6. National Land Commission Act, No. 5 of 2012

The law further establishes and provides for functions of the National Land Commission established for managing public land.

Quick LInk: https://new.kenyalaw.org/akn/ke/act/2012/5/eng@2023-12-11

· Section 5 lists various functions of the Commission that are relevant to affordable housing including: managing public land on behalf of national and county governments; recommending a national land policy to the national government; advising the national government on a comprehensive programme for registration of title in land throughout Kenya; assessing tax on land and premiums on immovable property in any area designated by law; initiating investigations into present or historical land injustices and recommending appropriate redress; monitoring and exercising oversight over land use planning; alienating public land on behalf of and with the consent of national and county governments; monitoring registration of all rights and interests in land.

· Section 14 of the Act provides that within 5 years of commencement of the Act (that is by 2nd May 2017), the Commission either on its own motion or upon a complaint shall review all grants or dispositions of public land to establish their propriety or legality. This provision was included considering past instances of grabbing and illegal alienation of public land to private tenure as detailed in the Ndung’u Land Commission of Inquiry Report. Some of this erstwhile public land has since transacted in the market changing ownership to several private individuals who have invested massively including in setting up housing developments. Indeed, the court in Republic -vs- National Land Commission Ex parte Holborn Properties Ltd [2016] eKLR has since held that the National Land Commission has power to review the legality or propriety of titles that are privately held where such titles were initially public land and were converted to private holdings.

· The Courts have however held that whereas the Commission may investigate and decide as to the legality or otherwise of a grant/disposition of public land, it has no legal authority to revoke/cancel such titles, which is the mandate of the Land Registrar under the Ministry of Lands (See, Mwangi Stephen Muriithi v National Land Commission & 3 others [2018] eKLR, para 35). The Commission can only recommend revocation of title

· Importantly however, there is some comfort that may be derived from section 14(7) of the Act which provides that no revocation of title (where it has been found it was illegally or irregularly acquired) shall be effected against a bonafide purchaser for value without notice of a defect in the title (See, Samwel D. Omwenga Angwenyi v National Land Commission & 2 others [2019] eKLR, para 26). This means that purchasers of land tainted with illegality who had no knowledge of the defect or the illegality (bonafide purchasers) may be protected from their titles being revoked. The Court of Appeal in Weston Gitonga & 10 others v Peter Rugu Gikanga & another [2017] eKLR para 24, explained the elements of who a bonafide purchaser for value without notice is as one who: holds a certificate of title; purchased the property in good faith; had no knowledge of fraud; purchased for valuable consideration; sellers had apparent valid title; purchased without any notice of fraud; was not party to the fraud.

· This protection, however, does not extend to others who knew or ought to have known of such a defect. This provision is the reason behind the practice of due diligence and checking whether any transaction relating to land concerns land listed in the Ndung’u Land report or otherwise adversely mentioned.

· Section 15(11) provides that the provisions empowering the Commission to investigate and determine claims of historical land injustices would stand repealed after ten years (that is by May 2022), which means that no more claims would be processed, providing finality to the disputes. There is, however, currently a Bill in Parliament seeking to extend this timeline.