Act quickly on land law flaws, CS urged

The Law Society of Kenya (LSK) and the Kenya Bankers Association (KBA) have written to the Cabinet Secretary for Lands and Physical Planning, calling for quick action over critical omissions in regulations for land laws, which have since been escalated to Parliament for debate and approval.

The regulations submitted to Parliament omitted critical clauses relating to audit and validation procedures for all transactions conducted since 2013 to isolate and correct irregularities, and overturn illegal ones.

The regulations were intended to avert a crisis of monumental proportions following a High Court declaration that land transactions conducted by the Ministry of Lands and Physical Planning between 2013 and December 2016 without the involvement of the National Land Commission (NLC) were null and void.

Stakeholders have raised hue and cry that even if Parliament passed the regulations as submitted, they would not be in compliance with the court directive, implying hundreds and possibly thousands of transactions will still stand condemned.

VALIDATION

LSK and the KBA now want the regulations withdrawn and amended before being resubmitted to Parliament, or new regulations gazetted and submitted to Parliament with the validation procedures incorporated.

The transactions had been declared illegal on account of having been effected using statutory forms that had been promulgated by the Cabinet Secretary for Lands and Physical Planning without involvement of the National Land Commission (NLC), and public participation in accordance with the law.

However, High Court Judge Joseph Onguto had suspended the declaration of invalidity for 12 months and granted the government 365 days, starting December 19, 2016 to December 19, 2017, to cleanse the nullified transactions, failure to which the nullification would take effect.

The government was caught up with time, triggering panic among stakeholders .

CIVIL SUIT

In a precedent setting ruling over a civil suit filed by Mr Anthony Otiende against the Public Service Commission (PSC) and two others, Justice Onguto ordered: “the registration forms as well as forms of title including leases, title deeds, grants and certificates of title or of lease made and promulgated by the minister without the advise of, or input of, the NLC, and without the necessary public participation and or parliamentary scrutiny and approval, are unconstitutional, null and void.”

However, owing to the prospects of an immediate crisis that the order could unleash on the economy, Justice Onguto directed that “the declaration of invalidity is hereby suspended to enable the 3rd respondent (CS) to initiate meaningful engagement with the public, seek and take into account the advice of the National Land Commission, if any, on the impugned regulations and forms and seek Parliament’s approval for Statutory Instruments...”

In the event of failure to comply, all regulations and forms promulgated in the absence of the NLC’s advice and in the absence of Parliament’s approval shall stand null and void, the judge ruled.

In separate interviews with Nation, senior KBA and LSK officials said they were concerned that if the defects inherent in the regulations are not addressed before debate in Parliament, the country stood to be plunged into crisis and mass litigation that could be averted if the government moved with speed.

OMISSIONS

“KBA has written to the ministry expressing our concerns and highlighting the omissions. The ministry has several options to make corrections. They have admitted the omissions and promised to look into it. So far, we give the ministry the benefit of doubt that it was inadvertent editing error. But if they do not act, we will consider further actions”, Dr Habil Olaka, the KBA CEO, said in an interview.

Former member of the task force that developed the regulations, Mr Peter Mwangi, said LSK had written to the CS to update him on LSK’s concerns.

Mr Mwangi said the omitted procedures were an integral part of the draft regulations submitted to the ministry by his task force, whose central role in giving clarity and direction in the land sector had also been captured by the Mwathane Task Force that submitted its report last August.

The Mwathane Task Force Report had proposed revocation of all leases granted, extended or renewed between August 2010 when the new Constitution was enacted, and 2012, when NLC was set up.