Issuance of land title deeds is a preserve of the Ministry of Lands, the Supreme Court has ruled on an advisory opinion sought by the National land commission (NLC) last year.
“NLC has a mandate in various land registration and management processes but has no mandate to issue land title deeds. Title deeds can only be issued by the Ministry,” Chief Justice Willy Mutunga said.
The court also ruled that the National Land Commission and the Ministry of lands should collaborate, co-operate and consult each other on all land matters as they perform their various mandates as spelt in the constitution.
Lawyers of the Ministry led by Paul Muite and the NLC team led by Professor Tom Ojienda agreed to abide by the court decision.
“We are satisfied by the decision as it binds all state organs. We have always consulted with the ministry and all we wanted is not to be barred from processes of doing assessment towards land registration, and now we have been allowed,” Chairman Mohamed Swazuri said after the ruling.
Checks and Balances
The Supreme Court said NLC and the Lands Ministry should operate under checks and balances model of separation of powers.
“Each function should be checked by each other to avoid abuse of power. NLC has to do public participation in its work. Allocation of a function to one organ or the other is not possible, each has to work in co-operation with the other,” Chief Justice Willy Mutunga read the six judge bench decision.
Mutunga said in Ireland, the Land Commission was disbanded when it failed to work in co-operation with the executive.
The Supreme Court advisory opinion must be treated as an authoritative document of law, the CJ advised, saying it may not be enforced just like other court orders, judgments or rulings.
The NLC has been advised to upon priority, make proper and specific structures that will enable it as an independent commission to make recommendations on national land policy, do research, initiate investigations on disputed arrears, and assess tax and premiums.
Justice Philip Tunoi in his recitation of the ruling, said the Lands commission and Ministry can work best in consultation and cooperation. He said, NLC has to be accountable.
Independent budgetary allocation
“Independence of commissions does not shield them from oversight and accountability,” said the judge adding that on financial accountability, the commission is answerable to the auditor General, and is accountable to law and the constitution.
The agency should be allowed to receive its independent budgetary allocation from the Treasury as opposed to receiving their budget through the Land ministry.
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CJ Willy Mutunga called for a re-alignment of various land acts and legislations establishing various state organs tasked with land management, and recommended the Kenya law reform commission and the Attorney general’s office to lead the review of the legislations.
Supreme Court turned down the Ministry of Land position that the National Land Commission should not manage registries and collect rates, saying they should co-operate and collaborate in finding solutions to land issues in the country.
The terms “to administer and Manage,’ the court said are not clear in land registration Act in comparison to other legal documents like the NLC Act. Hence need a review.
However, Judge Kalpana Rawal re-affirmed that the roles of NLC are in tandem with its roles in the Lands Act.
NLC can only manage public land
Court ruled that NLC can only manage public land on behalf of the two governments (National and County) but not private and community land. They can also only monitor registration of land but not participate in the registration.