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ELCDismissedJudicial Review Application dated December 15, 2022 (Machakos)

Republic v National Land Commission & 5 others; Nyamu (Applicant) (Environment and Land Case Judicial Review Application E019 of 2021) [2024] KEELC 6912 (KLR)

Environment and Land Court
16 October 2024
5,017 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to force Machakos County to renew a lease over public land left undeveloped for 53 years, dismissing the case with costs.

What this practically means

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Executive summary

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The ex parte applicant, an administrator of the estate of Elijah Nyamu (deceased), sought judicial review orders of mandamus and prohibition to compel the County Executive Committee Member of Machakos County to issue a PPA2 form and letter of no objection to facilitate renewal/extension of the lease over Machakos Town/Block 1/41, which he said expired on 1st August 2014, and to bar reallocation of the property. The respondents opposed, contending the application was incompetent, time barred, premature under the exhaustion doctrine, and that the alleged 2014/2015 'no objection' and approval letters were forgeries authored by non-existent offices. The court declined to revisit the exhaustion and applicability of the Land (Extension and Renewal of Leases) Rules 2017 issues, having decided them with finality at the leave stage, and found the motion filed within time. On the merits, the court held the lease had in fact expired on 1st January 2001, that no application for renewal was exhibited, that the alleged consents were unrebutted denials, and that the suit property had remained undeveloped for 53 years, disqualifying renewal since public land allocation serves development and public good, not speculation. The court further held that confirmed letters of administration do not prove ownership. Mandamus was refused, and prohibition, being predicated on mandamus, also failed. The application dated December 15, 2022 was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicant has met the threshold for grant of orders of mandamus and prohibition
  2. 2.Whether the substantive motion was filed within the time granted in the leave order
  3. 3.Whether the court should revisit the applicability of the Land (Extension and Renewal of Leases) Rules 2017 and the doctrine of exhaustion

Key legal issues

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01

Whether mandamus should issue to compel issuance of PPA2 form and renewal/extension of the lease

Holding

No mandamus issued; the applicant failed to prove the alleged application and 'no objection' consents, and an undeveloped leasehold that expired in 2001 cannot be renewed

Reasoning

The court found no evidence of the 1981 extension; the National Land Commission's own letter showed the lease expired on 1st January 2001 and the property was undeveloped. County officials denied authorship of the 'no objection' letters, alleging forgery, and that denial was unrebutted. Judicial review remedies concern the decision-making process, and the applicant failed to establish the legal right he sought to enforce.

p. 9
02

Whether the letters of administration confer ownership of the suit property on the applicant

Holding

A grant or confirmed grant is not proof of ownership; disputed ownership is determined by this court, not the probate court

Reasoning

The court held that distribution in a probate court of property whose ownership is disputed does not amount to proof of ownership by administrators or beneficiaries. Disputed ownership falls to be determined by the Environment and Land Court.

p. 9
03

Whether the application was filed out of time

Holding

The motion was filed within the 21 days since the 21st day fell on a Sunday and was extended to Monday 16th December 2022

Reasoning

Leave was granted on 24th November 2022 with 21 days to file the substantive motion. Counting the days, the 21st day was a Sunday, so filing on Monday 16th December 2022 was within time.

p. 8
04

Whether the court should revisit the Land (Extension and Renewal of Leases) Rules 2017 and exhaustion arguments

Holding

The court declined to revisit these issues, having pronounced itself on them in the leave ruling

Reasoning

The court held that in its leave decision it had exhaustively and finally held the 2017 Rules inapplicable (not in operation in 2014) and confirmed its own jurisdiction; the parties could not reopen those arguments at the substantive stage.

p. 8

Legal principles established

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  • A confirmed grant of letters of administration is not proof of ownership of the property distributed under it
  • Renewal of leases of undeveloped public land will not be granted; allocation and renewal of public land leases are for public good and development, not speculation
  • Under section 13(1a) of the Land Act, 2012, a previous lessee holds pre-emptive rights to allocation upon lease expiry if a Kenyan citizen and the land is not required for public purposes

Court orders

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  1. 1.Dismissal of the application dated December 15, 2022
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 53 rule 3(1) of the Civil Procedure Rules; judicial review jurisdiction of the High Court/Environment and Land Court

Relief refused

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Order of mandamus compelling the 2nd respondent to issue PPA2 form and letter of no objection / compelling renewal or extension of the lease

The applicant did not annex proof of any application for renewal; the alleged 'no objection' responses were denied as forgeries and unrebutted; the lease expired on 1st January 2001 and the property was undeveloped for 53 years; a grant of letters of administration is not proof of ownership

p. 9

Order of prohibition against allocation or interference with the suit property

It was predicated on the mandamus prayer, which failed

p. 9

Costs of the application

Costs were awarded to the respondents, not the applicant

Costs

Application dismissed 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.

The upshot is that I find no merit in the application dated December 15, 2022, which I dismiss with costs to the respondents.
p. 9Final orders / dismissal
A person who has not developed public land allocated to them for 53 years, has no excuse whatsoever for failure to develop the same and cannot have their lease renewed as that will be a waste of public resources
p. 9Non-renewal of leases over undeveloped public land
I do not agree with that position as a grant or confirmed grant of letters of administration is not proof of ownership but shows distribution of alleged deceased person's property.
p. 9Effect of letters of administration
Judicial review remedies sought under Order 53 of the Civil Procedure Rules are concerned with the decision-making process and not the merits of the case
p. 7Scope of judicial review
Where ownership is disputed like in this case, it is this court and not the probate court that determines such dispute.
p. 9Jurisdiction over disputed ownership

Issues in the judgment

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minor

The judgment inconsistently records the date leave was granted: paragraph 1 states November 24, 2022 while paragraph 24 (respondents' submission) and paragraph 41 state 24th October/November 2022, and paragraph 24 states the motion 'ought to have been filed by 14th November 2022' yet was filed 16th December 2022

minor

The suit property measurement is given inconsistently as 0.4338 Ha and 0.4388 Ha within the judgment

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, "Republic v National Land Commission & 5 others; Nyamu (Applicant) (Environment and Land Case Judicial Review Application E019 of 2021) [2024] KEELC 6912 (KLR)", Case Analysis (2024). Judicial Review Application dated December 15, 2022 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6912/eng@2024-10-16

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