The Court of Appeal cleared the way for the recruitment of a chairperson and six commissioners of the National Land Commission (NLC), after temporarily suspending High Court orders that had nullified the selection process.
In a ruling delivered on February 13, 2026, a three-judge bench comprising Justices Pauline Nyamweya, Aggrey Muchelule and Weldon Korir granted conservatory orders allowing recruitment to proceed for positions that are undisputedly vacant.
The court, however, expressly protected the tenure of two serving commissioners whose terms are still active.
The legal battle stems from a High Court judgment delivered on November 11, 2025 by Justice Chacha Mwita, who ruled in favour of commissioners Esther Murugi Mathenge and Tiya Galgala Ali.
The two successfully argued that their six-year terms, which began on December 21, 2020, would expire on December 20, 2026.
The High Court subsequently quashed a Gazette Notice that had declared impending vacancies, nullified an advertisement issued by the selection panel, and barred any steps toward recruiting eight commissioners.
However, applicants including three members of the public and the Head of Public Service argued that the blanket orders had paralysed the Commission.
They argued that the terms of the chairperson and six other commissioners expired on November 21, 2025, leaving the NLC unable to execute its constitutional mandate, including time-sensitive infrastructure projects requiring land acquisition.
The appellate judges distinguished the case from earlier decisions where orders of certiorari and prohibition could not be stayed, ruling that the current dispute affects the operations of a constitutional commission and broader public interest.
“The orders accordingly concern the operations of a public body, which distinguishes it from the cited cases, and the impugned orders of certiorari and prohibition in the present application have an impact beyond the private interests of the parties,” the judges said.
The court further ruled that conservatory orders help facilitate orderly functioning within public agencies while upholding the adjudicatory authority of courts.
The Court of Appeal subsequently rejected claims that applications filed by members of the public were incompetent, ruling that proper notices of appeal had been filed and any locus challenges should be raised through striking out applications.
It held that the potential irreversible harm to the public from a non-operational Commission outweighs any prejudice to the two commissioners, whose tenure remains protected.
The conservatory orders will remain in force pending the hearing and determination of appeals filed in Civil Application Nos. E662, E663, E680 and E682 of 2025.
“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes,” ruled the court.
During proceedings, Senior Counsel Fred Ngatia, representing the two commissioners, had indicated during court-suggested mediation that he could consider conceding to the appointment of the chairperson alone to restore quorum, a move seen as recognising the urgency of restoring the Commission’s functionality.
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