Samuel Kimondo Theuri v National Land Commission & another

substituted it with L.R. No. 122/4, belonging to the 2nd respondent. He contended that, through that Gazette Notice, the respondents eectively nullied his title to the suit property and deprived him of his entitlement to compensation, thereby infringing his rights under Articles 40(3) and 47(1) and (2) of the Constitution. It was his case that the impugned decision was made without aording him an opportunity to be heard and that the interference with his proprietary rights was therefore unconstitutional and unjustiable. The appellant thus sought judgment for inter alia: a Declaration that the Gazette Notice No. 9742 relating to Land Reference 122/7 was in breach of Articles 40 (3) and 47 (1) and (2) of the Kenya Constitution thus unconstitutional and null and void ab initio; an order of judicial review in the nature of certiorari to bring into the ELC the decision by the respondents dated 22nd August, 2016 in the matte of LR No. 122/4 and LR No. 122/7 Ruiru Sports Club and Samuel Kimondo Theuri for the purposes of being quashed; an order of judicial review in the nature of certiorari to bring into the ELC for purposes of quashing the 1st respondent’s Gazette Notice Number 9742 made on 23rd August, 2016 or on such other date and published on 25th November, 2016 in the Kenya Gazette, purporting to make corrections to Kenya Gazette Notices Numbers 6034 and 6035 of 2008 and eectively revoking the appellant’s right to compensation for land compulsorily acquired by the Government for the construction of the Nairobi-Thika Highway over title LR. No. 122/7, Ruiru in the Republic of Kenya for being in breach of the Constitution and the law and in particular Articles 24, 40, 47, 50 and 67 (2) of the Constitution, and further for being ultra vires the powers of the National Land Commission; the decision by the respondents dated 22nd August, 2016 in the matter of LR No. 122/4 and LR No. 122/7 Ruiru Sports Club and Samuel Kimondo Theuri for the purposes of being quashed; a permanent order of an injunction restraining the respondents by themselves, or anyone of them, their agents, servants or otherwise howsoever from processing payment to the Ruiru Sports Club to account of compensation or other consideration of any kind whatsoever from the Government of Kenya for any land acquired out of the said LR No. 122/7 or any part thereof for the Nairobi-Thika Road project; a permanent order of an injunction restraining the Ruiru Sports Club by themselves, or anyone of them, their agents, servants or otherwise howsoever from receiving compensation or other consideration of any kind whatsoever from the Government of Kenya for any land acquired out of the said LR No. 122/7 or any part thereof for the Nairobi-Thika Road project; the ELC be pleased to issue any such further orders it may deem t and convenient to grant in the circumstances of this case; the appellant be at liberty to apply for any further orders and/or directions as the Court may deem just and t to grant; and costs of this petition and interest thereon be awarded to the appellant. 3. The appellant reiterated the foregoing averments in his adavit in support of the petition, and asserted that he was entitled to compensation from the Government of Kenya in the sum of Kshs. 71,486,990 arising from the compulsory acquisition of part of the suit property. 4. Alongside the petition, the appellant led a Notice of Motion dated 9th June 2017 seeking judicial review orders in the nature of certiorari, as well as conservatory orders against the respondents. In opposition to the application, the 1st and 2nd respondents led grounds of opposition dated 23rd October 2017 and 20th June 2017, respectively. Their principal objection was that the prayer for an order of certiorari was time-barred, having been led more than six months after the decision of the 1st respondent dated 22nd August 2016. 5. The 1st respondent opposed the application on several grounds. It contended that the prayers sought were, in eect, mandatory orders being sought at an interlocutory stage; that the proceedings oended the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010; and that the application sought to quash the 1st respondent’s decisions dated 22nd August 2016 and 25th November 2016, which had been led outside the statutory six-month period prescribed for judicial review applications seeking orders of certiorari. The 1st respondent further argued that the appellant had failed to satisfy the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 2

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threshold for the grant of conservatory orders as set out by the Supreme Court in Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others, Supreme Court Application No. 5 of 2014. 6. The 2nd respondent’s position was that the suit property had been unlawfully excised from its property known as L.R. No. 122/4 by the late Isaac Karuri Nyongo and the late Peter Miringu Kibui, who were the co-defendants in ELC No. 2127 of 2007. It was contended that the said persons unlawfully sold the excised portion to the appellant, who subsequently subdivided the property and disposed of portions thereof to third parties. The 2nd respondent maintained that approximately 15 acres of the suit property were thereafter compulsorily acquired by the Government for purposes of construction of the Thika Super Highway and transferred to the Kenya National Highways Authority (KeNHA). 7. The 2nd respondent asserted that, at the time of the compulsory acquisition, the suit property had been unlawfully acquired by the appellant, leading to the issuance of Gazette Notice No. 6035 of 2008 for purposes of compensating him. However, that process was subsequently halted by injunctive orders issued in ELC No. 2127 of 2007. 8. It was further contended that, pursuant to Article 68 of the Constitution and section 14 of the National Land Commission Act, the 1st respondent undertook a review of the circumstances surrounding the excision of the suit property from L.R. No. 122/4 and determined that the property rightfully belonged to the 2nd respondent. Consequently, Gazette Notice No. 9742 of 2016 was issued on 25th November 2016, cancelling the earlier notice that had provided for compensation to the appellant and substituting the 2nd respondent as the lawful recipient of compensation. 9. The 2nd respondent maintained that the appellant had participated in the proceedings before the 1st respondent and had not raised any complaint regarding the fairness of the process under Article 47(3) of the Constitution or section 7 of the Fair Administrative Action Act. It was stated that the appellant was aorded an opportunity to be heard on 16th February 2016 in accordance with section 14(3) and (4) of the National Land Commission Act. Accordingly, the 1st respondent, acting under section 14(6) of the Act, lawfully determined that KeNHA should compensate the 2nd respondent for the compulsory acquisition. 10. In the 2nd respondent’s replying adavit in response to the petition, Gabriel Muthwale, a trustee of the Club, deponed that the portion of land compulsorily acquired by the Government belonged to the 2nd respondent. He maintained that the appellant was not the lawful owner of the suit property, as the title held by him had been found to have arisen from an unlawful excision of the 2nd respondent’s land and was subsequently revoked. 11. The 2nd respondent further disputed the appellant’s assertion that Nairobi HCCC No. 2127 of 2007 had been instituted after he had commenced the compensation process. It contended that the suit was led in 2007, before the issue of compensation arose, and that the appellant had selectively annexed an amended plaint while failing to disclose the original plaint in which he was not initially a party. According to the 2nd respondent, the appellant was later joined to the proceedings after it emerged that the original defendants had transferred the suit property to him and that he stood to receive compensation for the compulsorily acquired land. 12. The 2nd respondent further asserted that the appellant was represented by counsel, Mr. Stephen Gachie, during the inquiry conducted by the 1st respondent into the circumstances under which the title to the suit property was acquired. Consequently, the appellant could not legitimately contend that he had been condemned unheard. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 3

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13. The ELC in its judgment considered whether the National Land Commission (the Commission) had jurisdiction to review the grant relating to LR No. 122/7; whether the appellant’s constitutional rights under Articles 40 and 47 of the Constitution had been violated; whether the Commission’s decision dated 22nd August 2016 and the resultant Gazette Notice No. 9742 of 25th November 2016 ought to be quashed; whether the appellant was entitled to injunctive reliefs restraining payment of compensation to 2nd respondent herein; and the issue of costs. 14. On the jurisdiction of the Commission, it was held that the Commission acted within its constitutional and statutory mandate in reviewing the ownership of LR No. 122/7 and LR No. 122/4. It was noted that the review was undertaken after the suit property had already been compulsorily acquired for the construction of the Nairobi-Thika Highway and had consequently become public land. It was found that the purpose of the inquiry was to determine the lawful owner entitled to compensation arising from the acquisition. It was further held that, even before the acquisition, the Commission had jurisdiction under section 14 of the National Land Commission Act to review grants and dispositions of public land that had subsequently been converted into private ownership. Relying on Republic vs- National Land Commission ex parte Holborn Properties Limited [2016] eKLR, it was held that private land originating from public land was not beyond the scope of the Commission’s review mandate. The appellant’s contention that the Commission lacked jurisdiction to review the title relating to the suit property was consequently rejected. 15. On whether the appellant’s rights under Article 40 of the Constitution had been violated, it was held that they had not. It was found that the Commission had undertaken an inquiry after receiving a complaint from 2nd respondent herein, that LR No. 122/7 had been unlawfully excised from its larger parcel, LR No. 122/4. Following the inquiry, the Commission found that the persons who transferred the property to the appellant had unlawfully acquired it from the Club’s land and directed that the appellant’s name be deleted from the compulsory acquisition records and replaced with that of the Club. It was held that the appellant could not claim a constitutional entitlement to compensation arising from land found not to have been lawfully acquired. 16. It was further held that the appellant was not entitled to the protection accorded to a bona de purchaser for value without notice under section 14(7) of the National Land Commission Act. It was found that the appellant was aware of pending litigation concerning the validity of the title held by his vendors but nevertheless proceeded with the purchase. It was consequently concluded that the appellant’s rights under Article 40 had not been violated. 17. On the alleged violation of Article 47 of the Constitution, it was held that the appellant had not been condemned unheard. It was found that the Commission had invited interested parties to participate in the review proceedings through advertisements in the local press and that the appellant was represented by an advocate, Stephen Gachie, during the inquiry. It was further held that the appellant had been aorded an opportunity to be heard and that the Commission’s determination contained written reasons for the decision reached. Accordingly, it was found that there was no violation of Articles 47(1) and (2) of the Constitution. 18. On whether the Commission’s decision dated 22nd August 2016 and Gazette Notice No. 9742 of 25th November 2016 ought to be quashed, it was held that the appellant had failed to demonstrate any illegality, irrationality or procedural impropriety in the decision-making process. It was observed that the function of the Court in judicial review proceedings was conned to examining the legality, fairness and propriety of the decision-making process rather than substituting its own view on the merits of the dispute. Having found that the Commission conducted an inquiry, considered the parties’ respective positions and reached a reasoned determination, it was held that the decision to delete the appellant’s https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 4

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name from the acquisition records and substitute it with that of 2nd respondent herein, was lawful and was therefore not amenable to an order of certiorari. 19. On the prayer for permanent injunctive orders restraining payment of compensation to the 2nd respondent herein, it was held that the orders could not issue. It was found that LR No. 122/7 had been unlawfully excised from the Club’s property and that the Commission had correctly identied the Club as the party entitled to compensation. Accordingly, it was held that there was no basis to restrain the Commission from processing compensation or to prevent the Club from receiving it. The Petition was ultimately found to be devoid of merit and was dismissed with costs to the respondents. 20. Aggrieved by the above decision, the appellant in his written submissions has summarized the eight (8) grounds of appeal into the following issues for determination by this Court inter alia: whether the National Land Commission had jurisdiction or power to conduct proceedings for review of title(s) when the disputes on ownership of the impugned titles were pending before a court of competent jurisdiction; whether the National Land Commission became a judge in its own cause being a party to court proceedings; whether the National Land Commission was under a duty to accord the ex parte applicants an opportunity to be heard and if so, whether the applicants were heard before their titles were revoked; and whether the National Land Commission was under a statutory duty to provide reasons for the determination that the suit titles were illegally/irregularly acquired. 21. When this appeal came up for hearing on 10th February 2026. Learned Counsel Mr. Mbithi was present for the appellant while learned Counsel Mr. Wawire was present for the 2nd respondent. There was no appearance for the 1st respondent despite service having been eected upon them. 22. Learned Counsel Mr. Mbithi challenged the judgment of the ELC upholding the decision of the National Land Commission (the Commission) dated 19th August 2016, through which the Commission revoked his title to the suit property and armed the 2nd respondent’s claim thereto. Counsel submitted that the appellant was the registered proprietor of the property, measuring approximately 30 acres in Ruiru, part of which had subsequently been compulsorily acquired by the Government for the construction of the Thika Superhighway. He contended that before compensation arising from the compulsory acquisition could be paid, the 2nd respondent, Trustees of Ruiru Sports Club, instituted proceedings before the ELC claiming ownership of the property. According to the Counsel, although the Commission had been joined in those proceedings after assuming the functions of the former Commissioner of Lands, it proceeded to undertake parallel review proceedings under section 14 of the National Land Commission Act. Those proceedings culminated in the revocation of his title, the recognition of the 2nd respondent’s interest in the disputed property, and directions requiring KeNHA to substitute the acquired parcel for purposes of compulsory acquisition and pay compensation to the 2nd respondent. The appellant thereafter led a constitutional petition challenging the legality of the Commission decision and Gazette Notice No. 2742 of 25th November 2016 through which the decision was implemented. 23. Mr. Mbithi’s principal submission was that the Commission lacked jurisdiction to investigate and determine the question of ownership of the suit property while the same issue was pending before the ELC. He argued that, once the court had assumed jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, the determination of ownership became a matter reserved for the court and the Commission had no authority to undertake parallel proceedings under section 14 of the National Land Commission Act. In his view, the Commission, by determining a dispute that was already before a competent court, acted beyond its constitutional and statutory mandate and eectively assumed a judicial role reserved for the courts. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 5

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24. It was further submitted that the Commission lacked jurisdiction to revoke a title over registered private land in circumstances where it had not rst established that the land was public land before its allocation and registration, or that the grant had been unlawfully or irregularly obtained. He maintained that the dispute was essentially one between private parties and therefore fell outside the Commission’s mandate. He further argued that the subsequent compulsory acquisition of part of the property did not aect the validity of his title or confer jurisdiction upon the Commission to determine ownership. 25. Mr. Mbithi also challenged the procedure adopted by the Commission, contending that it violated the rules of natural justice and his constitutional right to a fair hearing under Article 50 of the Constitution. He submitted that the Commission was not properly placed to act as an adjudicator in a dispute where it was already a party to pending proceedings before the ELC. He further argued that the proceedings before the Commission did not aord him safeguards equivalent to those available in court proceedings, including a full opportunity to present evidence and challenge the opposing case. The appellant also contended that the Commission failed to consider the interests of third parties who had acquired portions of the property and whose proprietary interests were aected by the decision. 26. In support of his submissions, Mr. Mbithi relied on Naftali Ruthi Kinyua -vs- Patrick Thuita Gachure & another [2015] eKLR, where this Court armed the protection accorded to a registered proprietor and the principle that a title may only be impeached on legally recognised grounds. He relied on that decision to argue that his title could not be revoked through an administrative process undertaken without jurisdiction. He also relied on Robert Mutiso Lelli & Cabin Crew Investments Ltd -vs- National Land Commission & 3 others [2017] eKLR, for the proposition that although the Commission has power under section 14 of the National Land Commission Act to review grants and dispositions of public land, that mandate must be exercised within constitutional and statutory limits and in accordance with the requirements of due process and fair administrative action. Further reliance was placed on Li Wen Jie & 2 others -vs- Cabinet Secretary, Ministry of Interior and Coordination of National Government & 3 others [2017] eKLR for the principle that administrative bodies exercising statutory powers must remain within the connes of their enabling legislation and comply with the constitutional principles of legality, fairness and rationality. 27. On the basis of those authorities, it was urged that we nd that the Commission acted without jurisdiction, violated his constitutional rights and that the learned Judge consequently erred in upholding the Commission’s decision. He therefore prayed that the appeal be allowed, the judgment of the ELC be set aside, the decision of the Commission together with Gazette Notice No. 2742 of 25th November 2016 be quashed, and his title to the suit property restored. 28. The 2nd respondent opposed the appeal and supported the judgment of the ELC. It submitted that the Commission acted within its constitutional and statutory mandate under Article 67 of the Constitution, Article 68 and section 14 of the National Land Commission Act to review grants and dispositions of public land. Learned Counsel Mr. Wawire argued that the fact that land had subsequently been registered as private property did not oust the Commission’s jurisdiction where the complaint related to alleged irregularity, illegality or impropriety in the original allocation. 29. Mr. Wawire maintained that the Commission was empowered to investigate historical land injustices and determine whether a grant or disposition of land had been irregularly or unlawfully obtained notwithstanding subsequent registration. It relied on Tom Dola & 2 Others -vs- Chairman, National Land Commission & 5 Others [2020] eKLR and Pevans East Africa Limited & Another -vsChairman, Betting Control & Licensing Board & Others [2018] eKLR in support of the proposition https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 6

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that statutory bodies may investigate historical illegality and irregularities despite subsequent dealings with the property or the existence of related proceedings. 30. It was further submitted that the appellant had been aorded an opportunity to be heard before the Commission and was represented by counsel during the proceedings. Mr. Wawire relied on the decision in ELC No. 2127 of 2007 to support its position on ownership of the disputed property and contended that the learned Judge properly declined to interfere with the Commission’s determination. It therefore urged the Court to dismiss the appeal with costs. 31. This being a rst appeal, our mandate is circumscribed by the well-settled principle that we are required to reconsider, re- evaluate and re-analyse the evidence on record and draw our own conclusions, while bearing in mind that we did not have the advantage of hearing the witnesses testify. In Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123, the former East African Court of Appeal stated that a rst appellate court is not bound to accept the ndings of fact of the trial court if it appears that the trial court failed to take into account particular circumstances or probabilities, or if its conclusion is plainly wrong. Equally, in Peters -vs- Sunday Post Ltd [1958] EA 424, it was emphasized that an appellate court will not lightly interfere with ndings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence, or the trial court is shown to have acted on wrong principles. 32. The appeal arises from the decision of the Environment and Land Court dismissing the appellant’s constitutional petition and upholding the decision of the Commission dated 22nd August 2016, which resulted in the cancellation of the appellant’s entitlement to compensation arising from the compulsory acquisition of part of L.R. No. 122/7 and the substitution of the 2nd respondent as the person entitled to compensation. 33. The appellant’s challenge is founded on the contention that the Commission acted without jurisdiction, violated his right to fair administrative action, and unlawfully interfered with his proprietary rights. In particular, he contended that the question of ownership of L.R. No. 122/7 was already pending determination before the Environment and Land Court in ELC No. 2127 of 2007 and that the Commission, having become aware of those proceedings, had no jurisdiction to undertake parallel proceedings and determine the ownership dispute. He further argued that the Commission did not establish that the property was public land capable of review under section 14 of the National Land Commission Act and that he was condemned unheard before his title was eectively nullied. 34. The 2nd respondent opposed the appeal and supported the decision of the Commission. It maintained that L.R. No. 122/7 had been unlawfully excised from its property, L.R. No. 122/4, and that the appellant’s title emanated from that irregular excision. It contended that the Commission acted within its constitutional and statutory mandate under Article 67 of the Constitution, Article 68 and section 14 of the National Land Commission Act to review the grant and determine the person lawfully entitled to compensation arising from compulsory acquisition. 35. We have considered the rival submissions and the record before us. The starting point is that the mandate of the Commission under Article 67 of the Constitution and section 14 of the National Land Commission Act is not in dispute. The Commission is empowered to review grants and dispositions of public land to establish their legality, propriety and regularity. That mandate is intended to address historical irregularities in the allocation and disposition of public land and cannot be defeated merely because such land has subsequently been registered in private names. 36. This position was recognised in Republic -vs- National Land Commission ex parte Holborn Properties Limited [2016] eKLR, where the Environment and Land Court held that the fact that land has subsequently acquired private status does not, by itself, place it beyond the scrutiny of the Commission https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 7

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where the complaint concerns an alleged unlawful allocation or conversion of public land. Similarly, in Tom Dola & 2 Others - vs- Chairman, National Land Commission & 5 Others [2020] eKLR, the Court armed that the Commission may investigate historical land transactions involving allegations of illegality or irregularity notwithstanding subsequent registration and dealings with the property. 37. However, those authorities do not establish that the Commission has unlimited jurisdiction over every dispute concerning registered land. The Commission’s jurisdiction is conditional upon the existence of a proper statutory foundation. It must demonstrate that the grant or disposition under review relates to public land or that private title was obtained through an unlawful conversion or irregular allocation of public land. Where the dispute is merely one concerning competing private proprietary claims, jurisdiction lies with the Environment and Land Court. 38. In the present case, the appellant’s contention was that L.R. No. 122/7 was registered in his name and that the dispute with the 2nd respondent was essentially a private ownership dispute concerning an alleged excision from L.R. No. 122/4. That dispute was already pending before the Environment and Land Court in ELC No. 2127 of 2007. The appellant’s complaint was therefore not that the Commission had no constitutional mandate to review grants of public land, but that the Commission had not established that the dispute before it fell within that mandate. 39. The record further shows that the Commission, whose decision was impugned, did not substantively defend the legality of its decision before the Environment and Land Court. Its response was principally directed at preliminary objections concerning the competence of the proceedings, including the alleged delay in seeking judicial review orders and the threshold for conservatory relief. The substantive justication for the Commission’s decision was advanced by the 2nd respondent. 40. While the failure by the Commission to defend the merits of its decision does not automatically render the decision unlawful, it was incumbent upon the Commission, as the decision-maker, to demonstrate the legal and factual basis upon which it assumed jurisdiction and exercised its statutory powers. In particular, the Commission was required to place before the court material demonstrating that L.R. No. 122/7 was a grant or disposition of public land amenable to review under section 14 of the Act, rather than merely a private ownership dispute already pending before a competent court. 41. In our view, the learned Judge erred in approaching the matter principally from the perspective that the Commission possessed jurisdiction generally to review grants involving land that may have originated from public land. The critical question was not whether such jurisdiction existed, but whether the circumstances of this particular case satised the conditions for its exercise. The existence of allegations by the 2nd respondent that the appellant’s title arose from an unlawful excision did not, without more, conclusively establish that the matter had ceased to be a private proprietary dispute and had become one concerning review of public land. 42. The appellant further alleged that he was not accorded a fair hearing before the Commission revoked his entitlement to compensation. Article 47 of the Constitution and the Fair Administrative Action Act require that administrative action aecting rights or interests of a person must be lawful, reasonable and procedurally fair. Although the 2nd respondent asserted that the appellant participated in the inquiry and was represented by counsel, the Commission was the custodian of the proceedings and was best placed to demonstrate compliance with the applicable procedural safeguards. 43. A nding that a person is not entitled to constitutional protection of property under Article 40(6) because the property was unlawfully acquired must itself be reached through a lawful and fair process. Article 40(6) does not authorise an administrative body to deprive a person of proprietary https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 8

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interests without rst establishing jurisdiction and complying with constitutional guarantees of fair administrative action. 44. But more important, the Commission was a party in the ELC proceedings that the 2nd respondent had led to determine who, between it and the appellant, was the rightful owner of the disputed property. Once the Commission became an interested party to the proceedings, it could not, in its parallel proceedings undertake to determine the grievance between the parties over the same property. The Commission was interested in the outcome of the case and could not sit in judgment over the same. It violated the appellant’s right to a fair hearing under Article 50 of the Constitution. (See Alnashir Popat & Others -vs- The Capital Markets Authority, Supreme Court Petition No. 29 of 2019). 45. Although the petition sought constitutional reliefs, the impugned decision was an exercise of administrative power by the National Land Commission. The Court's function is therefore not to determine afresh the competing proprietary claims between the appellant and the 2nd respondent, but to examine whether the Commission acted within its constitutional and statutory mandate, observed the requirements of procedural fairness, and exercised its powers lawfully. As this Court observed in Municipal Council of Mombasa -vs- Republic & Umoja Consultants Ltd [2002] eKLR, judicial review is concerned with the legality of the decision-making process rather than the merits of the decision itself. In the present case, the Commission did not demonstrate, on the material before the court, that it had the jurisdictional foundation necessary to review the appellant’s title or that the process leading to the decision complied with the constitutional requirements of legality and fairness. 46. We therefore nd that the learned Judge fell into error by upholding the decision of the Commission without suciently interrogating whether the Commission had established the basis upon which it assumed jurisdiction and whether the appellant’s constitutional safeguards had been observed. The mere existence of a mandate under Article 67 and section 14 of the National Land Commission Act could not, without proof of the circumstances bringing the dispute within that mandate, validate the impugned decision. Further we would have wanted the Commission to be present during the hearing of this appeal to indicate to us whether, under Article 67(2)(e) of the Constitution, its powers extended to nullication of the appellant’s title to the suit property. This is because our understanding is that the Commission is mandated to investigate and recommend appropriate redress but cannot purport to gazette the nullication of the title (See Sceneries Limited -vs- National Land Commission [2017] eKLR). 47. Accordingly, we nd merit in the appeal. The judgment of the Environment and Land Court delivered on 26th August 2019 in ELC Petition No. 28 of 2017 is hereby set aside, and we accordingly allow the appellant’s petition in the ELC only to the extent of quashing the decision of the National Land Commission dated 22nd August 2016 and the resultant Gazette Notice No. 9742 of 25th November 2016. 48. The appellant shall have the costs of this appeal and of the proceedings before the Environment and Land Court. DATED AND DELIVERED AT NAIROBI THIS 25th DAY OF SEPTEMBER 2026. P. NYAMWEYA ........................................ JUDGE OF APPEAL L. ACHODE ........................................ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 9

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JUDGE OF APPEAL A.O. MUCHELULE ........................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1919/eng@2026-09-25 10

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