Date: 19 January 2017 01:26
Landowners and commercial banks now have a reason to smile after the High Court declared over three million land ownership documents issued since 2013 valid.
High Court Judge Joseph Onguto, in a highly-anticipated ruling, found that the government had erred by excluding the National Land Commission (NLC) from land lease and title issuance, but gave the State a grace period of 12 months to comply with the 2010 Constitution — which requires NLC to be involved in issuance of all land ownership documents.
Justice Onguto ruled that all leases, grants and title deeds issued by the government since 2013 are legally null and void, having failed to involve the NLC, the public and or Parliament.
The judge, however, noted that declaring titles issued since 2013 or those in the process of issuance null and void would affect land buyers retroactively, causing widespread disruption in the economy. Commercial banks and the owners of the three million land titles issued since 2013 would have been left holding onto worthless papers had Justice Onguto declared all of them null and void.
“Considering the immediate consequences, the declaration of invalidity is suspended to enable the Cabinet secretary initiate meaningful engagement with the public, seek and take into account the advice of the NLC,” ruled Justice Onguto.
The judge gave the government 12 months to regularise processes leading to issuance of title deeds, lease certificates and grants, failure to which future land ownership documents will be rendered illegal.
This requires the Lands Ministry to move with speed to formulate new regulations that should be subjected to public scrutiny before being forwarded to Parliament for debate and eventually to the President for assent.
An applicant, Mr Anthony Otiende Otiende petitioned the court to stop issuance of land documents, saying the government had infringed on Kenyans’ right to participate in public policy making and that an input from NLC was mandatory before any land document was issued.
The judge said that while the government irregularly issued land ownership documents to many Kenyans since 2013 and more were being processed, the Land Ministry needs to move fast and effect the necessary policy changes within 12 months, failure to which any future land ownership documents issued will be invalid.
The court said new regulations were necessary to recognise NLC’s role and the right of Kenyans to participate in land management affairs in conformity with the newly enacted Land Amendment Act (2016).
On Thursday, Lands Cabinet Secretary Jacob Kaimenyi said he had gazetted members of the Land Laws Task Force whose sole mandate is to prepare the proposed regulations.