Apex court fails to insulate NLC from a barrage of land cases

The National Lands Commission (NLC) has failed to secure an advisory opinion from the Supreme Court (SC) to shield it from a series of compulsory acquisition cases.

NLC informed the SC that it has over 3,300 pending cases in court related to compulsory acquisition litigation, alongside several court decrees that require compliance and settlement.

The Lands Commission stated that its trust compensation account, held at the National Bank, has, over time, been subjected to sustained garnishee proceedings to satisfy pending court decrees.

The Commission sought an advisory opinion from the SC on whether it is protected from execution proceedings, the attachment of its assets, and the garnishee of its accounts in satisfaction of a decree, as provided under Sections 21 and 25 of the Government Proceedings Act.

The Lands Commission explained that, due to the numerous applications for execution and garnishee proceedings, its functions have been significantly affected, hindering its administrative operations and threatening to bring them to a halt.

The Commission added that the advisory opinion would guide litigants, state organs, and other independent constitutional commissions on the applicability of the Government Proceedings Act.

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However, Justices Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Issac Lenaola, and William Ouko stated that they would not issue an advisory opinion based on mere speculation of future conflicts.

“Rendering an opinion on an issue in the pretext that there is a likelihood of conflicting decisions arising in the future would urge us to act on mere speculation, an invitation we decline to accept,” said Justice Koome.

The SC noted that the appellate court had already determined that the NLC is a constitutional commission insulated from execution proceedings, the attachment of its assets, and garnishee of its accounts under Sections 21 and 25 of the Government Proceedings Act.

The judges explained that, in the hierarchy of courts and the principle of stare decisis, the High Court and lower courts are bound by the decision of the Court of Appeal.

“While it is our finding that this Court has jurisdiction to render an advisory opinion as prayed in the reference, we nonetheless decline to exercise our discretion in favour of rendering such an opinion,” said Justice Koome.

NLC informed the Apex Court that its attempts to seek protection under Sections 21 and 25 of the Government Proceedings Act have not been successful, as the superior courts have been divided on the issue.

NLC argued that some courts have ruled that the Commission is ‘government’ for the purposes of the Act and, as such, is insulated by its provisions, while other courts have ruled that it is not ‘government’ and, therefore, the Act does not apply.

The Lands Commission argued that this uncertainty violates Article 201(d) of the Constitution, which addresses the prudent utilisation of public money, and requires urgent resolution through an advisory opinion rather than the lengthy adversarial process.

In a case between NLC and Tom Ojienda before the High Court in Eldoret, it was ruled that NLC is a body corporate and an independent state organ, and therefore cannot be construed as government or a government department, and is not protected by the Government Proceedings Act.

However, in Milimani Civil Case No. 445 of 2014, Five Star Agencies Limited vs NLC, the appellate court found that the NLC is a government agency, subject to the Government Proceedings Act, and therefore garnishee proceedings could not be issued.

NLC stated that the Government Proceedings Act does not define the scope of ‘government,’ while Section 3 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya, defines ‘government’ as "the Government of Kenya."

The Attorney General (AG) argued that constitutional commissions and independent offices are part of the government and, therefore, fall under the purview of Section 21(4) of the Government Proceedings Act.

The AG also recommended that guidance be sought from a higher court given the contradictory decisions from the superior courts below.

The AG stated that NLC’s request for an advisory opinion does not meet the criteria for the SC’s opinion and should be declined.

The Law Society of Kenya (LSK) highlighted a gap in the enforcement of compensation awards for compulsory acquisition.

The Law Society pointed out that Article 40 of the Constitution, Part VIII of the Land Act No. 6 of 2012, and the National Land Policy Sessional Paper No. 3 of 2009 stipulate the minimum amount that the NLC must ensure is available before granting approval for compulsory acquisition.