Two state entities overseeing Kenyan land administration fight over their respective rights, duties

28 May 2020 · Carmel Rickard

Two Kenyan state entities are not seeing eye to eye about how crucial land issues should be handled. The National Land Commission and the Ministry of Lands and Physical Planning both claim that tasks where they should be in charge, are wrongly being carried out by the other entity. Not even a supreme court advisory opinion has resolved the problem, and each continues to interpret that opinion in a way that favours its own interests, escalating conflict between them. There are also now two ‘live’ petitions that ask for judicial help in solving the disputes. The country’s appeal court has just given a decision on the way forward.

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Perhaps Kenyans are used to it, but it comes as something of a shock for outsiders to discover different parts of government involved in nasty turf wars and jockeying for power against each other.

In this case it is the Ministry of Lands and Physical Planning squaring off against the National Land Commission (NLC). A decision on the dispute between them was delivered by the high court in 2018, and the matter then went on appeal.

The case was originally brought to the high court by Abdulkadir Khalif, a commissioner of the NLC. He said that the ministry was ‘interfering with the constitutional mandate’ of the commission, which is to manage public land on behalf of the national and county governments.

Duplicating

He complained that the ministry was duplicating the functions of the commission and often refused to register leases that the NLC had prepared. Khalif had a long list of other complaints against the ministry, alleging that it was not respecting the NLC’s demarcated area of work.

A 2015 supreme court decision tried to sort out the ‘proper relationship’ between the NLC and the ministry, but disputes continue. Khalif told the high court that the ministry was still exercising mandates that the constitution gave to the NLC and among other things, he asked for a declaration that the constitution had been ‘gravely violated’ by the ministry.

The court noted the involvement in the matter of David Achikwa, admitted as an interested party to the dispute considered by the appeal court. Achikwa urged the high court to dismiss the petition because the dispute concerned matters that fell under the exclusive jurisdiction of the environment and land court. Further, the questions raised in the petition being considered by the appeal court were also directly at issue in a petition raised before the environment and land court sitting in Eldoret. Khalif, as a commissioner with the NLC, must have known of this pending matter. However, complained Achikwa, Khalif had not disclosed details of the Eldoret matter to the high court and he was thus abusing the court process.

Jurisdiction

In its judgment, the high court had decided that it did have jurisdiction to hear the dispute. However, the relief sought in the Eldoret petition was substantially similar to that in Khalif’s case, and for that reason the high court dismissed the petition brought by Khalif. What would the appeal court say about that outcome?

The appeal judges said they agreed with the high court that it (the high court) would have jurisdiction to decide the petition. The appellant (Khalif) was actually asking the high court to resolve issues about interpretation of the NLC mandate that, in Khalif's view, the supreme court’s decision had not addressed.

But was this so? Were there issues in the petition brought by Khalif that were not covered and determined by the supreme court advisory opinion?

Squarely

A wide range of question were put to the supreme court related to the mandate of the NLC and its interface with the ministry. Clearly there were questions posed by the Khalif petition that ‘fell squarely’ within the issues put before the supreme court. That court had said that the overall question on which it had to give its advisory opinion was the nature of the ‘proper relationship’ between the ministry and the NLC. That issue was ‘broad enough to cover the many questions raised for its opinion,’ said the appeal court.

In fact, questions raised by the Khalif petition had been dealt with by the supreme court and the high court had thus been correct to reject the invitation to interpret these issues. The supreme court ‘had provided a clear exposition of the (NLC’s) constitutional mandate and (had) given an authoritative statement regarding the proper relationship between the constitutional and statutory mandate of the (NLC) and the ministry.

It could have embarrassing consequences if the two courts – the high court and the environment and land court – made conflicting rulings, and in the light of the already pending Eldoret petition, the petition brought by Khalif was sub judice.

Causing conflicts

The appeal judges commented: ‘The two petitions demonstrate there are disputes that need resolution concerning the mandate of the NLC and its interface with the Ministry’s mandate. Both the NLC and the Minister are, in execution of their mandate, interpreting the authoritative statement of the supreme court … in a way that favours their own interests and obviously this is causing conflicts.

‘In both the appellant’s petition and the Eldoret petition, the court has been called upon to resolve these conflicts. This can only be done by addressing and determining the issues through the application of the law as expounded’ by the supreme court in its advisory opinion.

The proper course at this stage, said the appeal judges, was to stay the Khalif petition to that the issues it raised could be fully addressed and resolved in the Eldoret petition, since this was the case that had been initiated first.

The judges therefore allowed Khalif’s appeal and set aside the order that had dismissed his petition. His application has, however, now been stayed until resolution of the Eldoret petition but in the meantime, Khalif is entitled to pursue the issues of concern to him in the Eldoret matter.

Carmel Rickard

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