Recent Public Notices

In a noble but potentially controversial move, the national land commission recently placed a public notice summoning 29 owners to parcels of land whose title deeds are deemed to have been ‘illegally and/or irregularly’ obtained. Some of the listed properties are deemed to have ‘duplicated’ title deeds or ‘to encroach’ on public land. The notice was followed by another 'suspending evictions of illegal occupiers of land'. The journey to implement the two won’t be easy.

The allocation of public land in this country was usually moved by fairly influential forces within the executive and the political classes. Some of them still wield immense power and influence and remain opposed to such efforts and will be keenly watching. Indeed, the national land policy, and even the Ndung'u report, had envisaged such opposition and proposed the formation of a quasi-judicial land titles tribunal to review all suspect titles through a predictable judicial process not prejudicial to any title holder. If found illegal, such titles would be cancelled, else regularized with conditions, if deemed irregular. Such a process disperses political pressure without leaving legal gaps. Perhaps owing to the sensitivity of the matter, the tribunal was never established. Though the land commission enjoys quasi-judicial powers, its wide mandate, weak technical capacity and poor funding may undermine its ability to effectively deliver on repossession at this moment.

Commission needs to issue regulations to guide recovery of land

But in its way forward on the issue, the commission will need to take into account the provisions of section 14 of the national land commission Act which require that in carrying out the function of reviewing grants or dispositions of public land it shall make rules subject to articles 40, 47 and 60 of the constitution. The articles are on the protection of rights to property, fair administrative action and the principles of the national land policy respectively. If not well addressed, Article 47 can be particularly obstructive to the commission’s intentions in this regard. One therefore hopes that the land commission has developed the required rules.

Ultimately, the commission may wish to interrogate whether the lean provisions in the national land commission Act are what the constitution envisaged under article 68 which provides that parliament shall enact legislation ‘to enable the review of all grants or dispositions of public land to establish their propriety or legality’. While Kenya must address previously irregularly allocated public land, this must be done in a manner that doesn’t expose the country to unnecessary legal suits and liability as happened when the Ministry of Lands last attempted.

Evictions Notice may encourage land invasions

The notice on evictions aims at protecting vulnerable people living in informal settlements and squatters living on land owned by absentee landlords. But in the absence of a guiding legal framework, the notice will be questioned for various reasons. One, while it may be spot on for squatters on public and communal land, it could fuel speculative invasions of private property and embolden those already in illegal occupation of private properties around the country. Speculative invasions and squatting on private properties could lead to confrontations with the property owners. This has security implications which the commission has no capacity to address. Two, the notice is in direct contravention of article 40 of the constitution which protects rights to legitimate private property. Thirdly, the notice advises those in possession of court orders not to implement them. This undermines the authority of the courts. Land owners who spent resources obtaining such orders may move to court seeking further orders for compensation for the curtailed enjoyment and use of their legitimate land rights. These issues need thinking through.