Land rights in Kenya; The Otiende Case
By the Africa Legal Consulting Team
Land in Kenya has been an emotive issue since time immemorial. During the colonial period, alienation of land was the major grievance put forward and formed the basis for the independence movement in Kenya. Land grievances scaled up after independence since most Kenyans were not able to repossess their alienated lands. The allocation of land after independence was largely shaped by political power and this led to some communities being allocated more land than others. Other Kenyans were left as squatters in their own land with no single parcel land to their name leading to future tribal clashes over land.
The promulgation of the Constitution in 2010 was expected to offer a clean slate that would help solve majority of the challenges such as fraudulent acquisition of land. Chapter five of the Constitution is dedicated to land and environment. Under Article 68 of the Constitution, the parliament was required to:
- Revise, consolidate and rationalise existing land laws;
- Revise sectoral land use laws in accordance with the principles of land policy set in the constitution.
In addition, it was mandated to enact legislation to:
- Prescribe minimum and maximum land holding acreages in respect of private land;
- Regulate the manner in which any land may be converted from one category to another;
- Regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;
- Protect, conserve and provide access to all public land;
- Enable the review of all grants or dispositions of public land to establish their propriety or legality;
- Protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land.
Pursuant to the above provisions, parliament enacted three major legislative statutes on land in 2012. These are:
- The National Land Commission Act, Act No. 5 of 2012
- The Land Act, Act No. 6 of 2012
- The Land Registration Act, Act No. 3 of 2012
These acts were assented to on 27th April 2012 and commenced on 2nd may the same year. However, the challenges in the sector are far from over with internal tussles between the National Land Commission and the Ministry of Lands & Physical Planning. One of the primary roles of the commission is to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya. The Ministry on the other hand is responsible for issuance of the title deeds.
In a Supreme Court advisory opinion sought by the National Land Commission, the Court sought to draw a line between the roles of the Ministry and those of the Commission. The Commission was given a more passive role of researching and making recommendations to the Ministry. For this reason, it was opined that the opinion stripped the commission of its powers and converted it into a toothless bulldog, having been given an oversight role with no clearly defined enforcement mechanisms.
However, in a recent decision in Anthony Otiende Otiende v Public Service Commission & 2 others, the fundamental role of the commission in relation to land matters was upheld. The primary issue raised in the Petition related to validity of registration documents and other impugned forms such as Leases and Title Deeds issued by the ministry. In this matter, the Court declared the forms which had been issued by the Ministry null and void on grounds that the Ministry had not consulted the commission contrary to statutory provisions as well as lack of public and parliamentary participation.
However, the declaration was suspended for 12 months within which the Cabinet Secretary should consult the commission, engage the public and seek parliamentary approval of the impugned forms. The rationale behind this suspension flows from the fact that the process had already been undertaken and the registration was ongoing. Cancellation of the entire process would therefore not be in the best interests of the public. In addition, the court ruled that the declaration, if effected would not act retrospectively thus registration documents already issued would not lose their validity.
Pursuant to the court’s decision, a taskforce has already been appointed by the Cabinet Secretary to aid in enforcement of the orders of the court. The task force has been mandated to come up with relevant regulations that recognize citizen participation, Community Land Registration and the role played by the National Land Commission (NLC). It will prepare draft regulations which cover the mandated areas which will thereafter be presented to parliament for approval. Failure to comply with the time limit given will render registration documents so issued illegal.
We shall keep you posted on any developments.
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