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Supreme CourtPartially AllowedReference 2 of 2014

National Land Commission v Attorney General & 5 others; Kituo Cha Sheria & another (Amicus Curiae) (Reference 2 of 2014)

Supreme Court of Kenya
30 October 2014
Willy MutungaW. M. MutungaKalpana RawalK. H. RawalPhilip Kiptoo TunoiK. TunoiMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguS. N. Njoki
15,267 words in judgment
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The bottom line

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Supreme Court can resolve land role disputes, but wants national and county governments to negotiate first.

What this practically means

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The National Land Commission asked the Supreme Court to clarify its role versus the Ministry of Land. The Court ruled it can give advisory opinions on land matters that affect county governments. However, before hearing the case, the Court ordered a 90-day period for the parties to talk and find a solution. This encourages cooperation over litigation.

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 27 questions concerning the demarcation of its functions and powers vis-à-vis those of the Ministry of Land, Housing and Urban Development. The Attorney-General and the Ministry raised a preliminary objection contesting the Court's jurisdiction, arguing that the matter did not concern county government and was justiciable before the High Court. The Supreme Court, by a majority (5:2), disallowed the preliminary objection and held that it had jurisdiction. The Court found that the Reference involved matters concerning county government because it concerned the administration and management of public land at both national and county levels, as contemplated under Articles 62(2) and 67(2) of the Constitution. The Court also held that the preliminary objection was properly raised as a pure point of law despite accompanying annexures. However, the Court exercised its discretion to scale down the 27 issues to a single question: the proper relationship between the mandate of the NLC and the Ministry in the context of Chapter Five of the Constitution. The Court ordered a 90-day interlude for constructive engagement between the parties before any hearing. Ibrahim, SCJ wrote a concurring opinion, agreeing with the result but disengaging from the majority's reliance on the Aramat case regarding jurisdiction. Njoki, SCJ dissented, arguing that the Reference did not concern county government and that the Court should have declined jurisdiction or exercised its discretion to refuse the opinion, as the matter was a justiciable controversy amenable to the High Court's jurisdiction. No order as to costs was made.

Questions the Court framed

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

  1. 1.Whether this Court has the jurisdiction to render an Advisory Opinion, in the terms of Article 163(6) of the Constitution.

Key legal issues

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01

Whether the National Land Commission, as a State organ, has capacity to seek an advisory opinion under Article 163(6) of the Constitution.

Holding

Yes, the National Land Commission is a State organ established under Article 67(1) and recognized under Article 248(2)(b) and Article 260, and therefore has capacity to request an advisory opinion.

Reasoning

The Court noted that there was no contention among the parties as to the applicant's status and standing. The National Land Commission is a Commission established under Article 67(1) of the Constitution, recognized under Article 248(2)(b), and by virtue of Article 260, as a State Organ. The Court has previously delivered advisory opinions to State organs, confirming this capacity.

p. 17
02

Whether the subject matter of the Reference constitutes 'a matter concerning county government' within the meaning of Article 163(6).

Holding

Yes, the Reference involves matters concerning county government because it concerns the administration and management of public land at both national and county level, as contemplated under Articles 62(2) and 67(2) of the Constitution.

Reasoning

The Court found that public land vests in county governments and is administered by the National Land Commission on behalf of both national and county governments. The Commission is a shared institution at both levels of government. The issues involve the administration and management of public land, which directly impacts county governments. The Court applied the guidelines from Re IIEC and Speaker of the Senate to conclude that the matter bears a significant impact on the conduct of county government.

p. 19
03

Whether the preliminary objection was properly raised as a pure point of law, given that it was accompanied by annexures of an evidentiary nature.

Holding

Yes, the preliminary objection was properly raised because the core issue—whether the Court has jurisdiction under Article 163(6)—is a pure point of law, and the annexures did not introduce factual complexity or modify the preliminary character of the legal issue.

Reasoning

The Court applied the principle from Mukisa Biscuit Manufacturing Co. Ltd. v. East End Distributors Ltd that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct. Despite the annexures, the objectors' contention went to the exercise of the Court's jurisdiction as prescribed by Article 163(6), which is a pure issue of law. The annexures did not introduce factual complexity or modify the preliminary character of the legal issue. The Court also invoked Article 159(2)(d) of the Constitution.

p. 16
04

Whether the Court should exercise its discretion to render an advisory opinion on all 27 issues raised by the applicant.

Holding

The Court may exercise discretion to scale down the issues; it will not deal with all 27 issues as some are justiciable and more appropriate for the High Court. The Court reframed the issues to a single question: the proper relationship between the mandate of the National Land Commission and the Ministry of Land, Housing and Urban Development.

Reasoning

The Court recognized that while some issues meet the admissibility requirements for an advisory opinion, others are proper justiciable causes for adjudication in the High Court. The Court has discretion as to whether to render an advisory opinion and on which issues. It noted that issues relating to institutional mandates assigned by the Constitution, contested between two State organs and touching on the population at large, properly fall to the advisory-opinion jurisdiction. The Court ordered a 90-day interlude for constructive engagement before hearing.

p. 20

Legal principles established

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  • State organs like the National Land Commission can request Supreme Court advisory opinions.
  • A matter concerns county government if it significantly impacts county operations, even if it involves national processes.
  • The Supreme Court can interpret the Constitution while giving an advisory opinion.
  • The Court may decline an advisory opinion if the issue is in a lower court, unless it is of great public importance.
  • A preliminary objection is a pure point of law, even with annexures, if they don't change the legal issue.

Court orders

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  1. 1.The preliminary objection dated 15th July, 2014 is hereby disallowed.
  2. 2.Prior to the conduct of a hearing, the Court allows a 90-day interlude during which the parties may undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
  3. 3.Failing due action in the terms of Order No. (ii), the Reference herein shall be set down for hearing through the office of the Registrar, and a hearing date shall be given on the basis of priority.
  4. 4.In the event that Order No. (iii) takes effect, and subject to such other directions as shall be given during formal conferencing, the issues for consideration shall be scaled down to the question: What is the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand – in the context of Chapter Five of the Constitution; the principles of governance (Chapter 10 of the Constitution); and the relevant legislation?
  5. 5.There shall be no order as to costs.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Willy Mutunga
majority
Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
concurring

Wrote the judgment

I agree with the majority that the Reference meets the admissibility requirement under Article 163(6), but I wish to buttress certain points: a certification of urgency does not determine jurisdiction; the preliminary objection was properly raised despite annexures; and while I concur in the result, I disengage from the majority's reliance on the Aramat case regarding the Supreme Court's jurisdiction, as I maintain that the Lillian S case remains the locus classicus on jurisdiction.

I have read the majority Ruling of the Court and I agree with the rendition of the facts and submissions of the parties. I also agree with my brothers and sisters in the majority that indeed the instant Reference meets the admissibility requirement as set out in Article 163(6) of the Constitution. However, there are some fundamental issues that, while I concur, I would like to buttress.p. 21
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NjokiSCJ
Currently serving
dissenting

Wrote the judgment

I am unable to agree with the majority. The Reference does not concern county government as required by Article 163(6); the questions have only a remote nexus to county government. Even if jurisdiction existed, the Court should decline to exercise its discretion because the matter involves a justiciable controversy between two national institutions, is amenable to the High Court's jurisdiction under Article 165(3)(d)(iii), and the Commission has not exhausted alternative dispute resolution mechanisms. Rendering an advisory opinion at this early stage would interfere with the developmental milestones of infant constitutional institutions.

I have considered the majority-opinion in the Reference before this Court and, with respect, I am unable to agree with the rationale and the consequential conclusion of the Court for the reasons that I will expound.p. 24
Jurisdiction invoked
Article 163(6) of the Constitution

Relief refused

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The preliminary objection seeking to strike out the Reference for lack of jurisdiction

The Court found that the Reference meets the admissibility requirement under Article 163(6) as it involves matters concerning county government, specifically the administration and management of public land at both national and county level.

p. 19

Costs

There shall be no order as to costs.

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.

It is quite plain to us that this Reference is one involving matters concerning county government; in particular, as the relevant issues involve the administration and management of public land, at both the national and the county level, precisely as contemplated under Articles 62(2) and 67(2) of the Constitution.
p. 19 Jurisdiction - Advisory Opinion - Matter Concerning County Government
For a reference to qualify for the Supreme Court's Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be 'a matter concerning county government.' The question as to whether a matter is one 'concerning county government', will be determined by the Court on a case-by-case basis.
p. 17 Jurisdiction - Advisory Opinion - Guidelines
It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the Court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other.
p. 18 Jurisdiction - Advisory Opinion - Definition of County Government Matter
The preliminary objection dated 15th July, 2014 is hereby disallowed.
p. 32 Orders - Preliminary Objection
Prior to the conduct of a hearing, the Court allows a 90-day interlude during which the parties may undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
p. 32 Orders - Alternative Dispute Resolution
There shall be no order as to costs.
p. 33 Orders - Costs

Key timeline

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2014-07-15
Preliminary objection filed by respondents in the advisory opinion reference.
2014
Supreme Court delivers ruling, disallowing preliminary objection and ordering 90-day negotiation period.

Practical implications

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For lawyers

Advisory opinion access clarified

Lawyers can now advise state organs to use Article 163(6) for resolving jurisdictional disputes before litigation. The Court's 90-day negotiation window may become a standard step, so counsel should prepare clients for mandatory dialogue. This ruling also confirms that preliminary objections can survive factual annexures if the core issue is a pure point of law.

For businesses

Land administration delays possible

Businesses involved in land transactions should anticipate potential delays when disputes arise between the National Land Commission and county governments. The Court's preference for negotiation means that resolution may take at least 90 days before any judicial guidance. Proactive engagement with both levels of government could help avoid prolonged uncertainty.

For individuals

Know your land authority

If you have a land issue involving both national and county governments, the Supreme Court can provide clarity on who is responsible. However, you must first allow the government bodies to attempt a negotiated solution. This ruling encourages dialogue before court intervention, which may lead to faster resolution for individuals.

Frequently asked questions

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What is the National Land Commission's role in Kenya?+

The National Land Commission is a state organ established under Article 67(1) of the Constitution. It manages public land on behalf of both national and county governments, including administration and oversight of land use.

Can the Supreme Court give advice on land disputes between national and county governments in Kenya?+

Yes, under Article 163(6) of the Constitution, the Supreme Court can give advisory opinions on matters concerning county government. Land administration, which involves both levels, qualifies for such opinions.

What happens if the National Land Commission and Ministry of Land conflict in Kenya?+

The Supreme Court may issue an advisory opinion to clarify their roles. But first, the Court orders a 90-day period of constructive engagement between the parties to try to resolve the conflict without litigation.

How does the Supreme Court decide whether to give an advisory opinion in Kenya?+

The Court has discretion. It may decline if the matter is already in a lower court, unless the applicant shows it is of great public importance and needs urgent resolution through an advisory opinion.

Later judgments citing this (16)

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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, "National Land Commission v Attorney General & 5 others; Kituo Cha Sheria & another (Amicus Curiae) (Reference 2 of 2014)", Case Analysis (2014). Reference 2 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/10/eng@2014-10-30

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