Krystalline Salt Limited v National Land Commission; Birya (Interested Party) (Judicial Review Application 4 of 2019) [2024] KEELC 3606 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the NLC acted within its mandate in reviewing the Applicant's private titles
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.
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.
Whether the Commission could determine what was in substance a boundary dispute
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.
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.
Whether the hearings were conducted in disobedience of a court injunction and sub judice
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.
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.
Scope of judicial review grounds
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.
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.
Legal principles established
#- 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
#- 1.The Applicant's Notice of Motion dated 20th May 2019 is allowed as prayed
- 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.Prohibition restraining the respondent from implementing the said recommendations
- 4.Costs of the application to the Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.