Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Njoki Susanna Ndungu
In the Matter of the National Land Commission
In the Matter of the National Land Commission  eKLR
Supreme Court Advises that Relationship between the mandates of the National Land Commission, and the Ministry of Land, Housing and Urban Development is that of Co-operation and interdependence
In the matter of the National Land Commission
Advisory Opinion Reference No. 2 of 2014
Supreme Court of Kenya
W.M. Mutunga CJ, K.H. Rawal DCJ, P.K.Tunoi, M.K. Ibrahim, J.B. Ojwang & N.S.Ndungu SCJJ
December 2, 2015
Reported by Long’et Terer
The National Land Commission (NLC) filed an application before the Supreme Court seeking to be advised on the mandate and relationship between NLC and the Ministry of Lands and Urban Development.
The Constitution of Kenya, 2010 established the NLC as an independent office with specific functions some of which were previously under the Executive. Prior to that, the Commissioner of Lands and the President had monopolised the powers to manage, and to dispose of land. That broad land-disposal empowerment had led to certain abuses.
The National Land Commission (NLC), which was established under article 67(1) of the Constitution of Kenya, 2010, to, amongst other things, manage public land on behalf of the National and County Governments, sought a clarification on its functions and powers, on the one hand, and the functions and powers of the Ministry of Land, Housing and Urban Development (the Ministry), on the other hand, in light of the three main statutes that were enacted in line with article 68 of the Constitution, those were, National Land Commission Act No. 5 of 2012; Land Act, No. 6 of 2012 ; Land Registration Act No. 3 of 2012.
The issues canvassed before the court related to the mandate of the two offices in relation to: administration and management of public land, community land, and private land; the allocation of public land; the renewal and extension of leases; issuance of licences, leases and grants in respect of public land; compulsory acquisition of land; the creation of land registration units; the establishment of a land register.
It was submitted that the NLC could be viewed as a fourth arm of Government, created to cater for a specific need, but ultimately independent of Government. NLC was presented as a creature of the Constitution, just like the Executive, and was thus not to be treated as being subservient to the Executive and in that case the Ministry of Land, Housing and Urban Development.
The heart of the Reference before the Court was the issue of ‘land administration and management’, which arose from the wording of articles 62(2) and 67 (2) (a) of the Constitution.
i. What was the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand– in the context of Chapter Five of the Constitution; the principles of governance (article 10 of the Constitution); and the relevant legislations? (Land Registration Act; Land Act; National Land Commission Act)
ii. Whether the independence accorded to commissions and independent offices was subject to any oversight, check or mechanisms of accountability.
iii. The role and place of public participation in the administration and management of land in Kenya.
Statutes-interpretation of statutes- land-related statutes - National Land Commission Act, Land Act, Land Registration Act – interpretation of the Statutes with regard to the relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development in the context of Chapter Five of the Constitution- Constitution of Kenya, 2010, articles 10, 62 and 67; National Land Commission Act No. 5 of 2012, section 18; Land Act, No. 6 of 2012, sections 6, 8, 9, 12, 13, 20 and 107; Land Registration Act, 2012, sections 6, 7(3), 8, 12, 14, 38(2), 39, 55 and 86
Land Law-National Land Commission–functions of the National Land Commission –relationship between the Mandate of the National Land Commission and the Ministry of Land, Housing and Urban Development- what was the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand in the context of Chapter Five of the Constitution and the relevant legislation-Constitution of Kenya, 2010, articles 10, 62 and 67, National Land Commission, Land Act No. 5 of 2012, section 18 Land Act, No. 6 of 2012, sections 6, 8, 9, 12, 13, 20 and 107; Land Registration Act, 2012, sections 6, 7(3), 8, 12, 14, 38(2), 39, 55 and 86
Constitutional Law-separation of powers -principles of separation of powers - principles of separation of powers and checks and balances among state organs vis a vis independence of each state organ, independent offices and state agencies- proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land with regards to separation of powers- whether the independence accorded to commissions and independent offices was subject to any oversight, check or mechanisms of accountability- Constitution of Kenya 2010 articles, 60 and 259(11)
Constitutional Law-principle of public participation- public participation requirements relating to land matters- participation of the people at the National level and County levels- the role and place of public participation in the administration and management of land in Kenya- Constitution of Kenya, 2010, articles, 1(4), 61(1),174(c) and (d), 232(1) d), (e) and (f)
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 10; National values and principles of governance
(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.
(2) The national values and principles of governance include;
(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and
(d) sustainable development.
Article 62; Public Land
(1) Public land is—
(a) land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;
(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
(c) land transferred to the State by way of sale, reversion or surrender;
(d) land in respect of which no individual or community ownership can be established by any legal process;
(e) land in respect of which no heir can be identified by any legal process;
(f) all minerals and mineral oils as defined by law;
(g) government forests other than forests to which Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
(h) all roads and thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the high and low water marks;
(m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament—
(i) in force at the effective date; or
(ii) enacted after the effective date.
(2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under—
(a) clause (1) (a), (c), (d) or (e); and
(b) clause (1) (b), other than land held, used or occupied by a national State organ.
(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
(4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.
Article 67; National Land Commission
(1) There is established the National Land Commission.
(2) The functions of the National Land Commission are—
(a) to manage public land on behalf of the national and county governments;
(b) to recommend a national land policy to the national government;
(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;
(g) to assess tax on land and premiums on immovable property in any area designated by law; and
(h) to monitor and have oversight responsibilities over land use planning throughout the country.
(3) The National Land Commission may perform any other functions prescribed by national legislation.
National Land Commission Act No. 5 of 2012
Section 18- County Land Management Boards
(1) The Commission shall, in consultation and cooperation with the National and County Governments, establish County land management boards for purposes of managing public land.
(2) A County land management board shall comprise of:
a) not less than three and not more than seven members appointed by the Commission; and
b) a physical planner or a surveyor who shall be nominated by the County Executive member and appointed by the governor.
(6) The appointment of the members shall be approved by the County assembly and shall take into account the National values referred to in Article 10 and Article 232 of the Constitution and shall reflect gender equity and ethnic diversity within that County.
(8) In the discharge of their functions, the boards shall comply with the regulations made by the Commission under this Act.
(9) The boards shall:
a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and
b) perform any other functions assigned by the Commission or by any other written law."
Land Registration Act, 2012
Section 6; Registration units
“The cabinet secretary shall in relation to the management and administration of land
a) develop policies on land upon the recommendation of the commission;
b) facilitate the implementation of land policy and reforms;
c) co-ordinate the management of the National Spatial Data Infrastructure;
d) co-ordinate the formulation of standards of service in the land sector;
e) regulate service providers and professionals including physical planners, surveyors, valuers, estate agents and other land related professionals to ensure quality control; and,
f) monitor and evaluate land sector performance.”
Section 7 (3); Land registry
“In establishing the land registry, the Public Service Commission and Cabinet Secretary, shall be guided by the principles of devolution set out in Articles 174 and 175 of the Constitution.”
Section 8; Community Land Register
“In managing public land on behalf of the National and County Governments the Commission—
a) shall identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey;
b) shall evaluate all parcels of public land based on land capability classification, a land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and
c) shall share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or
d) may require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.”
Section 12; Appointment of officers
(1) There shall be appointed by the Public Service Commission, a Chief Land Registrar, and such other officers who shall be public officers as may be considered necessary for the effective discharge of functions under this Act.
(2) Any officer appointed under this Act shall be competitively recruited and vetted by the Public Service Commission.”
Section 14; General powers of Land Registrars
The Chief Land Registrar, County Land Registrars or any other land Registrars may, in addition to the powers conferred on the office of the Registrar by this Act
(a) require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;
(b) summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;
(c) refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;
(d) cause oaths to be administered or declarations taken and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration; and
(e) order that the costs, charges and expenses as prescribed under this Act, incurred by the office or by any person in connection with any investigation or hearing held by the Registrar for the purposes of this Act shall be borne and paid by such persons and in such proportions as the Registrar may think fit.”
Section 38 (1); Certificates of payment of rates
“The Registrar shall not register any instrument purporting to transfer or to vest any land, a lease of land, situated within the area of a rating authority, unless a written statement by the relevant Government agency, certifying that all outstanding rates and other charges payable to the agency in respect of the land including rates and charges for the last twelve months and up to the date of request for transfer have been paid,… is produced to the Registrar.”
Section 39; Certificates as to payment of rent
(a) The Registrar shall not register an instrument purporting to transfer or create an interest in land, unless a certificate is produced with the instrument, certifying that no rent is owing to the National or County Governments in respect of the land.
(b) The Registrar shall not register an instrument effecting a transaction unless satisfied that any consent required to be obtained in respect of the transaction has been given by the relevant County Land Management Board on the use of the land, or that no consent is required.”
Section 55; Lessor’s consent to dealing with leases
“If a lease contains a condition, express or implied, by the lessee that the lessee shall not transfer, sub-let, charge or… part with the possession of the land leased or any part of it without the written consent of the lessor,… the dealings with the lease shall not be registered unless—
(a) the consent of the lessor has been produced to, and authenticated to the satisfaction of the Registrar and the Registrar shall not register any instrument purporting to transfer or create any interest in that land; and
(b) a land rent clearance certificate and the consent to the lease, certifying that no rent is owing to the Commission in respect of the land, or that the land is freehold, has been produced to the Registrar.”
Section 86; Review of the decision of the Registrar
“(1) If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.”
Land Act No. 6 of 2012
Section 6; Land management and administration institutions
The cabinet secretary shall in relation to the management and administration of land.
(a) develop policies on land upon the recommendation of the commission;
(b) facilitate the implementation of land policy and reforms;
(c) co-ordinate the management of the National Spatial Data Infrastructure;
(d) co-ordinate the formulation of standards of service in the land sector;
(e) regulate service providers and professionals including physical planners, surveyors, valuers, estate agents and other land related professionals to ensure quality control; and,
(f) monitor and evaluate land sector performance.”
Section 8; Management of public land
“In managing public land on behalf of the National and County Governments the Commission—
(a) shall identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey;
(b) shall evaluate all parcels of public land based on land capability classification, a land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and
(c) shall share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or
(d) may require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.”
Section 9; Conversion of land
1) Any land may be converted from one category to another in accordance with the provisions of this Act or any other written law.
2) Without prejudice to the generality of subsection (1) -
a) public land may be converted to private land by alienation;
b) subject to public needs or in the interest of defence, public safety, public order, public morality, public health or land use planning, public land may be converted to community land;
c) private land may be converted to public land by -
(i) compulsory acquisition;
(ii) reversion of leasehold interest to Government after the expiry of a lease; and
(iii) transfers; or
d) Community land may be converted to either private land or public land in accordance with the law relating to community land enacted pursuant to Article 63(5) of the Constitution
3) Any substantial transaction involving the conversion of public land to private land shall require approval by the National Assembly or County assembly as the case maybe.”
Section 12; Allocation of public land
(1) The Commission may on behalf of the National or County Governments, allocate public land by way of:
(a) public auction to the highest bidder at prevailing market value subject to and not less than the reserved price;
(b) application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position;
(c) public notice of tenders as it may prescribe;
(d) public drawing of lots as may be prescribed;
(e) public request for proposals as may be prescribed; or
(f) public exchanges of equal value as may be prescribed.
(3) Subject to Article 65 of the Constitution, the Commission shall set aside land for investment purposes.”
Section 13; Lessee pre-emptive rights to allocation
(1) Where any land reverts back to the National or County Government after expiry of the leasehold tenure the Commission shall offer to the immediate past holder of the leasehold interest pre-emptive rights to allocation of the land…
(2) The Commission may make rules for the better carrying out of the provisions of this Section, and without prejudice to the generality of the foregoing, the rules may provide for the following.
(a) prescribing the procedures for applying for extension of leases before their expiry;
(b) prescribing the factors to be considered by the Commission in determining whether to extend the tenure of the lease or re-allocate the land to the lessee;
(c) the stand premium and or the annual rent to be paid by the lessee in consideration of extension of the lease or re-allocation of the land;
(d) other covenants and conditions to be observed by the lessee.
Section 20; Licence for temporary purposes
(1) The Commission may grant a person a licence to use unalienated public land for a period not exceeding five years subject to planning principles as it may prescribe.
(3) The fee payable under a licence under this Section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission.”
Section 107(1); Compulsory Acquisition of Interests in Land: Preliminary notice
(1) Whenever the National or County Government is satisfied that it may be necessary to acquire some particular land under Section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of public land to the Commission to acquire the land on its behalf.
1. It was important to note the historical background, specifically of public land in Kenya, so as to appreciate the mischief sought to be addressed by Chapter 5 of the Constitution. Apprehensions of social, economic and political mischief associated with Kenyan land history, were a vital factor in the dynamics of land reform. That explained the concern to institute a public entity with a land-resource mandate, independent of the hand of Central Government. It also explained the desire to decentralise the land-management system, and to establish checks-and-balances in that regard. The National Land Commission (NLC) was hence created pursuant to the provisions of the Constitution of Kenya, 2010 to deal with public land. However, not all the functions relating to land were vested in the NLC; the Land Ministry still had a role to play.
2. The highlight of the Kenyan land-resource regime, under the Constitution and the statutory framework in place, was the governing principle of checks-and-balances, which regulated in particular, the relationship between the NLC and the Central Government through its relevant Ministry. Check-and-balances, which alongside the safeguards for fundamental rights, were the special feature of the Constitution of Kenya, 2010, were required to be maintained, and accorded effect, by all State organs, as they discharged their respective mandates.
3. The definition clauses of the Constitution left no doubt that Commissions were State organs. Although many bodies mentioned in the Constitution were categorised as State organs, a plain reading of article 1(3) showed that only three specific State organs were vested with the people’s sovereign power: the Executive, the Legislature and the Judiciary.
4. The wording of Chapter 15 of the Constitution did not signal the vesting of the sovereign power of the people in commissions and independent offices. That was not to say that commissions and independent offices were excluded from exercising public power. State organs, were part of Government, and one of their core mandates was to protect the sovereignty of the people. Commissions and independent offices were expected to protect the sovereign power of the people, from which the Executive, the Judiciary and the Legislature derived their authority: hence the depiction people watchdogs or constitutional watchdogs. They were to be distinguished from the three arms of Government through the functions they discharged.
5. Firstly, the commissions and independent offices had the duty of to protect the sovereignty of the people, ensure that all State organs adhered to and observed the democratic values and principles, and promote constitutionality; three of the key pillars of the Constitution. Secondly, the Constitution ordained that the commissions, and the holders of independent offices, were subject only to the Constitution and the law, and were independent, and not subject to the direction or control by any person or authority. That was the pivotal provision guaranteeing independent status to the commissions and independent offices.
6. The independence of Commissions was a pivotal feature in the newly- established commissions and independent offices. The key features of the independence of commissions were;
a. Functional independence: that entailed commissions exercising their autonomy through carrying out their functions, without receiving any instructions or orders from other State organs or bodies. That had also been referred to as administrative independence. Functional independence was in line with the general functions and powers of commissions, as provided under articles 252 and 253 of the Constitution.
b. Operational independence: That included functional independence, and was a safeguard or shield for independence, manifested through the procedure of the appointments of commissioners; composition of the commission; and procedures of the commission. Article 255(1)(g) provided an elaborate procedure for the amendment of the Constitution in matters dealing with the independence of the Judiciary, as well as commissions and independent offices to which Chapter 15 applied.
c. Financial independence: It meant that a commission had the autonomy to access funds which it reasonably required for the conduct of its functions. However, according to article 249(3) of the Constitution, Parliament was mandated to set for the commission the budget considered adequate for its functions.
d. Perception of independence: That meant the commissions had to be seen to be carrying out their functions free from external interferences. The perception of independence was crucial in showing proof of independence.
7. The independence of commissions and independent offices did not, perforce, entail a splendid isolation from other State organs. Article 249(1) expressly entrusted the National Land Commission with the duty to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles, and promote constitutionalism.
8. Commissions acting in isolation had no capacity to discharge their mandate. They had to consult with other State organs, and work with such State organs in co-operation and harmony. Commissions were required to promote the national values and principles entrenched in article 10 of the Constitution which were: patriotism; national unity; sharing and devolution of power; the rule of law; democracy and participation of the people; human dignity; equity; social justice; inclusiveness; equality; human rights; non-discrimination and protection of the marginalised; good governance; integrity; transparency and accountability; and sustainable development. The mandate borne by the Commissions, namely, democracy and participation of the people, formed an overlapping continuum with operational logistics devolving to all public agencies.
9. The system of checks and balances served the cause of accountability, and it was a two-way motion between different State organs, and among bodies, which exercised public power. The commissions and independent offices restrained the arms of Government and other State organs, and vice versa. The spirit and vision behind separation of powers was that there be checks and balances, and that no single person or institution should have a monopoly of all powers. If the NLC was created as a watchdog and an oversight body, it could not carry out the direct functions of the Ministry, even as it performed its oversight role.
10. The doctrine of separation of powers required that organs of Government should carry out their functions without encroaching on each other. It was thus recognised that there was scope for a Government organ to act in excess of its proper mandate, or to abuse its powers. The system of checks and balances were put in place to empower other organs of Government to apply their countervailing powers, to prevent, or limit the excessive use of powers.
11. While the doctrine of separation of powers, and the principle of checks and balances, had conventionally been associated with the Executive, the Legislature and the Judiciary, it was entirely proper to associate them with any State organ that exercised public power and thus ought to be checked and balanced, to avoid abuse of power. The effect was that, the independence of commissions did not exempt them from being overseen, and held accountable in their operations.
12. Article 249(1) of the Constitution signaled the checks that the commissions had on other arms of Government. Article 254 indicated the checks which the Executive and the Legislature had upon the Commissions which took the form of accountability and transparency mechanisms. Article 254(1) required commissions to file annual reports to the President and to Parliament; article 254(2) provided that the President and the National Assembly may require a commission to submit a report on a particular issue.
13. There was also a kind of vertical accountability, which the commission held towards the people in general. Article 254(3) required every commission or independent office to publish and publicise it reports. That was a check-and-balance mechanism, as well as an exercise of inclusivity, accountability, transparency, good governance and integrity as recognized under the national values and principles of governance (article 10(2) of the Constitution). It was also a mode of promoting constitutionalism, as required by article 249(1).
14. The NLC was also subject to financial checks, by a counterpart independent office, the Auditor-General under article 229(4) (d), which required the submission of accounts within six months of the end of the financial year. The audit reports generated by the Auditor-General would be presented to Parliament, for scrutiny and appropriate action.
15. It was essential to strike a balance between the independence of commissions, which was integral to their functioning, and the obligations of accountability and transparency. There was to be a power- balance between the NLC and the National and County Governments, holding each institution within its prescribed powers. Failing such a course, the very rationale of independent offices and commissions would have been negated.
16. While endowing the Commissions and independent offices with competence, the Constitution (article 67) itemised the functions of the National Land Commission, which include: “to manage…, to recommend…, to advise…, to monitor and to assess”. That mandate was to be exercised in the best interest of the people, whose sovereignty was to be protected.
17. The NLC was required to obtain ‘consent’ from the National or County Governments in the discharge of its functions as stipulated in section 5 (2) (a) of the NLC Act. That provision was to be read in conjunction with article 259(11) which required that any function or power that was to be exercised on the advice or recommendation or with the approval or consent of or in consultation with another ought only to be exercised after such fact.
18. The NLC was not to work in isolation, but rather in consultation and co-operation with the Ministry. That was an interdependent relationship, with one body formulating the policy, whereas the other implemented the policy; it was not prudent for any State organ to be the one formulating, implementing, and at the same time overseeing the implementation of the policy. That apportionment of responsibility did not invalidate the doctrine of separation of powers, but rather, redefined and consolidated the essential principle that separation was not the goal in itself, but was a vital means to assert checks upon each organ of Government, so as to achieve constitutionally-restrained governance.
19. Parliament enacted the NLC Act, the Land Act and the Land Registration Act, to give effect to the provisions of the Constitution. The NLC Act in specific was enacted to fulfil the object of article 67(3) of the Constitution and whose purpose was to provide for the management and administration of land in accordance with the principles of land policy set out in article 60 of the Constitution and the National land policy. By article 67, it fell to the NLC to recommend a national land policy to the National Government. Those provisions, by their essential design fell within a scheme of co-operation and interdependence between the NLC and the Ministry.
20. The Land Act defined alienation as the sale or other disposal of rights to land, while the NLC Act conferred the power of alienation of public land upon the NLC. The power of alienation of public land was one of the ways through which the NLC administered such land. The requirement of consent to such a transaction, from the National or County Government, was certainly a check-and-balance relationship between the two State organs. The NLC’s function of monitoring the registration of all rights and interests in land was another mechanism of checking the powers of the body responsible for registration.
21. Article 62(2) specified the categories of public land that vest in county governments and the NLC Act conferred power upon the NLC to administer and manage public land that was vested in County Government. However, “community land”, as defined in article 63(1), had its own place and system of governance; and the land referred to in section 5 (2)(e) of the NLC Act, was “community land”, and not “public land”. Those distinct definitions of “community land” and “public land”, as well as their applicable governance systems as provided in the Constitution, did not require any special professional input, as a basis for interpreting articles 62(2) and (3) and 67 (2) (a). The Commission had no special claim to the remit of administering or managing community land. From the historical background, recognition of the special character of community land was essential, with attendant cautions in its management. It was hence necessary for Parliament to make amendments to section 5(2) (e) of the NLC Act, to bring it into line with the constitutional provisions.
22. Section 18 of the NLC Act provided for the establishment and functions of County Land Management Boards, the functions assigned to the Board, with regard to the processing of land allocation; change and extension of user; conducting subdivision of land; and renewal of leases gave indications as to the essence of the phrase, “administering and managing public land”. The functions undertaken by the Board were ordinarily, the preparatory steps towards acquisition of ownership to land, which culminated in registration and issuance of title by the National Government. It could thus be inferred, that the purpose of the Board was to effect the devolution of land-administration to the counties.
23. The Land Act, 2012 enjoined the NLC and the Cabinet Secretary responsible for land, to undertake certain functions, for the effective management of land. Sections 6 and 8 of the Act prescribed the functions of the Cabinet Secretary and the Commission, as regards the management and administration of land. Those provisions gave an impression as to the roles of the Ministry, in section 6, and the NLC, in section 8, in the management of land. Sections 6 and 8 of the Land Act, 2012 indicated that neither the Ministry nor the NLC was in a position to perform its tasks in isolation. The Ministry was required to develop and facilitate land policies on the basis of advice and recommendations from the NLC; while the land database to be prepared and kept by the NLC had to be geo-referenced and authenticated by the statutory body in charge of survey, which was the Land Surveyors’ Board, established under the Survey Act. The officers serving on that Board were appointed by the Public Service Commission, and, by section 6(e) of the Act, were to be regulated by the Cabinet Secretary, as an aspect of quality control. That was a typical instance in which it fell to the Executive to exercise check-and-balance upon a different State organ.
24. The responsibility of the NLC to issue licences, leases and grants in respect of public land, was subject to the conditions set out in law. Section 28 of the Land Act provided for the collection of rent charged on the use of land, and required the NLC to account for the payments received under any lease or licence, to the respective Governments. Those provisions were a clear indication of the constitutional design of decentralising the powers of public governance, within a context of checks-and-balances.
25. The provisions in the Land Act with respect to conversion of land from public to private (section 9); the development of guidelines on the management of public land by public agencies and bodies that were in actual occupation (section 10); allocation of public land (section 12); renewal and extension of leases (section 13); reservation of certain public land for a public-interest purpose (section 15); issuance of licences for the use of unalienated public land (section 20); Compulsory acquisition of public land (section 107-113); Implementation of settlement programmes (section 134); entrusted the NLC with the responsibility of protecting and overseeing the public’s rights and interest, under the Constitution. However, the NLC’s mandate in that regard was not held single-handed, and was not unqualified: provision was made for approval from the National Assembly; and the consent of the National Government, or relevant County Government. That provided a check-and-balance, to ensure that the NLC operates within the prescribed limits.
26. The Land Registration Act conferred various powers upon the Registrar of Land, the Cabinet Secretary, the NLC, and other named officers. The NLC was empowered to establish registration units and to determine the span of each registration unit; but it did so only in consultation with the National or County Government. The NLC, it followed, had to make consultations with the National Government or the County Government, as the case may be, as to the areas to be covered in each of the registration units to be gazetted.
27. The Director of Surveys, or his or her delegate, was the officer vested with the powers conferred by section 6(4) of the Land Registration Act. The officers under the Director of Surveys were appointed by the Public Service Commission. The effect of the provisions was that the NLC determined which area would fall within a given registration unit, as well as the registration sections and blocks that would be established within that unit. However, the officer in charge of survey could vary or alter the boundaries of those sections or blocks, thereafter informing the Registrar of the changes made. Such an officer had not been authorized to vary the boundaries of the registration unit itself. It confirmed that the relationship between the NLC and the National and County Government was one of mutual co-operation, co-ordination, and consultation. The functions of those constitutional organs were complementary, and no organ could purport to carry on its operations in isolation. That element was a recurring theme, throughout the Act.
28. Section 7 of the Land Registration Act required that a land registry be maintained in every registration unit, in which a land register was to be kept. The NLC’s role in that respect was to determine the form of the land register. However, the obligation to establish the land registry rested with the Public Service Commission and the Cabinet Secretary as stated in section 7 (3). The NLC’s officers (the Chief Land Registrar and other public officers to discharge functions under the Act) who ensured the taking and implementation of its decisions, were appointees of the Public Service Commission.
29. Section 38 of the Land Registration Act related to land that fell within the area of a County authority; section 39 related to land rents owing to the National or County Governments; while section 55 required that a land-rent clearance certificate, and consent to the lease, showing the full payment of rent for the land to the Commission, be produced before the Registrar. The requirement of consent operated as a check on the exercise of power by the Registrar, allowing the registration of an instrument that effects a transaction on public land.
30. The heart of the Reference before the Court was the issue of ‘land administration and management’, which arose from the wording of articles 62(2) and 67 (2)(a) of the Constitution. Those Articles had expressly stipulated the mandate of the NLC. The interpretation of the terms ‘manage’ and ‘administer’, as applied by the two articles of the Constitution, was inescapable and especially so because, the same terms were replicated in the NLC Act, the Land Act and the Land Registration Act, which were the primary statutes dealing with land management and administration in Kenya.
31. The Constitution was to be interpreted in a holistic manner, which entailed reading it alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question. The Court took into account the historical background of land issues in Kenya that necessitated the establishment of the NLC and the mischief that the NLC was intended to cure in the allocation of public land.
32. The term ‘land administration’ was only defined in the Land Registration Act as the process of determining, recording, updating and disseminating information about the ownership, value and use of land by the relevant provisions under Part II of the Land Registration Act, the process of registration was undertaken by various agencies, starting with the NLC, establishing the registration units; and culminating with the Registrar, registering the title documents. Of interest was section 6(6), which stipulated that, “the land registration units shall be established at County level and at such other levels to ensure reasonable access to land administration and registration services”. The foregoing sub-section separated the role of “land administration” from “registration”, notwithstanding that the term “land administration” had a wider meaning under the Act, which suggested the inclusion of functions of registration of title. As implementation was of the essence, a definition on its own did not confer any definite category of power; only by a substantive provision in the relevant Act, could a specific head of power be vested upon any agency. The position was that, under the Land Registration Act, the NLC had no power to register title documents.
33. Neither of the other statutes, other than the Land Registration Act defined the term “management”, or “administration”. Consequently, the meaning of the two terms could only be inferred from the context within which they had been used. The application of the term ‘management’ and ‘administration’, in all the three statutes (Land Act, Land Registration Act, and the NLC Act) was consistent with the functions of the Commission as expressly donated by the Constitution. It was clear that the function of “registration of title” was not with reference specifically to “public land”. Registration was conceived to entail all categories of land; fragmenting title issuance—such a crucial indication of the fundamental right of property—could not possibly have been in contemplation during the legislative process. For such would not only negate constitutional principle, but would probably breed such anarchy and abuse, as would certainly harm the public interest. Land title, the symbol of a vital asset, required the effectual and conclusive mechanisms of the State’s most central agency. A proper interpretation of the provisions of the Constitution and the statute law, in that context, should be aimed at achieving coherence, clarity, and certainty.
34. The relationship intended between the NLC on the one hand, and the National and County Government on the other, did not lend itself to the agency template; rather, it was a straightforward constitutional relationship, in the public-law mode. Besides, the NLC was an independent commission in the terms of article 248(1) (b), as read with article 249(2) of the Constitution, and with the provisions of the relevant statutes. The NLC was not subject to direction or control by any person or authority; and it could not, thus, be considered an agent of the National or County Government, in the legal sense.
35. The NLC’s mandate, which was required to function in a collaborative and consultative constitutional and legal setting, belonged squarely to the mechanism of checks-and-balances, rather than that of an isolated fourth arm of government, entrusted with tasks unrelated to those falling under the dockets of other State organs. Indeed, the neat paradigm of a fourth arm of government appeared not to be in the contemplation of the Constitution of Kenya, 2010 which specified [article 1(3)] that the people’s sovereign power devolved to just three vital State organs: the Executive; the Legislature; and the Judiciary and independent tribunals.
36. The Constitution’s mandate fell to the three State organs, in an operational context of check-and-balances: and the various Commissions acted as oversight and watchdog mechanisms. Hence, each of the functions of the NLC and the Ministry stood to be checked by the one or the other, in order to avoid abuse of power in matters relating to land. The unchanging theme throughout the Constitution was that the relationship between the two bodies was inter-dependent, and based upon co-operation; it was not an agency relationship. As the Ministry conducted its functions, the NLC acted as a watchdog, to ensure compliance with the Constitution, and with legislation. Likewise, the NLC as an oversight body, maintained its functional, financial and operational independence, while still being overseen and checked by the public, by other independent offices, and by the three arms of government.
37. The conditioning medium within which the functions had to be conducted, was constituted by the national values and principles outlined in article 10 of the Constitution: in particular, the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It was to be noted that, the very essence of checks-and-balances touched on the principles of public participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions was to be in line with values of integrity, transparency, good governance and accountability. In view of the troubled history of land in Kenya, the NLC and the Ministry had to involve the public when carrying out their functions. It was only through public participation was it possible to realize the principles of land policy, as set out in article 60(1).
38. The delineation of the respective functions of the NLC and of the Ministry of Land was already answered with sufficient clarity: the allocation of discrete functions to the one or the other was not possible, or indeed necessary. The vital subject of land-asset governance ran in functional chains, that incorporate different State agencies; and each of them was required to work in co-operation with the others, within the framework of a scheme of checks-and-balances—the ultimate goal being to deliver certain essentials to the people of Kenya.
39. The NLC had a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law conferred upon it the power to register titles in land. The task of registering land title lay with the National Government, and the Ministry had the authority to issue land title on behalf of the said Government.
40. The Ministry of Land was the special entity with authority to register and issue land title. Land title, by its singularity as the mark of entitlement to landed property, was the ultimate expression of a vital property right, quite apart from being the very reference-point in numerous financial and business transactions. On that account, the sole national repository to issue, and to guarantee the validity and integrity of title, was the central State machinery, as a player on the international plane, acting through the Executive organ.
41. The various statutes relating to land were not in all cases consistent among themselves; and in some cases they had been framed with imprecision, and without a clear reflection of the relevant principles of the Constitution. The recommendation was for the complete set of land-related statutes, be placed before the Honorable the Attorney-General, and before the Kenya Law Reform Commission, for a detailed professional review, in the context of the Advisory Opinion.
42. The mandate of the NLC was set out in the Constitution [article 67(2) (d), (e) and (f)]. From those provisions, NLC bore a brains-trust mandate in relation to land grievances, with functions that were in nature consultative, advisory, and safeguard-oriented. As regards such functions, the NLC, on the basis of clearly-formulated statutes, should be able to design a clearly-structured agenda for regular operations and inter alia, should seek to devise a well-focused safeguard-mandate in relation to land issues. Co-operation and consultation with other State organs would be important, in identifying, and defining urgent tasks on the NLC’s agenda.
43. An Advisory Opinion, was a ‘decision’ of the Court, within the terms of article 163(7), and was thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions. The purpose of an Advisory Opinion was not only to settle the specific issues raised, but also to present a pragmatic course for problematic aspects of the operation of State organs in the instant case, the NLC and the Ministry.
44. The other constitutional mandates reposed in the NLC were:
a. recommending a national land policy to the National Government; advising the National Government on a comprehensive programme for the registration of title to land, throughout Kenya;
b. conducting research related to land, and to the use of national resources and making recommendations to the appropriate authorities;
c. initiating investigations (on its own initiative or upon a complaint) into present or historical land injustices, and recommending appropriate redress;
d. encouraging the application of traditional dispute-resolution mechanisms in land conflicts; assessing tax on land and premiums on immovable property in any area designated by law; and
e. monitoring, and asserting oversight responsibilities on land-use planning, throughout the country.
The NLC should, upon priority, and with the essential consultations and co-ordinations, formulate a structured scheme of operations which provided not only for the broadly-defined mandate of “managing public land” [The Constitution, article 67(2)], but also for the specific national-interest mandate, as well as the charges specified in the Advisory Opinion.
Per Mutunga, CJ
45. Public participation was a major pillar, and bedrock of democracy and good governance. It was the basis for changing the content of the State, envisioned by the Constitution, so that the citizens had a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance would make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority was derived from the people of Kenya, was the indestructible fidelity to the value and principle of public participation. The realization of the pillars of good governance would become weak and subject to the manipulation by the forces of status quo if the participation of the people was excluded.
46. The robust recognition of the prominence of the participation of the people in the making of the Constitution was reinforced in article 1, which declared the sovereignty of the people. That direct exercise of sovereign power by the people was crucial in the administration and management of land in Kenya. Land was a fundamental resource for the material and cultural livelihoods of the people. The State, for example, through civic education, could ensure that participation of the people takes place on matters concerning land. That was because, ultimately, any decisions made concerning land would affect them and, although the National Land Commission (NLC) or the Ministry of Lands could make information on land available, the public ought to be educated on how to access the information and participate in consultation processes on land matters affecting them. Public participation could also take an indirect form, where the national and county Legislatures were mandated to enact legislation on land laws. That those Legislatures were to involve the people they were elected to represent, in law-making processes, was a matter of accountability, and of enrichment of the voices of the people.
47. Public participation was the community based process, where people organise themselves and their goals at the grassroots level and work together through governmental and non-governmental community organisations to influence decision making processes in policy, legislation, service delivery, oversight and development matters. It was a two way interactive process where the duty bearer communicates information in a transparent and timely manner, engages the public in decision making and is responsive and accountable to their needs. The definition could be applied to the management and administration of land in Kenya. In order to achieve efficient land administration and management, the national and county governments; the arms of government; and the commissions and independent offices, must conduct meaningful consultation, communication, and engagement with the people.
48. The NLC, as well as the national and county governments, were required to promote public participation, as they conduct their functions. Article 254 of the Constitution required the NLC to promote the participation of the people, as it conducts its mandate. By that article, the NLC was held accountable to the people, and upheld the participation of the people in two ways. Firstly, the people indirectly participate in holding the NLC accountable, through their democratically elected officials (the President and Members of Parliament). The NLC was required to submit annual reports to the President and Parliament. Secondly, the people had the opportunity to participate directly, and to exercise their right of access to information, as the NLC was required to publish and publicize its reports. The public was thus accorded an opportunity to examine the reports, and to determine whether the Commission was carrying out its constitutional and legislative mandates, or whether the NLC had made any decisions affecting their land.
49. The principle of the participation of the people did not stand in isolation; it was to be realised in conjunction with other constitutional rights, especially the right of access to information (article 35); equality (article 27); and the principle of democracy (article 10(2)(a)). The right to equality related to matters concerning land, where State agencies were encouraged also to engage with communities, pastoralists, peasants and any other members of the public. Thus, public bodies should engage with specific stakeholders, while also considering the views of other members of the public. Democracy was another national principle that was enhanced by the participation of the people.
50. Kenya had ratified the United Nations International Covenant on Civil and Political Rights, 1966 (ICCPR) as well as the African Charter on Human and Peoples’ Rights, 1981 (ACHPR), and those international and regional instruments also recognised the participation of the people in public affairs. By virtue of article 2(6) of the Constitution, those treaties formed part of Kenyan law.
51. The participation of the people was a constitutional safeguard, and a mechanism of accountability against State organs, the national and county governments, as well as commissions and independent offices. It was a device for promoting democracy, transparency, openness, integrity and effective service delivery. During the constitution-making process, the Kenyan people had raised their concerns about the hazard of exclusion from the State’s decision-making processes. The Constitution had specified those situations in which the public was assured of participation in decision-making processes. It was clear that the principle of public participation did not stop with the constitution-making process; it remained as crucial in the implementation phase as it was in the constitution-making process.
52. Public participation was not an abstract notion and, on matters concerning land, State organs, the Ministry, and the NLC must breathe life into that constitutional principle, and involve the public in land management and administration; legislative plans and processes; and policy-making processes. That was clear from the terms of article 10 of the Constitution, which required those bodies to:(a) apply or interpret the Constitution; (b) enact, apply or interpret any law; or (c) make or implement public policy decisions bearing in mind the participation of the people, and the goals of democracy, and transparency.
53. An array of rich ingredients of the participation of the people, emerged from various sources: decisions by superior Courts in Kenya; comparative jurisprudence from another jurisdictions; works by scholars; draft principles and guidelines bearing upon public participation by various State organs and governments; and relevant constitutional and legal provisions. The common denominator in those various ingredients of participation by the people was the supremacy and sovereignty of the Kenyan people. The ingredients of public participation called for significant mental shifts in the mode of consultation, communication, learning, and accommodation of the views of ordinary Kenyans. It was a must to provide the objective information to facilitate such participation in all societal affairs.
Per Ndung’u SCJ
54. The watchdog role was so basic to the nature of constitutional commissions, that it could not be understated or undermined through legislative and policy initiatives or practice. Acts of Parliament, and subsidiary legislation ought to be aligned to, and in harmony with the constitutional provisions; and interpretation of such laws should pay fidelity to the form and the vision of the Constitution. Similarly, the institutions so crafted under the Constitution, should also not run contrary to the general remit of the functions of Chapter 15 of the Constitution on institutions. As oversight institutions, any mandate that they were given in the Constitution of Kenya should be construed as narrowly as possible so as to avoid role-conflicts; and should not be extended unreasonably by statute.
55. Article 67(2) (b) to (h) as to the functions of the National Land Commission, required that the NLC; recommend, advise, research, investigate, encourage assess tax, and monitor and have oversight responsibility. The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ were all actions than provided a facilitative role rather than a primary one. The context in which the said words were used, presumes that there was another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment should be sent to, received by, and in relation to which the proposals should be implemented. There was therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight was to be conducted. That meant a body with oversight function, and a body that implemented the recommendations of the former were different, and their roles did not overlap.
56. There had been a misconception of roles, which created a conflict between the constitutional provisions relating to the NLC, and statutory provisions that were to be found in the provisions of the Land Act, and similar legislation relating to Land. It was incumbent upon the Legislature, and the concerned commission and its agents, to tread carefully to avoid the creation of such conflicts. Article 67(g) of the Constitution required the Commission to assess tax, and not levy or collect the same. Article 200 of the Constitution, in the Public Finance Chapter mandated the National Government to impose inter alia income tax, value added tax, excise tax. It further required parliament to authorise the national government to impose any other tax or duty. Sub-article (3) mandated the county to impose property rates. If the NLC could collect taxes, it could only be in respect of public land, as private and community land fell outside its mandate. However, it was unlikely that different systems of collection of revenue or tax for different categories of land was envisaged within the framework of the Constitution.
Complete set of land-related statutes to be placed before the Honorable Attorney-General and before the Kenya Law Reform Commission for a detailed professional review in the context of the Advisory Opinion