The Constitution of Kenya mandates the National Land Commission
("Commission") to initiate investigation on its own initiative or on a
complaint into historical land injustices and recommend appropriate
redress.

To give effect to this provision of the Constitution, the National
Land Commission Act (“NLC Act”) was amended through the Land Laws
Amendment Act, 2016 to provide a framework for redressing these
historical land injustices.

Following the amendment NLC Act, the Commission began investigations
into historical injustices. The processes and procedure for reporting
and undertaking these has been haphazard and marred with a lot of
confusion and secrecy; There was an urgent need to provide a clear
framework for submitting a claim and a need for clarity on the
investigation and determination of the claim.

The Commission has now promulgated the National Land Commission
(Investigation of Historical Land Injustices) Regulations, 2017
("Regulations") which provide an elaborate procedure for conducting an
investigation on the historical land injustices.

What are the historical land injustices?

Historical land injustices are said to be those acts that:

  • were occasioned by a violation of right in land on the basis of
    the law, declaration, administrative practice, treaty or agreement;
  • resulted in displacement of people from their habitual place of residence;
  • occurred between 15th June 1985 and 27th August 2017; or
  • were commenced between 15th June 1985 and 27th August 2017 and have not been resolved.

The historical injustice could have been occasioned by colonial
occupation, independence struggle, pre-independence treaty between a
community and government, development induced displacement, and
corruption.

Threshold for a claim

For a claim to be admitted as a historical land injustice, it must be
brought to the Commission before the year 2021 and must satisfy the
following;

  • it must have resulted in displacement of the claimant;
  • the claim should not be capable of remedy through the court system either due to bad law (at the time) or a limitation on time;
  • the claimant must either be an owner or occupier of the land; and
  • the claimant has not otherwise surrendered or renounced.

Procedure

The Commission acting on its own motion can request the public to
submit claims. A person may also lodge a claim orally, through a
memorandum, a letter or by filling the form prescribed. On receipt of a
claim, the Commission should vet the claim and it may either admit or
reject it. Where admitted the Commission may place a restriction on the
land subject to the claim.

Having admitted a claim, the Commission can then conduct background
checks, site visits and public hearings where appropriate. The rules of
natural justice apply but the Commission is not bound by the strict
rules of evidence.

After concluding investigations, the Commission must render a
decision in writing indicating the nature of the claim, a summary of the
relevant facts, and evidence adduced before the Commission,
determination and reasons supporting the decision together with a
recommendation on the remedy to which a party is entitled.

Remedies

The remedies available to the claimant include interalia
compensation, restitution, resettlement on alternative land, creation of
wayleaves, and refunds to bonafide third party purchasers. The
Commission has no authority to implement the recommendations but shall
forward the same to the relevant authority. Any authority in receipt of a
recommendation is obligated to implement the recommendations within
three years of notice.

A person aggrieved by the decision of the Commission may appeal to the Environment and Land Court.

Conclusion

Though the Ndung’u report does not have legal force, it is presumed
that land that was indicated as illegally allocated, shall be resolved
though this forum as the said report had given indication not only of
land that was illegally and irregularly allocated but also land that was
vested that was as a result of historic injustices.

In practice, of land law, it is imperative for practitioners to
investigate the Ndung’u report, and all notices sent by the National
Land Commission when undertaking a transaction relating to land. It is
also important for practitioners to keep abreast of the publications of
the decisions and recommendations of the remedies proposed to better
safeguard their client’s interest.

Financiers who take on property as security, will also need to carry
out audits, on a continuous basis, on the titles they hold as security,
to ensure that the security they hold is sound and not subject to
challenge.

Article written by Nyawira Kirubi, Partner & Oliver Kibagadi, Junior Associate, MMAN Advocates.

Disclaimer: This article has been prepared for informational
purposes only and is not legal advice. This information is not intended
to create, and receipt of it does not constitute, a lawyer-client
relationship. Nothing on this article is intended to guaranty, warranty,
or predict the outcome of a particular case and should not be construed
as such a guaranty, warranty, or prediction. The authors are not
responsible for any actions (or lack thereof) taken as a result of
relying on or in any way using information contained in this article and
in no event shall be liable for any damages resulting from reliance on
or use of this information. Readers should take specific advice from a
qualified professional when dealing with specific situations.

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