High Court directs President to appoint national land commission within 7 days

Following a prayer through a Constitutional petition 6/2013 by a petitioner Amoni Thomas Amfry from Turkana County and another, Nagib Mohamed Shamsan from Mombasa County, Justice David Majanja yesterday Monday 4th February, 2013, issued orders directing the President to gazette the national land commission within seven (7) days.

The Minister for Lands was the 1st Respondent in the matter and the Attorney General was the 2nd Respondent. Those listed in the petition as interested parties, the chair and members-elect of the national land commission are:

1. Dr Mohamed Swazuri
2. Dr Tomiik M Konyimbih
3. Dr Rose Musyoka
4. Dr Samuel Tororei
5. Silas Kinoti Muriithi
6. Abigael Mbagaya
7. Muthoni Njogu
8. Clement Isaiah Lenanchuru
9. Abdulkadir Adan Khalif

Find parts of the ruling below:

17. The functions of the Commission are well set out in Article 67(2)
and mirrored in section 5 of the Act. It is an erroneous assumption



to suggest that the appointment of the Commissioners be held
hostage pending the making of regulations. The section 36 permits
the Commission to make regulations for the better fulfillment of its
mandate. It provides, .The Commission may make regulations
generally for the better carrying into effect of any provisions of
this Act and such regulations shall be tabled before Parliament for
approval.. This section implies three things; First, that the power
to make regulations is vested on the Commission and this
necessitates that there must be an operational Commission in place
to make the rules and second, that the making of the rules is
„permissive. to aid the Commission better discharge its mandate and
third and more importantly, that the making of regulations is not a
pre-condition for the discharge of the Commission.s functions. As
already stated, the roadmap for the discharge of the duties by the
Commission are well laid out in the Constitution and the Act and
therefore the respondents. reliance on rule-making to justify the
stalemate in the operationalisation of the key land institution in the
country is untenable and can only be at best termed as a red herring.




18. Lastly, I think a properly constituted Commission would be in a
better position to carry out its Constitutional obligations including
rule making, making necessary appointments and generally
establishing its operations. To permit a situation where third parties
including other state organs carry out or purport to take over the
mandate of the Commission ultimately undermines the authority
and independence of the Commission itself.




19. I find no merit in the respondent.s arguments and no material has
been placed before the Court to negate any responsibility imposed
on the President to carry out the legislative intent contained in the
First Schedule to the Act. Compliance with the provisions of the
Constitution and statute go to the heart of the rule of law. The rule
of law is a recognised national value which this Court must give



effect. All State officers, organs, public officers are required to
follow the law and Constitution. Article 129 provides as follows;


129(1) Executive authority derives from the people of Kenya and
shall be exercised in accordance with this Constitution.

(2)Executive authority shall be exercised in a manner
compatible with the principle of service to the people of
Kenya, and their well-being and benefit. [Emphasis mine]



20. The process of appointment of the chairperson and commissioners
of the Commission set out in the First Schedule is imperative and
no cause has been shown why it cannot be implemented to give
effect to the provisions of Article 67 and 250(2). I also find and
hold that failure to complete the appointment of the chairperson and
members of the Commission undermines the value of good
governance in that the institution intended to govern land law and
prepare land policy remains in limbo for an indeterminate period.




21. Apart from the role the National Land Commission is meant to play,
failure to establish it has deep repercussions and suspends the
carrying out of key functions in the land management. It is notable
for instance, that operationalisation of key certain provisions is
pegged on the establishment of the Commission such as Article 62
(2) and (3) which deals with administration of public land by dint of
Section 2(4) of the Sixth Schedule.




22. The delay in the setting in motion the operation of such a key
institution in land reforms in our country contrary to the intention of
Kenyans expressed through their duly elected representatives cannot
be allowed to go on especially bearing in mind our common history
where the emotive issue of land has caused untold suffering and
lives have been lost.



23. The nature and extent of relief for breach or non-compliance with
the Constitution is within the discretion of the Court. Such
discretion must be exercised judicially and in light of the
circumstances of each case. In Jayne Mati and Another v Attorney
General Nairobi Petition No. 108 of 2011 [2011]eKLR, I stated as
follows; “[18] The petitioners have sought certain declarations. The
issuing of a declaration or any other relief under Article 258 of the
Constitution is a matter of discretion for the court dependent on the
circumstances of each case. While a right is granted to every person
to institute proceedings claiming that the Constitution has been
contravened or is threatened, it is not in every case that the court
will grant relief. What constitutes a threat to the Constitution will of
course be dependent of on the facts of each particular case. [19]
What is clear to me is that Court must exercise it role in a manner
that promotes constitutionalism and supports state organs,
authorities and state and public officers to work together in concert
to realise the dream of a new Kenya.”




24. The Constitution requires the President to appoint commissioners in
accordance with legislation. The legislative intent and directive has
been expressed in paragraph 8 of the First Schedule to the Act.
The National Assembly has done its part in accordance with the
regulations, the Court has declined to intervene to stop the process
of appointment and what remains now is for the President to act in
accordance with the law. There is nothing to interpose the
obligation of the President to act in accordance with the law. The
only remedy therefore is to direct the President to act in accordance
with the Constitution and the law.




25. As regards the issue of costs, I would follow what was stated in
Harun Mwau and Others v Attorney General and Other Nairobi
Petition No. 65 of 2011 [2012]eKLR, where the Court stated.
“[180] In matters concerning public interest litigation, a litigant



who has brought proceedings to advance a legitimate public
interest and contributed to a proper understanding of the law in
question without private gain should not be deterred from adopting
a course that is beneficial to the public for fear of costs being
imposed. Costs should therefore not be imposed on a party who has
brought a case against the state but lost. Equally, there is no reason
why the state should not be ordered to pay costs to a successful
litigant.” In my view, this litigation is without a personal interest
and one intended to ensure the realisation of the rule of law.




26. In the circumstances and in order to effect the purpose and
objectives of the Constitution, I hereby direct as follows;
(a) The President be and is hereby directed to comply with
the provisions of paragraph 8 of the First Schedule to the
National Land Commission Act and officially appoint the
Chairperson and Members of the National Land
Commission within seven(7) days from the date hereof.
(b) The 2nd respondent shall bear the costs of the petition.




DATED and DELIVERED in NAIROBI this 4th day of February 2013.



D.S. MAJANJA

JUDGE



Mr Mureithi with him Mr Njamwea for the petitioners instructed by
Mbugua Muretihi and Company Advocates.



Mr Kaumba, Litigation Counsel, instructed by the State Law Office for
the respondents.

Implications to Task Force on Rules and Regulations

From the above ruling, it is quite evident that the output of the Task Force put in place late last year by Lands Minister Hon James Orengo to develop the rules, guidelines and regulations to the Land and Land Registration Act (see elsewhere in this blog) also risks legal challenge. Stakeholders had earlier pointed out to the Lands Permanent Secretary Dorothy Angote-Muya in a meeting held at the Kenya School of Monetary Studies (KSMS) on Thursday 31st January 2013 that that Task Force is encroaching on the legal mandate of the Land Commission.

With this ruling, it will be quite easy for the work of this Task Force to be invalidated. This would have unfortunate consequences and cost implications. While the Task Force may have been set up in good faith, it is now incumbent upon the appointing authority to ponder upon the implications of the above ruling to the final output of this Task Force. It may be prudent for the Ministry to first of all work to ensure that the Land Commission is put in place soonest to forestall any adverse implications to the outputs of this Task Force and, the other one on Community Land Bill and Evictions and Resettlement Bill, whose contents the Land Commission would be expected to inform too.