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Court of AppealDismissedCivil Appeal at Mombasa (from ELC No. 156 of 2018)

Mastajabu (Suing as the Legal Administrator of the Estate of the Late Mastajabu Athumani Suleiman ) & another v Chief Land Registrar, Kwale & 3 others (Civil Appeal E083 of 2021) [2025] KECA 1319 (KLR)

Court of Appeal of Kenya
18 July 2025
7,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed the National Land Commission cannot revoke private land titles, and courts will block any attempt to relitigate settled land disputes.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Mombasa (Kairu, Laibuta and Ngenye-Macharia, JJ.A) dismissing the appellants' appeal against the ruling of the Environment and Land Court at Mombasa (Munyao Sila, J.) of 10th February 2021, which had dismissed the appellants' suit over Plot Kwale/Galu Kinondo/339 as res judicata. The Court framed two issues. First, whether the suit was founded on the National Land Commission's determination: it held that the Commission's decision of 11th November 2017 was made in excess of jurisdiction. The Commission's power under section 14 of the National Land Commission Act, read with Article 68(c)(v) of the Constitution, extends only to review of grants and dispositions of public land, whereas the suit property was private land under Article 64; the section 15 historical-injustice mandate likewise relates to public land, and no Article 67(3) finding had been made. The decision was also null and void because the High Court in Constitutional Petition No. 35 of 2015 had, on 31st May 2016, declared the Commission and the Kwale County Land Management Board without jurisdiction over title to private land, and that judgment was never set aside. Second, on res judicata, the Court applied section 7 of the Civil Procedure Act and IEBC v Maina Kiai: the parties were successors in title to litigants in PMCC No. 350 of 1990, HCCA No. 113 of 1994, HCCC No. 52 of 2007 and Petition No. 35 of 2015, in which ownership of the same parcel had been heard and finally determined on merit. Adding the Commission as a party and recasting pleadings could not evade the doctrine. The appeal was dismissed with costs to the appellants, and the ELC ruling was upheld.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants' suit was premised on a determination of the National Land Commission's exercise of its mandate to investigate and rectify historical land injustices
  2. 2.Whether the learned Judge erred in holding that the appellants' suit was res judicata

Key legal issues

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01

Scope of the National Land Commission's mandate to investigate historical land injustices and review grants

Holding

The NLC decision of 11th November 2017 was made in excess of jurisdiction. The Commission's review power under section 14 applies only to public land; its historical-injustice mandate under section 15 also relates to public land, and it made no finding under Article 67(3) of a historical land injustice.

Reasoning

The Commission purported to act under Article 68(c)(v) and section 14(4)–(8) of the NLC Act, but section 14 limits review to grants and dispositions of public land. The suit property was private land under Article 64, registered in private freehold. Section 15's historical injustice mandate was similarly confined to public land and was time-limited. The High Court in Petition No. 35 of 2015 had already declared the Commission and the Board without jurisdiction over title to private land, and that decision stood unappealed.

p. 8
02

Whether the ELC suit was res judicata

Holding

Yes. The parties were successors in title to litigants in PMCC No. 350 of 1990, HCCA No. 113 of 1994, Misc. No. 110 of 2005, HCCC No. 52 of 2007 and Petition No. 35 of 2015, and the issue of ownership of the same parcel was heard and finally determined on merit.

Reasoning

Applying section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the Court found the same subject matter (ownership of Plot Kwale/Galu Kinondo/339), the same parties or those under whom they claim, litigation under the same title, and final determination by competent courts including on appeal. The attempt to base the suit on the NLC's null and void decision could not circumvent the doctrine, and courts must be vigilant against pleadings drafted to evade res judicata.

p. 13

Legal principles established

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  • The National Land Commission's mandate under section 14 of the National Land Commission Act, read with Article 68(c)(v) of the Constitution, extends only to review of grants and dispositions of public land, not private land.
  • Where the issue in a suit has been directly and substantially determined in a former suit between the same parties or their successors in title, the suit is barred by res judicata and cannot be re-litigated by adding new parties or recasting the pleadings.
  • A tribunal or commission cannot purport to determine, contrary to a court's judgment, a dispute already litigated before a court of competent jurisdiction; such a determination is null and void.
  • A decision made by the NLC in excess of its jurisdiction is null and void and cannot form the basis of a suit.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Ruling and Orders of the Environment and Land Court at Mombasa (Munyao Sila, J.) delivered on 10th February 2021 are upheld
  3. 3.The costs of the appeal shall be borne by the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Environment and Land Court of Kenya at Mombasa
ELC No. 156 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the Environment and Land Court; the judgment itself does not cite the specific provision (the appeal is against the ELC ruling of 10th February 2021).

Relief refused

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Setting aside of the ELC ruling and an order that the appellants' suit be heard on its merits

The NLC's decision of 11th November 2017 was made in excess of jurisdiction and the suit was res judicata of previously determined litigation over the same land

p. 14

Costs

The costs of the appeal shall be borne by the appellants (the ELC had dismissed the suit with costs to the respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we reach the inescapable conclusion that the appeal fails and is hereby dismissed. Consequently, the Ruling and Orders of the Environment and Land Court of Kenya at Mombasa (Munyao Sila, J.) delivered on 10th February 2021 is hereby upheld.
p. 14Final orders - dismissal and affirmation of the ELC ruling
The costs of the appeal shall be borne by the appellants.
p. 14Costs order
It is indubitable that this mandate does not extend to transactions relating to private land.
p. 6Limits of the NLC's review jurisdiction under section 14
the 2nd respondent’s decision dated 11th November 2017 purporting to reafirm the appellants’ alleged ancestral right of ownership and directing the Chief Land Registrar to revoke the title held by Mutuku Ngei, and to issue title to the appellants as the legal owners of the suit property was made in excess of jurisdiction.
p. 10Nullity of the NLC decision
In view of the foregoing, we find that this issue has been heard and determined on merit, including on appeal to this Court. Accordingly, the learned Judge cannot be faulted for finding that the suit was res judicata.
p. 13Res judicata finding

Issues in the judgment

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minor

The judgment inconsistently cites the National Land Commission Act as 'National Land Commission Act, 2011' in one passage and as '(No. 5 of 2012)' in another.

minor

Ground 3 of the Memorandum of Appeal is omitted from the numbering reproduced in the judgment (the list jumps from ground 2 to ground 4).

minor

The NLC decision itself is quoted as invoking Article 68(c)(v) and section 14, while the appellants argued the case rested on a finding of historical land injustice under Article 67(3) and section 15; the Court found no such finding had been made.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mastajabu (Suing as the Legal Administrator of the Estate of the Late Mastajabu Athumani Suleiman ) & another v Chief Land Registrar, Kwale & 3 others (Civil Appeal E083 of 2021) [2025] KECA 1319 (KLR)", Case Analysis (2025). Civil Appeal at Mombasa (from ELC No. 156 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1319/eng@2025-07-18

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