The High Court has declared that over three million land title deeds issued by the Jubilee administration since 2013 were irregularly processed and therefore illegal.
High Court judge Joseph Onguto found that the Ministry of Lands proceeded to prepare lease documents in violation of the law governing land matters by ignoring the input of the National Land Commission (NLC).
Justice Onguto further ruled that the ministry had erred in processing the titles as there were no regulations in place to guide the process in accordance with the Land Registration Act.
This is because Parliament is yet to approve regulations, as stipulated by land laws.
The High Court made the declarations in a suit filed by Nairobi lawyer Anthony Otiende, who had moved to court in 2015 seeking to nullify regulations and forms for preparing leases that were promulgated by the then Lands Cabinet Secretary Charity Ngilu. Mr Otiende argued that while the ministry had a statutory mandate to promulgate the prescribed forms for purposes of disposition of land, such forms could only be promulgated and prescribed upon receipt of NLC advice.
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"A declaration is hereby issued that the registration forms as well as forms of titles including leases, title deeds, grants and certificate of title or of lease made and promulgated by the Cabinet minister without the advice or input of the NLC and without the necessary public participation and/ or parliamentary approval and scrutiny are unconstitutional, null and void," he said in the judgement.
The judgement was delivered on December 19, last year. The Deputy Registrar of the High Court certified the orders on January 12, this year.
However, in light of the far-reaching consequences that the order revoking the crucial land ownership documents would have, both politically and economically, the High Court judge suspended the directive on invalidity for a year to give the ministry time to regularise the papers.
Onguto said: "However, considering the immediate consequences, of the above declaration on the registration of title process currently ongoing and already undertaken, the declaration of invalidity is hereby suspended to enable the minister initiate meaningful engagement with the public, NLC and seek Parliament's approval."
The suspension is a reprieve to the beneficiaries of titles and leases but the temporary cover is only valid for 12 months.
In default of compliance with the order within 12 months, all regulations and forms promulgated shall stand null and void for all intents and purposes on the 366th day, the judge added. NLC Chairman Muhamad Swazuri welcomed the ruling, saying it had reaffirmed what his commission has been pushing for since 2013.
"As you may recall, we issued a public notice in October 2014 declaring the forms illegal. We did another notice in November 2016 on the same. The High Court has reaffirmed this and in line with the Supreme Court advisory on the same," Dr Swazuri said.
He said they had held several meetings with Lands PS Mariam El Maawy, who has remained non-committal on the issues they have been raising for the past four years.
More meetings are planned in the coming days to resolve the impasse, he added. Lands CS Jacob Kaimenyi and National Assembly Lands Committee Vice Chairman Moses ole Sakuda said there was no need to panic as the court gave them time to correct the irregularities.
"Parliament is resuming end of this month and my appeal is to the ministry to expedite the regulations and forward them to Parliament for approval," Mr Sakuda said.
The MP said he agreed with the court ruling that the procedure was not followed but that does not hamper the Jubilee administration's efforts on issuance of titles since small mistakes have to be corrected.
"This is like having a meal and later you realise that you did not make a prayer before commencing the meal. You can return and bow down for prayer and give thanks for the meal, which you have already taken," the Kajiado West MP said.
Prof Kaimenyi said he had read the ruling and taken steps to comply with the orders. "There is no problem at all. We are a law-abiding ministry and will implement the order fully," he said.
The minister added that he had appointed a task force after consulting NLC, which will be inaugurated with instructions to come up with regulations within two months for onward transmission to Parliament.
"The regulations were prepared in 2014 but as you know, there was some misunderstanding between the ministry and the NLC, which derailed the process. However, as soon as the task force team is published in the Kenya Gazette, it will have two months to complete the task," added Kaimenyi.
Report by Geoffrey Mosoku