Is it time Ngilu, Swazuri feud went to the courts?

Lands Cabinet Secretary Charity Ngilu (right) and National Land Commission (NLC) Chairman Mohammed Swazuri.

By HAROLD AYODO

NAIROBI, KENYA: Real estate investors must be feeling confused about who has the mandate to issue title deeds. And with Lands Cabinet Secretary Charity Ngilu and National Land Commission (NLC) Chairman Mohammed Swazuri having publicly differed numerous times over the matter, it seems land administration is going to the dogs.

The impact of this grandstanding is being seen in the delay in issuance of title deeds, extension of leases and registration of land instruments.

The fight over roles has also impacted negatively on property transactions as proposed rules to fast-track transactions are yet to be published.

Ngilu was recently quoted in the mainstream media as saying the Jubilee Government had set a target of issuing three million title deeds within five years. According to Ngilu, the mandate of NLC is restricted to advice and offer other roles delegated by the national government.

She says that the NLC should be advising her ministry on land matters and not “over step” its mandate by issuing title deeds.

On the other hand, Swazuri says the commission has the sole constitutional authority to allocate public land.

According to Swazuri, both the Land Act and NLC Act give the commission power to register, manage and issue title deeds on behalf of the national and county governments.

Section six of the Land Act specifies that the Lands Secretary should develop policies on land upon recommendation of the NLC and facilitate implementation of land reforms.

Other roles include coordination of the management of the national spatial data infrastructure, formulation of standards of service in the lands sector and monitoring land sector performance.

The law provides that the Cabinet Secretary should also regulate service providers and professionals, including physical planners, surveyors, valuers and estate agents.

Article 67 of the Constitution establishes the NLC to manage public land on behalf of national and county governments.

ROLES

Other roles of the commission include to research on land and make recommendations to the various government agencies involved with land use and management.

The NLC should also commence investigations into present or historical injustices regarding land, recommend redress and encourage traditional dispute resolution mechanisms in land conflicts.

The Constitution also empowers the commission to assess tax on land and premiums in immovable property in any area designated by law.

Legally, the commission takes away some of the powers that the president held with regard to alienation of Government land. As mediation between the commission and the Lands ministry proves elusive, the two can move to the Supreme Court to seek constitutional interpretation of their roles.

However, the commission has been dogged with controversy even before the commissioners were appointed.

Confusion reigned supreme in transactions on public land as then President Kibaki delayed appointing members of the National Land Commission.

Then Lands Minister James Orengo imposed a blanket freeze on public land deals until the establishment of the NLC as provided for in the Constitution.

Orengo, who issued the directive, said in a memo to senior staff in his docket that land allocation, renewal and grants of leases were suspended.

Other dealings in public land that were frozen included charges, mortgaging of parastatal land, compulsory acquisition, community and trust land.

Orengo, who cited a Cabinet decision on the freeze, extended the directive to property belonging to local authorities, state organs, corporations and statutory bodies. The memo adversely affected operations of parastatals and firms with government-granted lease land (mostly in Nairobi and its environs).

Legally, the directive meant that the majority of those who owned leasehold titles must wait for the NLC to be formed before they could renew their leases.

And those who applied for grants of new leases for purposes of commercial, residential or industrial development must also wait for the commission.

— The writer is an advocate of the High Court.