The court reverses a long term gain in terms of land

The 2nd of December 2015 shall remain in the memories of every land activist in Kenya as a black Wednesday. This is the day that the court that was mandated to be the custodian of the constitution and the people’s watch dog in my opinion failed the people.

The Supreme Court took the country back to the Moi regime that the office of the president had the powers to issue titles and allocate land to whoever it wanted for political reasons. Land activist pushed for the 2010 constitution dreaming that it would cure this cancer by the formation of the National land commission in the constitution article 67.The constitution proposes that the NLC will among other functions, investigate “land injustices and recommend appropriate redress” (Art. 67(2)). But the question is how can they address these injustice without being able to issue title deeds? Don’t you think we now have a toothless commission? It was assumed that the spirit of the constitution was that we were to have an independent commission that shall regulate, allocate and even redress historical land injustice in the country.

With this in mind, the chairman of the commission after a never ending battle with the office of the president on who should issue the land title decided to go to court for an advisory opinion.

Little did he know that his decision to go to court for the protection of his office could take the country 30 years back. The ruling of the court that can be seen here.
In my opinion I think it’s a blow. As a firm believer of the separation of such critical mandate from a political office to an independent office.

This ruling brings me to my question, do you think this is a gain or a loss? Do you think it was the wrong move to go to court? This has left me restless and sleepless and am officially mourning this big loss to the years of land reform struggles inn the country. :cry: @Cnior @marenabrinkhurst @caitlinsislin @Purity_Wadegu @lore @zena @Naima_Rajab @Malasen_Hamida @Husna_Mbarak @kanchikohli @lauragoodwin

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@mustafa_mahmoud and all others on this group who would be much more knowledgable about this than me. I just read through the link that you sent with the news item of the judgment which reports, “The court also ruled that the National Land Commission and the Ministry of lands should collaborate, co-operate and consult each other on all land matters as they perform their various mandates as spelt in the constitution.”

Please correct me if I am wrong as there appears to be a legal issue here about the powers to actually issue title deeds where as it can perform many other functions related to land. Read through the Act here too: http://www.nlc.or.ke/. As per the news item, the judgment does not take away the role of the National Land Commission, but pushes it to work with the Ministry which is the final title granting authority.

We have a similar situation in India where the issuance of land registration lies with either the revenue or the forest departments who also maintain the record of rights. This other than those lands which are in special scheduled areas and have autonomous governance structures. In non-scheduled areas the process might be overseen by a special commission or set of committees, but the titles have to be issued by the relevant government department where the record of land rights will need to be maintained.

But this decision also brings out a larger discussion point on the role of courts and finality of decisions once judgments are delivered? Could there have been another mediated process or does this judgment actually give an opportunity for it?

Look forward to hearing more thoughts on this. @shalomndiku @ginococchiaro @manjumenon any thoughts?

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I have not found the actual opinion of the Supreme Court online yet, so it is difficult to say anything definitive. Looking at the provisions of the Constitution, it seems correct that the NLC does not have the power to issue title to land, unless such a power is conferred on the Commission by legislation adopted under Article 67 (3) of the Constitution.

If the power to issue title deeds does rest with the executive, the question is, what constraints does the Constitution and relevant legislation place on the executive when it issues title deeds? Article 47 of the Constitution lays down some requirements for administrative action. Everyone in Kenya has a right to administrative action that is expeditious, effective, reasonable, lawful and procedurally fair. Any executive act, including the granting of title to land, can be challenged in court if it fails to live up to these criteria. Thus, the executive does not have a completely free hand to do as it pleases, but it is up to citizens, organizations and members of the political opposition to challenge government to make sure it lives up to its duties.

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I may not touch on the ruling yet, till I go through it. However, this was a storm building up. ever since the establishment of the NLC by the constitution and the lack of setting out the roles that the Land ministry will play in land issues. There have been a power struggle between the two bodies which has greatly delayed the land reform process in Kenya. Roles of the NLC have been set out in the constitution and the Land ministry should also set out a clear mandate and spell out its functions to avoid the overlapping of decision making and the power struggle.

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@kanchikohli I am not a legal practitioner but my concerns are from a land activist’s perspective, The lands office has for many years has been responsible for land grabbing cases in the country. It is sad that we envisioned that the NLC would be the Salvador of the ordinary Kenyan. Let me refresh your minds of an incident that happened where the office of the deputy president was accused of grabbing a primary school land along Langata road and the ministry forged documents that the land was owned by a “private investor SIngh”. Not only that, the first family owns more than a third of the land at the coast. One major role of the NLC is addressing historic injustice but now my question is, how will they be able to address this if they cannot issue or even cancel titles?

@FergusKerrigan I agree now that I have looked at the act. The first question is that the NLC act section 5 (3) Despite the provisions of this section, the Commission shall ensure that all unregistered land is registered within ten years from the commencement of this Act.