Charles Yano Kimutai, James Otieno Olola, Loice Chepkemoi Komingoi
Malindi Law Society & 12 others v Attorney General & 2 others
Malindi Law Society & 12 others v Attorney General & 2 others (Petition 19 & 291 of 2016)  KEHC 168 (KLR) (29 October 2021) (Judgment)
Section 47 of the Land Laws (Amendment) Act, 2016, which introduced the concept of controlled land, declared unconstitutional for limiting the right to property within a defined controlled land.
The petitioners filed the instant consolidated petition seeking among others a declaration that section 38, 47, 48 and 61(c), 98 of the Land Laws (Amendment) Act, 2016 were unconstitutional. On August 31, 2016, the President assented to the Land Laws (Amendment) Bill 2015 to amend the laws relating to land to align them with the Constitution of Kenya, 2010 (Constitution). The petitioners stated that the effect of the amendment sought to be made to section 15 of the National Land Commission Act, 2012 by section 38 of the Land Laws Amendment Act would be to amend the Constitution through the back door and trample on the rights, privileges, and obligations acquired by land owners.
It was the petitioners case that sections 47 and 48 of the Land Laws (Amendment) Act were discriminatory in so far as they sought to redefine the meaning of the terms land and persons as provided under articles 40 and 60 of the Constitution. The petitioners attacked sections 61(c) and 98 of the Land Laws (Amendment) Act terming them an attempt to amend and redefine the protection of the rights to property. They asserted that sections 106 and 107 of the Land Registration Act disallowed retrospective application of laws as purportedly done by the amendments.
The respondents attacked the consolidated petition on the basis that it did not specify how the alleged offensive sections would amend the Constitution through the backdoor as alleged. The respondents accused the petitioners of failing to demonstrate how their rights would be affected by the amendments and how the amendments violated the Constitution. The respondent contended that the right to property was not absolute and that it could be limited.
The respondents further asserted that the Constitution had not placed a time limit for the conduct of investigations on matters relating to historical land injustices and denied that section 47 of the Land Laws (Amendment) Act would operate retroactively. Ultimately, the respondents stated that the controls introduced under section 47 were intended to deal with security issues by ensuring that the security agencies were aware of any movement of people and goods in and out of Kenyas international borders.
- Whether the doctrine of separation of powers stopped the court from examining the acts of the Legislature or the Executive.
- What were the factors to consider in determining whether the nature and degree of public participation was reasonable?
- What was the proper way of interpreting the Constitution of Kenya, 2010?
- Under what circumstances could distinctions be said to be legitimate?
- Whether section 47 of the Land Laws (Amendment) Act which introduced the concept of controlled land was unconstitutional for limiting the right to property within the defined controlled land.
Relevant provisions of the law
Land Laws (Amendment) Act, 2016
Section 15 of the National Land Commission Act is deleted and substituted by the following new Section-
I5. (1) Pursuant to Article 67(3) of the Constitution, the Commission shall receive,
admit and investigate all historical land injustice complaints and recommend appropriate redress.
(2) For the purposes of this section, a historical land injustice means a grievance
(a) was occasioned by a violation of right in land on the basis of any law, policy, declaration,
administrative practice, treaty or agreement;
(b) resulted in displacement from their habitual place of residence;
(c) occurred between l5th June 1895 when Kenya became a protectorate under the British East African Protectorate and 27th August, 2010 when the Constitution of Kenya was promulgated;
(d) has not been sufficiently resolved and subsists up to the period
specified under paragraph (c); and
(e) meets the criteria set out under subsection 3 of this section.
The Land Act is amended by inserting the following new section immediately after section 12-
l2A. (l) In this part
"controlled land" means land in Kenya which is-
(a) within a zone of twenty-five kilometres from the inland national boundary of Kenya;
(b) within the first and second row from high water mark of the Indian Ocean;
(c) any other land as may be declared controlled land under any law or statute.
"ineligible person" means-
(i) an individual who is not a Kenyan citizen;
(ii) the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such government or political subdivision, or
(iii) a body corporate which has non-citizens as shareholders shall be deemed to be a non-citizen.
"interest" has the meaning assigned to it in the Act and interest in land shall
include transfer, lease, licence, charge, exchange, partition or other disposal of or dealing with any controlled land.
"corporation" means a body incorporated with or without a share capital under any written law in Kenya and the expression includes a limited liability partnership;
(2) No transaction in controlled land, including a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary.
(3) In deciding whether to approve or not approve an application, the Cabinet
Secretary shall seek the approval of the relevant authorities.
Section l3 of the principle Act is amended by-
(a) deleting subsection (l) and substituting therefor the following new subsection-
(1) Before the expiry of the leasehold tenure, the Commission shall-
(a) within five years, notify the lessee, by registered mail, of the date of expiry of the lease and inform the lessee of his or her pre-emptive right to allocation of the land upon application, provided that such lessee is a Kenyan citizen and that the land is not required by the national or county government for public purposes; and
- The court was alive to and indeed respected the principles of separation of powers as set out in the Constitution. Article 1 of the Constitution provided for the separation of powers between the three arms of Government by spelling out the respective mandates of the Legislature, the Executive and the Judiciary. The doctrine of separation of powers did not stop the court from examining the acts of the Legislature or the Executive. Under article 165(3)(d) of the Constitution, the Judiciary was charged with the mandate of interpreting the Constitution and determining the constitutionality of any acts done under the authority of the Constitution.
- The court was clothed with the jurisdiction and competence to pronounce itself on the compliance of a legislative body with the processes prescribed for passing of legislation as the doctrine of constitutional supremacy demanded of the court. There was no basis for the apprehension on the part of the respondents that the court dealing with the matters raised in the consolidated petition would threaten and or infringe upon the doctrine of separation of powers.
- The Fifth Schedule to the Constitution referred to in article 261(1) of the Constitution capped the period within which legislation on land should be enacted to 18 months from the date of the promulgation of the Constitution of Kenya, 2010. The effective date for the Constitution was August 27, 2010. The National Land Commission Act, 2012 as well as Land Act, 2012 whose provisions the Land Laws (Amendment) Act, 2016 sought to amend, were enacted and came into operation on May 2, 2012. The petitioners did not challenge the enactment of the Acts in the year 2012. The court was unaware of any provision in law that would bar the 2nd respondent from amending any statutes that it had previously enacted, from time to time.
- The perusal of articles 67 and 68 of the Constitution did not reveal any timelines prescribed therein, therefore, there was no basis for the contention that the Land Laws (Amendment) Act, 2016, was brought outside the timelines provided.
- The sacred foundation of the constitutional doctrine of public participation was embedded in the principle of the sovereignty of the people as enshrined under article 1 of the Constitution. In addition, article 2 of the Constitution contemplated direct and indirect exercise of sovereignty by the people through their elected representatives while at all times reserving for themselves the right to directly exercise their sovereignty.
- The nature and the degree of public participation that was reasonable in a given case would depend on a number of factors. They included the nature and the importance of the legislation and the intensity of its impact on the public. The more discreet and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it would be to expect the Legislature to be astute to ensure that the potentially affected section of the population was given a reasonable opportunity to have a say. In evaluating the reasonableness of the conduct of the Legislature, the court would have regard to what the Legislature considered appropriate in fulfilling the obligation to facilitate public participation in the light of the content, importance and urgency of the legislation.
- Prior to its enactment, the Land Laws (Amendment) Bill, 2015 was considered by both the National Assembly and the Senate. Thereafter the Bill was referred to a Mediation Committee which invited the public to offer their views. Having taken the concerns of the various stakeholders into account, the Mediation Committee compiled a report which it laid before both Houses of Parliament. Thereafter the Bill was debated and passed. The Land Laws (Amendment) Act, 2016 went through sufficient public participation prior to its enactment and the respondents did not violate article 10 of the Constitution.
- The Constitution gave guidance on how it ought to be interpreted. Article 259 of the Constitution required the court, in considering the constitutionality of any enactment before it, to make an interpretation in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of rights and that contributed to good governance. Article 159(2)(e) of the Constitution required the court, in exercising its judicial authority, to do so in a manner that protected and promoted the purpose and principles of the Constitution. In interpreting the Constitution, the court was enjoined to give it a liberal purposive interpretation.
- There was a general presumption that every Act was constitutional and the burden of proof thus lay on any person who alleged otherwise save that where there were limitations to fundamental rights, the onus was on the body restricting the right to show that such limitation was justified. From a perusal of section 38 of the Land Laws (Amendment) Act, the same was enacted to give effect to the provisions of article 67(2) of the Constitution. Article 67(2) conferred upon the National Land Commission the powers to initiate investigation on its own initiative or on a complaint, into the present or historical land injustices and recommend appropriate redress.
- It was unclear how the provisions of section 38 of the Land Laws (Amendment) Act could be said to be discriminatory to the petitioners. Land was one of the most important assets in the lives of the citizens of Kenya. It was a factor of production which was core to the economic activities of the citizens of Kenya. The advent of colonialism and the arrival of settlers in what would later become the Republic of Kenya commoditized land and changed the traditional concepts of land ownership.
- With the arrival of the settlers, many indigenous people were displaced from their original homes as the Colonial Government systematically put in processes that took away huge chunks of land from the residents. That fact saw the beginning of a vicious war pitting the indigenous Kenyans on the one side and the colonial administration on the other. After Kenya gained independence from the colonialists in 1963, it was felt that the atrocities committed against the indigenous people in as far as land was concerned would be remedied. That however never came to pass and since then, there had been numerous calls by Kenyans for a new land law regime.
- It was not lost on the court that in 2010, Kenyans passed the Constitution of Kenya, 2010 which saw reforms and an overhaul of the land law system. Article 67 of the Constitution established the 3rd respondent and defined its functions. In the year 2011, Parliament passed the National Land Commission Act whose provisions inter alia the Land Laws (Amendment) Act sought to amend.
- One of the mandates already given to the 3rd respondent by the Constitution was the power to investigate and make recommendations on historical land injustices. The provisions of section 38 of the Land Laws (Amendment) Act were aimed at the indigenous people of Kenya as those injustices were committed against Kenyans and not non-citizens. The principle of equality and non-discrimination did not mean that all distinctions between people were illegal. Distinctions were legitimate and hence lawful if they pursued a legitimate aim such as affirmative action to deal with inequalities and were reasonable in light of their legitimate aim. The amendments brought about in section 15 of the National Land Commission Act by section 38 of the Land Laws (Amendment) Act were not unconstitutional.
- . Section 47 of the Land Laws (Amendment) Act had amended section 12 of the Land Act and introduced the concept of controlled land which was defined therein to mean land in Kenya which was within a zone 25 Km from the inland national boundary of Kenya; within the 1st and 2nd row from the high-water mark of the Indian Ocean and any other land as could be declared controlled under any statute. Under section 47(2), no transaction in such controlled land, including transfer for consideration could be dealt with without the prior approval of the Cabinet Secretary.
- A party alleging a violation of a constitutional right or freedom had to demonstrate that the exercise of a fundamental right had been impaired, infringed or limited. Once the limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation. From a perusal of section 47 of the Land Laws (Amendment) Act, the same had far-reaching implications on the ownership rights to property.
- The exercise of the ownership right to property would be greatly limited within the defined controlled land and it was therefore incumbent upon the State to demonstrate that the limitation was justifiable and that the societal need therefore outweighed the individuals right to enjoy the right or freedom to deal with their properties. There was no reasonable justification to warrant section 47.
- Section 48 of the Land Laws (Amendment) Act sought to amend section 13 of the Land Act. The limitation provided was not unreasonable. Article 40 of the Constitution provided for the right to property subject to article 65 of the Constitution which limited the rights of the non-citizens of Kenya to hold land on the basis of a leasehold tenure only, such tenure not exceeding 99 years.
- The provisions of section 61 of the Land Laws (Amendment) Act on section 79 (9) of the Land Act as well as the provisions of section 98 of the Land Laws (Amendment) Act on section 152 merely served the purpose of streamlining the existing law. The same was neither discriminatory nor unconstitutional and there was no reason to interfere with the same.
- Equality was better understood and applied not in the abstract, but in its proper context. It recognized that general prepositions of law did not solve concrete cases. The theoretical premise further recognized that human wrongs were the source of human rights and that inequalities in a particular society, rather than in an imagined society, were the appropriate foundation of a better understanding of equality provisions in a national Constitution.