2024-09-25
PROTECTION OF PUBLIC LAND IN KENYA: ANALYSING THE PROPOSED RESERVATION OF LAND BY THE NATIONAL LAND COMMISSION
The National Land Commission plays the crucial role of administering public land on behalf of the people of Kenya. Further to this mandate, the National Lands Commission is seeking to introduce a Certificate of Reservation for the protection of public land in Kenya. Will this be the panacea that will finally deal with the perilous issue of grabbing of public land? We examine the scope of the reservation powers the Commission has under Kenya’s legal and regulatory framework and how effective this measure can become in protecting public land.
Introduction
Unalienated public land always attracts the attention of unscrupulous persons in Kenya. There are endless media reports of illegal or irregular appropriation of public land by rogue private entities and even public officials.
In an article published in the Daily Nation on August 13th, 2024,[1] the National Land Commission (NLC) confirmed plans to introduce a Certificate of Reservation to curb rampant grabbing of public land. This document will be different from the Certificate of Title and Certificate of Lease that currently signify ownership of freehold or leasehold in interest in land respectively.
NLC’s Director of Public Administration, Dr. Samuel Nthuni, stated that this unique document is necessary because existing title documents do not protect unalienated public land effectively.
This is an innovative way of dealing with public land in our opinion and creating reliable and verifiable documentation that third parties can refer to when dealing with public land. It also solidifies NLC’s oversight role in administering public land. Article 62 (5) of the Consitution of Kenya,[2] states that Public Land “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.”
The National Land Commission (the “NLC’), therefore, has the essential mandate of ensuring that public land is administered in the public interest. This role is ever so important in the competitive real estate landscape in Kenya where private land is an increasingly scarce commodity.
Currently, significant portions of public land in use by the state organs and public bodies are not titled and most of the public entities cannot properly account for the land that they own. Land earmarked for public use such as forest land is demarcated, mapped, surveyed and identified through gazette notices without any form of title and the same can then be easily changed to private use through degazettment creating a gap in administration of public land.
This article explores the NLC’s intention to use reservation as a mechanism for the protection of public land and the statutory basis for the same in Kenya.
Historical and statutory basis of the National Land Commission administering public land
Kenya has had a troubled history with the access to and ownership of Land. The historical injustices and irregularities documented in reports like The Report of the Commission of Inquiry into the illegal/irregular Allocation of Public Land (the Ndungu Report), and The Report of the Judicial Commission of Inquiry into Tribal Clashes (the Akiwumi Commission Report) played a vital role in the deliberate provisions of the Constitution of Kenya 2010, and the resultant Acts of Parliament to improve land administration in Kenya.
The Ndungu Report,[3] in particular, was instrumental since it recommended the repeal of Section 3 of the Government Land Act and delinking the alienation of public land from the executive and the then Commissioner of Lands.
Article 67 (2) of the Constitution of Kenya outlines the specific functions the NLC performs with respect to public land, which among others include to:
i. Manage public land on behalf of the national and county governments;
ii. Recommend a National Land Policy to the national government; and
iii. Advise the national government on a comprehensive program for the registration of title in land throughout Kenya.
The NLC’s mandate to administer public land has been affirmed in court decisions such as Serah Mweru Muhu v. Commissioner of Lands and 2 Others [2014] eKLR[4] and Gathoni Park Farm Limited vs National Land Commission & 7 others [2019] eKLR,[5] where the learned judge restated the NLC’s mandate to investigate historical land injustices in accordance with Article 67 of the Constitution of Kenya
The Supreme Court of Kenya, in Advisory Opinion Reference 2 of 2014,[6] furtheranalysed the role of the NLC in depth and the meaning of “management and administration of Public Land” as outlined under Section 8 of the Land Act of 2012,[7] and established that this function includes identifying public land; keeping a database of all public land; sharing of data; and land mapping, disposing of public land, effecting change of user among others. The Supreme Court further noted that the NLC does not operate in isolation and works in tandem with the Ministry of Lands for the registration and issuance of the title document.
Rationale for Reservation
The Cabinet Secretary for Lands, Alice Wahome, stated in March 2024 that the Government of Kenya is undertaking an effort to recover all grabbed public land as reported by The Star Newspaper.[8] This ongoing effort is part of the drive by the Ministry of Lands and Physical Planning to digitize land records and transactions in Nairobi and eventually country-wide.
The digitization effort will unfortunately only be helpful for where title documentation exists, which is mostly private land. A Report by a Taskforce led by Chief Justice Emeritus David Maraga on police reforms noted that approximately 73% of all public land issued to the National Police Service does not have title documentation.[9] In such instances, the digitization drive by the Ministry of Lands would be insufficient since there has to be a register in place for digitization to be useful.
Disputes over the irregular allotment of public land have been brought before Kenyan Courts severally. The Supreme Court of Kenya in Torino Enterprises Limited v Attorney General,[10] upheld a judgement by the Court of Appeal which held that letters of allotment with respect to public land do not convey transferable interest in land and further held that the then Commissioner of Lands did not have power to alienate and allocate the disputed land to a private third party. Court decisions however come after the fact and it is important to forestall illegal allocation of public land.
The above example illustrates the difficulties in protecting public land where there is no documentation in place. Under Section 26 of the Land Registration Act,[11] a Certificate of Title is conclusive proof of ownership subject to proof of irregularities and illegalities in its issuance, and this statutory provision largely guarantees that private land owners can enjoy peaceable tenure. The NLC is looking to create similar documentation for the protection of public land.
Reservation as a tool for protection of Public Land by the NLC
Reservation of public land by the NLC is provided under Section 15 of the Land Act, no. 6 of 2012 as read with Section 5 of the National Land Commision Act of 2012. Under Section 15 of the Land Act, the following are some key considerations for reservation of public land in Kenya:
- The Reservation must be subject to Article 66(1) of the Constitution of Kenya;
- The NLC has to enact the reservation through a gazette notice at the request of the national or county government;
- The reserved land must be used only in accordance with the purpose of the reservation; and
- The reservation must be in the public interest.
Article 66 (1) of the Constitution states that “The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning.”
The qualification for reservation to be in accordance with Article 66 (1) of the Constitution of Kenya raises the question of how broad the reservation powers of the NLC are with respect to public land. The specific nature of the reasons for reservation in Article 66 (1) of the Constitution implies that reservation cannot be applicable to all unalienated public land in Kenya but should instead be used for specific purposes. Accordingly, reservation has statutory basis under Kenyan Land Law. What is different about the NLC’s broad focus is the intention of the NLC to create a title document/register for more widespread use of reservation as a tool for protection of public land.
Challenges to be anticipated in reservation processes
The primary issue with the widespread use of reservation is the purpose for which reservation exists under our land laws. The NLC must clearly demonstrate that the reservation of significant portions of unalienated land in Kenya is in the public interest and is for a specific purpose.
Additionally, the NLC will need to work with the Ministry of Lands for the actual registration of the Certificates of Reservation and subsequent issuance to the public entity in whose name the reservation is done. Under Section 30 of the Land Registration Act of 2012,[12] the current documents evidencing proprietorship in Kenya are a Certificate of Lease of a Certificate of Title in the prescribed form. This intention to introduce a Certificate of Reservation also begs the question of whether there is a need to update existing statutory provisions to accommodate this form of title.
We note that the major forms of tenure recognised under Section 5(1) of the Land Act are freeshold,[13] leasehold, and customary interest. The NLC will also have to pronounce itself on whether the reservation will fall under the current major recognised forms of tenure or be an entirely different tenure, which was not contemplated prior to the Land Act of 2012 being enacted.
A further issue is where there is a management body (such as a State Corporation) having mandate over reserved land. What shall be the discretion of such management body in leasing out, alienating or using the reserved land pursuant to a certificate of reservation? Will it be similar to land/assets that such management bodies own?
The NLC, therefore, must envision the above-stated challenges in its effort to use reservation more. This process calls for a broad-based approach to arrive at legally sound and sustainable solutions.
Conclusion
The need to protect public land in Kenya from further illegal and irregular grabbing is self-evident. The National Land Commission, being the primary body tasked with administering public land in Kenya, sees reservation as a tool for achieving this end.
There are issues that call for broader legal analysis and public participation in the effort to drastically expand the scope of reservation in the protection of public land. Such engagement will ensure that the NLC is more effective in the administration of public land in Kenya.
[1] Collins Omulo ‘NLC’s new plan to curb grabbing of public land’ Daily Nation, (Nairobi, 13th August, 2024)
[2] The Constitution of Kenya, 2010
[3] Commission of Inquiry into Illegal/Irregular Allocation of Public Land in Kenya, The Report of the Commission of Inquiry into the illegal/irregular Allocation of Public Land (the Ndungu Report) (2004)
[4] Petition No. 413 of 2012 HCK
[5] Petition No. 3 of 2019 ELC
[6] National Land Commission, Attorney General and 7 Others, Advisory Opinion Reference 2 of 2014, EKLR (SCOK)
[7] The Land Act, No. 6 of 2012
[8] Gilbert Koech ‘State to recover grabbed public land, says CS Wahome’ The Star, (Nairobi, 12th March, 2024) < https://www.the-star.co.ke/counties/nairobi/2024-03-12-state-to-recover-grabbed-public-land-says-cs-wahome/> Accessed on 16th September 2024
[9] Ibid
[10] (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)
[11] Land Registration Act, no.3 of 2012
[12] The Land Registration Act, no. 3 of 2012
[13] The Land Act, no. 6 of 2012
Jessica Mwenje , Gideon Langat