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ELCDismissedNot stated in the judgment· [2025] KEELC 5897 (KLR)

Nguwa & 8 others v Kanyolo & another (Environment and Land Appeal 17 of 2023) [2025] KEELC 5897 (KLR)

Environment and Land Court
24 July 2025
2,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed a land appeal because the appellants failed to include the National Land Commission's official decision record, making their appeal legally defective.

What this practically means

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Executive summary

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The Appellants, beneficiaries of the estate of the late Kirao Kombe Hare, appealed under Section 14 of the National Land Commission Act against the NLC's decision, gazetted on February 15, 2019, regularizing Plot No. Kilifi/Jimba/325 in favour of Alexander Musyoki Kanyolo. They relied on a 2009 ground verification by the Kilifi Jimba Land Settlement Scheme Local Land Committee identifying their father as rightful owner, and on letters from the MP for Malindi, the Commissioner of Lands and the NLC directing processing of ownership documents before his death in 2012. The NLC maintained that it acted under Article 67 of the Constitution, held public hearings in October 2018 after a verification exercise disclosing two competing claimants, and that the Appellants did not participate. The court framed three issues: competence of the appeal, the merits, and costs. It held that under Regulations 30(1), 31 and 32 an appeal must rest on a certified, reasoned record of the Commission's decision; although Odeny J. had ordered the Commission to supply its record, it never did and the Appellants failed to enforce the order, leaving the Record of Appeal incomplete and the appeal incompetent. On the merits the Appellants appeared unlikely to succeed, and judicial review would have been the proper channel, though that avenue seemed closed by acquiescence. The court also directed best-practice steps the Commission should adopt for procedural integrity. The appeal was dismissed with costs by E. K. Makori J on July 24, 2025.

Key legal issues

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01

Competence of the appeal

Holding

The appeal was incompetent because the Record of Appeal lacked the Commission's minutes, proceedings, evidence and record relied on in reaching its decision, despite a court order directing their production

Reasoning

Regulations 31 and 32 require an appeal to be accompanied by the Commission's resolution and a record of how the decision was reached, extracted, authenticated and sealed. Odeny J. had ordered the Commission to produce the record, but it never did, and the Appellants did not follow up to enforce the order. Without the Commission's record the appeal cannot be a proper review of the determination.

p. 5
02

Merits of the appeal against regularization of Plot No. Kilifi/Jimba/325

Holding

The Appellants were unlikely to succeed on the merits; the proper channel would have been judicial review of the NLC decision, but that avenue appeared closed by acquiescence

Reasoning

The NLC acted within its Article 67 mandate, held public hearings in October 2018, and based its decision on a verification report showing two competing claimants. The court considered judicial review the appropriate mechanism to test illegality, irrationality, unreasonableness or bias, but noted the Appellants seemed to have acquiesced in bringing JR and the appeal.

p. 5

Legal principles established

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  • Once the Commission issues its decision on a complaint or review it becomes functus officio and the only remedy for a dissatisfied party is an appeal to the ELC
  • An appeal under the 2017 Regulations must be founded on a formal, certified and reasoned record of the Commission's decision; an appeal based only on the appellant's own documents is incompetent
  • A first appellate court must independently re-assess the evidence and findings of the trial court while acknowledging its advantage in observing witnesses

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67; Article 67(2)
  • National Land Commission ActSection 14
  • Land Registration Act, 2012Not specified
  • Land Commission (Review of Grants and Disposition of Public Land) Regulations, 2017Regulations 13(3), 29(2), 30(1), 31, 32

Cases cited (2)

  • Okeno v Republic
    1972 EA 32
  • J.M Richard Wanjigi v Chebukati and 2 Others
    [2023] KESC 15 (KLR)
On appeal from
National Land Commission
Gazette Notice Vol. CXXI No. 21 Number 1549
Jurisdiction invoked
Section 14 of the National Land Commission Act and Regulation 30(1) of the Land Commission (Review of Grants and Disposition of Public Land) Regulations, 2017

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, "Nguwa & 8 others v Kanyolo & another (Environment and Land Appeal 17 of 2023) [2025] KEELC 5897 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5897/eng@2025-07-24

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