County governments cannot allocate or lease public land, High Court rules

The court has stopped counties from unilaterally giving out public land.

A judge in Malindi has ruled that county governments have no legal power to allocate and lease public land to private investors.

The ruling, which is likely to alarm both the county and national governments, decrees that allocation and leasing of public land is the sole and undiluted duty of the National Land Commission (NLC).

The judge declared that as an independent commission under the 2010 Constitution, the land commission enjoyed unfettered power to manage and administer public land and is “not subject to direction or control by any person or authority, and it cannot, thus be considered an agent of the national or county government".

In the landmark judgement, the judge based his conclusion on a 2014 Supreme Court advisory that delineated the powers of the commission on land matters vis-a-vis county and national governments and his understanding of the commission’s statutory authority under the National Land Commission Act, the Land Act and the Land Registration Act.

Justice James Olola dismissed an application by an American consortium, Cordisons International, that had sought to invest Sh23 billion in wind power production in Lamu since 2009 but has faced obstacles from the commission.

Cordisons has filed a notice to appeal the ruling at the Court of Appeal, describing the judgement as a miscarriage of justice that has stripped county governments of all power in public land management.

Cordisons filed a judicial review application in May last year to challenge the commission’s decision to allocate part of the land it claimed for its investment to rival firm Kenwind Kenya Ltd.

The Americans sought orders to reverse the allocation, which it said overlapped its own land allocated by the Lamu County Council in 2010.

It further asked the court to prohibit the commission from interference in its investment, future encroachment on its land and for orders to compel the commission to approve its land lease instruments.

On Friday, however, the judge ruled in favour of Kenwind, saying it followed the right legal procedures to apply for land allocation from the commission while the Americans misread the law by seeking similar approval from the county government.

According to the judge, the Supreme Court advisory puts it beyond doubt that the commission enjoyed exclusive constitutional and statutory authority to manage public land.

“Article 62(3) on the other hand stipulates that public land vested in county governments shall be administered on their behalf by the second respondent (NLC). What then does the administration entail?” said the judge referring to the commission, which is listed as second respondent.

He said the Supreme Court interpreted Section 8 of the Land Act to determine that management of public land includes “identifying public land, keeping a data base of all public land, sharing of data and land mapping, among others.”

The judge argued that a contextual reading of the Supreme Court advisory together with the land Acts means that the power to manage and administer public land includes “allocation of land, disposing of public land; leasing and effecting change of user.”