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Court of AppealPartially AllowedCourt of Appeal Civil Appeal (Malindi) – appeal from Malindi ELC Constitutional Petition No. 19 of 2017· [2023] KECA 1314 (KLR)

Likizo Limited v Nasib Kashuru Limited & 5 others

Court of Appeal of Kenya
10 November 2023
6,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal voided a National Land Commission review because it was published after the law's five-year deadline expired.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (S. Gatembu Kairu, P. Nyamweya and G.V. Odunga, JJA) allowed Likizo Limited's first appeal against the dismissal by the Environment and Land Court at Malindi (Olola J) of its constitutional petition challenging Gazette Notice No. 6866 of 17 July 2017, by which the National Land Commission regularised Nasib Kashuru Limited's title to Chembe/Kibabamshe/407. The court framed three issues: the NLC's jurisdiction, the fairness of the review process, and available reliefs. It held that the NLC's power to review grants and dispositions of public land under section 14(1) of the Land Commission Act is purely statutory and time-bound: all reviews, including determinations and their publication, had to be completed within five years of the Act's commencement, i.e. by May 2, 2017, and only Parliament could extend the period under section 14(9). Publication of the impugned determination on July 17, 2017 was therefore without jurisdiction, unlawful, null and void. Once the appellant proved publication outside the time limit, the legal and evidentiary burden discharged, shifting to the NLC to prove timely completion. The trial judge erred in failing to address this threshold issue; his substantive findings fell away. The court declined to determine the fairness issue or the competing ownership claims, the latter being remitted to the ELC at Malindi for rehearing by a judge other than Olola J. It declared the judgment in rem, quashed Gazette Notice No. 6866, prohibited its implementation, ordered restoration of the register, and awarded the appellant costs of both the trial and the appeal.

Key legal issues

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01

Jurisdiction of the National Land Commission under section 14(1) of the Land Commission Act is time-bound

Holding

The Commission's mandate to review grants and dispositions of public land, and to publish determinations, expired on May 2, 2017; the determination in Gazette Notice No. 6866 dated July 17, 2017 was made without jurisdiction and is null and void.

Reasoning

Article 68(c)(v) empowers Parliament to legislate for review of grants of public land; section 14(1) required completion within five years of commencement of the Act (May 2, 2012). A review encompasses both process and outcome. Section 14(9) allowed extension only by petition to Parliament, which was not done. Publication of the impugned gazette notice on July 17, 2017 therefore fell outside the mandate. The learned judge erred in failing to first establish the Commission's jurisdiction before addressing the merits.

p. 9
02

Shift of the evidentiary burden on compliance with statutory time limits

Holding

A party proving publication of a determination outside the statutory period discharges both legal and evidentiary burden; the burden then shifts to the Commission to show timely completion of the review.

Reasoning

The court applied its own decision in Mbuthia Macharia v Annah Mutua on the shifting of the evidential burden. The respondents' contention that the appellant should have produced the full determination to show the date of the decision was rejected: the gazette notice publication date sufficed, and the Regulations required publication of revocations in the Gazette.

p. 8
03

Nature of the relief: judgment in rem

Holding

An order quashing an unlawful gazette notice is in rem and effective against the whole world; third parties seeking clarification or benefit must move the relevant forum with respect to their individual rights.

Reasoning

Relying on Kamunyu & Others v Attorney General and section 44 of the Evidence Act, the court characterised the legal character taken away (validity of the Commission's actions in Gazette Notice No. 6866) as rendering the judgment one in rem, conclusive against all persons, not merely the parties.

p. 10
04

Ownership of the suit property and validity of the multiple titles

Holding

Not determined; remitted to the Environment and Land Court at Malindi for re-hearing before a judge other than Olola J.

Reasoning

Having found the Commission's determination null and void ab initio, the parties reverted to their pre-determination positions, but the record showed competing certificates of lease (appellant 2004; 6th respondent 2013) and an allotment letter to the 1st respondent. The trial court, having relied on the void determination, never addressed the multiple titles; the appellate court declined to determine these issues at first instance.

p. 11

Legal principles established

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  • The five-year time limit in section 14(1) of the Land Commission Act covers both the process and the outcome of any review by the National Land Commission, including publication of determinations; action taken outside that period and without a parliamentary extension is unlawful and ultra vires.
  • Once a party shows publication of a determination outside the statutory time limit, it discharges its legal and evidentiary burden, and the burden shifts to the Commission to demonstrate that it completed the review before the deadline.
  • A judgment declaring a gazette notice or statutory determination unlawful is a judgment in rem, effective against the whole world, not only the parties to the suit.

Court orders

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  1. 1.Judgment of the ELC at Malindi (Olola J) delivered June 25, 2020 in ELC Constitutional Petition No. 19 of 2017 set aside in its entirety
  2. 2.Order of certiorari quashing Gazette Notice No. 6866 contained in Special Issue Vol. CXIX-No 97 published on 17 July 2017 by the Chairman, National Land Commission
  3. 3.Order of permanent injunction prohibiting the respondents from giving effect to or implementing the determination in relation to Chembe/Kibabamshe/407 in Gazette Notice No. 6866
  4. 4.Order of mandamus compelling the 4th respondent to restore the register in respect of Title No. Chembe/Kibabamshe/407 to the state it was before publication of Gazette Notice No. 6866
  5. 5.Outstanding issues on legality and validity of the allocation of, and titles issued with respect to, Chembe/Kibabamshe/407 remitted to the Environment and Land Court at Malindi for re-hearing and determination by a Judge other than Olola J
  6. 6.The appellant to have the costs of the trial in the Environment and Land Court and of the appeal
On appeal from
Environment and Land Court of Kenya, Malindi
ELC Constitutional Petition Number 19 of 2017
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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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, "Likizo Limited v Nasib Kashuru Limited & 5 others", Case Analysis (2023). Court of Appeal Civil Appeal (Malindi) – appeal from Malindi ELC Constitutional Petition No. 19 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1314/eng@2023-11-10

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