' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E349 OF 2021
OKIYA OMTATAH OKOITI ………………………………………PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL………………………….1 ST RESPONDENT
THE MINISTRY OF LANDS
AND PHYSICAL PLANNING……………………………….2 ND RESPONDENT
THE PARLIAMENT OF KENYA……………………………..3 RD RESPONDENT
AND
THE NATIONAL LAND COMMISSION……………….1 ST INTERESTED PARTY
KENYA TEA GROWERS ASSOCIATION ……………2 ND INTERESTED PARTY
EASTERN PRODUCE KENYA LTD…………………..3 RD INTERESTED PARTY
KERICHO COUNTY GOVERNMENT………………..4 TH INTERESTED PARTY
JUDGMENT
Petitioners’ case
The petitioner filed this petition challenging the constitutionality of sections 14(1), 14(9), 15(3) (e), 15(10) and 15(11) of the National Land Commission Act No. 5 of 2012 (the Act) and sought several declarations and orders.
The petitioner’s concern was that the impugned provisions limit the mandate of the National Land Commission (NLC) and more so, the time within which NLC can exercise its mandate to review grants or dispositions of public land to establish their propriety or legality, to admit, register and process claims on historical land injustices and that the provisions impose a lifespan on the decisions by NLC.
The petitioner asserted that the time limits are arbitrary, unreasonable and infringe on the rights of victims of historical land injustices, majority of whom are poor and cannot afford litigation in ordinary courts. The petitioner asserted that the limits were imposed to advance improper motives and promote corrupt practices.
The petitioner contended that the impugned provisions are unconstitutional because the Constitution does not set time limits and does not donate power to Parliament to set time lines within which NLC is to execute any of its mandates. According to the petitioner, under article 67(3) of the Constitution, Parliament can only enact legislation to add onto NLC’s mandate but not to diminish that mandate.
The petitioner argued that section 14(9) of the NLC Act is also unconstitutional because it gives Parliament discretion to allow or block NLC from performing its constitutional mandate and functions. The petitioner asserted, therefore, that the impugned provisions violate several articles of the constitution, including 67 (2) (e) and 68 (c) (v).
The petitioner maintained that Parliament’s legislative mandate is donated by the people and must be exercised as provided in the Constitution. According to the petitioner, articles 68 (c) (v) and 186(4) of the Constitution do not vest any powers on Parliament to limit the mandate of NLC. To the extent that the time limits impact on the rights and fundamental freedoms enshrined in articles 48 and 50(1) of the Constitution, Parliament should have complied with the requirement in article 24 of the Constitution.
The petitioner asserted that the Constitution is prescriptive and any powers it donates are clearly enumerated and should have expressly stated the intention to impose time limits on the mandate of NLC. The petitioner took the view, that Parliament’s mandate is limited by the Constitution (articles 1(1), 1(3), 2(1-4), 10(1) (b) and 2(a) & (b), 73(1) (a) (i), 93 (1) & (2), 94(4) and 259(1)) and therefore the provisions in petition to Parliament Act do not oust the jurisdiction of this court or affect the rights under articles 22 and 258 of the Constitution to institute these proceedings. The doctrine of exhaustion does not also apply. He relied on Peter Orengo Migiro (suing on behalf of the Late Christopher Orenge Makori) v Samwel Omagwa James & 2 others [2022] eKLR.
The petitioner maintained that the right to fair hearing where historical injustice is concerned cannot be time bound, a fact acknowledged by Parliament in section 15(3) (b) of the NLC Act.
The petitioner went on to argue, that Parliament does not have mandate to enact legislations that contradict the Constitution. He relied on articles 67(3) and 249 (2)(a) of the Constitution for the position that NLC is a creature of the Constitution and may perform extra functions assigned by national legislation. Parliament can only enact legislation to add onto the mandate of NLC but cannot diminish it.
The petitioner again argued that under article 2(4) any law that contravenes the Constitution is void to the extent of the contravention so that an unconstitutional statute is void and any actions based on such a law are equally unconstitutional. The petitioner relied on the decisions in Carr v State (1890) 127 Ind. 204, 26 N. E. 778; 11 L.R. A. 370; Chicago, Indianapolis & Louisville Ry. v Hackett (1912) 227 U.S. 559, S. Ct., 57 L. Ed. 966 and Louisiana v Pillsbuny (1881) 15 Otto 287, 26 L. Ed. 1090, among others and urged the court to allow the petition.
1 st and 2 nd respondents’ case
The 1 st and 2 nd respondents opposed the petition through grounds of opposition. They contended that, the NLC Act enjoys a general presumption of Constitutional validity which the petitioner has not rebutted; the action of the National Assembly to enact the NLC Act also enjoys the presumption of legality and constitutionality having been enacted pursuant to the legislative mandate of Parliament under article 94 of the Constitution. According to the 1 st and 2 nd respondents, the petitioner misapprehended the purpose and effect of the impugned provisions.
It was the 1 st and 2 nd respondents’ position, that this court lacks jurisdiction to entertain this petition because the substratum of the petition relates to the determination of time limit with regard to investigations of historical land injustices; review of grants or dispositions of public land. They relied on article 162 (2) (b) of the Constitution, section 13(5) of the Environment and Land Court Act and the decision in Republic v Karisa Chengo & 2 others [2017] eKLR for the position that this is a matter for the ELC.
The 1 st and 2 nd respondents asserted that the function of reviewing grants or dispositions of public land to establish their propriety or legality under section 14 flows from article 67 (3) as read with article 68 (c) (v) of the Constitution. Article 67 (3) empowers NLC to perform such additional functions as given under legislation while article 68 (c) (v) is on the directive for specific legislation on review of grants or dispositions of public land to establish their propriety or legality. The function of investigations on present or historical land injustices flows from article 67 (2) (e) of the Constitution.
The 1 st and 2 nd respondents contended that under article 68 (c) (v) of the Constitution, a review of grants or dispositions of public land is to be regulated by legislation and the Constitution does not define the contours of such regulatory regime thus, left it to the legislative wisdom of Parliament. Article 68 (c) (vi) further gives Parliament a constitutional discretion to provide for any other matter necessary to give effect to the provisions in Chapter Five.
The 1 st and 2 nd respondents relied on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR urging the court to employ a purposive interpretation in evaluating the constitutional standing of the time limits. They asserted that prescription of time limits serves two purposes; the historical need of the function and the need to safeguard the sanctity of titles. They again relied on the decision in In the Matter of the National Land Commission [2015] eKLR for the historical need function.
On safeguarding the sanctity of land holding in Kenya, the 1 st and 2 nd respondents urged the court to be persuaded by the factual position as captured in the 2 nd interested party’s replying affidavit to the effect of the intersection between the time limits and the right to fair hearing on the one hand and the time limit and the need for security of titles to further commercial transactions, on the other.
On whether the time limit affects the right of access to justice, the 1 st and 2 nd respondent argued that the right is not absolute under article 25 of the Constitution and may be limited in terms of article 24 of the Constitution, a position also supported by article 19(3) (c) of the Constitution. They relied on the decision in Seventh Day Adventist (East Africa Limited v Minister for education & 3 others [2017] eKLR, for the position that limitation on the right of access to justice is anchored in law.
On reasonableness, justifiability and proportionality of the legislation, the 1 st and 2 nd respondents urged the court to be persuaded by the decisions in Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR and R v Oakes [1986] 1 SCR 103.
The 1 st and 2 nd respondents contended that time limit of between 5 to 10 years is long enough to accommodate fair hearing. Further, section 14(9) of the Act enables NLC to apply to Parliament for extension of time provided under the section.
The 1 st and 2 nd respondent further contended that the time limits do not take away jurisdiction of the ELC to entertain a claim regarding historical land injustices and the grant or disposition of public land. The limitations do not also prejudice the right of access justice. They relied on articles 22 (1), 159 (2) (c), 162(2) (b)of the Constitution, section 13(2), (7) of the ELC Act and the decision in Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR.
The 1 st and 2 nd respondents again relied on the decision in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & another [2015] eKLR for the position that the question of time limits under section 15 of the NLC Act is non justiciable, that section having been repealed by dint of section 15(11) of the Act on 2 nd May 2022. The Attorney General urged the court to dismiss the petition.
3 rd respondent’s case
Parliament of Kenya, the 3 rd respondent, opposed the petition through a replying affidavit. The 3 rd respondent asserted that the impugned provisions were enacted in exercise of its constitutional mandate under articles 68 (c) (v), 94 (5) and 186(4) of the Constitution. It was also asserted that the law limiting the time within which litigation may be brought is common in legal systems to avoid inordinate delays in presenting claims and damage the interests of justice.
The 3 rd respondent contended that the object of any limitation enactment is to prevent a party from prosecuting stale claims and to protect a respondent who may have lost relevant evidence for his defence, including witnesses who may not be available due to long passage of time. Limitation of actions ensures there is an end to litigation.
The 3 rd respondent further contended that limitation of time brings certainty, finality and ensures quality adjudication of claims. The limitation is therefore reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
According to the 3 rd respondent, declaring the impugned provisions unconstitutional would pose the danger of exposing the entire statutes and principles of limitations to challenge with undesirable effects and consequences. Further, by virtue of article 119(1) of the Constitution, the petitioner ought to have sought extension of the five-year period for admission of claims before filing the present petition.
The 3 rd respondent argued under articles 1 and 186 of the Constitution, it has legislative authority on matters regarding NLC, including the impugned provisions and the court should not interfere unless there is constitutional breach. The 3 rd responder relied on the decision in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR.
The 3 rd respondent took the view, that the impugned provisions enjoy presumption of constitutionality and relied on Hamdard Dawakhana (Wakf) Lal v Union of India Air and Others 1960 AIR 554.
It was asserted that article 67(3) of the Constitution allows NLC to perform functions prescribed by national legislation which implies that the 3 rd respondent has mandate to define additional functions and limitations within the framework of the Constitution. The 3 rd respondent maintained that the impugned provisions provide specific mechanisms and timeframes for NLC to execute its mandate efficiently.
The 3 rd respondent went on to argue, that the impugned section 14(1) is constitutional since the five-year review period is a reasonable timeframe for NLC to carry out a comprehensive review of all grants and dispositions of public land. Under article 67 (2) (e) of the Constitution, the five-year timeline is a reasonable exercise of legislative discretion.
The 3 rd respondent argued that the absence of timelines in the Constitution gives flexibility to the legislature to determine appropriate durations based on logistical, administrative and social considerations. The period ensures that the review process is not open-ended thus, provides clarity, certainty and structure to both NLC and the public regarding the duration of the review process.
Regarding the three-year period stipulated in section 15(10), the 3 rd respondent argued that a defined period ensures administrative efficiency and prevents indefinite delays in the review process. The timeline creates a sense of urgency and ensures that NLC prioritizes the review process thereby upholding the principles of good governance and effective public administration as required by the Constitution and promotion of article 60(1) (d) of the Constitution.
The 3 rd respondent asserted that the term “law” as used in article 249(2) of the Constitution, encompasses laws it enacts provided they are consistent with the Constitution. The 3 rd respondent maintained that the impugned provisions do not subject NLC to control of direction by any person or authority beyond what is constitutionally permissible but establish a structured process for NLC to follow thereby enhancing accountability and transparency. Reliance was placed on the decision in Judicial Service Commission v Speaker of the National Assembly & 8 others [2014] eKLR.
The 3 rd respondent went on to argue, that NLC operates as a quasi-judicial body with authority to conduct hearings, make determinations and issue orders similar to those of a court of law when investigating claims of historical land injustices, hearing disputes and providing resolutions. Limitation of time is therefore important to NLC’s operations especially in the context of addressing land historical injustices and, therefore, the imitations are reasonable.
2 nd and 3 rd interested parties’ case
Kenya Tea Growers Association and Eastern Produce Kenya Ltd, the 2 nd and 3 rd interested parties, opposed the petition through replying affidavits. The 2 nd and 3 rd interested parties asserted that there were pending historical land injustice claims which had been filed against their members and nullifying the time limits provided for in section 15 of the Act would impact on their right to fair hearing in any future claims. The effect of nullifying the time limits will be to leave a vacuum whereby filing of claims and implementation of any recommendations by NLC would be open ended which would be contrary to the intention of Parliament.
The 2 nd and 3 rd interested parties contended that time limits on filing of claims are important constitutional safeguards for defendants under article 50(1) of the Constitution. Without tile limits, it would be difficult for their members to mount plausible defences due to the long passage of time. It would also impact on their legitimate expectation. The limitations are thus, reasonable and justifiable.
The 2 nd and 3 rd interested parties asserted that most commercial transactions are based on land as a form of security and nullification of the time limits would lead to the institution of time barred claims thereby negating the sanctity of title deeds issued under the repealed land laws with dire consequences on the country’s economy.
The 2 nd and 3 rd interested parties took the view, that any extension of time or nullification of time limits in section 15 of the Act, would derogate from the accrued rights in respect of time barred claims. It will also be contrary to the principal of certainty and finality in any laws that are enacted.
The 2 nd and 3 rd interested parties relied on the decision in Ibrahim v Ministry of Health and 2 others; British American Tobacco (Interested Party) [2022] KEHC 15443 (KLR) to argue that the Act has a presumption of constitutionality and the petitioner who bears the burden of proof rebutting that presumption failed to do so.
The 2 nd and 3 rd interested parties cited articles 68 (c) (vii), 94(1), 94 (5), 186 (4) and 109(1) of the Constitution for the position that that Parliament acted within its legislative mandate; there is no caveat under articles 67(2) (e) and 68 (c) (v) in respect of introducing time limitations in section 15 of the Act. They argued that time limits for filing of claims in respect of historical land injustice claims is an important constitutional safeguard under articles 47(1) and 50(1) of the Constitution.
The 2 nd and 3 rd interested parties again argued that time limitations are reasonable and justifiable; they ensure that NLC’s administrative actions will be expeditious and that the respondents will not have to deal with old, outdated and stale claims.
The 2 nd and 3 rd interested parties asserted that the effect of nullifying the time limitation in section 15 of the Act would be to leave a void where filing of claims with NLC and implementation of NLC’s recommendations would be open ended violating their constitutional rights. They relied on the decisions in Kenya National Chamber of Commerce & Industry -KNCCI (Muranga Chapter) & 2 others v Delmonte Kenya Limited & 3 others; County Government of Kiambu (Interested Party) [2020] eKLR; Mutwiwa v Komarock Ranching Society [2022] KEELC 2811 (KLR) and Kenya Human Rights Commission v Attorney General and another [2018] eKLR.
According to the 2 nd and 3 rd interested parties, laws that restrict time within which litigation maybe instituted and considered are common in a country’s legal system. Limitation of actions also ensures that litigation comes to an end in accordance with article 159 (2) (b) of the Constitution and urged the court to dismiss the petition.
4 th interested party’s case
The 4 th interested party supported the petition through a replying affidavit and written submissions. The 4 th interested party agreed with the petitioner that Parliament does not have constitutional mandate to enact legislation aimed at limiting the period within which claims of land injustices are to be investigated and addressed; to set expiry period upon which claims of land injustices are to be addressed and inhibit, curtail or limit the Constitutional mandate of NLC.
The 4 th interested party asserted that multinational Tea companies operating in its jurisdiction are beneficiaries of historical land injustices, a fact established by NLC. Investigation by the United Nations Human Rights Council found the Government of the United Kingdom actively participated in human rights abuses and violations and pursued racial discriminatory policies that led to huge loses of land by communities Kericho District and Bomet counties.
The 4 th interested party contended that section 15(10) of the Act cannot be interpreted to mean that if the recommendation is not enforced within 3 years, it ceases to have effect. In the 4 th interested party’s view, it can only be purposefully and objectively interpreted to mean that recommendations must be acted upon expeditious and within 3 years
According to the 4 th interested party, the communities in Kericho and Bomet Counties have legitimate expectation to have their constitutional rights guaranteed and acted upon. Further, the participation of the 2 nd interested party is not in good faith because they lodged a judicial review application in Nairobi ELC (JR) Application No. 3 of 2020 where it is enjoying stay of execution of the award made by NLC.
According to the 4 th interested party, all human rights claims have no limitation of time and ought to be addressed effectively. Failure to address them within 3 years will not release the public officials from undertaking their statutory duty.
The 4 th interested party argued that article 67 of the Constitution gives the oppressed and exploited communities hope of having their grievances addressed based on a constitutional framework. In this respect, NLC is mandated to investigate on its own motion or on application, historical land injustices and make binding recommendations. This is a constitutional remedy which cannot be defeated by provisions of a statute. Parliament could not therefore have intended to defeat a constitutional provision by enacting the impugned provisions.
The 4 th interested party associated itself with the petitioner’s position and relied on the decisions in Timothy M Njoya and 6 others v Attorney General and 3 others [2004] eKLR and Chrispus Karanja Njogu v Attorney General & another [2005] eKLR for the proposition that article 67 of the Constitution ought to be given effect.
The 1 st interested party, though served, did not take part in these proceedings
Determination
I have considered the petition, responses, arguments by parties and the decisions relied on. The main issue for determination is whether the impugned provisions are unconstitutional. However, before dealing with the main issue, there is a preliminary question of jurisdiction that the court should dispose of first.
Jurisdiction
The Attorney General representing the 1 st and 2 nd respondents argued that this court has no jurisdiction to determine this petition. According to the Attorney General, the issue raised in this petition falls within the jurisdiction of the ELC under article 162(2)(b) of the Constitution read with section 13 of the ELC Act.
Jurisdiction is the power or authority given to a court to determine disputes brought before it. A court’s jurisdiction must flow from the Constitution, the law or both. This position was well articulated by the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, thus:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
In re the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] eKLR, the Supreme Court, after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
Jurisdiction of this court is not and should not be in doubt since article 165(3) confers on the court unlimited original jurisdiction in criminal and civil matters. Under article 165(3) (b), the court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; and (d) jurisdiction to respecting the interpretation of the Constitution including determination of the question whether any law is inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution.
On the other hand, article 162(2)(b) provides that Parliament shall establish courts with equal status to the High Court to hear and determine disputes relating to employment and labour relations and the “ environment and the use land occupation of, and title to, land .” Parliament was also to determine jurisdiction and functions of those courts. Parliament dully enacted the Environment and Land Act, 2011 (the ELC Act) which established the ELC in compliance with article 162(2)(b). Section 13 of the ELC Act provides for the jurisdiction of the ELC.
Section 13(1) provides that the court shall have jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and the provisions of the Act or any law applicable in Kenya relating to environment and land. Section 13(2) further provides that in exercise of its jurisdiction under Article 162(2) of the Constitution the ELC has power to hear and determine-
Environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources,
Relating to compulsory acquisition of land
land administration and management
public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
Any other dispute relating to land.
Section 13(3) provides that nothing in the Act should preclude the ELC from hearing and determining “applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom relating to a clean and healthy environment” under Articles 42, 69 and 70 of the Constitution. Section 13(7) further enumerates the orders and reliefs the ELC may grant. They include, among others, prerogative orders, award of damages and compensation.
There can be no doubt that the ELC has jurisdiction to interpret and apply the constitution. However, this jurisdiction is limited to disputes falling within the jurisdiction of the ELC as opposed to the High Court which has unlimited jurisdiction. The fact that ELC and therefore courts of equal status exercise limited jurisdiction was appreciated by the Court of Appeal in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others [2020] eKLR which, though dealing with the jurisdiction of the ELRC, the position is applicable to this petition.
The Court of Appeal took the view, that the dispute in that case had a constitutional connotation and could not be said to strictly fall under section 12 of the Employment Act, pointing out that the jurisdiction of the ELRC is limited rather than unlimited and that whereas the ELRC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on employment and labour relations, the ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution.
In the same vein, and by parity of reasoning, whereas the ELC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on environment and the use and occupation of, and title to, land it has no original or unlimited jurisdiction to interpret and apply the Constitution.
This petition not only calls for interpretation of the Constitution, but also determination of whether the provisions and actions of the NLC is takes in accordance with the impugned provisions are inconsistent with or in contravention of the Constitution. That is, the issues raised in the petition fall within the core constitutional mandate of this court. This court has jurisdiction to determine this petition.
Constitutional validity
The petitioner argued that the impugned provisions are unconstitutional a position that was supported by the 4 th interested party. The respondents, supported by the 2 nd and 3 rd interested parties, maintained that the provisions are constitutional and valid. It is important before dealing with this issue, to briefly consider the principles that guide courts in determining the constitutionality of statutes or statutory provisions.
There is a general, but rebuttable presumption, that a statute enacted by the legislature should be presumed to be constitutional, unless the law is clearly unconstitutional or violates a fundamental right. The burden is on the person alleging unconstitutionality to prove the invalidity. This is because it is assumed that the legislature, as the people’s representative, understands the problems people face and, therefore, enacts legislation with the intention of solving those problems. (See Hamdard Dawakhana v Union of India Air (1960) 354).
This principle was reiterated in Ndynabo v Attorney General of Tanzania [2001] EA 495, that an Act of Parliament is presumed to be constitutional and the burden is on the person contending otherwise to prove the contrary.
The court should also examine the purpose or effect of a statute or statutory provision to determine its constitutionality. The purpose of enacting legislation, or the effect of implementing such legislation, may lead to nullification of the statute or its provision if found to be inconsistent with the constitution.
In R v Big M. Drug Mart Ltd, [1985] 1 SCR 275; 1986 LRC (Const.) 332, the Supreme Court of Canada stated that:
[80] Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E349 OF 2021
OKIYA OMTATAH OKOITI ………………………………………PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL………………………….1 ST RESPONDENT
THE MINISTRY OF LANDS
AND PHYSICAL PLANNING……………………………….2 ND RESPONDENT
THE PARLIAMENT OF KENYA……………………………..3 RD RESPONDENT
AND
THE NATIONAL LAND COMMISSION……………….1 ST INTERESTED PARTY
KENYA TEA GROWERS ASSOCIATION ……………2 ND INTERESTED PARTY
EASTERN PRODUCE KENYA LTD…………………..3 RD INTERESTED PARTY
KERICHO COUNTY GOVERNMENT………………..4 TH INTERESTED PARTY
JUDGMENT
Petitioners’ case
The petitioner filed this petition challenging the constitutionality of sections 14(1), 14(9), 15(3) (e), 15(10) and 15(11) of the National Land Commission Act No. 5 of 2012 (the Act) and sought several declarations and orders.
The petitioner’s concern was that the impugned provisions limit the mandate of the National Land Commission (NLC) and more so, the time within which NLC can exercise its mandate to review grants or dispositions of public land to establish their propriety or legality, to admit, register and process claims on historical land injustices and that the provisions impose a lifespan on the decisions by NLC.
The petitioner asserted that the time limits are arbitrary, unreasonable and infringe on the rights of victims of historical land injustices, majority of whom are poor and cannot afford litigation in ordinary courts. The petitioner asserted that the limits were imposed to advance improper motives and promote corrupt practices.
The petitioner contended that the impugned provisions are unconstitutional because the Constitution does not set time limits and does not donate power to Parliament to set time lines within which NLC is to execute any of its mandates. According to the petitioner, under article 67(3) of the Constitution, Parliament can only enact legislation to add onto NLC’s mandate but not to diminish that mandate.
The petitioner argued that section 14(9) of the NLC Act is also unconstitutional because it gives Parliament discretion to allow or block NLC from performing its constitutional mandate and functions. The petitioner asserted, therefore, that the impugned provisions violate several articles of the constitution, including 67 (2) (e) and 68 (c) (v).
The petitioner maintained that Parliament’s legislative mandate is donated by the people and must be exercised as provided in the Constitution. According to the petitioner, articles 68 (c) (v) and 186(4) of the Constitution do not vest any powers on Parliament to limit the mandate of NLC. To the extent that the time limits impact on the rights and fundamental freedoms enshrined in articles 48 and 50(1) of the Constitution, Parliament should have complied with the requirement in article 24 of the Constitution.
The petitioner asserted that the Constitution is prescriptive and any powers it donates are clearly enumerated and should have expressly stated the intention to impose time limits on the mandate of NLC. The petitioner took the view, that Parliament’s mandate is limited by the Constitution (articles 1(1), 1(3), 2(1-4), 10(1) (b) and 2(a) & (b), 73(1) (a) (i), 93 (1) & (2), 94(4) and 259(1)) and therefore the provisions in petition to Parliament Act do not oust the jurisdiction of this court or affect the rights under articles 22 and 258 of the Constitution to institute these proceedings. The doctrine of exhaustion does not also apply. He relied on Peter Orengo Migiro (suing on behalf of the Late Christopher Orenge Makori) v Samwel Omagwa James & 2 others [2022] eKLR.
The petitioner maintained that the right to fair hearing where historical injustice is concerned cannot be time bound, a fact acknowledged by Parliament in section 15(3) (b) of the NLC Act.
The petitioner went on to argue, that Parliament does not have mandate to enact legislations that contradict the Constitution. He relied on articles 67(3) and 249 (2)(a) of the Constitution for the position that NLC is a creature of the Constitution and may perform extra functions assigned by national legislation. Parliament can only enact legislation to add onto the mandate of NLC but cannot diminish it.
The petitioner again argued that under article 2(4) any law that contravenes the Constitution is void to the extent of the contravention so that an unconstitutional statute is void and any actions based on such a law are equally unconstitutional. The petitioner relied on the decisions in Carr v State (1890) 127 Ind. 204, 26 N. E. 778; 11 L.R. A. 370; Chicago, Indianapolis & Louisville Ry. v Hackett (1912) 227 U.S. 559, S. Ct., 57 L. Ed. 966 and Louisiana v Pillsbuny (1881) 15 Otto 287, 26 L. Ed. 1090, among others and urged the court to allow the petition.
1 st and 2 nd respondents’ case
The 1 st and 2 nd respondents opposed the petition through grounds of opposition. They contended that, the NLC Act enjoys a general presumption of Constitutional validity which the petitioner has not rebutted; the action of the National Assembly to enact the NLC Act also enjoys the presumption of legality and constitutionality having been enacted pursuant to the legislative mandate of Parliament under article 94 of the Constitution. According to the 1 st and 2 nd respondents, the petitioner misapprehended the purpose and effect of the impugned provisions.
It was the 1 st and 2 nd respondents’ position, that this court lacks jurisdiction to entertain this petition because the substratum of the petition relates to the determination of time limit with regard to investigations of historical land injustices; review of grants or dispositions of public land. They relied on article 162 (2) (b) of the Constitution, section 13(5) of the Environment and Land Court Act and the decision in Republic v Karisa Chengo & 2 others [2017] eKLR for the position that this is a matter for the ELC.
The 1 st and 2 nd respondents asserted that the function of reviewing grants or dispositions of public land to establish their propriety or legality under section 14 flows from article 67 (3) as read with article 68 (c) (v) of the Constitution. Article 67 (3) empowers NLC to perform such additional functions as given under legislation while article 68 (c) (v) is on the directive for specific legislation on review of grants or dispositions of public land to establish their propriety or legality. The function of investigations on present or historical land injustices flows from article 67 (2) (e) of the Constitution.
The 1 st and 2 nd respondents contended that under article 68 (c) (v) of the Constitution, a review of grants or dispositions of public land is to be regulated by legislation and the Constitution does not define the contours of such regulatory regime thus, left it to the legislative wisdom of Parliament. Article 68 (c) (vi) further gives Parliament a constitutional discretion to provide for any other matter necessary to give effect to the provisions in Chapter Five.
The 1 st and 2 nd respondents relied on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR urging the court to employ a purposive interpretation in evaluating the constitutional standing of the time limits. They asserted that prescription of time limits serves two purposes; the historical need of the function and the need to safeguard the sanctity of titles. They again relied on the decision in In the Matter of the National Land Commission [2015] eKLR for the historical need function.
On safeguarding the sanctity of land holding in Kenya, the 1 st and 2 nd respondents urged the court to be persuaded by the factual position as captured in the 2 nd interested party’s replying affidavit to the effect of the intersection between the time limits and the right to fair hearing on the one hand and the time limit and the need for security of titles to further commercial transactions, on the other.
On whether the time limit affects the right of access to justice, the 1 st and 2 nd respondent argued that the right is not absolute under article 25 of the Constitution and may be limited in terms of article 24 of the Constitution, a position also supported by article 19(3) (c) of the Constitution. They relied on the decision in Seventh Day Adventist (East Africa Limited v Minister for education & 3 others [2017] eKLR, for the position that limitation on the right of access to justice is anchored in law.
On reasonableness, justifiability and proportionality of the legislation, the 1 st and 2 nd respondents urged the court to be persuaded by the decisions in Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR and R v Oakes [1986] 1 SCR 103.
The 1 st and 2 nd respondents contended that time limit of between 5 to 10 years is long enough to accommodate fair hearing. Further, section 14(9) of the Act enables NLC to apply to Parliament for extension of time provided under the section.
The 1 st and 2 nd respondent further contended that the time limits do not take away jurisdiction of the ELC to entertain a claim regarding historical land injustices and the grant or disposition of public land. The limitations do not also prejudice the right of access justice. They relied on articles 22 (1), 159 (2) (c), 162(2) (b)of the Constitution, section 13(2), (7) of the ELC Act and the decision in Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR.
The 1 st and 2 nd respondents again relied on the decision in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & another [2015] eKLR for the position that the question of time limits under section 15 of the NLC Act is non justiciable, that section having been repealed by dint of section 15(11) of the Act on 2 nd May 2022. The Attorney General urged the court to dismiss the petition.
3 rd respondent’s case
Parliament of Kenya, the 3 rd respondent, opposed the petition through a replying affidavit. The 3 rd respondent asserted that the impugned provisions were enacted in exercise of its constitutional mandate under articles 68 (c) (v), 94 (5) and 186(4) of the Constitution. It was also asserted that the law limiting the time within which litigation may be brought is common in legal systems to avoid inordinate delays in presenting claims and damage the interests of justice.
The 3 rd respondent contended that the object of any limitation enactment is to prevent a party from prosecuting stale claims and to protect a respondent who may have lost relevant evidence for his defence, including witnesses who may not be available due to long passage of time. Limitation of actions ensures there is an end to litigation.
The 3 rd respondent further contended that limitation of time brings certainty, finality and ensures quality adjudication of claims. The limitation is therefore reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
According to the 3 rd respondent, declaring the impugned provisions unconstitutional would pose the danger of exposing the entire statutes and principles of limitations to challenge with undesirable effects and consequences. Further, by virtue of article 119(1) of the Constitution, the petitioner ought to have sought extension of the five-year period for admission of claims before filing the present petition.
The 3 rd respondent argued under articles 1 and 186 of the Constitution, it has legislative authority on matters regarding NLC, including the impugned provisions and the court should not interfere unless there is constitutional breach. The 3 rd responder relied on the decision in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR.
The 3 rd respondent took the view, that the impugned provisions enjoy presumption of constitutionality and relied on Hamdard Dawakhana (Wakf) Lal v Union of India Air and Others 1960 AIR 554.
It was asserted that article 67(3) of the Constitution allows NLC to perform functions prescribed by national legislation which implies that the 3 rd respondent has mandate to define additional functions and limitations within the framework of the Constitution. The 3 rd respondent maintained that the impugned provisions provide specific mechanisms and timeframes for NLC to execute its mandate efficiently.
The 3 rd respondent went on to argue, that the impugned section 14(1) is constitutional since the five-year review period is a reasonable timeframe for NLC to carry out a comprehensive review of all grants and dispositions of public land. Under article 67 (2) (e) of the Constitution, the five-year timeline is a reasonable exercise of legislative discretion.
The 3 rd respondent argued that the absence of timelines in the Constitution gives flexibility to the legislature to determine appropriate durations based on logistical, administrative and social considerations. The period ensures that the review process is not open-ended thus, provides clarity, certainty and structure to both NLC and the public regarding the duration of the review process.
Regarding the three-year period stipulated in section 15(10), the 3 rd respondent argued that a defined period ensures administrative efficiency and prevents indefinite delays in the review process. The timeline creates a sense of urgency and ensures that NLC prioritizes the review process thereby upholding the principles of good governance and effective public administration as required by the Constitution and promotion of article 60(1) (d) of the Constitution.
The 3 rd respondent asserted that the term “law” as used in article 249(2) of the Constitution, encompasses laws it enacts provided they are consistent with the Constitution. The 3 rd respondent maintained that the impugned provisions do not subject NLC to control of direction by any person or authority beyond what is constitutionally permissible but establish a structured process for NLC to follow thereby enhancing accountability and transparency. Reliance was placed on the decision in Judicial Service Commission v Speaker of the National Assembly & 8 others [2014] eKLR.
The 3 rd respondent went on to argue, that NLC operates as a quasi-judicial body with authority to conduct hearings, make determinations and issue orders similar to those of a court of law when investigating claims of historical land injustices, hearing disputes and providing resolutions. Limitation of time is therefore important to NLC’s operations especially in the context of addressing land historical injustices and, therefore, the imitations are reasonable.
2 nd and 3 rd interested parties’ case
Kenya Tea Growers Association and Eastern Produce Kenya Ltd, the 2 nd and 3 rd interested parties, opposed the petition through replying affidavits. The 2 nd and 3 rd interested parties asserted that there were pending historical land injustice claims which had been filed against their members and nullifying the time limits provided for in section 15 of the Act would impact on their right to fair hearing in any future claims. The effect of nullifying the time limits will be to leave a vacuum whereby filing of claims and implementation of any recommendations by NLC would be open ended which would be contrary to the intention of Parliament.
The 2 nd and 3 rd interested parties contended that time limits on filing of claims are important constitutional safeguards for defendants under article 50(1) of the Constitution. Without tile limits, it would be difficult for their members to mount plausible defences due to the long passage of time. It would also impact on their legitimate expectation. The limitations are thus, reasonable and justifiable.
The 2 nd and 3 rd interested parties asserted that most commercial transactions are based on land as a form of security and nullification of the time limits would lead to the institution of time barred claims thereby negating the sanctity of title deeds issued under the repealed land laws with dire consequences on the country’s economy.
The 2 nd and 3 rd interested parties took the view, that any extension of time or nullification of time limits in section 15 of the Act, would derogate from the accrued rights in respect of time barred claims. It will also be contrary to the principal of certainty and finality in any laws that are enacted.
The 2 nd and 3 rd interested parties relied on the decision in Ibrahim v Ministry of Health and 2 others; British American Tobacco (Interested Party) [2022] KEHC 15443 (KLR) to argue that the Act has a presumption of constitutionality and the petitioner who bears the burden of proof rebutting that presumption failed to do so.
The 2 nd and 3 rd interested parties cited articles 68 (c) (vii), 94(1), 94 (5), 186 (4) and 109(1) of the Constitution for the position that that Parliament acted within its legislative mandate; there is no caveat under articles 67(2) (e) and 68 (c) (v) in respect of introducing time limitations in section 15 of the Act. They argued that time limits for filing of claims in respect of historical land injustice claims is an important constitutional safeguard under articles 47(1) and 50(1) of the Constitution.
The 2 nd and 3 rd interested parties again argued that time limitations are reasonable and justifiable; they ensure that NLC’s administrative actions will be expeditious and that the respondents will not have to deal with old, outdated and stale claims.
The 2 nd and 3 rd interested parties asserted that the effect of nullifying the time limitation in section 15 of the Act would be to leave a void where filing of claims with NLC and implementation of NLC’s recommendations would be open ended violating their constitutional rights. They relied on the decisions in Kenya National Chamber of Commerce & Industry -KNCCI (Muranga Chapter) & 2 others v Delmonte Kenya Limited & 3 others; County Government of Kiambu (Interested Party) [2020] eKLR; Mutwiwa v Komarock Ranching Society [2022] KEELC 2811 (KLR) and Kenya Human Rights Commission v Attorney General and another [2018] eKLR.
According to the 2 nd and 3 rd interested parties, laws that restrict time within which litigation maybe instituted and considered are common in a country’s legal system. Limitation of actions also ensures that litigation comes to an end in accordance with article 159 (2) (b) of the Constitution and urged the court to dismiss the petition.
4 th interested party’s case
The 4 th interested party supported the petition through a replying affidavit and written submissions. The 4 th interested party agreed with the petitioner that Parliament does not have constitutional mandate to enact legislation aimed at limiting the period within which claims of land injustices are to be investigated and addressed; to set expiry period upon which claims of land injustices are to be addressed and inhibit, curtail or limit the Constitutional mandate of NLC.
The 4 th interested party asserted that multinational Tea companies operating in its jurisdiction are beneficiaries of historical land injustices, a fact established by NLC. Investigation by the United Nations Human Rights Council found the Government of the United Kingdom actively participated in human rights abuses and violations and pursued racial discriminatory policies that led to huge loses of land by communities Kericho District and Bomet counties.
The 4 th interested party contended that section 15(10) of the Act cannot be interpreted to mean that if the recommendation is not enforced within 3 years, it ceases to have effect. In the 4 th interested party’s view, it can only be purposefully and objectively interpreted to mean that recommendations must be acted upon expeditious and within 3 years
According to the 4 th interested party, the communities in Kericho and Bomet Counties have legitimate expectation to have their constitutional rights guaranteed and acted upon. Further, the participation of the 2 nd interested party is not in good faith because they lodged a judicial review application in Nairobi ELC (JR) Application No. 3 of 2020 where it is enjoying stay of execution of the award made by NLC.
According to the 4 th interested party, all human rights claims have no limitation of time and ought to be addressed effectively. Failure to address them within 3 years will not release the public officials from undertaking their statutory duty.
The 4 th interested party argued that article 67 of the Constitution gives the oppressed and exploited communities hope of having their grievances addressed based on a constitutional framework. In this respect, NLC is mandated to investigate on its own motion or on application, historical land injustices and make binding recommendations. This is a constitutional remedy which cannot be defeated by provisions of a statute. Parliament could not therefore have intended to defeat a constitutional provision by enacting the impugned provisions.
The 4 th interested party associated itself with the petitioner’s position and relied on the decisions in Timothy M Njoya and 6 others v Attorney General and 3 others [2004] eKLR and Chrispus Karanja Njogu v Attorney General & another [2005] eKLR for the proposition that article 67 of the Constitution ought to be given effect.
The 1 st interested party, though served, did not take part in these proceedings
Determination
I have considered the petition, responses, arguments by parties and the decisions relied on. The main issue for determination is whether the impugned provisions are unconstitutional. However, before dealing with the main issue, there is a preliminary question of jurisdiction that the court should dispose of first.
Jurisdiction
The Attorney General representing the 1 st and 2 nd respondents argued that this court has no jurisdiction to determine this petition. According to the Attorney General, the issue raised in this petition falls within the jurisdiction of the ELC under article 162(2)(b) of the Constitution read with section 13 of the ELC Act.
Jurisdiction is the power or authority given to a court to determine disputes brought before it. A court’s jurisdiction must flow from the Constitution, the law or both. This position was well articulated by the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, thus:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
In re the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] eKLR, the Supreme Court, after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
Jurisdiction of this court is not and should not be in doubt since article 165(3) confers on the court unlimited original jurisdiction in criminal and civil matters. Under article 165(3) (b), the court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; and (d) jurisdiction to respecting the interpretation of the Constitution including determination of the question whether any law is inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution.
On the other hand, article 162(2)(b) provides that Parliament shall establish courts with equal status to the High Court to hear and determine disputes relating to employment and labour relations and the “ environment and the use land occupation of, and title to, land .” Parliament was also to determine jurisdiction and functions of those courts. Parliament dully enacted the Environment and Land Act, 2011 (the ELC Act) which established the ELC in compliance with article 162(2)(b). Section 13 of the ELC Act provides for the jurisdiction of the ELC.
Section 13(1) provides that the court shall have jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and the provisions of the Act or any law applicable in Kenya relating to environment and land. Section 13(2) further provides that in exercise of its jurisdiction under Article 162(2) of the Constitution the ELC has power to hear and determine-
Environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources,
Relating to compulsory acquisition of land
land administration and management
public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
Any other dispute relating to land.
Section 13(3) provides that nothing in the Act should preclude the ELC from hearing and determining “applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom relating to a clean and healthy environment” under Articles 42, 69 and 70 of the Constitution. Section 13(7) further enumerates the orders and reliefs the ELC may grant. They include, among others, prerogative orders, award of damages and compensation.
There can be no doubt that the ELC has jurisdiction to interpret and apply the constitution. However, this jurisdiction is limited to disputes falling within the jurisdiction of the ELC as opposed to the High Court which has unlimited jurisdiction. The fact that ELC and therefore courts of equal status exercise limited jurisdiction was appreciated by the Court of Appeal in Attorney General & 2 others v Okiya Omtatah Okoiti & 14 others [2020] eKLR which, though dealing with the jurisdiction of the ELRC, the position is applicable to this petition.
The Court of Appeal took the view, that the dispute in that case had a constitutional connotation and could not be said to strictly fall under section 12 of the Employment Act, pointing out that the jurisdiction of the ELRC is limited rather than unlimited and that whereas the ELRC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on employment and labour relations, the ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution.
In the same vein, and by parity of reasoning, whereas the ELC has jurisdiction in appropriate cases to interpret and apply the Constitution in matters that arise in the context of disputes on environment and the use and occupation of, and title to, land it has no original or unlimited jurisdiction to interpret and apply the Constitution.
This petition not only calls for interpretation of the Constitution, but also determination of whether the provisions and actions of the NLC is takes in accordance with the impugned provisions are inconsistent with or in contravention of the Constitution. That is, the issues raised in the petition fall within the core constitutional mandate of this court. This court has jurisdiction to determine this petition.
Constitutional validity
The petitioner argued that the impugned provisions are unconstitutional a position that was supported by the 4 th interested party. The respondents, supported by the 2 nd and 3 rd interested parties, maintained that the provisions are constitutional and valid. It is important before dealing with this issue, to briefly consider the principles that guide courts in determining the constitutionality of statutes or statutory provisions.
There is a general, but rebuttable presumption, that a statute enacted by the legislature should be presumed to be constitutional, unless the law is clearly unconstitutional or violates a fundamental right. The burden is on the person alleging unconstitutionality to prove the invalidity. This is because it is assumed that the legislature, as the people’s representative, understands the problems people face and, therefore, enacts legislation with the intention of solving those problems. (See Hamdard Dawakhana v Union of India Air (1960) 354).
This principle was reiterated in Ndynabo v Attorney General of Tanzania [2001] EA 495, that an Act of Parliament is presumed to be constitutional and the burden is on the person contending otherwise to prove the contrary.
The court should also examine the purpose or effect of a statute or statutory provision to determine its constitutionality. The purpose of enacting legislation, or the effect of implementing such legislation, may lead to nullification of the statute or its provision if found to be inconsistent with the constitution.
In R v Big M. Drug Mart Ltd, [1985] 1 SCR 275; 1986 LRC (Const.) 332, the Supreme Court of Canada stated that:
[80] Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an
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