Appellate Court temporarily suspends High Court nullification of NLC vacancies

The Court of Appeal has temporarily suspended the High Court’s orders that had nullified the recruitment of the chairperson and commissioners of the National Land Commission (NLC), allowing the Commission to continue functioning while the appeals process is ongoing.

The ruling, delivered by a three-judge bench, comes after petitions were filed by the Head of Public Service (HOPS) and the Public Service Commission challenging the High Court’s blanket orders, which had quashed the Gazette notice dated August 2025, and subsequent advertisements declaring vacancies in the NLC.

The High Court had also prohibited any steps to recommend new appointments, citing a threat to the constitutional rights of existing commissioners Esther Murugi Mathenge and  Tiyah Galgalo Ali.

The Court of Appeal acknowledged that the High Court had acted to protect the tenure of the two commissioners whose terms had not expired.

However, it found that the lower court’s orders went further, nullifying the recruitment process for commissioners whose terms had already ended in November 2025.

The bench noted that this had rendered the Commission non-functional, affecting its ability to carry out crucial constitutional and statutory duties.

"In the present application, it is our view that the irreversible harm to the public resulting from a non-operational commission outweighs the prejudice, if any, that may be suffered, and particularly in light of the concessions by the applicants on the security of their tenure," the bench observed.

"The public interest will be better served if the Commission is, in the interim, allowed to function within the uncontested allowable limits of the law."

Counsels for the Head of Public Service highlighted the serious public interest implications of a paralysed Commission.

They argued that the High Court’s orders threatened to halt key land acquisition and management processes, including multi-billion-shilling national infrastructure projects such as the Horn of Africa Gateway Development Project, the Rironi-Mau Summit Highway, and other roads, railway, and sewerage initiatives.

They said the contractors had already mobilised on several projects, and delays could expose public funds to significant penalties.

The Court of Appeal emphasised the importance of balancing the protection of constitutional rights with the practical need for public institutions to function.

Accordingly, the bench granted conservatory orders suspending the operation of the High Court’s nullification and prohibition orders in relation to the vacant positions of the chairperson and six commissioners. 

"For the avoidance of doubt, the said conservatory orders shall not in any manner affect the positions and tenure of Esther Murugi and  Tiya Galgalo as commissioners of the National Land Commission," it clarified.

In reaching its decision, the appellate bench stressed that it is not a hard and fast rule that orders of certiorari (order by which a higher court reviews a case tried in a lower court) and prohibition cannot be stayed.

Courts have the power to grant interim relief where the public interest or justice of the case demands, particularly in matters affecting public institutions, the judges noted.

The ruling leaves intact the High Court’s declaration confirming that Hon. Murugi and Hon. Galgalo are entitled to serve their full six-year terms, which began on December 21, 2020, and will end on December 20, 2026.

Given the public interest dimension of the matter, the Court of Appeal directed that each party bear its own costs in the applications.