What was the bone of contention between the Ministry of Lands and the National Land Commission (NLC)?

 

In April 2014, the NCL sought the Supreme Court’s opinion regarding its functions and mandate vis-à-vis those of the Ministry of Lands. Some of the main issues raised by the NLC were what meanings were to be assigned to the words “to manage” and

“to administer” public land, unregistered land and unregistered community land, whether the land registrars (recorders of titles) and land surveyors, were answerable to the NLC or the Cabinet secretary of the lands ministry; which functions performed by

the ministry before the creation of the NLC had been transferred to the NLC, and whether land registration is a function of the NLC or the ministry, and which agency had the mandate to administer and manage dealings in private land.

In summary, what did the Supreme Court decide?

On December 2, 2015, the five-judge bench declared that the NLC had a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law gave it the power to register land titles.

That this task lay with the national government and the ministry had the authority to issue land titles on behalf of the government.

Where does that leave the National Land Commission?

It is important to note that the advisory opinion did not strip the NLC of any powers or diminish its functions, rather, separated the roles between it and the ministry.

The NLC had sought to be given the proper relationship between its mandate and that of the Ministry, and the five-judge bench said that, “There is a clear separation of roles between the body providing oversight (the NLC) and the body upon which the oversight is to be conducted (the ministry).”

They stated that their roles do not overlap. As the ministry conducts its functions, the NLC acts as a regulator to ensure compliance with the Constitution and with legislation.

The Issuance of title deeds has always been the mandate of the ministry. However, the NLC will continue to be involved in the preliminary phases of land allocation.

The NLC, therefore, has a mandate in various land registration and management processes, but none to issue title deeds. The judges said that the CS, while undertaking his functions, should take into consideration the advice of the NLC on the comprehensive programme for the registration of titles in accordance with the Constitution.

The NLC is also seen as an independent institution that will, in consultation and cooperation with the national and county governments, supervise dealings in public land.

Does the Supreme Court ruling affect the market in any way?

I do not see how at this juncture, considering that the ministry has been issuing titles and will continue to do so. However, it is important to note that right from the moment the NLC commissioners were appointed, there has been wrangling between the

Ministry of Lands and the NLC over who had what mandate, considerably slowing down land transactions.

Does this ruling in any way affect the issuance of titles or allotment letters?

The issuance of title deeds has always been the mandate of the ministry and this will continue to be the case. However, the NLC will continue to be involved in the preliminary phases of land allocation.

How have the wrangles between these two bodies affected the property market in the country?

It is notable that from the last quarter of 2013 to the first quarter of 2014, no new grants/titles were issued following the said wrangles. The market was seriously affected as it meant that of subdivisions, change of users, amalgamations, extension of leases, grants from new allotments, were severely crippled, which in turn frustrated numerous transactions.

For example, the sale of land slowed down in cases where vendors needed to subdivide the land, registration of leases for multiple dwelling properties was hampered as the change of user could not be completed, banks declined to finance developers whose

lease terms on their title were about to expire as they could not obtain an extension of lease, among other issues.

However, a directive by the CS in the first quarter of 2014 instructing the chief land registrar to sign new grants/titles got things moving again.

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