A. Introduction
The National Land Commission (Amendment) Bill, 2023 (“The Bill”) proposes to amend the National Land Commission Act, 2012 (“NLC Act”) which provides for the powers and functions of the National Land Commission (“NLC”), qualifications for appointments, and the implementation of devolved land governance principles and objects. The Bill seeks to address crucial issues related to the review of public land grants, historical land injustices claims, and the legal requirements for validating land titles in Kenya. It proposes to amend the following Sections of the NLC Act:
- Amending Section 14 (1) by deleting the words ‘within five years of the commencement of this Act’ and by deleting the entirety of subsection (9) – These provisions limit the period within which NLC could exercise its power to review grants and dispositions of public land to 5 years from the commencement of the NLC Act. The period has since lapsed.
- Deleting Section 15 (3) (e) – The section provides that historical land claims can only be admitted, registered and processed by the NLC if brought within 5 years of the commencement of the NLC Act. The 5-year period has lapsed.
- Deleting Section 15 (11) – This section provides that all the provisions on historical land injustices in the NLC Act would be repealed within 10 years which period has already lapsed.
In this article, we will explore the implications of this bill on land governance in Kenya.
- B. Implications of the National Land Commission (Amendment) Bill, 2023 on land governance
1. Restoring the National Land Commission's Power to Review Public Land Grants
One of the principal objectives of the National Land Commission (Amendment) Bill 2023 is to reinstate the authority of the National Land Commission (NLC) to review all grants or dispositions of public land. This power had lapsed with the expiration of Section 14 of the original Act. Currently, the Commission is unable to address complaints or rectify instances of illegality in public land dispositions, even when there are clear and apparent violations of land laws.
The proposed amendment would empower the NLC once again to scrutinize public land transactions to determine their propriety and legality. This is a crucial step in ensuring transparency, accountability, and fairness in the allocation and use of public land resources.
2. Extending the Window for Historical Land Injustices Claims
Another significant aspect of the National Land Commission (Amendment) Bill 2023 is its extension of the timeline for filing historical land injustices claims. Under the National Land Commission Act 2012, historical land claims can only be brought within five years from the date of the NLC Act's commencement. This restriction limits the ability of many victims of historical land injustices to seek redress. The proposed amendment eliminates this time constraint, offering a renewed opportunity for those who have suffered from historical land injustices to come forward with their claims.
The recent Supreme Court decisions, particularly in the cases of Dina Management Limited v County Government of Mombasa & 5 Others(2021)[2023] and Torino Enterprises Limited v Attorney General [2023], have highlighted the importance of addressing land title irregularities and the insufficiency of title documents in cases where the origins of those titles are disputed. The rulings emphasize the need to go beyond the title instrument itself and establish the legality of land acquisition from its inception.
In light of these legal precedents, the National Land Commission (Amendment) Bill 2023 aligns with the evolving jurisprudence. By removing the time limit for historical land claims and allowing for a more comprehensive examination of land ownership, this amendment supports the principle that land titles should be based on legitimate and just land allocation processes.
C. Conclusion
The proposed amendments in the National Land Commission (Amendment) Bill 2023 represent significant steps towards rectifying historical land injustices, improving land governance, and ensuring fairness and transparency in public land management in Kenya. If passed into law, it will align the law with the current judicial pronouncements and it will respond to the pressing need for justice and accountability in land matters.
Article by Grace Andati, Joseph Barasa and Emmanuel Kimeu
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