Judge blocks law capping land disputes timeline

The High Court has declared sections of the law passed to limit the timelines for the National Land Commission (NLC) to consider historical land injustices unconstitutional.

Parliament had imposed five years within which the Commission ought to determine disputes relating to public land.

However, Justice Chacha Mwita said on Friday that the move was illegal as Parliament had no powers to limit the mandate set by the constitution for the NLC.

According to him, the Constitution is clear that the NLC has the powers to investigate both present and historical land injustice and recommend appropriate redress.

He said that it would be against the spirit of the Constitution to set timelines that would then be hurdles to anyone seeking redress.

“It was not for Parliament to limit the period for presenting a claim for presenting a claim for land injustice to five years from the commencement of the Act. A statute cannot undermine the mandate of a Constitutional body by limiting one of its functions by introducing timelines,” said Justice Mwita.

In the case, Okiya stated that he could not move to the Commission to review and establish the propriety or legality of title deeds held by private individuals claiming ownership of the public land known as Busia Airstrip, owing to the five-year limit set by the August House.

He further stated that the majority of Kenyans who become victims of land grabbing in the country cannot approach NLC after the five-year limit.

The law maker was of the view that the move was, at the same time, taking away the teeth from the commission as it would not order or recommend compensation.

“The petitioner reasonably suspects that Parliament deliberately imposed the impugned time limits on the Commission to advance improper motives and corrupt practices of benefitting those responsible for historical land injustices at the heart of Kenya’s poverty project,” argued Omtatah.

“The five (5) year time limit in sections 14(1) and 15(3)(e) of the Act has already taken effect and that is denying members of the public access to justice before the Commission because it slammed shut the door on the Commission’s mandate to review grants or dispositions of public land to establish their propriety or legality.”

At the same time, he said that Parliament also illegally limited the period through which one can enforce an NLC to three years, which was unfair. Omtatah stated that there was no reason or justification for Parliament to subject Kenyans to draconian regulations.

He added that Kenya has unresolved reports; the 1992 Kiliku report, the Ndung’u report, the TJRC report, the Kilifi Chembe report and the Standard Gauge Railway land compensation battles which would be rendered useless if the law was sustained.

“ The impugned time limits or caps, which unrealistically purport to oust the two key functions of the Commission which are anchored in the Constitution, are also arbitrary and unreasonable, and they infringe on the rights of victims of historical land injustices, the majority of who are poor and cannot afford litigation in ordinary courts, to access justice by having their claims of historical land injustice resolved by the application of law in fair and public hearings,” argued Omtatah.

On the other hand, the Attorney General urged the court to dismiss the case. She argued that the case ought to have been filed before the Constitutional and Lands Court. In addition, she said, the court ought to factor in that all laws are constitutional unless proved otherwise.