https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5165

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCA NO E064 OF 2024** **KAKUZI PLC - APPELLANT** **VS** **KITUAMBA KALOLENI IDPs - 1ST RESPONDENT** **KAKUZI DIVISION DEVELOPMENT** **ASSOCIATION - 2ND RESPONDENT** **MILIMANI COMMUNITY - 3RD RESPONDENT** **[Being an appeal from the Ruling and orders of the National Land Commission [****Historical Land Injustice Committee] delivered at the Utalii College, Nairobi on 12/4/2024 in NLC/HLI/168/2018 as consolidated with NLC/HLI/006/2017 and NLC/HLI/580/2019 ]** **JUDGMENT** **The case of the parties before the Historical Land Injustice Committee** 1. This appeal arises from the Ruling and the orders of the Historical Land Injustice Committee [hereinafter referred to as the Committee], delivered on 12/4/2024 in NLC/HLI/168/2018, as consolidated with NLC/HLI/006/2017 and NLC/HLI/580/2019. 2. According to the record before the court, the Commission received a historical land injustice claim from the respondents under Article 67(2) of the Constitution and under Section15 of the National Land Commission Act. 3. The Respondents, comprising various communities living near the Appellant, have therefore sought a finding that the Appellant's suit properties are their ancestral lands, from which their forefathers were forcibly removed by the colonial government, and that the land was given to the Appellant without compensation. 4. The appellants have denied the respondents' allegations and insist that they hold indefeasible title as the registered owners of LR Nos 10731 and 11674 [their suit properties]. 5. In carrying out its mandate, the Committee therefore held hearings on 28th and 29th February 2024. On 14/3/24, a site visit was conducted to the appellant's land in the presence of the Respondents, inter alia. 6. However, on 25/3/2024, the Appellant filed an application before the committee and sought orders that the Hon Commissioner, Esther M Mathenge, recuse herself from hearing and determining the respondents' claims; that the National Land Commission [NLC] formulate the terms of reference and procedural guidelines prior to another site visit and further hearings in line with its mandate; and that the NLC also formulate directions on the quorum required for Commissioner s when handling hearings of historical land injustice claims and site visits. 7. The application was based on the grounds annexed thereto and on the supporting affidavit of Dennis Gitaka. In brief, the appellants' complaint of bias on the part of Commissioner Mathenge is as follows: 8. The Appellant and some of the claimants were excluded from the meeting held at the Deputy County Commissioner s’ [DCC] offices at Kenol by the NLC Commissioners and another group of claimants, while they were kept waiting at Ananas Mall along Garissa Road, which had been agreed as the initial meeting point prior to the site visit. 9. Commissioner Mathenge permitted the DCC for Ithanga to oversee the proceedings, even though the DCC's primary role is to provide security. The DCC then took control of the site visit by altering the agreed schedule, selecting a route based on the majority's poll preferences, and bypassing the route to the appellants' investments. The Appellant argues that these actions compromised impartiality and fairness, indicating bias in favour of the claimants. 10. The Commissioner s allowed some claimants to make representations at every stage without ascertaining their claims or determining whether they had testified on oath during the proceedings on 28th and 29th February 2024. 11. Commissioner Mathenge stated that NLC will require the Appellant to surrender additional land to accommodate 25% of the population, thereby constituting a roadside declaration and a predetermined outcome in the parties' dispute 12. Commissioner Mathenge’s statement that ‘Kakuzi is not donating land, but simply giving back land that already belongs to the community” implied that the Appellant had taken land from the community and was required to return it. 13. In the Kanyangi area, Commissioner Mathenge stated that Kakuzi PLC will now have to work very hard in respect of the upcoming proceedings, indicating that she had already reached a decision on the dispute. 14. At fields 79 and 80, Commissioner Mathenge gave the impression that NLC would rule in favour of the claimants in respect of the so-called “idle” land. 15. At Kanyangi Primary School, Commissioner Mathenge proposed that Kakuzi maintain the status quo and that the Appellant should not enter into any joint ventures with third parties. This directive was biased, unreasonable, and illegal. It came from the Commissioner rather than the claimants, suggesting a Commissioner biased in favour of the claimants, and the appellants were not afforded any opportunity to be heard on the matter. 16. In addition, the Appellant also proposed some guidelines for the adoption of the Committee during hearings and site visits. 17. In its response dated 4/4/2024, the 1st Respondent opposed the application on the following grounds, namely; 18. There was no prior communication about the designated meeting point at Ananas Mall along Garissa Road for the briefing before the site visit. Subsequently, following communication from the NLC Muranga Branch officials, the parties were informed that they would convene at DCC Kenol for the briefing. They, along with other claimants, arrived at the specified venue; however, they were not addressed by the DCC or the NLC Commissioners. If any courtesy call was made by the Commissioners, they were not party to it. 19. That the route stops for the site visit were in accordance with the guidelines agreed by the parties at the briefing, although some variations were made in line with the majority poll taken on the ground. 20. Once the crowd became unruly after being provoked by the appellant's representative, the DCC took over the matter to restore order in line with his mandate to maintain law and order, and therefore there was nothing sinister about it. 21. Kakuzi Investments were still visited by all the parties, albeit not as per the initial planned route. 22. On representations made by some of the claimants, there was no pre-agreed list of those permitted to make representations at the various stops, nor was an oath required. In any event, the appellants' representatives addressed all the issues raised. 23. The 1st Respondent agreed with the Appellant on the guidelines for the site visit and added that the itinerary ought to be agreed in advance; at least two claimants from each group should be allowed to make representations; and the quorum and composition of the committee for the hearing and site visits should be in line with Regulation 11 of the NLC Regulations 2017. 24. The 2nd Respondent opposed the application and noted that the claim has been fully heard and that only the committee's judgment remains pending. In the interim, it added that: 25. The application is incompetent because the applicant has not approached the court under Rule 16 of the Investigation and Resolution of Claims on Historical Injustice. 26. Furthermore, it stated that there is no evidence of bias or pecuniary interest on the part of Commissioner Mathenge. 27. The applicant is forum shopping for Commissioners who would be favourable to their case. 28. The site visit was led throughout by the applicant's representative, and all the stops were visited, including the applicant's investments. 29. The role of the DCC was to provide security for the exercise, and the altercation that caused anxiety among the crowd present was caused by the applicant's representative. 30. The statement made by Commissioner Mathenge regarding the settlement of 25% of non-locals on the land was a point of law and did not show bias in favour of the claimants. 31. Further, Commissioner Mathenge’s statement that “Kakuzi is not donating land, Kakuzi is simply giving back land that already belongs to the community” referred to land given by the applicant to the landless communities at Ithanga Phase V, which was returned to the community rather than donated. The statement was neither malicious, as the land had already been given to the community. 32. The statement that Kakuzi will have to work very hard may be interpreted in different ways, and it does not necessarily indicate that the Commissioner has formed an opinion or that there is any element of bias. 33. Regarding the idle land remark, it simply means idle land, and any other meaning attributed to it by the Appellant is speculative and baseless, and does not warrant the Commissioner's recusal. 34. On the status quo, the 2nd Respondent states that the applicant is overstretching its interpretation to support its misplaced plea for recusal. 35. Quorum issues are already addressed under Rule 10(1) of the procedure on the investigation and resolution of claims of historical injustices. 36. Upon hearing the application, the Committee, in its Ruling delivered on 12/4/2024, stated as follows; 37. The applications dated 25/3/24 as consolidated, be and is hereby dismissed 38. That pending investigative hearings will proceed thereafter after the delivery of the ruling 39. Each party to bear their own costs. 40. It is this ruling that has triggered the appeal before this court. Aggrieved by the committee's decision, the Appellant brought this appeal on the following grounds. 41. The Commissioner erred in Law and fact in finding that the Fourth Schedule of the National Land Commission Act applied to the investigative hearings in respect of historical land injustice claims. The Learned Commissioner failed to appreciate that the Fourth Schedule applies to internal meetings of the Commission. 42. The Commission failed to appreciate that the Fourth Schedule does not set the necessary quorum for investigative hearings in respect of historical land injustice claims. 43. The Commission erred in law in failing to make a finding on the issue of quorum for a site visit in respect of a historical land injustice claim. The Commission erred in making reference to Section6 (3) (c) of the National Land Commission Act and strict rules of evidence which had no relevance to the question of quorum at a site visit. 44. The Commission erred in holding that the Commission may use any competent staff of the secretariat and/or Commissioner (s). The Commissioner failed to appreciate that a site visit is a critical part of the investigative hearing which would impact on the rights of the parties and that site visit findings are part of the final determination. The Commission failed to appreciate that it was important to have a requisite number of Commissioners who were the decision-makers during the site visit. 45. The Commission failed to appreciate that it was important to set out the procedures beforehand in respect of the site visit and notify the parties in advance prior to the site visit to avoid haphazard proceedings. 46. The Commission erred in failing to find that the requisite quorum was not achieved during the site visit. 47. The Commission erred in failing to communicate the procedure and protocol for the site visit prior to conducting the site visit and in so doing breached its duty to come up with rules. The Commission failed to appreciate that for any administrative action that would adversely affect any party in respect of land matters, prior notification of the rules and procedure is required to safeguard substantive rights. 48. The Commission erred in law by failing to deal with the comments made at the site visit and finding that the conduct of Commissioner Esther Murugi Mathenge did not amount to bias against the Respondent. 49. The Commission erred in law by failing to consider that there were other legal tests for bias other than pecuniary interests. The Commission failed to consider the Appellant’s submissions on the legal tests for bias. The Commission’s finding that Commissioner Esther Murugi Mathege had only one vote was the wrong test in determining bias. 50. The Commission failed to appreciate that a Commissioner for whom there was a reasonable apprehension of bias had a duty to recuse themselves regardless of the number of Commissioners in accordance with Article 50 (1). The Commission’s ruling was in breach of the Appellant’s right under Article 10(2) (b), (c), 50(1) and 159 ( e) of the Constitution. 51. The Commission erred in their rulings in respect of site visit that the Commission was in control and in charge of the site visit. The Commission erred in failing to appreciate the seriousness of not having procedural rules leading to the DCC Ithanga taking over the site visit. 52. The Commission erred by failing to consider that the National Land Commission (Investigation of Historical Land Injustice) Regulations had been annulled in 2019 and the Commission had yet to come up with new regulations for investigating historical land injustices. 53. The Commission erred in law by failing to consider the totality of the evidence adduced before the Commission. 54. Reasons wherefore the Appellant seeks orders that; 55. The appeal be allowed 56. The Ruling and the order of the NLC delivered on 12/4/2024 be set aside in their entirety, and Commissioner Esther Murugi Mathenge be disqualified from hearing the historical land injustice claim against the Appellant 57. An order directing the NLC to promulgate regulations in respect of the hearing of historical land injustice claims. 58. The costs of the appeal be awarded to the Appellant **The written submissions** 1. As to whether the Commission erred in finding that the site visit on 14/3/2024 met the requisite requirements, the Appellant submits that it did not. It is submitted that the Commission was not quorate for the site visit. The site visit was conducted by only two Commissioners, instead of the requisite three. Because site visits are essential to the investigation of historical claims whose outcome will impact the rights of the parties, they form part of the final determination of the Commission's decision and therefore ought to be conducted with the requisite quorum of Commissioners who would be the decision-makers during the site visit, not by any number of Commissioners and members of the Commission secretariat. 2. Relying on Section 15(1) of the NLC Act, which provides that the Commission shall receive, admit and investigate all historical land injustice complaints and recommend appropriate redress, it was submitted that the duty to investigate claims rests solely with the Commissioners, not with any member of the Commission's staff. 3. Regarding the issue of Commissioner Mathenge’s alleged biased conduct, the Commission was criticised for holding that she had no personal interest in the matter. It was argued that personal interest was not the sole test for bias, and that the claim that she had only one vote was incorrect. The Appellant submits that the Commission ought to have considered the Commissioner’s conduct and the statements made at various stops during the site visit, from which a reasonable and fair-minded member of the public would deduce that she would not be impartial in determining the claim. 4. It was further submitted that its rights to fair administrative processes were violated. The key ingredient of fairness and natural justice is that the deciding authority must be unbiased when conducting the hearing or deciding the dispute. To buttress the point, the court was referred to the case of Judicial Service Commission Vs Mbalu Mutava & Anor [2015] EKLR, where the court cited the decision in Ridge Vs Baldwin [1964] as follows; “The rules of natural justice, in particular the right to a fair hearing, applied not only to bodies having a duty to act judicially but also to the bodies exercising administrative duties. In that case, the court identified three features of natural justice as the right to be heard by an unbiased tribunal, the right to notice of the charge of misconduct, and the right to be heard in answer to those charges.” 1. The Appellant further relied on the case of Msagha Vs The Chief Justice & 7 others [2006] 2 KLR 553 where the court stated that; “An essential requirement for the performance of any judicial or quasi-judicial function is that the decision-makers observe the principles of natural justice. If the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” 1. It was further submitted that the Commission's decision breached fundamental rights under Articles 10(2)(b) and (c) of the Constitution, which provide that all public officers are bound by the principles of transparency, integrity, and the protection of human rights. In addition, it was submitted that the Appellant has demonstrated that its rights to a fair hearing under Articles 10(2), 47 and 50 of the Constitution were violated by the Commission when it dismissed the application for recusal and a site visit on 14/3/24, and that the ruling delivered on 12/4/2024 be set aside. 2. The 1st and 3rd Respondents submitted that the Appellant called on the Commission, vide its application dated 25/3/24, to formulate the terms of reference and guidelines for the second site visit, not to determine whether the site visit carried out on 14/3/24 met the requisite legal requirements. They further submitted that the Appellant is therefore estopped from raising new issues for determination at the appellate stage that were neither addressed by either party at first instance nor considered by the Commission. In support of this position, the 1st and 3rd Respondents relied on the decision of the court in Republic Vs Tribunal of Inquiry to investigate the conduct of Tom Mbaluto & others [2018] EKLR, where the court held as follows; “It is in the discretion of the Court to allow a party to raise a new point on appeal, depending on the circumstances of the case. (See also George Owen Nandy v. Ruth Watiri Kibe, CA No. 39 of 2015 and Openda v. Ahn [1983] L;R 165]. In this case we have stated that the Appellant never raised the issue in his judicial review application, neither party addressed the issue in the High Court, the Learned Judge, quite properly did not address the issue and, to make the matter worse, the Appellant did not raise the issue in his memorandum of appeal in this Court. The Attorney General is entitled to complain, as he does, that he has been taken by surprise and denied a fair opportunity to respond to the new issue. As has ben stated time and again, there is philosophy and logical reason behind our appellant system, which except in exceptional cases and upon proper adherence to the prescribed procedure, restricts the Appellant Court to consideration of the issues that were canvassed before the decided by the Trial Court. If that were not the case, the Appellant Court would become a Trial Court in disguise and make decisions without the benefit of the input of the Court of first instance. (See North Staffordshire Railway Co. v. Edge [1920] AC 254].” 1. It was submitted that site visits are necessary to enable the court to reach a just decision, as held in Beatrice Ngonyo Ndungu & Anor Vs Samuel K Kanyoru & 2 others [2017] EKLR. It was further submitted that Section 16(2) of the Act allows the Commission to co-opt other persons into membership whose knowledge and skills are necessary for the Commission's functions. Therefore, the composition of the Commissioner and staff who conducted the site visit on 14/3/24 was competent, and there is no reason to fault it. 2. On the question of alleged bias on the part of Commissioner Mathenge, it was submitted that the test for the recusal of a judge or judicial officer is whether a reasonable and fair-minded man, sitting in court and knowing all the relevant facts, would have a reasonable suspicion that a fair trial for the applicant was not possible. This position was set out in the case of Rai & 2 others Vs Rai & 4 others [2013] KESC 20 [KLR]. 3. It was further submitted that, in exceptional circumstances where all the members of the tribunal competent to determine a matter are subject to disqualification, they may be allowed to sit and determine the matter under the doctrine of necessity to avoid the attendant miscarriage of justice. It was proposed by the 1st and 3rd respondents that the members of the whole Commission ought to be allowed to sit and determine the dispute under the doctrine of necessity to avoid miscarriage of justice. 4. On proof of bias, it was submitted that the burden of proving bias rests on the person who alleges it. See the decision in Rawal & 2 others Vs Judicial Service Commission & 2 others [2016] KESC 1 KLR. On the facts of the appeal before the court, it was submitted that the Appellant failed to prove bias. Further, it was submitted that the Appellant failed to prove personal interest and the nexus between that interest and the alleged apprehension of bias, and that the conclusions reached by the Appellant were speculative and intended to delay the trial. 5. It was further pointed out that the hearing of the claim took place in 2024, and what is pending is the judgment or decision of the Commission. 6. The 2nd Respondent submitted that the ruling and the order appealed against arose from the exercise of the jurisdiction granted to the NLC under Section 15 of the Act. That a party, therefore, who is aggrieved by a decision of the Commission can only invoke the judicial review of this court and not file an appeal. In any event, there is no provision in the NLC Act which grants this court appellate jurisdiction. That in this case no leave was sought or granted to file the appeal, and therefore the appellate jurisdiction of the court has been improperly invoked, and therefore the court lacks jurisdiction to hear the appeal. 7. It was further submitted that the Committee heard the claim, finalised its investigations into all historical land injustice complaints, and recommended appropriate redress in its decision gazette dated 14/11/2025. Accordingly, the application has been overtaken by events and ought to be dismissed. **Analysis and determination** 1. Having considered the entire record of appeal, including the grounds thereof, the rival submissions of the parties, precedent/case law, and all the materials placed before the court, the issues for determination are as follows. 2. Whether there is a competent appeal before the court. 3. Whether there was a quorum on the part of the committee to conduct the site visit 4. Whether the Commission erred in setting the protocols and relevant procedure for the conduct of the site visit 5. Whether the Appellant has proven bias on the part of Esther Murigi Mathenge 6. What orders should the court grant? 7. Costs of the appeal. 8. As this is a first appeal, this Court must evaluate the evidence presented before the Committee, bearing in mind that it did not have the opportunity to see and hear the witnesses. 9. The duty of an appellate court is stipulated under Section78 of the Civil Procedure Act , which states as follows; 1.“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power; 1. to determine a case finally; 2. to remand a case; 3. to frame issues and refer them for trial; 4. to take additional evidence or to require the evidence to be taken; 5. to order a new trial. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” 1. The principles which guide a first Appellate Court were summarized in the case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 at P.126 as follows: “… Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” **Whether there is a competent appeal before the court.** 1. The National Land Commission is a creature of the 2010 Constitution. It derives its powers to determine historical land injustice claims from Article 67(2)(e) of the Constitution, which states as follows. “ to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress.” 1. The above constitutional mandate is operationalised under Section 5(e) of the National Land Commission [NLC] Act, which replicates the mandate in similar terms. In the exercise of its powers and the discharge of its functions, the Commission—(a) may inform itself in such manner as it may consider necessary; (b) may receive written or oral statements; and (c) is not bound by the strict rules of evidence. 2. The 2nd Respondent's case is that there is no provision for appeal under the dispute resolution mechanism for historical land injustice claims, and that an aggrieved party can only invoke this court's judicial review jurisdiction, not its appellate jurisdiction. That, in any event, no leave has been sought or obtained, and therefore the court's jurisdiction has been improperly invoked. The court is urged to dismiss the appeal on this ground. 3. Section15 (12) of the NLC Act states as follows; “ a person who is aggrieved by a determination under this Section may apply for review of the determination under Section7 of the Fair Administrative Act” 1. Neither the Appellant nor the 1st and 3rd Respondents addressed the court on this objection. Since the objection challenges the jurisdiction of this court to entertain the appeal, the court will address it at the outset. 2. The Supreme Court in the Matter of Interim Independent Electoral Commission [2011] eKLR held as follows: “Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14): “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.” [30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution”. 1. The present proceedings are an appeal against the ruling of the Historical Land Injustice Committee [HLI] delivered on 12 April 2024. The impugned ruling dismissed the Appellant’s interlocutory application, which sought, inter alia, the recusal of Commissioner Esther Murugi Mathenge, the formulation of procedural guidelines for a further site visit, and directions as to the quorum required to conduct the proceedings. The Committee then directed that the pending investigative hearings should proceed. 2. A right of appeal is not inherent. It must be conferred expressly by the Constitution or legislation. The Environment and Land Court's jurisdiction over land disputes does not, without more, confer a right of appeal from every decision made by an administrative or quasi-judicial body dealing with land. The jurisdictional provision must be distinguished from the statutory right that permits a particular litigant to invoke that appellate jurisdiction. 3. This distinction was directly addressed in Eastern Produce Kenya Limited v Chief Land Registrar & another; County Government of Nandi (Interested Party) [2023] KEELC 19191 (KLR). The Court held that a committee of the National Land Commission [NLC] is neither a subordinate court nor a local tribunal for the purposes of Sections 16A of the Environment and Land Court Act and 79A of the Civil Procedure Act. It is a constitutional quasi-judicial body. Consequently, the general provisions governing appeals from subordinate courts and tribunals do not confer a right of appeal from an NLC decision. 4. At the time of the 12 April 2024 ruling, Section 15 of the National Land Commission Act empowered the Commission to receive, admit and investigate historical land injustice claims and to recommend appropriate redress. The Section did not provide for an appeal from either a final determination or an interlocutory procedural ruling. 5. The only express provision purported to establish an appeal was regulation 29 (now renumbered to reg. 28) of the National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017. Regulation 29 provided that a person aggrieved by a decision of the Commission could, within twenty-eight days of the decision's publication, appeal to the Court. 6. The difficulty is that the 2017 Regulations were annulled by Parliament in March 2018. In Republic v National Land Commission & 6 others; Tuei & 4 others; James Finlays Kenya Ltd & 12 others (Ex parte) [2023] KEELC 16903 (KLR), it was stated that the Regulations had been annulled and were no longer operative when the subsequent HLI proceedings were undertaken. The Court nevertheless held that the annulment did not extinguish the Commission’s underlying constitutional mandate under Article 67(2)(e) and Section 15 of the Act. 7. The two propositions must be kept separate. The Commission’s original jurisdiction to investigate historical land injustices arises from the Constitution and the principal Act. It therefore survives the annulment of subsidiary legislation. The former right of appeal, however, arose exclusively from regulation 29. It did not have an independent foundation in Article 67 or Section 15. The survival of the substantive investigative mandate does not, on its own, preserve a separate appellate procedure created solely by an annulled regulation. 8. Section 11(4) of the Statutory Instruments Act provides that an instrument not laid before Parliament as required ceases to have effect upon expiry of the statutory tabling period, without prejudice to acts performed before it became void. The saving of past acts does not preserve the instrument as a continuing source of jurisdiction for decisions made years after it became void. 9. The impugned ruling was delivered on 12 April 2024, approximately six years after the Regulations had ceased to operate. Regulation 29 could therefore not confer a right of appeal against that ruling. The appearance of the Regulations in a consolidated legal database or their continued citation in litigation cannot revive an instrument that had ceased to have legal effect by operation of statute. 10. There are various decisions in which courts continued to apply regulation 29 after the annulment, including Kiboga & 8 others v Attorney General & 5 others [2023] KEELC 552 (KLR) and Mtana v Munga & 8 others [2023] KEELC 278 (KLR). Those decisions treated the twenty-eight-day appeal procedure as operative. However, they do not appear to have substantively determined the effect of the parliamentary annulment on regulation 29. 11. Almer Farm Limited v National Land Commission & 2 others [2021] KECA 469 (KLR) is also frequently cited for the principle that a party dissatisfied with an NLC decision must follow the prescribed statutory procedure. That general principle of exhaustion is sound. It does not, however, determine whether the HLI Regulations remained legally operative after their annulment. It cannot be read as reviving regulation 29 or as conclusively determining the issue of annulment. 12. There is an additional difficulty. Even if Regulation 29 had remained valid, it contemplated an appeal from a published “decision” of the Commission. Read alongside the provisions on written determination and publication, the regulation was directed principally to the final determination of an HLI complaint. The ruling of 12 April 2024 did not determine whether the Respondents had established historical land injustice, did not recommend a remedy under Section 15(9), and was not shown to have been published as the Commission’s final determination. It was an interlocutory procedural ruling. 13. No provision of the Act or the former Regulations expressly created a right of interlocutory appeal against a ruling on recusal, quorum, case management, or the manner in which a site visit was conducted. An appellate right against a final decision cannot be automatically extended to cover every procedural determination made during an investigation. 14. The revised Historical Land Injustice Regulations, published by the Commission in April 2026, do not assist the Appellant. The Commission’s website identifies them as revised draft Regulations and separately invited public comments. There is no indication that they have been promulgated and commenced by a Gazette legal notice. A draft statutory instrument does not confer jurisdiction or create present rights of appeal. 15. The legal position has, in any event, been clarified by the National Land Commission (Amendment) Act, 2025, which commenced on 4 November 2025. The amendment inserted Section 15(12), providing that a person aggrieved by an HLI determination may apply for review of that determination under Section 7 of the Fair Administrative Action Act. Parliament did not confer a right of appeal. It expressly selected judicial review as the mechanism for challenging an HLI determination. 16. Section15(12) does not retrospectively convert an appeal against the April 2024 interlocutory ruling into a competent appeal. It does, however, confirm the juridical character of the remedy available against the final determination reportedly published on 14 November 2025. A party aggrieved by that determination may challenge it under Section7 of the Fair Administrative Action Act, including on grounds that the decision-maker was biased, acted without authority, failed to comply with a mandatory procedure, denied a reasonable opportunity to be heard, or acted unfairly, irrationally or unreasonably. 17. The final HLI determination was reportedly made and gazetted after the 2025 amendment commenced. The claims of an irregular site visit, want of lawful composition, apparent bias and procedural unfairness may therefore be raised in proceedings reviewing that final determination. The fact that a final determination has since been published also means that the original prayer merely to prevent Commissioner Mathenge from participating in the pending proceedings has, in practical terms, been overtaken by events. 18. A constitutional petition may also lie where an applicant properly pleads and proves a distinct violation of rights under Articles 40, 47 or 50(1). It should not, however, be used merely to disguise an ordinary merits appeal. The primary statutory remedy now identified by Parliament is review under Section 15(12) of the National Land Commission Act and Section 7 of the Fair Administrative Action Act. 19. Neither Article 159(2)(d) nor the overriding objective can convert an incompetent appeal into judicial review proceedings. The distinction affects jurisdiction, pleadings, applicable grounds, evidence and remedies. 20. Therefore, there is no competent appeal before the Court. The National Land Commission Act, as it stood when the ruling of 12 April 2024 was made, did not confer a right of appeal against an HLI decision. Regulation 29, which had purported to confer a twenty-eight-day appeal, had ceased to have effect following the annulment of the 2017 Regulations. The revised 2026 Regulations have not yet come into force. Further, the impugned ruling was interlocutory and not a published final determination of the Commission. **Whether there was a quorum to conduct the site visit** 1. The Appellant contends that the visit on 14 March 2024 was conducted by only two Commissioners and that at least three were required. The argument appears to be founded principally on regulation 10(1) of the annulled 2017 Regulations, which provided that the Commission could establish a committee of at least three Commissioners to hear HLI claims. Regulation 11 then listed site visits among the investigative activities to be undertaken by that committee. 2. Regulation 10 cannot be applied as a binding quorum provision to a site visit in March 2024 because the Regulations had ceased to operate. 3. The governing provisions must be found in the National Land Commission Act. Section 16(1) permits the Commission to establish committees to better perform its functions. Under Section 16(2), persons with the necessary knowledge and skills may be co-opted into those committees. A co-opted person may participate in deliberations but has no right to vote. The statute does not expressly prescribe the minimum number of Commissioners who must physically attend every investigative activity undertaken by a committee. 4. Section 19 provides that the business and affairs of the Commission are conducted in accordance with the Fourth Schedule and, except as provided in that Schedule, that the Commission may regulate its own procedure. The Fourth Schedule provides that the quorum of a meeting of the Commission shall be at least half of its members, subject to a minimum of three members where there is a vacancy. 5. That quorum provision applies to a meeting of the Commission. It is not expressly framed as a quorum for every inspection, interview, background check, survey or other fact-gathering activity undertaken by Commissioners or Commission staff. A distinction must therefore be drawn between: 6. an investigative site inspection undertaken to gather and verify information; 7. a formal hearing at the site during which evidence affecting the parties is received; and 8. the meeting at which the Committee or Commission deliberates upon and makes the final determination. 9. Section 6(2) and (3) permit the Commission to gather information by means it considers appropriate, hold inquiries, inform itself as necessary, receive written or oral statements, and operate without strict adherence to the rules of evidence. These broad investigative powers permit Commissioners, staff and technical personnel to undertake field investigations without requiring the entire Commission to attend every factual inquiry. 10. Accordingly, the mere fact that two Commissioners physically attended the site does not, without more, prove that the Commission lacked a quorum. The Appellant would have to establish either that: 11. the Commission’s valid instrument establishing the HLI Committee prescribed a minimum attendance of three Commissioner s at site visits; 12. the two Commissioner s purported to constitute the entire decision-making Committee and made a binding decision at the site; or 13. the ultimate determination was made by persons who did not hear, receive or have a proper record of the evidence gathered during the visit. 14. The participation of Commission staff or co-opted experts does not cure a defective decision-making quorum, as such persons have no vote. Their participation is nevertheless lawful for purposes of investigation, technical assistance, record-keeping and logistical support under Sections 6 and 16 of the Act. 15. A separate procedural-fairness problem arises when members who did not attend the hearing or receive a reliable record nevertheless participate in the decision. In Eusebius Karuti Laibuta v National Police Service Commission [2014] KEHC 2851 (KLR), the Court faulted a decision signed by Commissioners who had not attended the relevant vetting hearing. Similarly, in Republic v National Environmental Tribunal & 4 others ex parte China Road and Bridge Corporation [2016] KEHC 7855 (KLR), the Court held that a tribunal member who had not heard the evidence should not participate in, or appear to participate in, the decision. 16. The question is therefore not simply how many Commissioners stood on the land on 14 March 2024. The critical questions are who was lawfully constituted to investigate and determine the claims, whether a contemporaneous record of the site visit was prepared, whether that record was made available to every decision-maker and the parties, and whether only members properly seized of the evidence participated in the ultimate recommendation. 17. In the present case, a fatal lack of quorum is not established merely because two Commissioners attended the site visit. No operative statutory provision required at least three Commissioners to be physically present at every investigative inspection in March 2024. The former three-member requirement in regulation 10 cannot be applied as binding law after the annulment of the Regulations. 18. The site visit would nevertheless be legally defective if the two Commissioners purported to make substantive determinations at the site, if the final decision was made without a proper record being presented to the lawful decision-makers, or if persons who neither attended nor received the evidence participated in the determination. Those are matters requiring interrogation of the instrument establishing the Committee, the attendance register, the site-visit record, the minutes, and the authenticated final determination. **Whether the Commission erred in the procedure adopted for the site visit** 1. A site visit by the NLC is not directly governed by Order 18 rule 11 or Order 40 rule 10 of the Civil Procedure Rules. Those provisions regulate inspections conducted by courts in civil proceedings. The NLC is a constitutional Commission exercising administrative, investigative and quasi-judicial powers; it is not itself conducting a civil suit under the Civil Procedure Rules. 2. Its direct statutory authority is found in sections 5, 6, 15, 16 and 19 of the National Land Commission Act. Section 6 allows the Commission to gather relevant information by appropriate means, conduct inquiries, receive oral and written statements, and inform itself without being bound by strict evidentiary rules. Section 19(2) permits the Commission, subject to the Fourth Schedule, to regulate its own procedure. 3. The annulment of the HLI Regulations did not extinguish that statutory power. In James Finlay's case, the Court held that the absence of operative Regulations did not render the entire HLI process a nullity, as Section 15 provided the substantive investigative mandate. The Commission was nevertheless required to comply with Article 47, the Fair Administrative Action Act, and natural justice. 4. Procedural flexibility is not procedural licence. Article 47 requires every administrative action to be lawful, reasonable and procedurally fair. Section 4 of the Fair Administrative Action Act requires adequate notice, a meaningful opportunity to be heard, and access to the information and material to be relied upon where an administrative action may adversely affect rights. Article 50(1) reinforces the requirement of an independent and impartial decision-making body where a dispute is resolved by the application of law. 5. Although the judicial locus-in-quo authorities do not apply to the NLC as Civil Procedure Rules, they set out basic principles of evidentiary fairness that are persuasive and applicable to a quasi-judicial inspection. 6. In Cyrus Nyaga Kabute v Kirinyaga County Council [1987] KECA 30 (KLR), adopting Fernandes v Noronha [1969] EA 506, the Court of Appeal held that when a decision-maker visits land and makes notes, the parties should be given an opportunity to agree with, deny, or contradict those notes on oath before the observations are relied upon. Where a witness identifies a feature or demonstrates something at the site, that evidence should be formally placed on the record and made amenable to challenge. 7. In Gakuria & another v Mwangi & 4 others [2025] KEELC 1014 (KLR), the Court emphasised that a site visit should clarify existing evidence, not introduce fresh evidence, fill gaps in a party’s case, or turn the decision-maker into an unsworn witness. A site visit is exceptional and must be confined to its declared purpose. 8. More directly in relation to a tribunal, Kopoa Developers Limited v Endesk Properties Limited & another [2025] KEELC 4398 (KLR) held that a tribunal’s site visit is as much part of the adjudicative process as the hearing. The date, attendance and events at the site should be recorded, parties should be given notice and permitted to respond to any observations or evidence obtained during the visit. 9. Applied to the NLC, the irreducible minimum is that: 10. the parties receive adequate notice of the visit and its purpose; 11. the inspection remains under the control of the Commission; 12. the participants and their representatives are identified; 13. the route, stops and physical features examined are objectively recorded; 14. both sides are afforded a substantially equal and meaningful opportunity to identify relevant features; 15. statements or demonstrations intended to influence the determination are recorded and disclosed; 16. a contemporaneous report is prepared; 17. the parties are given an opportunity to correct, contest or comment upon the report; and 18. the Commission’s final determination identifies the observations upon which it relied. 19. The Commission was not legally obliged to have an itinerary agreed by unanimous consent of all parties. Nor were all oral statements required to be made on oath, because Section 6(3) expressly permits the NLC to receive oral statements and exempts it from strict evidentiary rules. The absence of an oath is therefore, standing alone, not fatal. 20. Nevertheless, receiving oral representations from an uncontrolled or unidentified crowd is materially different from receiving structured oral statements. The Commission was required to know who was speaking, the capacity in which the person spoke, the land or claim to which the representation related, and whether the opposing party had a fair opportunity to respond. 21. The role of the Deputy County Commissioner was properly limited to security, public order and logistical assistance. A DCC could intervene to calm an unruly gathering. The DCC could not lawfully assume control of the investigation, select the evidentiary route, determine which disputed properties would be inspected, or decide who would make representations. Section 7(2)(g) of the Fair Administrative Action Act expressly recognises as reviewable a decision made at the direction of a person not authorised by law to give such direction. 22. The admission that the route was altered by a majority poll was an unsuitable method for conducting a quasi-judicial inspection. Legal and property rights cannot be determined by numerical strength at the site. A majority of claimants could not vote to exclude physical features relevant to the registered proprietor’s case. The route had to be selected by the Commission on the basis of relevance, proportionality and equal treatment. 23. The fact that the Appellant’s representatives eventually responded to the representations and that its investments were reportedly visited reduces the concern but does not eliminate it. The decisive question is whether the process produced a neutral, accurate and reviewable record, rather than whether each party managed to speak at some stage. 24. The Appellant’s application sought the formulation of terms of reference and procedural directions before any further visit. The Commission was not required, in the course of a single dispute, to promulgate generally applicable subsidiary legislation. Regulations must be made through the statutory-instrument process, which includes consultation, publication and parliamentary scrutiny. 25. The Commission nevertheless had power under Section 19(2) to issue case-specific procedural directions. Given the disorder, the disputed meeting point, the altered route, the contested speakers and the allegations of prejudicial statements during the first visit, it was unreasonable to dismiss the request for structured directions without addressing whether a further visit required a written itinerary, designated representatives, recording arrangements and equal opportunity to identify relevant features. 26. The first site visit was not automatically void merely because the itinerary was not unanimously agreed or because statements were not taken on oath. The applicable law afforded the Commission procedural flexibility. 27. The process was, however, procedurally unsafe to the extent that the route was altered by popular vote, the security administrator assumed control beyond security functions, unidentified or unverified persons made substantive representations, and no contemporaneous report was shown to have been placed before the parties for correction or objection. 28. In a proper judicial-review proceeding, the Commission would be required to produce the notice, attendance register, route, notes, audio or visual record, any technical report, and details of how the parties were invited to comment on the resulting record. In the absence of such material, reliance on observations and representations obtained during the visit would constitute procedural unfairness and risk turning the Commission into an unsworn source of evidence. **Whether** **apparent bias was established against Commissioner Esther Murugi Mathenge** 1. Recusal from a particular matter is distinct from removal from office. Removal of an NLC Commissioner is governed by Article 251 of the Constitution and by Section 11 of the National Land Commission Act. Recusal is a case-specific procedural safeguard arising from Articles 47 and 50(1), the Fair Administrative Action Act, and the common-law rule against bias. 2. The absence of an operative HLI recusal regulation did not deprive the Commission of the power to determine a recusal request. Section 19(2) permitted the Commission to regulate its procedure, and the constitutional duty to provide an impartial process necessarily required it to consider a properly grounded objection to a Commissioner’s participation. 3. Section 7(2)(a)(iv) of the Fair Administrative Action Act expressly permits judicial review where the person who made an administrative decision was biased or may reasonably be suspected of bias. 4. The governing test is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility or reasonable apprehension that the decision-maker would not approach the matter impartially. The Supreme Court articulated this test in Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) and applied it in Rawal & 2 others v Judicial Service Commission & 2 others [2016] KESC 1 (KLR). 5. Personal or pecuniary interest is one ground for disqualification, but not the only one. Apparent prejudice, hostility, unequal treatment, prior commitment to an outcome, or statements indicating that disputed facts have already been decided may establish apparent bias even where the decision-maker has no personal benefit in the dispute. 6. The Appellant complained that Commissioner Mathenge stated, among other things, that: 7. the Commission would require the Appellant to surrender additional land to accommodate twenty-five per cent of the population; 8. “Kakuzi is not donating land, Kakuzi is simply giving back land that already belongs to the community”; 9. the Appellant would have to “work very hard” in the forthcoming proceedings; 10. the Commission would rule in favour of the claimants concerning allegedly idle land; and 11. the Appellant should maintain the status quo and refrain from joint ventures concerning its land. 12. The allegations and the Respondents’ explanations are recorded in the parties’ narration. 13. The Respondents did not wholly deny that the statements were made. They largely sought to explain their context and to contend that the Appellant had placed an adverse interpretation upon them. The question is therefore their objective cumulative effect, not merely the Commissioner’s subjective intention. 14. The declaration that the Appellant was “giving back land that already belongs to the community” directly addressed the central disputed question: whether the suit properties were the communities’ ancestral land and whether the Appellant’s title was subject to redress. Made before the conclusion of the proceedings, it would reasonably convey that the Commissioner had already accepted the claimants’ ownership narrative. 15. A statement that the Commission “will require” the Appellant to surrender further land likewise moves beyond preliminary inquiry or neutral exploration of possible remedies. It communicates a contemplated substantive outcome before the evidence is complete and deliberations conclude. 16. The purported status quo direction also raises concern. Section 15(9) permitted the Commission, after an investigation, to recommend declaratory and preservation orders. It did not authorise an individual Commissioner, during a roadside inspection and without hearing the parties on the issue, to impose a substantive restraint on the registered proprietor. 17. The statements must not be considered in isolation. Viewed cumulatively, in the context of a disputed route, crowd participation, and a site visit partially controlled by local administrators, a fair-minded and informed observer could reasonably apprehend that the Commissioner had aligned herself with the claimants’ case and had prematurely formed a view on ownership and redress. 18. The Committee therefore erred by restricting the recusal inquiry to whether the Commissioner had a personal interest or only one vote in the ultimate determination. Collegial decision-making does not neutralise apparent bias. A Commissioner may influence the questions asked, the evidence gathered, the deliberations and the conclusions of other members. 19. The Appellant was still required to prove the statements by credible evidence. Generalised suspicion or dissatisfaction with an adverse procedural ruling would be insufficient. On the present account, however, the making of the material statements appears substantially acknowledged; the dispute concerns their meaning and context rather than their existence. 20. Were the matter properly before the Court on judicial review, the cumulative statements attributed to Commissioner Mathenge would meet the threshold for reasonable apprehension of bias. They were not merely robust case-management remarks or neutral statements of law; they addressed the disputed ownership and the remedy before the investigation had been completed. 21. The proper order would be that Commissioner Mathenge, though overtaken by events, take no further part in reconsidering the claims. **Appropriate orders and costs** 1. As the appeal is incompetent, the Court cannot grant the substantive appellate orders seeking to set aside the ruling or to directly disqualify the Commissioner. The proper dispositive order in this appeal should be that the appeal is struck out for want of appellate jurisdiction. 2. Additionally, costs follow the event. The Appellant shall pay costs in this Appeal. 3. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 30TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered virtually in the presence of;** 1. Bett HB for Ms Opiyo for the Appellant 2. Ms Magogo HB for Malenya for the 1st and 3rd Respondents 3. N/A for the 2nd Respondent 4. C/A -Mr Amos