A determination by the National Land Commission (NLC) on the legality and propriety of a title of land held by Mombasa Cement is conclusive and cannot be re-opened by Parliament or its committee, the agency has argued in court papers.
In a case where the NLC has lent its support to the cement manufacturer’s bid to fight a 2017 directive to handover its land, it says Parliament’s involvement was unconstitutional as the National Assembly is not designated by law as an appellate body over the decisions of any tribunal.
Mombasa Cement is challenging a 2017 directive from the Land Cabinet Secretary to hand over its 672 hectares of land from where it operates.
The directive was informed by a parliamentary committee report on land dated November 2015 that directed the ministry to take over the land.
However, the report contradicts an earlier NLC decision that had certified the firm’s acquisition and possession as lawful.
“The standing orders empower Parliament to have oversight roles over ministries and their departments and NLC is neither a ministry or agency but an independent constitutional commission,” NLC lawyer Solomon Mbuthia argues.
“The Constitution does not envisage the exercise of judicial authority by Parliament or its committees and any purported exercise of the judicial power is unconstitional and a gross violation of the principal of separation of powers.”
The company has sued the Ministry of Land, Speaker of the National Assembly, NLC and the Attorney-General.
It has also named Vipingo Estate from whom it purchased the land as an interested party in the suit.
The company argues that the committee’s investigations constitute intimidation and harassment using government agencies to humiliate and degrade it.
According to the cement manufacturer, the Cabinet Secretary threatened that failure to comply with the directive, the ministry will without notice move to mark out the parcel of land and take possession.
It also argues that the Cabinet Secretary indicated that the ministry had constituted a team of officers who were to oversee restitution of the land.
The company adds that the parliamentary report dated November 24, 2015 is unconstitutional and illegal and that any action taken based on it is equally flawed.
The manufacturer is seeking for an order to quash the decision of the Cabinet Secretary contained in letters dated July 28 last year and February 15, 2018.
It is also wants an order to quash the report by the parliamentary committee on land dated November 2015.
“Foreign investor confidence will be eroded owing to the unconstitutional and cavalier manner in which the Cabinet Secretary and the respondents have sought to interfere with the lawful activities of the petitioner,” the company further states.
The case will be mentioned on September 26.