Republic v National Land Commission & 6 others; Tuei & 4 others (Interested Parties); James Finlays Kenya Ltd & 12 others (Exparte) (Being Members of Kenya Tea Growers Association & Kenya Tea Growers Association)
The bottom line
#Kenya's Environment and Land Court quashed National Land Commission recommendations on historical land injustice claims against tea companies because the companies were never given proper notice or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Competency of the judicial review applications (jurisdiction and representative-suit objections)
The objections failed. The jurisdictional challenge was res judicata, having been determined in the Court's Ruling of 16 December 2021; the Civil Procedure Rules (save Order 53) do not strictly apply to judicial review, so lack of written authority for the deponent was not fatal; and Eastern Produce Kenya Limited had locus standi despite mis-description of its name.
The Court held the transfer from the High Court was valid under concurrent jurisdiction and could not be collaterally attacked. Order 1 Rule 8 was held inapplicable to judicial review; the mischief of the rule was satisfied since no affected tea estate disowned the deponent. The Gazette notice named Eastern Produce Kenya Limited, establishing its locus.
Whether absence of the annulled NLC (Historical Land Injustices) Regulations rendered the proceedings a nullity (JR 3 and 4)
No. Section 15 of the NLC Act sufficiently guides the Commission's proceedings; the regulations merely streamlined the constitutional mandate.
Following R vs NLC ex-parte Holborn Properties, the Court held the Act is clear on how the exercise should be carried out. The Commission is constitutionally mandated under Article 67 to investigate historical land injustices, and the annulled regulations cannot upheave that mandate.
Whether the NLC investigations in JR 3 (Kericho/Bomet claims) breached fair administrative action
Yes. No notice was given to the Applicants and no evidence of public notification via radio or public address systems was adduced; the proceedings were vitiated by procedural impropriety and the recommendations were a nullity.
The Hansard showed no representation by the Applicants. The Court held it insufficient for the NLC to allege that parties resident in Kericho and Bomet ought to have known of the hearings. Notice must be sufficiently precise, and the investigative (non-adversarial) nature of the process does not dispense with notice and an opportunity to be heard.
Whether the NLC recommendations in JR 4 (Kakuzi) were issued in breach of court stay orders
Yes. The conservatory orders of 29 October 2018 were a blanket stay on the proceedings in respect of the complaints; the NLC could not import its public land mandate to continue, and after the stay lapsed it should have set new hearing dates and notified the Applicant. The recommendations were ultra vires, illegal and procedurally improper.
The proceedings were conducted under the historical land injustice jurisdiction, so the stay covered them entirely. Even on the NLC's own construction, the Applicant was entitled to notice and representations before administrative action affecting it, particularly where facts such as the status of public utilities were disputed.
Whether Eastern Produce (JR 5) was denied a fair hearing
No. The Applicant attended sessions on 10 and 11 July 2018, was granted 21 days to respond and directed to obtain the documents it needed, but filed no response. Fairness does not require an adversarial hearing.
The Hansard confirmed counsel's presence and the directions given. The NLC, as a tribunal, is master of its own procedure provided it achieves appropriate fairness. Having been given a reasonable opportunity and not utilizing it, the Applicant could not complain of denial of hearing. The directives remained recommendations, not determinations in excess of jurisdiction.
Whether the NLC's directives were determinations in excess of jurisdiction under Section 15(9) of the NLC Act
In JR 5 the Court held the directives remained recommendations implementable by other bodies and not in excess of jurisdiction; in JR 3 and 4 the question was moot given the nullity finding.
Relying on the Supreme Court's Advisory Opinion No 2 of 2014, words like recommend and investigate denote a facilitative role. Directives requiring implementation by other organs remain recommendations notwithstanding the absence of the word 'recommend'.
Legal principles established
#- The absence of regulations governing NLC historical land injustice investigations does not render the Commission's proceedings a nullity where the NLC Act sets out the parameters
- Failure to notify an affected party of a complaint and to afford it an opportunity to be heard is a grave violation of fair administrative action rendering the resultant decision a nullity, even in investigative (non-adversarial) proceedings
- A blanket stay of proceedings by a court binds the administrative body entirely; it cannot pick and choose which aspects of its mandate to continue
- A party given a reasonable opportunity to be heard who fails to utilize it cannot later complain of denial of a fair hearing; fairness does not require a full adversarial hearing
- Declaratory orders are not available within judicial review proceedings under Order 53
Court orders
#- 1.In ELC JR No 3 of 2020: certiorari quashing the Gazette Notice of 1 March 2019 in so far as it relates to the NLC recommendations dated 18 February 2019 on claims by Kericho and Bomet County Governments (Refs NLC/HL1/044/2017, NLC/HL1/546/2018 and NLC/HL1/173/2017)
- 2.In ELC JR No 3 of 2020: prohibition prohibiting the Director of Surveys and the County Governments of Kericho and Bomet from implementing the said recommendations
- 3.In ELC JR No 3 of 2020: the 1st Respondent to pay the Applicant the costs of the application
- 4.In ELC JR No 4 of 2020: certiorari quashing the Gazette Notice of 1 March 2019 in so far as it relates to NLC/HLI/530/2018, NLC/HLI/069/2017, NLC/HLI/063/2017, NLC/HLI/006/2017, NLC/HLI/049/2017, NLC/HL1/170/2018, NLC/HLI/176/2018 and NLC.HLI/052/2017
- 5.In ELC JR No 4 of 2020: prohibition prohibiting the Director of Surveys, the National Land Commission and the County Government of Muranga from implementing the said recommendations
- 6.In ELC JR No 4 of 2020: the 1st Respondent to pay the costs of the application
- 7.In ELC JR No 5 of 2020: the Notice of Motion dated April 18, 2019 dismissed
- 8.In ELC JR No 5 of 2020: the ex parte Applicant to pay the costs of the application
- Jurisdiction invoked
- Judicial review under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, transferred from the High Court under concurrent jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026
- County Government of Kwale v National Land Commission & 3 others; Mwangele & 450 others (Interested Parties) (Environment & Land Petition E004 of 2022) [2025] KEELC 3446 (KLR)[2025] KEELC 3446 (KLR)29 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 6 others; Tuei & 4 others (Interested Parties); James Finlays Kenya Ltd & 12 others (Exparte) (Being Members of Kenya Tea Growers Association & Kenya Tea Growers Association)", Case Analysis (2023). Judicial Review 3 of 2020 & Environment and Land Judicial Review Case 4 & 5 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16903/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.