Shah & another v Chief Land Registrar & 4 others (Environment and Land Case E052 of 2025) [2026] KEELC 62 (KLR)
The bottom line
#Kenya's land court froze any new dealings on a disputed Kilifi plot, ruling it can hear the case directly because the NLC issued two conflicting title decisions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court lacks original jurisdiction to hear and determine a suit canvassing and challenging a decision of the National Land Commission made pursuant to Article 67 of the Constitution of Kenya
- 2.Whether the claim is time barred
- 3.Whether the orders sought in the application can issue
Key legal issues
#Jurisdiction to entertain a suit challenging NLC decisions in the face of Rule 30 of the NLC (Review of Grants and Dispositions of Public Land) Regulations 2017
The court has original jurisdiction because two conflicting gazette notices by the same Commission raise a constitutional controversy that only an original hearing can resolve.
The court noted two conflicting gazette notices (17th July 2017 favouring the deceased and 8th February 2019 favouring the 5th defendant). Appeals from either would be time-barred under Rule 30 and would not resolve the dispute. The conflicting decisions by the same constitutional commission raise serious constitutional controversy which the court is mandated to resolve under Article 162 and Section 13 of the ELC Act, and Article 159(2)(d) favours substantive justice. Exceptional circumstances therefore justify original jurisdiction.
Whether the claim is time barred under the Limitation of Actions Act
Limitation is not a proper ground for striking out at the preliminary stage because more recent happenings are the proximate cause of the proceedings; the issue is best canvassed at trial.
Although the events of 1980 and 1986 relied on by the 5th defendant occurred many years ago, more recent events (the 2015 transfer, the conflicting gazette notices and the 2019 addendum) constitute the proximate cause of the suit. The court had dismissed a similar preliminary objection in Malindi ELC E069 of 2024. The limitation issue would prejudice no party if ventilated at the full hearing.
Whether an interlocutory inhibition order should issue
The plaintiffs established a prima facie case and risk of irreparable loss; the validity of the 5th defendant's title process is liable to be questioned and can only be resolved at a substantive hearing.
The Land Registrar's affidavit showed the land was once registered in the deceased's names, the title was never surrendered and was used as security for credit. The nullification of the 1986 Circular and Gazette Notice and the NLC's restriction directive, which preceded issuance of the 5th defendant's title, render the validity of that title questionable. Such questions require evidence and cross-examination, justifying preservation of the status quo by inhibition pending trial.
Legal principles established
#- Where a constitutional commission has issued two conflicting decisions, the ELC may exercise its original jurisdiction under Article 165(2)(b) rather than confining parties to a statutory appeal, as exceptional circumstances exist.
- Courts may intervene where statutory bodies exercise their powers arbitrarily, capriciously or in breach of natural justice.
Court orders
#- 1.The application dated 20th May 2025 granted in terms of Prayer No 4, i.e. an order of inhibition against registration of dealings on plot number Chembe/Kibambamshe/366 pending the hearing and determination of the application and the suit
- 2.Costs of the application in the cause
- 3.Mention on 26/2/26 for pretrials; parties to comply with the CPR by filing all lists, witness statements and trial bundles before then
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act
Relief refused
#Temporary order of injunction restraining the defendants from transferring, occupying, alienating or dealing with the suit property (Prayer 3/e of the motion)
The court granted the application only in terms of Prayer No 4 (inhibition), not the injunction prayers
Costs
The costs of the application shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the application dated 20/5/2025 has merit and I hereby grant the same in terms of Prayer No 4. The costs of the application shall be in the cause.
There are therefore present in the present case exceptional circumstances that allow for this court to have and to exercise jurisdiction over this dispute and I therefore hold that this court thus has jurisdiction to hear and determine the present suit on its merits.
That the manifestation of confusion within the Commission as to the correct position on proprietorship can be ignored by this court would be anathematic to the very purpose for which this court was established
though some of the actions occurred many years ago as pointed out by the 5th defendant, there are more recent happenings that have become the proximate cause for the lodging of the present proceedings.
I thus find that the plaintifis have established a prima facie case in this matter and further, that irreparable loss may be occasioned to them in the event that the orders sought are not granted
Issues in the judgment
#The judgment internally refers to the application as both dated 20th May, 2025 and 28th May, 2025
Gazette notice number of 17th July 2017 is inconsistently cited as 6862, 6866 and 16866 within the judgment
The suit's case number is never stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kombe v White Unicorn Ltd & another (Environment and Land Case 195 of 2018) [2026] KEELC 5267 (KLR)[2026] KEELC 5267 (KLR)30 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Shah & another v Chief Land Registrar & 4 others (Environment and Land Case E052 of 2025) [2026] KEELC 62 (KLR)", Case Analysis (2026). Notice of Motion dated 20th May, 2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/62/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.