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ELCAllowedJudicial Review application, Notice of Motion dated 20th May 2019 (Malindi)· [2024] KEELC 3606 (KLR)

Krystalline Salt Limited v National Land Commission; Birya (Interested Party) (Judicial Review Application 4 of 2019) [2024] KEELC 3606 (KLR)

Environment and Land Court
16 January 2024
4,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed National Land Commission recommendations against Krystalline Salt, confirming the Commission can recommend but never revoke land titles.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) allows a judicial review Notice of Motion dated 20th May 2019 by Krystalline Salt Limited seeking certiorari to quash and prohibition against the National Land Commission's recommendations of 9th November 2018, gazetted in Gazette Notice Vol. CXX No. 138, concerning the Applicant's properties LR No. 13427 and LR No. 25565. The Interested Party, Katana Fondo Birya, had complained that the Applicant encroached on 34 hectares of his land. The court framed four issues: the Commission's mandate, ultra vires conduct or bad faith, compliance with fair administrative action, and whether the judicial review threshold was met. Relying on Article 67(2)(e) of the Constitution and Section 14 of the National Land Commission Act, the court held the Commission may inquire into land currently private but formerly public, but only procedurally and by way of recommendation. It found the Commission acted ultra vires in effectively revoking the Applicant's title and ordering cession of 34 hectares, since revocation of title vests in the Land Registrar and boundary disputes are reserved for the Registrar under Section 18(2) of the Land Registration Act. The court further found the hearings were a nullity for disobedience of a subsisting court injunction, and were sub judice given pending ELC proceedings. Concluding the process was tainted with illegality, the court allowed the motion as prayed with costs to the Applicant.

Key legal issues

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01

Whether the NLC acted within its mandate in reviewing the Applicant's private titles

Holding

The Commission may inquire into land currently private but previously public, but only to make recommendations within its mandate; it acted ultra vires by effectively revoking title and ordering cession of 34 hectares.

Reasoning

Article 67(2)(e) empowers the NLC to investigate historical land injustices and recommend redress. Section 14(1) of the NLC Act allows review of grants or dispositions of public land. However, the power to revoke title vests in the Land Registrar under Section 15 upon a court order, not the Commission. The Commission's recommendations that the Applicant surrender land and cede 34 hectares were a determination to revoke title couched as a recommendation, exceeding its mandate.

p. 8
02

Whether the Commission could determine what was in substance a boundary dispute

Holding

The complaint that the Applicant encroached on 34 hectares was a boundary dispute reserved for the Land Registrar under Section 18(2) of the Land Registration Act; the Commission acted ultra vires in determining it.

Reasoning

Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes unless boundaries have been determined in accordance with the section. Azzuri Limited confirms such disputes belong to the Land Registrar. The Interested Party's complaint to the Commission was of encroachment, effectively a boundary dispute, so the Commission acted outside its jurisdiction in ordering cession of 34 hectares.

p. 9
03

Whether the hearings were conducted in disobedience of a court injunction and sub judice

Holding

Hearings conducted while an injunction barring them was in force were a nullity; the NLC was barred from determining a dispute pending before the ELC.

Reasoning

The Hansard records Commissioner Abigael Mbagaya acknowledging service of a court order stopping the hearings. No evidence showed the order had been lifted when hearings took place. Robert Mutiso Lelli holds that where a court of law is seized of an ownership dispute, the NLC must exercise restraint and cannot oust the court's jurisdiction by hearing the same dispute.

p. 9
04

Scope of judicial review grounds

Holding

Judicial review targets the decision-making process, not the merits, on grounds of illegality, irrationality and procedural impropriety; the Commission's process was tainted with illegality.

Reasoning

Lord Diplock's classification in Council for Civil Services Unions grounds review in illegality, irrationality and procedural impropriety. The Supreme Court in Peninah Nadako Kilishwa confirms the court examines the process, not the merits. The Commission's flawed process rendered its recommendations illegal and a proper target for certiorari.

p. 7

Legal principles established

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  • The National Land Commission has power to review grants but cannot itself revoke titles; the power to revoke title is vested in the Land Registrar and the Commission can only recommend.
  • Boundary disputes are the preserve of the Land Registrar and the NLC acts ultra vires by determining encroachment between neighbouring parcels.
  • Where a court is seized of an ownership dispute, the NLC cannot purport to hear and determine an inquiry on the same dispute.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 20th May 2019 is allowed as prayed
  2. 2.Judicial review orders of certiorari to bring up and quash the respondent's recommendations dated 9th November 2018 vide Gazette Notice Vol. CXX No. 138 relating to LR No. 132427 (13427) and LR No. 25565
  3. 3.Prohibition restraining the respondent from implementing the said recommendations
  4. 4.Costs of the application to the Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 60(1), 61(2), 62, 64, 67, 68(c)(v), 2(4)
  • National Land Commission ActSections 14(1), 14(4), 14(5), 15
  • Fair Administrative Actions ActSections 4(3), 5
  • Land Registration ActSections 18(1),(2),(3), 19(3), 20
  • Survey ActCap. 299
  • Civil Procedure RulesOrder 21 [1]

Cases cited (20)

  • Robert Mutiso Lelli and Cabin Crew Investments Ltd v National Land Commission & 3 Others
    [2017] eKLR
  • Republic v Secretary of the Firearms Licensing Board & 2 others Ex parte Senator Johnson Muthama
    [2018] eKLR
  • Republic versus National Land Commission Act ex Parte Giraffe Estate Ltd; City County Government of Nairobi and 5 Others (interested parties)
    [2020] eKLR
  • Republic v National Land Commission & 3 others Ex-parte Samuel Githegi Mbugua & 5 others
    [2018] eKLR
  • Konton Trading Limited vs Kenya Revenue Authority & 3 others
    [2018] eKLR
  • Pevans East Africa Limited vs Betting Control & Licensing Board & 2 Others, Safaricom Limited & another (Interested Parties)
    [2019] eKLR
  • Republic vs Counterfeit Agency Ex Parte Caroline Mungat a/t/a Hair Works Saloon
    [2018]
  • Republic vs Commissioner for Domestic Taxes Ex Parte, Fluer Investments Limited
    [2020] eKLR
  • Republic vs National Land Commission & another Ex Parte Farmers' Choice Limited
    [2020] eKLR
  • Martin Nyaga Wambora v Speaker of the County of Assembly of Embu & 3 Others
    [2014] eKLR
  • Republic vs National Land Commission Ex Parte Krystalline Salt Limited
    [2015] eKLR
  • Katana Fondo Birya Vs Krystalline salt Ltd & 2 others
    [2018] eKLR
  • Republic vs National Land Commission Ex Parte Holborn Properties Limited
    [2016] eKLR
  • Selvarajan v Race Relations Board
    [1976] 1 All ER
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • Council for Civil Services Unions –vs- Minister for Civil Service
    (1985) AC 374
  • Peninah Nadako Kilishwa –v- Independent Electoral Boundaries Commission (IEBC) & 2 others
    (2015) eKLR
  • Compar Investments Limited vs. National Land Commission & 3 others
    (2016) eKLR
  • Mwangi Stephen Muriithi v National Land Commission & 3 others
    [2018] eKLR
  • Azzuri Limited v Pink Properties Limited
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction (certiorari and prohibition) of the Environment and Land Court; motion brought under the Fair Administrative Action Act and Article 47 of the Constitution

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, "Krystalline Salt Limited v National Land Commission; Birya (Interested Party) (Judicial Review Application 4 of 2019) [2024] KEELC 3606 (KLR)", Case Analysis (2024). Judicial Review application, Notice of Motion dated 20th May 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3606/eng@2024-01-16

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