Republic v National Land Commission & 5 others; Nyamu (Applicant) (Environment and Land Case Judicial Review Application E019 of 2021) [2024] KEELC 6912 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has met the threshold for grant of orders of mandamus and prohibition
- 2.Whether the substantive motion was filed within the time granted in the leave order
- 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
#Whether mandamus should issue to compel issuance of PPA2 form and renewal/extension of the lease
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
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.
Whether the letters of administration confer ownership of the suit property on the applicant
A grant or confirmed grant is not proof of ownership; disputed ownership is determined by this court, not the probate court
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.
Whether the application was filed out of time
The motion was filed within the 21 days since the 21st day fell on a Sunday and was extended to Monday 16th December 2022
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.
Whether the court should revisit the Land (Extension and Renewal of Leases) Rules 2017 and exhaustion arguments
The court declined to revisit these issues, having pronounced itself on them in the leave ruling
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.
Legal principles established
#- 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
#- 1.Dismissal of the application dated December 15, 2022
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Order of prohibition against allocation or interference with the suit property
It was predicated on the mandamus prayer, which failed
Costs of the application
Costs were awarded to the respondents, not the applicant
Costs
Application dismissed with costs to the respondents
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.
The upshot is that I find no merit in the application dated December 15, 2022, which I dismiss with costs to the respondents.
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
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.
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
Where ownership is disputed like in this case, it is this court and not the probate court that determines such dispute.
Issues in the judgment
#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
The suit property measurement is given inconsistently as 0.4338 Ha and 0.4388 Ha within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.