Our current constitution does not protect title to land that has been unlawfully acquired. But some land owners have wondered whether the national land commission has the power to cancel titles to previously irregularly allocated public and community land. So does it or does it not? If the commission does not have such powers, then who has? Let us look at the laws. The sessional paper on the national land policy states that the Land Act would provide for a Land Titles Tribunal, under the National Land Commission, which would determine the bona fide ownership of land that was previously public or community land. But other than prescribing how the land commission will allocate and manage public land on behalf of the national or county governments, the Land Act enacted doesn’t address itself to the issue of cancellation of titles.

Land Commission Act empowers commission to review titles

On its part, the constitution did not expressly give the land commission any such mandate. Instead, it obliged Parliament to enact legislation ‘to enable the review of all grants or dispositions of public land to establish their propriety or legality’. But a good read of the National Land Commission Act, which operationalizes the land commission, provides extra insights. The Act provides that subject to Article 68 (c)(v) of the constitution, the land commission shall within five years, review all grants or dispositions of public land to establish their propriety or legality. The commission can do so on its own motion or that of the national or a county government. It may also do so on the request of an individual or community.

Affected land owners must be heard

The law requires that the commission accords the affected land owners an opportunity to appear before it and to inspect relevant documents. Once the commission has satisfactorily heard the affected parties, it should make an appropriate determination. Where the commission determines that the title was acquired in an unlawful manner, it shall direct the Registrar to revoke the title. And where such title is found to have been irregularly acquired, the land commission shall take appropriate measures to correct the irregularity and may also make consequential orders. Importantly, no title held by a bona fide purchaser for value shall be revoked without notice of the defect in title.

Review of titles subject to rules

But to guide its review, the commission is required to make rules. And the law requires that such rules must be subject to the provisions of Article 40 of the constitution on protection of right to property. The rules must also be subject to the provisions of Article 47 on the right to fair administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. The rules must be further subject to Article 60 which requires that land be held, managed and used in a manner that is equitable, efficient, productive and sustainable. This Article further calls for transparent and effective land administration!

Read together, these provisions of the National Land Commission Act place a major responsibility on the land commission before embarking on its efforts in reviewing previous land grants. The rules required under the Act are fundamental and meant to cushion land owners from a defective or selective process. For public ownership and support in this sensitive matter, the commission should seek public input and validation of the rules. Unsound rules would provide aggrieved land owners a perfect lifeline to successfully challenge any decisions through the courts. So yes indeed, from the current legal framework, once the national land commission puts in place the appropriate institutional structures and rules, it can order the land registrar to revoke titles!