. 1.The Notice of Motion dated 19/12/2022 is struck out as not merited
  2. 2.Each party shall bear their respective costs
On appeal from
National Land Commission
Objections relating to intention to allocate LR Numbers Usonga/Usonga/Block 1/4, 1/7 and 1/8
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; court found it lacked jurisdiction over the impugned decision

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, "Owinyo & 3 others (Appealing for and on behalf of the Communities of Alego and Yimbo) v National Land Commission & another; Lake Agro Limited & others (Interested Party)", Case Analysis (2023). Environment & Land Miscellaneous Case E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16808/eng@2023-04-13

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