How new land law may embolden fraudsters, reopen historical wounds

The National Land Commission (NLC) has been granted sweeping powers to investigate and revoke irregularly acquired land titles.

The National Land Commission (Amendment) Act, which President William  Ruto assented to on Wednesday last week, revives the NLC’s authority to review all grants and dispositions of public land and to process historical land injustice claims.

The law opens a window for reviews into questionable allocations linked to former senior officials, politically connected families and influential business interests, many of which may involve forestland, riparian reserves, road corridors, community land, public institutions, and even school compounds.

The Act allows the commission to conduct such reviews on its own motion or upon a complaint, and to give all interested parties an opportunity to be heard.

If the commission finds that a title deed was unlawfully acquired, it has the authority to direct the Registrar of Lands to revoke it, and where a title was irregularly but not unlawfully obtained, the commission may take corrective action.

To protect innocent parties, the new law shields legitimate purchasers from having their ownership revoked. Despite the President’s assent to the law, the document is yet to be publicly made available, raising questions about transparency.

Critics fear the new amendments could be weaponised politically to target rivals while protecting allies.

Lawyer Ndegwa Njiru raised the alarm, stating that granting the commission the mandate to review land dispositions and verify whether titles were properly acquired undermines the authority of the courts.

“That is an exclusive jurisdiction of the Environment and Land Court, Court of Equal Status. So they are now trying to mutilate the jurisdiction of the Environment and Land Court by removing that mandate from the courts and giving it to the commission,” said Njiru.

On the decision to allow NLC to regulate irregular land allocations, Njiru noted; “If the allocation was irregular, the NLC has been given mandate to regularise it. Yet the Supreme Court said that a title is as good at its origin.”

“So if the origin of that title is tainted with illegality, there is no amount of sanitising that can clean that title. They are now trying to create a kangaroo court within the National Land Commission, that can regularise an irregular title.”

He argued that the provision could be misused to legalise irregular titles or revoke genuine ones.

“For example, if they have an interest in land, and they know they’re not getting it through the normal courts, they will go to the NLC, and the NLC will revoke that particular title and say it was allocated irregularly. Then they can revoke it and reallocate it to another party.”

The law empowers the NLC to probe grievances dating to between June 15, 1895, when Kenya became a British protectorate, and August 27, 2010 during the promulgation of the 2010 Constitution.

Lands rights activists and lawyers argue that the land grievances could encompass colonial dispossessing, politically motivated evictions, fraudulent judgments, and development-induced displacements.

While the law could rekindle public trust in the land governance system, it also risks stirring ethnic and political tensions, particularly inthe  Coast, Rift Valley, and Central regions, where displacement and illegal allocations remain emotive.

“If a community feels that they were unlawfully dispossessed of that land by perhaps the declaration by the monarch, or a particular policy, they are saying that that community has the right to approach the NLC, and the commission will evaluate whether that community was actually dispossessed,” said Njiru.

“The indigenous people in Lamu, for example, or the indigenous of Mpeketoni, Molo, Kuresoi, Tarbo or Eldoret, have the power to approach the NLC and say the residing communities are settled there unlawfully.” 

Other causes listed are fraudulent adjudication and allocation processes, development-induced evictions without compensation, corruption or other forms of illegality, natural disasters or any other cause approved by the Commission.

The new law grants NLC amorphous power to assist a weak claim by a claimant to get sufficient evidence to back their case.