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Supreme CourtDismissedReference E001 of 2024· [2025] KESC 12 (KLR)

In re National Land Commission (Reference E001 of 2024)

Supreme Court of Kenya
21 March 2025
8,290 words in judgment
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·~33 min to read original · ~4 min brief

The bottom line

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Supreme Court confirms NLC is part of government, immune from asset attachment and garnishee orders.

What this practically means

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The Supreme Court dismissed the National Land Commission's request for an advisory opinion on whether it is part of 'government' under the Government Proceedings Act. The Court said the Court of Appeal had already settled this issue: constitutional commissions like the NLC are government entities. This means they cannot have their assets attached or bank accounts garnished to satisfy court judgments. The Supreme Court refused to re-open a matter already conclusively decided by a lower appellate court.

Executive summary

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The National Land Commission (NLC) filed a Reference under Article 163(6) of the Constitution seeking an advisory opinion on whether it qualifies as 'government' under the Government Proceedings Act (GPA) and is therefore insulated from execution and garnishee proceedings. The NLC cited conflicting High Court decisions on the issue and argued that over 3,300 pending suits and repeated garnishee applications threatened its operations, particularly its trust account for compensation funds. The Supreme Court affirmed that it had jurisdiction to render an advisory opinion, as the NLC is a state organ and the matter concerned county government. However, the Court declined to exercise its discretion to issue the opinion. It found that the Court of Appeal in Five Star Agencies Limited & another v National Land Commission & 2 others [2024] KECA 439 (KLR) had already definitively settled the questions raised, holding that the NLC is part of government under the GPA and is protected from execution, attachment, and garnishee proceedings under sections 21 and 25 of the Act. The Court distinguished the Gender Representation case where conflicting High Court decisions created uncertainty requiring urgent clarification. It held that rendering an opinion based on a mere likelihood of future conflicting decisions would be acting on speculation. The Court emphasized the hierarchy of courts and the principle of stare decisis, noting that the High Court and lower courts are bound by the Court of Appeal's decision. The Reference was dismissed with no order as to costs.

Key legal issues

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01

Whether the Supreme Court could render an advisory opinion where there was a pre-existing dispute before the lower courts on the same subject matter.

Holding

The Supreme Court has jurisdiction but may decline to exercise its discretion where the matter has been conclusively settled by a binding Court of Appeal decision, as rendering an opinion on a settled issue would usurp the role of lower courts and act on mere speculation.

Reasoning

The court acknowledged that while Article 163(6) confers advisory jurisdiction, the principles from the Gender Representation case require the court to be hesitant where the matter is pending in lower courts. Here, the Court of Appeal in Five Star Agencies had already definitively resolved the questions raised, establishing binding precedent. The court distinguished the Gender Representation case where conflicting High Court decisions created uncertainty requiring urgent clarification. The court held that rendering an opinion based on a 'likelihood of conflicting decisions' would be acting on speculation, and the hierarchy of courts ensures lower courts follow Court of Appeal precedent.

02

Whether the term 'government' under the Government Proceedings Act included constitutional commissions.

Holding

The term 'government' under the Government Proceedings Act includes constitutional commissions such as the National Land Commission.

Reasoning

The court did not conduct an independent analysis of this issue because it found the matter had been conclusively settled by the Court of Appeal in Five Star Agencies. The court quoted the Court of Appeal's holding that the NLC is a state organ and for all purposes part of government, and that garnishee proceedings under Order 23 of the Civil Procedure Rules do not apply against the government or state organs. The Supreme Court adopted this as the settled legal position, noting that the conflicting High Court decisions cited by the applicant had been resolved by the appellate court.

03

Whether constitutional commissions were insulated from execution proceedings, attachment of assets and/or garnishee of accounts in satisfaction of a decree.

Holding

Constitutional commissions are insulated from execution proceedings, attachment of assets, and garnishee of accounts under sections 21 and 25 of the Government Proceedings Act.

Reasoning

The court adopted the Court of Appeal's determination in Five Star Agencies that the NLC, as a state organ and part of government, is protected by sections 21 and 25 of the Government Proceedings Act. The Court of Appeal had held that a certificate of order against the government is a mandatory condition precedent for execution, and garnishee proceedings under Order 23 of the Civil Procedure Rules do not apply against the government or state organs. The Supreme Court confirmed this as the binding legal position, noting that the rationale is rooted in sovereign immunity and the need for orderly budgetary processes.

Legal principles established

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  • Constitutional commissions like the NLC are 'government' under the Government Proceedings Act.
  • Government entities are immune from execution, asset attachment, and garnishee proceedings under sections 21 and 25 of the Act.
  • The Supreme Court can decline advisory opinions if the issue is already settled by binding Court of Appeal precedent.
  • Lower courts must follow Court of Appeal decisions under the hierarchy of courts and stare decisis.
  • Advisory opinions are not given based on speculation about future conflicting decisions.

Court orders

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  1. 1.The applicant's reference dated March 21, 2024 and filed on March 25, 2024 is hereby dismissed.
  2. 2.There shall be no orders as to costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 1(3)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 67
  • Constitution of KenyaArticle 67(2)
  • Constitution of KenyaArticle 81(b)
  • Constitution of KenyaArticle 163(6)
  • Constitution of KenyaArticle 201(d)
  • Constitution of KenyaArticle 248
  • Constitution of KenyaArticle 260
  • Constitution of KenyaArticle 262
  • Government Proceedings ActSection 21
  • Government Proceedings ActSection 25
  • Interpretation And General Provisions ActSection 3
  • Land ActPart VII
  • Land ActPart VIII
  • Land ActSection 9(1)(c)
  • Land ActSection 111(1)
  • Supreme Court ActSection 3(c)
  • Civil Procedure Rules 2010Order 23 rule 1
  • Civil Procedure Rules 2010Order 23 rule 2
  • Civil Procedure Rules 2010Order 23 rule 3
  • Civil Procedure Rules 2010Order 29 rule 2

Cases cited (26)

  • Centre for Rights Awareness & 8 others v Attorney General and another
    Petition 208 & 207 of 2012; [2012] KEHC 2894 (KLR)
  • Centre for Rights Education and Awareness & 7 others v Attorney General and others
    Petition 16 of 2011; [2011] KEHC 4297 (KLR); [2011] KLR 458
  • Federation of Women Lawyers & 5 others v Attorney General
    Petition 102 of 2011; [2011] KEHC 2099 (KLR)
  • Five Star Agencies Limited & another v National Land Commission & 2 others
    Civil Appeal E290 & 328 of 2023 (Consolidated); [2024] KECA 439 (KLR)
  • Five Star Agencies Limited v National Land Commission
    Civil Case 445 of 2014; [2022] KEELC 14745 (KLR)
  • In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County
    Reference 3 & 4 of 2020 (Consolidated); [2021] KESC 61 (KLR)
  • In the Matter of the Interim Independent Electoral Commission (Applicant)
    Constitutional Application 2 of 2011; [2011] KESC 1 (KLR); [2011] 2 KLR 32
  • In the Matter of the National Land Commission Advisory Opinion
    Reference 2 of 2014; [2015] eKLR
  • In the Matter of the Principle of Gender Representation in the National Assembly and the Senate
    Advisory Opinions Application 2 of 2012; [2012] KESC 5 (KLR); [2012] 3 KLR 718
  • National Land Commission v Attorney General & 5 others; Kituo Cha Sheria & another (Amicus Curiae)
    Reference 2 of 2014; [2014] KESC 10 (KLR)
  • Ngoge v Kaparo & 5 others
    Petition 2 of 2012; [2012] KESC 7 (KLR); [2012] 2 KLR 419
  • Rose Aoko Ogwang v National Gender and Equality Commission
    Cause 1803 of 2014; [2020] KEELRC 242 (KLR)
  • Otieno & another v Attorney General & 2 others
    Petition 33 of 2011; [2012] KEHC 5501 (KLR); [2012] 1 KLR 280
  • Rai & 3 others v Rai & 4 others
    Petition 4 of 2012; [2014] KESC 31 (KLR); [2014] 2 KLR 243
  • Republic v Attorney General & another ex parte James Alfred Koroso
    Miscellaneous Application 44 of 2012; [2013] KEHC 90 (KLR)
  • Republic v NLC & 2 others Ex parte Cabin Crew Investments Limited
    Miscellaneous Application 89 of 2019; [2019] KEHC 719 (KLR)
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza
    Miscellaneous Application 31 of 2012; [2012] KEHC 1643 (KLR)
  • Tom Ojienda & Associates v National Land Commission; National Bank of Kenya & another (Garnishee)
    Miscellaneous Application 29B of 2016; [2022] KEHC 11463 (KLR)
  • Vivo Energy Limited (Formerly Known as Kenya Shell Limited) v National Land Commission
    Judicial Review Application 49 of 2020; [2020] KEHC 1185 (KLR)
  • Directory Advertising Cost Cutters v Minister for Post, Telecommunications and Broadcasting and others
    1996 (3) SA 800 (T)
  • Mittalsteel South Africa Limited (previously known as ISCOR Limited) v Mondli Shadrack Hlatshwayo
    [2006] SCA 94 (RSA)
  • President of the Republic of South Africa & another v Modderklip Boerdery (Pty) Ltd
    [2005] ZACC 5
  • Attorney General v De Keyser's Royal Hotel Ltd
    [1920] AC 508
  • Town Investments Ltd v Department of Environment
    [1978] AC 359
  • Union of India v Raman Iron Foundry
    1974 AIR 1265, 1974 SCR (3) 556, AIR 1974 Supreme Court 1265, 1974 2 SCC 231, 1974 3 SCR 556, 1974 SCD 507
  • Department of the Army v Blue Fox, Inc
    525 US 255 (1999)
Jurisdiction invoked
Article 163(6) of the Constitution

Key timeline

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2024-03-21
National Land Commission files reference seeking Supreme Court advisory opinion on its immunity from execution.
2024
Court of Appeal in Five Star Agencies case holds NLC is part of government under the Government Proceedings Act.
2025
Supreme Court dismisses NLC's reference, confirming Court of Appeal decision is binding.

Practical implications

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For lawyers

No garnishee against state organs

When suing constitutional commissions like NLC, do not seek garnishee orders or attachment of assets. Instead, obtain a certificate of order against the government under section 21 of the Government Proceedings Act. This is the only lawful route to enforce judgments against state organs. Update your litigation checklists accordingly.

For businesses

Debt recovery from NLC limited

If you win a judgment against the National Land Commission or similar state bodies, you cannot freeze their bank accounts or seize their property. Your only option is to follow the special procedure under the Government Proceedings Act: get a certificate of order against the government and wait for budgetary allocation. Plan for delayed payment.

For individuals

Land compensation claims process

If you are owed compensation by the NLC, know that the Commission's trust account for compensation funds cannot be garnisheed. You must pursue payment through the government's formal claims process, not through court execution. This protects public funds but may slow your payment. Seek legal advice on the correct procedure.

Frequently asked questions

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Can I sue the National Land Commission in Kenya and seize its assets if I win?+

No. The Supreme Court confirmed the NLC is part of 'government' under the Government Proceedings Act. This means its assets and bank accounts are protected from attachment and garnishee orders. To enforce a judgment, you must follow a special procedure requiring a certificate of order against the government.

What does the Government Proceedings Act say about suing the government in Kenya?+

The Act allows you to sue the government but restricts how you enforce judgments. Sections 21 and 25 prohibit execution, attachment, or garnishee against government property. Instead, you must obtain a certificate of order against the government, which triggers payment through budgetary processes. This applies to all state organs including constitutional commissions.

Is the National Land Commission considered part of the government in Kenya?+

Yes. The Supreme Court adopted the Court of Appeal's ruling that the NLC, as a constitutional commission and state organ, is part of 'government' for purposes of the Government Proceedings Act. This means it enjoys the same immunity from execution and garnishee proceedings as other government entities.

What happens if a Kenyan court issues a garnishee order against the NLC?+

Such an order is invalid and unenforceable. The Supreme Court confirmed that garnishee proceedings under Order 23 of the Civil Procedure Rules do not apply to the government or state organs like the NLC. If you have such an order, you must set it aside and instead follow the certificate of order procedure under section 21 of the Government Proceedings Act.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "In re National Land Commission (Reference E001 of 2024)", Case Analysis (2025). Reference E001 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/12/eng@2025-03-21

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