Republic v National Land Commission & another; Kipsirgoi Investments Limited (Ex parte Applicant) (Environment and Land Judicial Review Case E077 of 2025) [2026] KEELC 3630 (KLR)
The bottom line
#A Kenyan court cancelled the allocation of a private landowner's property, ruling that the National Land Commission has no power over private freehold land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is premature due to the doctrine of exhaustion of remedies.
- 2.Whether the 1st Respondent was lawfully constituted at the time it purported to approve the request for regularization.
- 3.Whether the Respondents had jurisdiction to regularize the tenure of and allocate Land Reference Number 13065, which is privately owned freehold land, as public land.
- 4.Whether the Respondents violated the Ex Parte Applicant's right to fair administrative action as guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act.
Key legal issues
#Exhaustion of remedies / prematurity
The application was not premature because the internal remedy before the Commission was unavailable and futile at the material time, and the jurisdictional challenge could not be impartially decided by the Commission itself.
The objection lodged on 20th November 2025 could not be reviewed because the Commissioners' mandate had expired on 14th November 2025 and a new Commission was not in place until March 2026. Further, the Applicant's core complaint was jurisdictional — that the Commission had no authority over private freehold land — a question the Commission, whose jurisdiction was contested, could not impartially determine. Section 9(4) of the Fair Administrative Action Act permitted exemption in these exceptional circumstances.
Whether the Commission was lawfully constituted when it approved the regularisation
The Commissioners were lawfully in office; the approval of 12th November 2025 preceded their expiry.
Although gazetted on 2nd October 2019, the Commissioners were sworn in on 15th November 2019, so their six-year single term ran to 14th November 2025. The approval was granted on 12th November 2025, within the term. Relying on Gikenyi B., the court held that gazettement date does not fix the date of assumption of office.
Jurisdiction over private freehold land
The Respondents acted without jurisdiction; the approval and Notice were void ab initio.
The Applicant held a freehold title which the Director of Survey had confirmed restored to LR 13065. The Commission's power to allocate is limited to public land under Articles 62, 64 and 67 and Sections 12 and 14 of the National Land Commission Act. None of the four statutory methods of converting private land to public land under Section 9 of the Land Act was initiated. The 2nd Respondent's own letter of 9th December 2025 admitted the land was private.
Violation of the right to fair administrative action
The Respondents breached Article 47 and Section 4(3) of the Fair Administrative Action Act by acting without prior notice to, hearing, or reasons for, the registered owner.
The Applicant learned of the intended allocation only from a newspaper advertisement five days after publication, was never served with notice of any process converting its land, and received no response to its objection. Consistent with Sceneries Limited, a newspaper notice identifying only a land reference number does not amount to adequate notice to an affected owner.
Legal principles established
#- The National Land Commission's mandate is confined to public land; private land cannot be converted to public land unilaterally or administratively.
- Gazettement does not conclusively determine the date of assumption of office for public appointments.
- A newspaper advertisement identifying only a land reference number does not constitute adequate notice to a registered owner affected by administrative action.
Court orders
#- 1.An order of certiorari quashing the 1st Respondent's decision to approve the regularisation request in respect of Land Reference Number 13065 and to publish the Notice of Intention to Allocate parcels Nairobi/Block 137/977 to 137/982 as published in The Standard newspaper on 15th November 2025.
- 2.An order of certiorari quashing all Gazette Notices, decisions and proceedings made or taken by the 1st and 2nd Respondents culminating in the publication of the Notice dated 15th November 2025, together with all proceedings related thereto.
- 3.An order of prohibition forbidding the 1st and 2nd Respondents from allocating parcels Nairobi/Block 137/977 to 137/982 to any applicants, intended allottees or other persons, and from taking any further steps or dealings in respect of the said parcels in furtherance of the Notice published on 15th November 2025 or otherwise.
- 4.An order of prohibition forbidding the 1st and 2nd Respondents from regularising the tenure of, alienating, or in any manner dealing with the parcels known as Nairobi/Block 137/977 to 137/982, being parcels emanating from the unlawful subdivision of the Applicant's private freehold land.
- 5.The costs of the application to be borne by the 1st and 2nd Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26); Order 53 of the Civil Procedure Rules; Articles 10, 22, 23, 40, 47, 62, 64 and 67 of the Constitution
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.
An order of certiorari do issue removing into this court and quashing the decision of the 1st Respondent to approve the regularisation request in respect of Land Reference Number 13065 and to publish the Notice of Intention to Allocate the parcels known as Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, and Nairobi/Block 137/982, as published in The Standard newspaper on 15th November 2025.
The upshot of the foregoing is that the application is merited and is hereby allowed in the following terms
The conversion of private land to public land cannot be carried out unilaterally or administratively by the National Land Commission or any other public body.
Consequently, the suit property has never ceased to be private land and could not lawfully have been subjected to any allocation process by the Respondents.
The publication of a notice in a daily newspaper identifying only a land reference number did not, in the circumstances, constitute adequate notice to the Applicant as the registered owner of the suit property.
Based on the evidence on record, this court finds that the circumstances herein clearly fall within the exception to the doctrine of exhaustion of remedies.
Issues in the judgment
#Conflicting dates for the expiry of the Commissioners' mandate: the Applicant's pleadings state the term expired on 1st October 2025, while the 1st Respondent's affidavit and the court's findings state 14th November 2025 (based on swearing-in on 15th November 2019).
Internal inconsistency in the affidavit dates regarding the appointment of the current Commission: 'appointed by the President on 12th March 2026' versus submissions stating 'not appointed until 11th March 2026' and 'constituted on 12th March 2026'.
Repetition/typographical error in the judgment quoting Article 47: 'Article 47 Article 47(1) and (2)'.
The judgment is captioned 'JUDGEMENT' but the closing line describes it as a 'RULING'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another; Kipsirgoi Investments Limited (Ex parte Applicant) (Environment and Land Judicial Review Case E077 of 2025) [2026] KEELC 3630 (KLR)", Case Analysis (2026). Judicial Review Application No. ELCLJR E077 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3630/eng@2026-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.