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

The NLC told the court that it has over 3,300 pending cases against and several court decrees issued requiring compliance and settlement.

The commission stated that its trust compensation account held at the National Bank has, over time, been under sustained attack.

It sought an advisory on whether it is protected from execution proceedings, attachment of its assets and garnishee of its accounts.

The commission said its functions have significantly been affected, hampering its administrative functions and threatening to grind it to a halt.

It argued that the advisory opinion would guide litigants, state organs and other independent constitutional commissions on the applicability or otherwise of the Government Proceedings Act.

However, Justices Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Issac Lenaola and William Ouko said that they will 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 will be urging us to act on mere speculation, an invitation we decline to accept,” said Justice Koome.

The judges noted that the appellate court had already determined that NLC is a constitutional commission insulated from execution proceedings, attachments of its assets and garnishee of its accounts.

“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 Koome.

NLC told the apex court that its efforts to seek refuge under the provision of Sections 21 and 25 of the Government Proceedings Act have not yielded the desired result, as the superior courts have exhibited split opinions.

The agency noted that some courts have held that it is not “government” and thus the provisions of the Act do not apply.

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 could not therefore be construed as government or a government department.

However, in a case against Five Star Agencies Ltd, the Court of Appeal found that the NLC is a government agency and subject to the Government Proceedings Act, and therefore garnishee proceedings could not issue.

NLC said the Government Proceedings Act does not define the scope of “government”, while Section 3 of the Interpretation and General Provisions Act, Cap 2, defines “government” as “the Government of Kenya”. On his part, the Attorney General said constitutional commissions and independent offices are part of government and hence are within the purview of the Act. The AG also recommended guidance by a higher court given the contradicting decisions.