Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)
The bottom line
#Kakuzi's appeal against the National Land Commission was struck out because no law allowed an appeal; judicial review is the correct route in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a competent appeal before the court
- 2.Whether there was a quorum on the part of the committee to conduct the site visit
- 3.Whether the Commission erred in setting the protocols and relevant procedure for the conduct of the site visit
- 4.Whether the Appellant has proven bias on the part of Esther Murigi Mathenge
- 5.What orders should the court grant
- 6.Costs of the appeal
Key legal issues
#Competence of the appeal / jurisdiction
There is no competent appeal. The NLC Act as it stood in April 2024 conferred no right of appeal; Regulation 29 was annulled with the 2017 Regulations; the ruling was interlocutory; and the amended Section 15(12) provides for judicial review, not appeal.
The court distinguished the Commission's constitutional mandate under Article 67(2)(e) and Section 15 from the appellate procedure created solely by regulation 29 of the 2017 Regulations, which were annulled in March 2018. The saving of past acts under Section 11(4) of the Statutory Instruments Act does not preserve the instrument as a continuing source of jurisdiction. The 2025 Amendment expressly selected judicial review as the remedy.
Quorum for the site visit
A fatal lack of quorum was not established merely because two Commissioners attended; the Fourth Schedule quorum applies to meetings of the Commission, not every investigative activity.
The court distinguished investigative site inspections from formal hearings and deliberative meetings. Section 6 permits the Commission to inform itself flexibly; Section 16 permits committees and co-opted persons. The defect would arise only if decision-makers who did not attend or receive the record participated in the determination.
Procedure for the site visit
The visit was procedurally unsafe: the route was altered by majority poll, the DCC assumed control beyond security, unidentified persons made representations, and no contemporaneous report was made available for comment.
While the NLC is bound by neither the Civil Procedure Rules nor strict evidentiary rules, Article 47 and the Fair Administrative Action Act require procedural fairness. Legal rights cannot be determined by numerical strength at a site, and a majority poll to alter the route was unsuitable. The Commission erred in dismissing the request for structured directions without reasons.
Apparent bias of Commissioner Mathenge
Viewed cumulatively, the statements attributed to the Commissioner would meet the threshold for reasonable apprehension of bias, though the Court could not disqualify her on this incompetent appeal.
The statements that the appellant was 'giving back land that already belongs to the community' and would be required to surrender land addressed the central disputed question before evidence closed. The Committee erred by restricting the inquiry to personal interest and number of votes; collegial decision-making does not neutralise apparent bias.
Legal principles established
#- A right of appeal is not inherent and must be conferred expressly by the Constitution or legislation; a right of appeal against a final decision cannot be extended to interlocutory procedural rulings absent express provision
- Annulment of subsidiary legislation does not extinguish the Commission's underlying constitutional mandate, but the survival of a substantive mandate does not preserve an appellate procedure created solely by an annulled regulation
- The test for apparent bias is whether a fair-minded and informed observer would conclude there is a real possibility the decision-maker would not act impartially; personal interest is not the only ground
- Distinguishing between investigative site inspection, formal hearing, and deliberative meeting: no fixed statutory quorum applies to every fact-gathering activity
- A draft statutory instrument does not confer jurisdiction or create present rights of appeal
Court orders
#- 1.The appeal is struck out for want of appellate jurisdiction
- 2.The Appellant shall pay costs in this Appeal
- 3.In any proper judicial review of the final determination, Commissioner Mathenge should take no further part in reconsidering the claims
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Historical Land Injustice Committee (National Land Commission)
- NLC/HLI/168/2018
- Jurisdiction invoked
- No appellate jurisdiction conferred - Environment and Land Court Act; Section 15(12) National Land Commission Act (as amended by the National Land Commission (Amendment) Act, 2025) provides for review under the Fair Administrative Action Act, not appeal
- Consolidated with
- NLC/HLI/006/2017, NLC/HLI/580/2019
Relief refused
#Setting aside of the Committee's ruling of 12/4/2024
The appeal is incompetent - no statutory right of appeal existed against the interlocutory ruling
Disqualification of Commissioner Esther Murugi Mathenge
Prayer overtaken by events and court lacks appellate jurisdiction, though bias threshold was met
An order directing the NLC to promulgate regulations for HLI hearings
Regulations must be made through the statutory-instrument process, not by direction in a single dispute
Costs
The Appellant shall pay costs in this Appeal
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.
Jurisdiction is everything. Without it, a Court has no power to make one more step.
Therefore, there is no competent appeal before the Court.
As the appeal is incompetent, the Court cannot grant the substantive appellate orders seeking to set aside the ruling or to directly disqualify the Commissioner.
Additionally, costs follow the event. The Appellant shall pay costs in this Appeal.
Procedural flexibility is not procedural licence.
Collegial decision-making does not neutralise apparent bias.
Legal and property rights cannot be determined by numerical strength at the site.
Issues in the judgment
#The judgment refers to a 'final HLI determination... gazetted' on 14/11/2025 and to revised Regulations 'published... in April 2026', dates appearing inconsistent with a first-instance record prepared for an appeal filed in 2024; the text itself acknowledges the sequence
The 2nd Respondent's jurisdictional objection (paragraphs 27-28) is recorded before the issues are framed, but the court notes no party addressed it, then decides it anyway; internally the court states 'Neither the Appellant nor the 1st and 3rd Respondents addressed the court on this objection.'
Respondents are never identified by name in the judgment; only '1st Respondent', '2nd Respondent' and '3rd Respondent' are used, with the case title inferred from references to Kakuzi PLC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)", Case Analysis (2026). ELCA.E064.NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5165/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.