' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 479 OF 2017
ABDULKADIR A. KHALIF……………………………PETITIONER
VERSUS
THE PRINCIPAL SECRETARY
MINISTRY OF LANDS AND
PHYSICAL PLANNING……………………………1 ST RESPONDENT
THE CHIEF LAND REGISTRAR………………….2 ND RESPONDENT
DIRECTOR OF SURVEYS…………………………3 RD RESPONDENT
PUBLIC SERVICE COMMISSION……………….4 TH RESPONDENT
THE HON. ATTORNEY GENERAL……………..5 TH RESPONDENT
AND
THE NATIONAL LAND COMMISSION……1 ST INTERESTED PARTY
DAVID KIBIWOTT ACHIKWA…………..2 ND INTERESTED PARTY
JUDGMENT
Petition
The petitioner filed this petition against the respondents, claiming that certain provisions in the land Act violate various constitutional provisions in so far as the mandate of the National Land Commissions is concerned visa a vis those of the Ministry of Lands and Physical planning. The petition is supported by the petitioner’s affidavit and two supplementary affidavits.
In 2009, the government enacted the National Land Policy (Sessional paper No. 3 of 2009) whose clause 41 established the National Land Commission (NLC). After the promulgation of the 2010 Constitution NLC became one of the Constitutional Commissions established under article 67. The National Land Commission Act (NLC Act) was also enacted to operationalise the NLC with the mandated to manage public land on behalf of the National and County governments.
The promulgation of the Constitution saw the repeal of the old land laws and enactment of new land law statutes, including The Land Act, Land Registration Act and the National Land Commission Act
The petitioner stated that following the establishment of the NLC, the office of the Commissioner of Lands ceased to exist and so was its overall responsibility over land management in the country. The NLC was then mandated to manage and administer public land while the Ministry retained the function of registration of leases relating to public land. The functions of survey and mapping were devolved to the county governments by virtue of section 8 of Part II of the Fourth Schedule to the Constitution.
The petitioner asserted that by virtue of section 31 of the NLC Act, the staff who, immediately before the commencement of the NLC Act were employees of the government in the Ministry in any of the departments whose functions had been transferred to the NLC were by operation of law deemed to be employees or members of staff of the NLC.
The petitioner further asserted that by virtue of section 32 of the NLC Act, NLC inherited all property, assets, rights, liabilities, obligations, agreements and other arrangements existing at the commencement of the Act and vested in, acquired, incurred or entered into by or on behalf of the Ministry with respect to the departments whose functions were transferred to the NLC.
The petitioner averred that despite the clear position in law, the Ministry and the NLC never came to a consensus on the appropriate body to execute the various functions in the land management and administration which ultimately stalled the land reform process. As a result, the NLC sought an Advisory Opinion from the Supreme Court on its functions and powers on the one hand and those of the Ministry on the other hand to wit; Re the Matter of the National Land Commission [2015] eKLR.
Regarding land administration and management functions, the NLC sought to establish the meaning of the words ‘to manage'' and ‘ to administer ’ public land, unregistered trust land and unregistered community land by virtue of articles 62(2) & (3), 67 (2) (a) & (3) of the Constitution and sections 5(1) (a) and 2(e) of the NLC Act and the functions that were previously performed by the Ministry, before the establishment of the NLC, that were transferred to the NLC.
On human resources, the NLC sought determination of various issues, among them, whether the officers who perform functions that were previously performed by the Ministry and which had been transferred to the NLC, are answerable to the NLC or the Cabinet Secretary of the Ministry and whether the Ministry should transfer to the NLC part of the staff that previously worked in the departments of the Ministry, whose functions had been transferred to the NLC or transfer the entire staff in such departments and whether the Ministry can rescind the appointment of the members of staff deployed to the NLC.
On transfer of assets the question the NLC sought determined was whether the Ministry was obliged to transfer to the NLC all property and assets of the departments whose functions were now, by operation of the law, transferred to the NLC; and if yes, by what date. On the issue of private land, the NLC sought to establish which agency had the mandate to administer and manage all dealings pertaining to private land; including, but not limited to, processing of development applications and management of the special conditions as contained in the certificate of lease.
According to the petitioner, on 15 th July 2014, the Attorney General raised a preliminary objection challenging the jurisdiction of the Supreme Court to render an Advisory opinion. However, on 30 th October 2014, the Supreme Court overruled the preliminary objection and rephrased the issues for determination on the proper relationship between the mandate of the NLC, on the one hand, and the Ministry of Lands and Urban Development, on the other in the context of Chapter five of the Constitution; the principles of governance (Chapter 10) and the relevant legislation.
The petitioner stated that despite addressing this issue, the Supreme Court did not address the issues raised in the reference, including those that needed to be addressed with finality such as whether there is need for the existence of a department dealing with land administration in the Ministry; and if so, why should such a department be the one executing leases for public land yet NLC is constitutionally and statutorily tasked with management and administration of all public land and whether maintenance of status quo post the Supreme Court Advisory opinion in 2015 can be construed as contempt of court.
In addition to the advisory opinion, a petition was filed in the High Court; (Petition No. 54 of 2015-Anthony Otiende Otiende v Public Service Commission and 2 others ( Anthony Otiende Otiende v Public Service Commission & 2 others [2016] eKLR) raising two issues. Of concern was the promulgation of regulations and forms by the Cabinet Secretary for the purpose of effecting section 110 of the Land Registration Act, 2012. The court declared the regulations and forms unconstitutional for want of consultation with the NLC and Parliament’s approval but suspended the declaration for 12 months to allow the Ministry initiate meaningful engagement with the public, seek and consider the advice of the NLC. In default, the regulations and forms were to be null and void.
The petitioner asserted that following those cases the Ministry and the NLC held various meetings and sought expert opinions on the interpretation of the advisory opinion in relation to their functions, one of which culminated in the gazettement by the Cabinet Secretary of Guidelines for Extension and Renewal of Leases through Gazette Notice No. 75 Vol. CXIX.
The petitioner stated that despite the foregoing there were still operational challenges that had been caused by the Ministry to the detriment of the NLC. The Ministry is still benefitting from funds in the accounts of the defunct office of the Commissioner of Land which are supposed to be used by the NLC in the management and administration of public land; the ministry is signing and registering leases relating to public land without the approval of NLC and maintaining custody and control of the correspondence files, among others functions.
The petitioner stated that on 5 th September 2017, the Ministry through the Head of ICT circulated an internal memo making reference to a meeting of the Registrars, Land Administration Officers and the ICT Unit in the ministry in which a dry test of a lease printing system was done without consulting the NLC. The petitioner contended that article 67 of the Constitution had been violated owing to the existence of two departments, one in the Ministry and the other at the NLC, dealing with administration of public land and by the Ministry which still retains personnel and office infrastructure, including all correspondence files relating to public land instead of transferring them to the NLC.
The petitioner asserted that to the extent that the 2 nd respondent had failed to register any instruments relating to public land delivered by the NLC in accordance with sections 13 and 23(2) of the Land Act, articles 40, 67 and 252(1)(d) of the Constitution had been violated. Further, to the extent that the Ministry continued to use invalid instruments and forms and backdating them contrary to section 110 of the Land Registration Act; article 67 of the Constitution had been violated.
The petitioner contended that the Ministry had violated article 67 of the Constitution when operationalizing a lease printing system without consulting the NLC and by running and benefiting financially from funds in the account of the defunct Commissioner of Lands meant for the administration of public land a function of the NLC.
The petitioner further asserted that to the extent that the NLC is not allowed to assess and collect land-based revenues in accordance with section 28 of the Land Act, is a violation of articles 67(2) (g) and 209 of the Constitution. Further still, to the extent that the Public Service Commission continued to appoint persons to hold or act in the abolished land administration department in the Ministry violates articles 232 (1) (b), 233, 234 and 249 of the Constitution.
The petitioner stated that there are two distinct land files generated in the course of the administration of public land- the correspondence file for the administration of leased public land and deed file for registration of land rights that have been determined either from public land leasing or other processes that include land adjudication, settlement and subleases created from freehold holdings.
The petitioner postulated that in land administration there are two main processes- the process of allocation or leasing of public land which creates records that are held in a correspondence file and in the ministry of Lands, the correspondence files make up the correspondence files registry/records office. The correspondence files and the office holding them (records office) is under the directorate mandated to administer public land under articles 62 (2) and 67(2) and should be under the NLC.
According to the petitioner from the contents of the correspondence file, it is evident that it is created out of the functions of the NLC as an administrator of public land through determination of land rights and maintained by the managerial aspects of the NLC which include managing the conditions of use under a lease. It is a misconception therefore that once an allotment is issued public land becomes private and hence not within the jurisdiction of the NLC. As the Lessor on behalf of the county and national government has to create the relationship between the lessor and the lessee by executing a lease as per section 23 (2) of the Land Act thus, the correspondence file is within the domain of the NLC.
Regarding deed files, the petitioner contended that the files are kept in a land registry which is under the Chief Land Registrar thus, fall within the jurisdiction of the Chief Land Registrar and not the Director of Land Administration in the Ministry. The petitioner further contended that the Chief Land Registrar does not require a correspondence file to register a lease or any transaction on that lease because what he receives is an instrument for registration prepared elsewhere by other parties. On the other hand, the NLC does not require a deed file to administer and manage leased public land besides enquiring on the status of the land through the process of undertaking searches like any other party.
The petitioner averred that the functions that are exclusive to the land administration directorate of the NLC as part of its management and administration of public land mandate include land administration and management before allocation; land allocation; authorization of payments for legal fees; preparation of land leases and transfers of land; documentation of public institutions; issuance of land rent clearance certificate and consents for various transactions and any other role assigned by the NLC.
According to the petitioner, once a lease is registered, the land becomes private property of the lessee so long as there is no alteration on the character of the grant. However, if there is an alteration, the underlying reversionary interest kicks in and the land ceases to be private and becomes public land thereby falling within the mandate of the NLC.
Regarding private leases, the petitioner posited that the management function of the NLC on leaseholds constitutes ensuring that the lessee adheres to the special conditions attached to the letter of allotment and carried forward to the lease for prudent management of public leases. It also ensures that consents are given whenever a transaction is being undertaken and that revenue (land rent) is paid as per the lease terms and comes in when there are alterations to the character of the grant.
On collection of taxes, the petitioner maintained that paragraph 241 of the Supreme Court advisory opinion clarified the collection function of the NLC and made specific reference to section 28 of the Land Act. The petitioner denied the respondents’ assertion that NLC''s mandate in so far as preparation of leases and grants is concerned ends with the issuance of letters of allotment. The petitioner maintained that one of the functions of the land administration directorate of the NLC in the Process and Procedures Handbook of NLC is preparation of leases. NLC as the administrator of public land is mandated with managing the conditions of use under a lease.
The petition denied that the petition is res judicata . According to the petitioner, the issues in this petition are different from those that were in petition No. 250 of 2016: Okiya Omtatah Okoiti v Ministry of Lands, Housing & Urban Development & 2 Others (Consolidated with) JR Case No. 261 of 2016: Republic (John Mutwori Njue & Another) v Attorney General &2 others.
The petitioner urged that those cases were challenging the validity of the report of the Joint Technical Implementation Committee that was mandated to interpret the Advisory Opinion of the Supreme Court. Parties in those cases trying to re-litigate issues that had been determined by the Supreme Court in its Advisory opinion and were struck out by the High Court for the reason that the proper forum to ventilate the issue whether the purported interpretation and application of the Supreme Court advisory opinion is correct was the Supreme Court. The proceedings in the consolidated cases were caught up by the doctrine of collateral estoppel. The present petition, on the other hand is not assaulting the validity of the report, but faulting failure to implement it.
Based on the above concerns, the petitioner sought the following reliefs:
A declaration that article 67 of the Constitution has been gravely violated on account of the Ministry of Lands having a fully functional department dealing in the management and administration of public land despite that being the reserved Constitutional and statutory mandate of the National land Commission.
A declaration that articles 40, 67 and 252(1)(d) of the Constitution have been gravely violated on account of the Ministry''s refusal to register instruments prepared, executed and presented by the NLC for registration as well as its continuous use of invalid instruments and forms and backdating them.
A declaration that articles 67(2) (g) and 209 of the Constitution have been gravely violated on account of the Ministry''s continual use of the account of the defunct Office of Commissioner of Lands.
A declaration that articles 232 (1) (b), 233, 234 and 249 of the Constitution have been gravely violated on account of the Public Service Commission''s continual appointment of persons to hold or act in the abolished land administration department in the Ministry.
An Order of Mandamus compelling the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons to register any and/or all instruments relating to public land prepared, executed and delivered to them by the National Land Commission in accordance with section 13 of the Land Act and articles 67 and 252(1) (d) of the Constitution of Kenya.
An order of mandamus be issued compelling the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons to shut down the account of the Commissioner of Lands with immediate effect, account for the funds therein and the funds be and are hereby transferred to the National Land Commission for its use in the functions of management and administration of public land and collection of land based revenues as per the law on the functions and powers of the National and County governments and to account for those funds in line with the provisions of article 67(2) (g) and 209 of the Constitution of Kenya and section 28 of the Land Act.
An order of mandamus compelling the Public Service Commission and/or its employees, authorized agents, assigns or any other authorized persons to disband the Land Administration Directorate in the Ministry which is currently duplicating the Constitutional and Statutory roles of managing and administering public land which of the National land Commission.
An order be issued that the parallel structure between the Land Administration Department in the Ministry of Lands and Physical Planning and the National Land Commission be and is hereby dissolved and the function of administration of public land together with all personnel and office infrastructure in respect of the departments whose functions have been transferred to the National Land Commission by virtue of article 67 of the Constitution and sections 31 and 32 of the NLC Act be vested exclusively in the National Land Commission.
An order of mandamus compelling the Director of Surveys to avail to the National Land Commission all the Registry Index Maps and Deed Plans relating to public land that has been surveyed so as to enable the National land Commission prepare leases relating to public land effectively.
An order of mandamus be issued compelling the Ministry of Lands and Physical Planning to transfer the full control, custody and management of all the correspondence files relating to public land under article 62 of the Constitution of Kenya, 2010 to the National land Commission so as to enable the National Land Commission prepare leases relating to public land effectively.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from undertaking any dealings in relation to public land without the express approval of the National Land Commission.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from registering leases in relation to public land without the same having been prepared and executed by the National land Commission.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from utilizing the already operationalized Lease Printing System and/or using a Lease document that has not been prepared and/or executed by the National Land Commission; which is the body authorized to execute leases relating to public land; to register leases relating to public land.
The costs of this petition be borne jointly and severally by the respondents.
Any such other order(s) as this Honourable Court shall deem just in the circumstances.
1 st , 3 rd and 5 th respondents’ response
The 1 st , 3 rd and 5 th respondents opposed the petition through a replying affidavit sworn by Edward Kosgei. They stated through Mr. Kosgei that the office of the Commissioner of Lands was abolished upon the repeal of the Government Lands Act (Cap 280), after the promulgation of the 2010 Constitution.
The 1 st 3 rd and 5 th respondents admitted the establishment of NLC under article 67 (1) of the Constitution with the mandate and functions stipulated in Clause (2). They however contended that from that mandate, all other functions which were previously performed by the Commissioner of Lands were retained by the Ministry except those touching on public Land. In their view, the NLC is only to administer and manage public land while community land and private land was left to the Ministry.
The three respondents asserted that land which had been allocated by the Commissioner of Lands prior to the promulgation of the Constitution, constitutes private land under article 64 of the Constitution and does not fall under mandate of the NLC. Any land which had been allocated by NLC post the effective date (27 th August 2010) also constitutes private land under article 64 of the Constitution.
The 1 st , 3 rd and 5 th respondents denied the petitioner’s assertion that the Ministry only retained the function of registration of land. They stated that by virtue of article 66 (1) of the Constitution, the State has the authority to 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 respondents asserted that Executive Order Number 1 of 2016 assigned both the Ministry of Lands and Physical Planning and the NLC specific functions that they ought to perform independently. The Land Administration Directorate at the Ministry of Lands and Physical Planning performs various functions which include; processing of leases and grants and processing of subdivision and amalgamations, among others.
It was their position, that the Ministry does not prepare and execute leases relating to public lands but is only involved in registration. The Ministry has never transferred the management of private lands, including processing of development applications for subdivisions, preparation and extension of leases; changes of land user; consents to transfer, charge and lease to the NLC.
The 1 st , 3 rd and 5 th respondents asserted that the Supreme Court advisory opinion was categorical that the NLC had no role in the registration of titles to land, (public, community or private) and that the task of registering land and titles lies with the national government (Ministry). In the advisory opinion, they maintained, the Supreme Court also stated that the functions of the NLC are consultative, advisory, oversight and safeguard oriented.
These respondents contended that from the foregoing, the NLC’s mandate is limited to public land management. Further; the NLC does not charge for services rendered to public institutions and collection of other land-based revenue had been transferred to the E-payment platform which is a government initiative to harmonize and streamline operations of government ministries, department and agencies in so far as revenue collection is concerned.
It was their position that when the NLC came into existence, there were officers working at the Ministry who decided to retire and join the NLC; some were seconded to the NLC for a particular period of time and others opted to remain and work in the Ministry. There is therefore no officer in the Ministry who ought to be employed or appointed a member of staff of the NLC.
The three respondents asserted that both the Ministry and the NLC have their properties, assets, rights and obligations and as such, there is no institution that should claim any overriding interest over the other. By virtue of article 206 of the Constitution, all the money collected by the Ministry is sent to the Consolidated Fund and as such, no money should be transferred to the NLC.
The 1 st , 3 rd and 5 th respondents maintained that the meeting the held by the ICT department with registrars and land administrators was a normal interdepartmental meeting to discuss internal administrative issues. It is also not true that the Ministry had refused to register instruments which are validly prepared, executed and presented by the NLC or any other entity for registration. It is again not true that the Ministry uses invalid instruments and forms or backdates any documents as alleged.
The three respondents asserted that the position of the director of land administration in the Ministry was established in accordance with the law; the issue of the functions of the Ministry vis a vis those of the NLC had been addressed in various decisions including; The Supreme Court Advisory Opinion No. 2 of 2014- The National Land Commission v The Ministry of Lands, Housing & Urban Development &7 others; Nairobi High Court Petition No.54 of 2015-Anthony Otiende Otiende v Public Service Commission & 2 others; Nairobi HC Petition No. 250 of 2016 Okiya Omtatah Okoiti v Ministry of Land, Housing & Urban Development & 2 others (Consolidated with) Judicial Review case Number 261 of 2016-Republic (Jackson Mutwiri Njue & Another) v Attorney General & 2 others and Eldoret ELC Misc App. No. 18 of 2017- David Kibiwott Achikwa v Cabinet Secretary for Lands & Physical Planning & Another.
It was these respondents’ view, that the issues raised in the petition are res judicata. Further that the ultimate solution is the regulations to operationalize land laws, which had already been forwarded to the office of the Attorney General for onward transmission to Government printer for publication.
2 nd respondent’s response
The 2 nd respondent opposed the petition through a replying affidavit sworn by Pauline N. Muriithia (Ms. Muriithia). The 2 nd respondent largely agreed with the position taken by the 1 st , 3 rd and 5 th respondents regarding the issues raised in the petition and that they had been determined; the mandate of NLC and that of the Ministry and what constitutes private land.
The 2 nd respondent denied the allegation that the office of the Chief Land Registrar had usurped any of the functions of the NLC. The 2 nd respondent maintained that the Supreme Court advisory opinion was categorical that the NLC had no role in the registration of titles to land whether public, community or private and that the task of registering land titles lies with the national government through the Ministry. According to the 2 nd respondent, the Supreme Court further stated that only the Ministry has authority to register and issue titles for the reason of the State’s role as guarantor of the sacrosanctity of titles.
The 2 nd respondent maintained that it is only the Chief Land Registrar who is mandated to register leases; that the director of surveys forwards Registry Index Maps and Deed Plans to the office of the Chief Land Registrar because it is the only office that can register title to land. The 2 nd respondent asserted that by virtue of section 108 of the Land Registration Act, until the Cabinet Secretary had made the regulations contemplated under section 110, any rules, or other administrative acts made, given, issued or undertaken before the commencement of the Land Registration Act under any of the Acts of Parliament repealed by Land Registration Act or any other law, continued to be in force and were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the Land Registration Act.
The 2 nd respondent stated that the regulations had been prepared and were awaiting publication and approval by Parliament. Until the regulations come into force, the Ministry and its departments were operating under the transitional provisions in section 108 of the Land Registration Act.
1 st interested party’s response
The 1 st interested party informed the court that it supported the petition through an affidavit sworn by Edmund Kiplagat on 27 th November 2017. The affidavit was however not in the court file at the time of preparing this judgment.
2 nd interested party’s response
The 2 nd interested party opposed the petition his application for joinder dated 23 rd November 2017, further affidavit sworn on 28 th November 2017 as well as supplementary affidavit sworn on 6 th December 2017. The 2 nd interested party sought to have the orders and directions issued on 8 th November 2017 varied and the dismissal of the petition.
The 2 nd interested party stated that while the petition was filed on 27 th September 2017, he had instituted a suit in Eldoret, Judicial Review Application No. 19 of 2017-Republic v The Cabinet Secretary for Lands and Physical Planning & The National Land Commission on 27 th July 2017 challenging the legality of the Gazette Notice No. 5734 of 2017 which purported to confer on NLC the mandate to prepare and execute leases in relation to public land that has been allocated to private persons and conditions for allocation fulfilled.
The 2 nd interested party stated that prior to the Gazette Notice, the NLC had no role to play in respect to preparation and execution of leases over land that had been allocated and condition satisfied. According to the 2 nd interested party, the Judicial review application cont
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 479 OF 2017
ABDULKADIR A. KHALIF……………………………PETITIONER
VERSUS
THE PRINCIPAL SECRETARY
MINISTRY OF LANDS AND
PHYSICAL PLANNING……………………………1 ST RESPONDENT
THE CHIEF LAND REGISTRAR………………….2 ND RESPONDENT
DIRECTOR OF SURVEYS…………………………3 RD RESPONDENT
PUBLIC SERVICE COMMISSION……………….4 TH RESPONDENT
THE HON. ATTORNEY GENERAL……………..5 TH RESPONDENT
AND
THE NATIONAL LAND COMMISSION……1 ST INTERESTED PARTY
DAVID KIBIWOTT ACHIKWA…………..2 ND INTERESTED PARTY
JUDGMENT
Petition
The petitioner filed this petition against the respondents, claiming that certain provisions in the land Act violate various constitutional provisions in so far as the mandate of the National Land Commissions is concerned visa a vis those of the Ministry of Lands and Physical planning. The petition is supported by the petitioner’s affidavit and two supplementary affidavits.
In 2009, the government enacted the National Land Policy (Sessional paper No. 3 of 2009) whose clause 41 established the National Land Commission (NLC). After the promulgation of the 2010 Constitution NLC became one of the Constitutional Commissions established under article 67. The National Land Commission Act (NLC Act) was also enacted to operationalise the NLC with the mandated to manage public land on behalf of the National and County governments.
The promulgation of the Constitution saw the repeal of the old land laws and enactment of new land law statutes, including The Land Act, Land Registration Act and the National Land Commission Act
The petitioner stated that following the establishment of the NLC, the office of the Commissioner of Lands ceased to exist and so was its overall responsibility over land management in the country. The NLC was then mandated to manage and administer public land while the Ministry retained the function of registration of leases relating to public land. The functions of survey and mapping were devolved to the county governments by virtue of section 8 of Part II of the Fourth Schedule to the Constitution.
The petitioner asserted that by virtue of section 31 of the NLC Act, the staff who, immediately before the commencement of the NLC Act were employees of the government in the Ministry in any of the departments whose functions had been transferred to the NLC were by operation of law deemed to be employees or members of staff of the NLC.
The petitioner further asserted that by virtue of section 32 of the NLC Act, NLC inherited all property, assets, rights, liabilities, obligations, agreements and other arrangements existing at the commencement of the Act and vested in, acquired, incurred or entered into by or on behalf of the Ministry with respect to the departments whose functions were transferred to the NLC.
The petitioner averred that despite the clear position in law, the Ministry and the NLC never came to a consensus on the appropriate body to execute the various functions in the land management and administration which ultimately stalled the land reform process. As a result, the NLC sought an Advisory Opinion from the Supreme Court on its functions and powers on the one hand and those of the Ministry on the other hand to wit; Re the Matter of the National Land Commission [2015] eKLR.
Regarding land administration and management functions, the NLC sought to establish the meaning of the words ‘to manage'' and ‘ to administer ’ public land, unregistered trust land and unregistered community land by virtue of articles 62(2) & (3), 67 (2) (a) & (3) of the Constitution and sections 5(1) (a) and 2(e) of the NLC Act and the functions that were previously performed by the Ministry, before the establishment of the NLC, that were transferred to the NLC.
On human resources, the NLC sought determination of various issues, among them, whether the officers who perform functions that were previously performed by the Ministry and which had been transferred to the NLC, are answerable to the NLC or the Cabinet Secretary of the Ministry and whether the Ministry should transfer to the NLC part of the staff that previously worked in the departments of the Ministry, whose functions had been transferred to the NLC or transfer the entire staff in such departments and whether the Ministry can rescind the appointment of the members of staff deployed to the NLC.
On transfer of assets the question the NLC sought determined was whether the Ministry was obliged to transfer to the NLC all property and assets of the departments whose functions were now, by operation of the law, transferred to the NLC; and if yes, by what date. On the issue of private land, the NLC sought to establish which agency had the mandate to administer and manage all dealings pertaining to private land; including, but not limited to, processing of development applications and management of the special conditions as contained in the certificate of lease.
According to the petitioner, on 15 th July 2014, the Attorney General raised a preliminary objection challenging the jurisdiction of the Supreme Court to render an Advisory opinion. However, on 30 th October 2014, the Supreme Court overruled the preliminary objection and rephrased the issues for determination on the proper relationship between the mandate of the NLC, on the one hand, and the Ministry of Lands and Urban Development, on the other in the context of Chapter five of the Constitution; the principles of governance (Chapter 10) and the relevant legislation.
The petitioner stated that despite addressing this issue, the Supreme Court did not address the issues raised in the reference, including those that needed to be addressed with finality such as whether there is need for the existence of a department dealing with land administration in the Ministry; and if so, why should such a department be the one executing leases for public land yet NLC is constitutionally and statutorily tasked with management and administration of all public land and whether maintenance of status quo post the Supreme Court Advisory opinion in 2015 can be construed as contempt of court.
In addition to the advisory opinion, a petition was filed in the High Court; (Petition No. 54 of 2015-Anthony Otiende Otiende v Public Service Commission and 2 others ( Anthony Otiende Otiende v Public Service Commission & 2 others [2016] eKLR) raising two issues. Of concern was the promulgation of regulations and forms by the Cabinet Secretary for the purpose of effecting section 110 of the Land Registration Act, 2012. The court declared the regulations and forms unconstitutional for want of consultation with the NLC and Parliament’s approval but suspended the declaration for 12 months to allow the Ministry initiate meaningful engagement with the public, seek and consider the advice of the NLC. In default, the regulations and forms were to be null and void.
The petitioner asserted that following those cases the Ministry and the NLC held various meetings and sought expert opinions on the interpretation of the advisory opinion in relation to their functions, one of which culminated in the gazettement by the Cabinet Secretary of Guidelines for Extension and Renewal of Leases through Gazette Notice No. 75 Vol. CXIX.
The petitioner stated that despite the foregoing there were still operational challenges that had been caused by the Ministry to the detriment of the NLC. The Ministry is still benefitting from funds in the accounts of the defunct office of the Commissioner of Land which are supposed to be used by the NLC in the management and administration of public land; the ministry is signing and registering leases relating to public land without the approval of NLC and maintaining custody and control of the correspondence files, among others functions.
The petitioner stated that on 5 th September 2017, the Ministry through the Head of ICT circulated an internal memo making reference to a meeting of the Registrars, Land Administration Officers and the ICT Unit in the ministry in which a dry test of a lease printing system was done without consulting the NLC. The petitioner contended that article 67 of the Constitution had been violated owing to the existence of two departments, one in the Ministry and the other at the NLC, dealing with administration of public land and by the Ministry which still retains personnel and office infrastructure, including all correspondence files relating to public land instead of transferring them to the NLC.
The petitioner asserted that to the extent that the 2 nd respondent had failed to register any instruments relating to public land delivered by the NLC in accordance with sections 13 and 23(2) of the Land Act, articles 40, 67 and 252(1)(d) of the Constitution had been violated. Further, to the extent that the Ministry continued to use invalid instruments and forms and backdating them contrary to section 110 of the Land Registration Act; article 67 of the Constitution had been violated.
The petitioner contended that the Ministry had violated article 67 of the Constitution when operationalizing a lease printing system without consulting the NLC and by running and benefiting financially from funds in the account of the defunct Commissioner of Lands meant for the administration of public land a function of the NLC.
The petitioner further asserted that to the extent that the NLC is not allowed to assess and collect land-based revenues in accordance with section 28 of the Land Act, is a violation of articles 67(2) (g) and 209 of the Constitution. Further still, to the extent that the Public Service Commission continued to appoint persons to hold or act in the abolished land administration department in the Ministry violates articles 232 (1) (b), 233, 234 and 249 of the Constitution.
The petitioner stated that there are two distinct land files generated in the course of the administration of public land- the correspondence file for the administration of leased public land and deed file for registration of land rights that have been determined either from public land leasing or other processes that include land adjudication, settlement and subleases created from freehold holdings.
The petitioner postulated that in land administration there are two main processes- the process of allocation or leasing of public land which creates records that are held in a correspondence file and in the ministry of Lands, the correspondence files make up the correspondence files registry/records office. The correspondence files and the office holding them (records office) is under the directorate mandated to administer public land under articles 62 (2) and 67(2) and should be under the NLC.
According to the petitioner from the contents of the correspondence file, it is evident that it is created out of the functions of the NLC as an administrator of public land through determination of land rights and maintained by the managerial aspects of the NLC which include managing the conditions of use under a lease. It is a misconception therefore that once an allotment is issued public land becomes private and hence not within the jurisdiction of the NLC. As the Lessor on behalf of the county and national government has to create the relationship between the lessor and the lessee by executing a lease as per section 23 (2) of the Land Act thus, the correspondence file is within the domain of the NLC.
Regarding deed files, the petitioner contended that the files are kept in a land registry which is under the Chief Land Registrar thus, fall within the jurisdiction of the Chief Land Registrar and not the Director of Land Administration in the Ministry. The petitioner further contended that the Chief Land Registrar does not require a correspondence file to register a lease or any transaction on that lease because what he receives is an instrument for registration prepared elsewhere by other parties. On the other hand, the NLC does not require a deed file to administer and manage leased public land besides enquiring on the status of the land through the process of undertaking searches like any other party.
The petitioner averred that the functions that are exclusive to the land administration directorate of the NLC as part of its management and administration of public land mandate include land administration and management before allocation; land allocation; authorization of payments for legal fees; preparation of land leases and transfers of land; documentation of public institutions; issuance of land rent clearance certificate and consents for various transactions and any other role assigned by the NLC.
According to the petitioner, once a lease is registered, the land becomes private property of the lessee so long as there is no alteration on the character of the grant. However, if there is an alteration, the underlying reversionary interest kicks in and the land ceases to be private and becomes public land thereby falling within the mandate of the NLC.
Regarding private leases, the petitioner posited that the management function of the NLC on leaseholds constitutes ensuring that the lessee adheres to the special conditions attached to the letter of allotment and carried forward to the lease for prudent management of public leases. It also ensures that consents are given whenever a transaction is being undertaken and that revenue (land rent) is paid as per the lease terms and comes in when there are alterations to the character of the grant.
On collection of taxes, the petitioner maintained that paragraph 241 of the Supreme Court advisory opinion clarified the collection function of the NLC and made specific reference to section 28 of the Land Act. The petitioner denied the respondents’ assertion that NLC''s mandate in so far as preparation of leases and grants is concerned ends with the issuance of letters of allotment. The petitioner maintained that one of the functions of the land administration directorate of the NLC in the Process and Procedures Handbook of NLC is preparation of leases. NLC as the administrator of public land is mandated with managing the conditions of use under a lease.
The petition denied that the petition is res judicata . According to the petitioner, the issues in this petition are different from those that were in petition No. 250 of 2016: Okiya Omtatah Okoiti v Ministry of Lands, Housing & Urban Development & 2 Others (Consolidated with) JR Case No. 261 of 2016: Republic (John Mutwori Njue & Another) v Attorney General &2 others.
The petitioner urged that those cases were challenging the validity of the report of the Joint Technical Implementation Committee that was mandated to interpret the Advisory Opinion of the Supreme Court. Parties in those cases trying to re-litigate issues that had been determined by the Supreme Court in its Advisory opinion and were struck out by the High Court for the reason that the proper forum to ventilate the issue whether the purported interpretation and application of the Supreme Court advisory opinion is correct was the Supreme Court. The proceedings in the consolidated cases were caught up by the doctrine of collateral estoppel. The present petition, on the other hand is not assaulting the validity of the report, but faulting failure to implement it.
Based on the above concerns, the petitioner sought the following reliefs:
A declaration that article 67 of the Constitution has been gravely violated on account of the Ministry of Lands having a fully functional department dealing in the management and administration of public land despite that being the reserved Constitutional and statutory mandate of the National land Commission.
A declaration that articles 40, 67 and 252(1)(d) of the Constitution have been gravely violated on account of the Ministry''s refusal to register instruments prepared, executed and presented by the NLC for registration as well as its continuous use of invalid instruments and forms and backdating them.
A declaration that articles 67(2) (g) and 209 of the Constitution have been gravely violated on account of the Ministry''s continual use of the account of the defunct Office of Commissioner of Lands.
A declaration that articles 232 (1) (b), 233, 234 and 249 of the Constitution have been gravely violated on account of the Public Service Commission''s continual appointment of persons to hold or act in the abolished land administration department in the Ministry.
An Order of Mandamus compelling the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons to register any and/or all instruments relating to public land prepared, executed and delivered to them by the National Land Commission in accordance with section 13 of the Land Act and articles 67 and 252(1) (d) of the Constitution of Kenya.
An order of mandamus be issued compelling the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons to shut down the account of the Commissioner of Lands with immediate effect, account for the funds therein and the funds be and are hereby transferred to the National Land Commission for its use in the functions of management and administration of public land and collection of land based revenues as per the law on the functions and powers of the National and County governments and to account for those funds in line with the provisions of article 67(2) (g) and 209 of the Constitution of Kenya and section 28 of the Land Act.
An order of mandamus compelling the Public Service Commission and/or its employees, authorized agents, assigns or any other authorized persons to disband the Land Administration Directorate in the Ministry which is currently duplicating the Constitutional and Statutory roles of managing and administering public land which of the National land Commission.
An order be issued that the parallel structure between the Land Administration Department in the Ministry of Lands and Physical Planning and the National Land Commission be and is hereby dissolved and the function of administration of public land together with all personnel and office infrastructure in respect of the departments whose functions have been transferred to the National Land Commission by virtue of article 67 of the Constitution and sections 31 and 32 of the NLC Act be vested exclusively in the National Land Commission.
An order of mandamus compelling the Director of Surveys to avail to the National Land Commission all the Registry Index Maps and Deed Plans relating to public land that has been surveyed so as to enable the National land Commission prepare leases relating to public land effectively.
An order of mandamus be issued compelling the Ministry of Lands and Physical Planning to transfer the full control, custody and management of all the correspondence files relating to public land under article 62 of the Constitution of Kenya, 2010 to the National land Commission so as to enable the National Land Commission prepare leases relating to public land effectively.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from undertaking any dealings in relation to public land without the express approval of the National Land Commission.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from registering leases in relation to public land without the same having been prepared and executed by the National land Commission.
An order of Prohibition be issued prohibiting the Ministry of Lands and Physical Planning and/or its employees, authorized agents, assigns or any other authorized persons from utilizing the already operationalized Lease Printing System and/or using a Lease document that has not been prepared and/or executed by the National Land Commission; which is the body authorized to execute leases relating to public land; to register leases relating to public land.
The costs of this petition be borne jointly and severally by the respondents.
Any such other order(s) as this Honourable Court shall deem just in the circumstances.
1 st , 3 rd and 5 th respondents’ response
The 1 st , 3 rd and 5 th respondents opposed the petition through a replying affidavit sworn by Edward Kosgei. They stated through Mr. Kosgei that the office of the Commissioner of Lands was abolished upon the repeal of the Government Lands Act (Cap 280), after the promulgation of the 2010 Constitution.
The 1 st 3 rd and 5 th respondents admitted the establishment of NLC under article 67 (1) of the Constitution with the mandate and functions stipulated in Clause (2). They however contended that from that mandate, all other functions which were previously performed by the Commissioner of Lands were retained by the Ministry except those touching on public Land. In their view, the NLC is only to administer and manage public land while community land and private land was left to the Ministry.
The three respondents asserted that land which had been allocated by the Commissioner of Lands prior to the promulgation of the Constitution, constitutes private land under article 64 of the Constitution and does not fall under mandate of the NLC. Any land which had been allocated by NLC post the effective date (27 th August 2010) also constitutes private land under article 64 of the Constitution.
The 1 st , 3 rd and 5 th respondents denied the petitioner’s assertion that the Ministry only retained the function of registration of land. They stated that by virtue of article 66 (1) of the Constitution, the State has the authority to 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 respondents asserted that Executive Order Number 1 of 2016 assigned both the Ministry of Lands and Physical Planning and the NLC specific functions that they ought to perform independently. The Land Administration Directorate at the Ministry of Lands and Physical Planning performs various functions which include; processing of leases and grants and processing of subdivision and amalgamations, among others.
It was their position, that the Ministry does not prepare and execute leases relating to public lands but is only involved in registration. The Ministry has never transferred the management of private lands, including processing of development applications for subdivisions, preparation and extension of leases; changes of land user; consents to transfer, charge and lease to the NLC.
The 1 st , 3 rd and 5 th respondents asserted that the Supreme Court advisory opinion was categorical that the NLC had no role in the registration of titles to land, (public, community or private) and that the task of registering land and titles lies with the national government (Ministry). In the advisory opinion, they maintained, the Supreme Court also stated that the functions of the NLC are consultative, advisory, oversight and safeguard oriented.
These respondents contended that from the foregoing, the NLC’s mandate is limited to public land management. Further; the NLC does not charge for services rendered to public institutions and collection of other land-based revenue had been transferred to the E-payment platform which is a government initiative to harmonize and streamline operations of government ministries, department and agencies in so far as revenue collection is concerned.
It was their position that when the NLC came into existence, there were officers working at the Ministry who decided to retire and join the NLC; some were seconded to the NLC for a particular period of time and others opted to remain and work in the Ministry. There is therefore no officer in the Ministry who ought to be employed or appointed a member of staff of the NLC.
The three respondents asserted that both the Ministry and the NLC have their properties, assets, rights and obligations and as such, there is no institution that should claim any overriding interest over the other. By virtue of article 206 of the Constitution, all the money collected by the Ministry is sent to the Consolidated Fund and as such, no money should be transferred to the NLC.
The 1 st , 3 rd and 5 th respondents maintained that the meeting the held by the ICT department with registrars and land administrators was a normal interdepartmental meeting to discuss internal administrative issues. It is also not true that the Ministry had refused to register instruments which are validly prepared, executed and presented by the NLC or any other entity for registration. It is again not true that the Ministry uses invalid instruments and forms or backdates any documents as alleged.
The three respondents asserted that the position of the director of land administration in the Ministry was established in accordance with the law; the issue of the functions of the Ministry vis a vis those of the NLC had been addressed in various decisions including; The Supreme Court Advisory Opinion No. 2 of 2014- The National Land Commission v The Ministry of Lands, Housing & Urban Development &7 others; Nairobi High Court Petition No.54 of 2015-Anthony Otiende Otiende v Public Service Commission & 2 others; Nairobi HC Petition No. 250 of 2016 Okiya Omtatah Okoiti v Ministry of Land, Housing & Urban Development & 2 others (Consolidated with) Judicial Review case Number 261 of 2016-Republic (Jackson Mutwiri Njue & Another) v Attorney General & 2 others and Eldoret ELC Misc App. No. 18 of 2017- David Kibiwott Achikwa v Cabinet Secretary for Lands & Physical Planning & Another.
It was these respondents’ view, that the issues raised in the petition are res judicata. Further that the ultimate solution is the regulations to operationalize land laws, which had already been forwarded to the office of the Attorney General for onward transmission to Government printer for publication.
2 nd respondent’s response
The 2 nd respondent opposed the petition through a replying affidavit sworn by Pauline N. Muriithia (Ms. Muriithia). The 2 nd respondent largely agreed with the position taken by the 1 st , 3 rd and 5 th respondents regarding the issues raised in the petition and that they had been determined; the mandate of NLC and that of the Ministry and what constitutes private land.
The 2 nd respondent denied the allegation that the office of the Chief Land Registrar had usurped any of the functions of the NLC. The 2 nd respondent maintained that the Supreme Court advisory opinion was categorical that the NLC had no role in the registration of titles to land whether public, community or private and that the task of registering land titles lies with the national government through the Ministry. According to the 2 nd respondent, the Supreme Court further stated that only the Ministry has authority to register and issue titles for the reason of the State’s role as guarantor of the sacrosanctity of titles.
The 2 nd respondent maintained that it is only the Chief Land Registrar who is mandated to register leases; that the director of surveys forwards Registry Index Maps and Deed Plans to the office of the Chief Land Registrar because it is the only office that can register title to land. The 2 nd respondent asserted that by virtue of section 108 of the Land Registration Act, until the Cabinet Secretary had made the regulations contemplated under section 110, any rules, or other administrative acts made, given, issued or undertaken before the commencement of the Land Registration Act under any of the Acts of Parliament repealed by Land Registration Act or any other law, continued to be in force and were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the Land Registration Act.
The 2 nd respondent stated that the regulations had been prepared and were awaiting publication and approval by Parliament. Until the regulations come into force, the Ministry and its departments were operating under the transitional provisions in section 108 of the Land Registration Act.
1 st interested party’s response
The 1 st interested party informed the court that it supported the petition through an affidavit sworn by Edmund Kiplagat on 27 th November 2017. The affidavit was however not in the court file at the time of preparing this judgment.
2 nd interested party’s response
The 2 nd interested party opposed the petition his application for joinder dated 23 rd November 2017, further affidavit sworn on 28 th November 2017 as well as supplementary affidavit sworn on 6 th December 2017. The 2 nd interested party sought to have the orders and directions issued on 8 th November 2017 varied and the dismissal of the petition.
The 2 nd interested party stated that while the petition was filed on 27 th September 2017, he had instituted a suit in Eldoret, Judicial Review Application No. 19 of 2017-Republic v The Cabinet Secretary for Lands and Physical Planning & The National Land Commission on 27 th July 2017 challenging the legality of the Gazette Notice No. 5734 of 2017 which purported to confer on NLC the mandate to prepare and execute leases in relation to public land that has been allocated to private persons and conditions for allocation fulfilled.
The 2 nd interested party stated that prior to the Gazette Notice, the NLC had no role to play in respect to preparation and execution of leases over land that had been allocated and condition satisfied. According to the 2 nd interested party, the Judicial review application cont
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