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ELCPartially AllowedNaivasha ELC Petition No. 7 of 2024· [2025] KEELC 82 (KLR)

Andrew Karanja Muigai & 8 Others v Registrar of Lands Naivasha & National Land Commission

Environment and Land Court
23 January 2025
5,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The High Court-style land court confirmed the National Land Commission cannot revoke Kenyan land titles after its five-year legal deadline expired.

What this practically means

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Executive summary

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The Petitioners, registered proprietors of parcels of land known as Naivasha/Maraigushu Block 8/217, 225, 226, 449, 450, 451, 453, 522, 523, 524, 525, 526, 527, 528, 530, 531, 532 and 533, challenged the National Land Commission's decision revoking their registrations following a complaint by the late Davies Kamonjo Kabiru on behalf of the Mwega community that plots reserved for public utilities had been illegally allocated. They sought declarations that the revocation violated their rights to property and fair hearing, injunctions, and costs. The petition was undefended; the suit against the deceased 1st Respondent was withdrawn. The court held that even in an undefended petition the burden of proof remained on the petitioners, and that they had set out their complaints with reasonable precision per Anarita Karimi Njeru. Framing the issues as the Commission's jurisdiction and fair hearing, the court found that under Section 14(1) of the National Land Commission Act all reviews had to be completed within five years of commencement (by 2nd May 2017), yet the Commission's determination was made on 21st January 2019. No Gazette, newspaper or on-parcel publication of the revocation was proved as required by Regulation 28(3) of the 2017 Regulations. Following Likizo Limited v Nasib Kashuru Limited, the determination was unlawful, ultra vires, null and void for want of jurisdiction, and the fair-hearing issue fell away. The court allowed the petition, reverted the Petitioners to their pre-determination position, enjoined the 2nd Respondent from implementing the determination, and awarded costs to the Petitioners.

Key legal issues

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01

Whether the National Land Commission had jurisdiction to revoke the Petitioners' titles

Holding

No. The Commission's determination dated 21st January 2019 was made after the expiry of its five-year mandate under Section 14(1) of the National Land Commission Act, and no publication of the revocation was effected as required by Regulation 28(3) of the Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017.

Reasoning

The National Land Commission Act commenced on 2nd May 2012, so all reviews under Section 14(1) were to be completed by 2nd May 2017. The Commission's determination was made on 21st January 2019, outside that window. The evidential burden shifted to the Commission to show it completed the review in time, but it did not participate despite service. Following Likizo Limited v Nasib Kashuru Limited, a determination outside the five-year period without parliamentary extension is unlawful, ultra vires and null and void. There was also no Gazette, newspaper or on-parcel publication of the revocation.

p. 18
02

Whether the Petitioners were granted a fair hearing during the review process

Holding

The court declined to determine this issue, holding that once the Commission's lack of jurisdiction was established, its recommendations were null and void ab initio and addressing the fair-hearing question would lend legitimacy to the process.

Reasoning

Relying on the Court of Appeal's reasoning in Likizo Limited v Nasib Kashuru Limited, once the Commission's recommendation was found to be time-barred and therefore without jurisdiction, its recommendations were null and void ab initio. Addressing whether the Petitioners received a fair hearing would, as the Court of Appeal warned, 'cloth the process with legitimacy'. The issue was therefore rendered unnecessary for determination.

p. 19
03

Burden of proof in an undefended constitutional petition

Holding

The Petitioners still bore the burden of proving their case to the requisite standard notwithstanding the 2nd Respondent's non-participation.

Reasoning

Citing Karugi & another v Kabiya and 3 others, the court held that even in an undefended petition the burden rests on the petitioners to demonstrate entitlement to the orders sought. The Petitioners discharged this burden by annexing certificates of official search confirming registration, and by showing the revocation occurred outside the Commission's statutory mandate. The court found the petitioners had set out with reasonable precision, per Anarita Karimi Njeru, the constitutional provisions infringed and the manner of infringement.

p. 10

Legal principles established

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  • A National Land Commission review of grants under Section 14(1) of the National Land Commission Act must be completed within five years of the Act's commencement (by 2nd May 2017); any determination made after that period, without a parliamentary extension, is unlawful, ultra vires and null and void for want of jurisdiction
  • Even where a claim is undefended, the burden remains on the petitioner to prove their entitlement to the orders sought

Court orders

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  1. 1.The Petitioners are reverted back to the position they were before the determination by the 2nd Respondent
  2. 2.An order of injunction prohibiting the 2nd Respondent, its servants, agents or authorized persons from giving effect to or implementing the determination dated 21st January 2019 by the Vice Chairperson and Head of Review of Grants and Dispositions of the National Land Commission in respect of Naivasha/Maraigushu Block 8/217, 225, 226, 449, 450, 451, 453, 522, 523, 524, 525, 526, 527, 528, 530, 531, 532 and 533
  3. 3.Costs to the Petitioners

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 67(2) and (3)
  • Constitution of KenyaArticle 68(c)(v)
  • Constitution of KenyaArticle 65
  • Land Registration ActSections 25 and 26(1)(a)
  • National Land Commission Act 2012Section 14(1)
  • Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017Regulation 28(2) and (3)
  • Evidence ActSection 107
  • Limitation of Actions ActSection 38
  • Civil Procedure ActSection 27

Cases cited (8)

  • Anarita Karimi Njeru vs The Republic
    [1979] eKLR 154
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Kiprotich Arap Chepkwony v Simion Langat & 3 others
    Civil Suit No. 13 of 2011
  • Karugi & another v Kabiya and 3 others
    1983 (eKLR)
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Wreck Motors Enterprises v The Commissioner of Lands and Others
    [1997] eKLR
  • Republic -vs- National Land Commission Ex-parte Holborn Properties Ltd
    (2016) eKLR
  • Likizo Limited v Nasib Kashuru Limited & 5 others
    (Civil Appeal E005 of 2020) [2023] KECA 1314 (KLR) (10 November 2023)
Jurisdiction invoked
Articles 40, 47, 50(1) and 67 of the Constitution; Sections 25, 26(1) of the Land Registration Act and Section 14(1) of the National Land Commission Act

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, "Andrew Karanja Muigai & 8 Others v Registrar of Lands Naivasha & National Land Commission", Case Analysis (2025). Naivasha ELC Petition No. 7 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/82/eng@2025-01-23

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