THE REFERENDUM CASE RULING

KAMAU CHEGE DANIEL & another v ATTORNEY GENERAL & 2 others [2011] eKLR

REPUBLIC OF KENYA

High Court at Nairobi (Milimani Commercial Courts)

Petition 166 of 2010

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA
AT NAIROBI

MILIMANI LAW COURTS

PETITION JR NO. 166 OF 2010

IN THE MATTER OF SECTION 84(1) AND 84(2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF SECTION 3 OF THE CONSTITUTION OF KENYA

AND
IN THE MATTER OF ALLEGED CONTRAVENTION FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 79(1), 79(2) AND
SECTION 78(1) OF THE CONSTITUTIONAL REVIEW ACT 2008

AND

IN THE MATTER OF SECTION 37(3) OF THE CONSTITUTIONAL REVIEW ACT 2008

AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF RIGHTS AND
FREEDOMS OF INDIVIDUALS) HIGH COURT PRACTICE AND PROCEDURE RULES 2006 RULES 11, 12, 13, 14 AND 32

AND

IN THE MATTER OF THE PETITIONERS KAMAU CHEGE DANIEL AND COSMUS KIPKEMOI NG’ENO KOECH

BETWEEN
 KAMAU CHEGE DANIEL........................................................................................................1^ST PETITIONER

COSMUS KIPKEMOI NGENO KOECH................................................................................2^ND PETITIONER

AND

THE HON. ATTORNEY GENERAL.....................................................................................1^ST RESPONDENT

THE INTERIM INDEPENDENT ELECTORAL COMMISSION........................................2^ND RESPONDENT

THE COMMITTEE OF EXPERTS.....................................................................................3^RD RESPONDENT

RULING

1.     The Petition filed herein seeks the following prayers, inter-alia,
i.      THAT Section 37(3) of the Constitution Review Act, 2008 be declared null and void to the extent that it limits the options and or alternatives available to a voter to vote yes or no hence constitutes an infringement on the freedom of expression and or opinion or thought.

2.     The Constitution Review Act, 2008 provided a framework for the review of the former Constitution leading up to the adoption, by referendum and promulgation of the Constitution of Kenya, 2010.

3.     Article 2(3) of the Constitution of Kenya, 2010 provides that, “the validity or legality of this Constitution is not subject to challenge by or before any court or other state organ”. In my view, to proceed with this matter is to mount a collateral challenge on the validity of the Constitution, a matter which is prohibited by Article 2(3).

4.     Further, the Constitution Review Act, 2008, is now exhausted and nothing further can be gained from proceeding with this matter. I, of course, sympathise with the Petitioners who could not be heard urgently on their matter despite having the matter certified as urgent in April 2010. I must dismiss this matter and it is hereby dismissed with no order as to costs.

DATED at NAIROBI this 21^st day of October, 2011.

D.S. MAJANJA

JUDGE

 21.10.2011
Coram: Majanja J
Nazi Court clerk

Mr. K. Muhoro for the Respondent

Order:- Ruling read n open court.

D.S. MAJANJA

JUDGE

THE CURRENT LAND LAW IN KENYA

ANALYSIS OF THE LAND LAW REFORMS IN KENYA

By Chege Daniel  LLB (Hons)

INTRODUCTION

During the clamor for change and reforms in Kenya, one of the most prominent issues that Kenyans   agitated for was reforms in land administration and management.[1] It is in this regard that the Constitution of Kenya 2010 endeavored to satisfy this clamor, by providing amongst other things a reformed legal framework for the administration, use and management of land in Kenya.

The constitution of Kenya 2010, establishes a legal framework on land by providing inter alia; Definitions of land and land systems in Kenya as well as setting out a land legislative obligation on Parliament.

It is in response to this legislative obligation, that parliament enacted new land regime in 2012, namely; The Land Act 2012, The Land Registration Act 2012 and The National Land Commission Act 2012.These Legal regime replaced the past regimes which included amongst other laws; The Land Titles Act,The Registration of Titles Act, The Registration of Land Act, The Government Land Act and The Indian Transfer of Property Act.

THE CURRENT LAND REGIME IN KENYA

 The current land regime in Kenya comprises of The Constitution of Kenya 2010, The Land Act 2012, The Land Registration Act 2012 , The National Land Commission Act 2012 and the Environment and Land Court Act

THE CONSTITUTION OF KENYA  2010

The constitution of Kenya 2010 gives an elaborate definition of land[2] and also provides that parliament shall enact laws relating to the management and administration of land in Kenya.[3]The constitution of Kenya 2010 also categories land into three broad categories namely; Public. Private and community land[4].

From the foregoing provisions it is clear that the constitution of Kenya 2010 constitutionalizes land administration and Management in Kenya.

THE LAND REGISTRATION ACT 2012.

The purpose of this statute is amongst other things to revise, consolidate and rationalize the registration of title to land as well as too give effect to the principles of devolved government in Kenya.[5]

This statute has introduced a number of changes in the registration of land interests in Kenya and where it has not introduced new provisions, it has consolidated the existing provisions into one Law.The important highlights of this statute include the following;

ü      The Act defines a charge as including a Mortgage[6], this presupposes that mortgages in Kenya will acquire the character of charges.The statute emphasizes that a charge shall always operate as a security only and no a transfer.[7] 

ü      The Act provides for the establishment of a  land registry and  for the appointment of a chief registrar of land.

ü      The  Act  provides   for the effect of registration an interest in land just as it was provided  under RLA.[8]

ü      The Act Provides for the doctrine of indefeasibility of Title as well as elaborate exceptions to the doctrine namely misrepresentation, Fraud and unprocedural acquisition of land.[9]

ü      The Act Provides for additional overriding interests[10], which include inter alia;

·        Spousal rights over matrimonial property.

·        Trusts including customary trusts.

·        Rights of way.

·        National rights of light.

·        Leases.

·        Charges.

·        Rights obtained through prescription.

It should be noted that the most notable overriding interest is the Spousal rights over matrimonial property.

ü      The Act provides for elaborate transfer and registration procedures of interests in land[11], these procedures include inter alia;

·        The transfers’ documents to be presented at registration which include; copy of id,pin certificate,passportphotos and where applicable a marriage certificate.

·        The process of execution of transfer documents has an interesting change in that the documents must be executed and witnessed and the person executing the documents must be examined by the chief registrar of land unless where the chief registrar dispenses with such examination[12].

ü      The Act provides for elaborate provisions relating to Co-tenancy and Partition, which enacts the common userlaw principles on Co-tenancies in Statutory provisions.Of particular interest is the Protection of spouses in co-tenancies.[13]

ü      The Act recognizes the Jurisdiction of the  Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011,on matters emanating from the Act.[14]

ü      The  Act repeals the following laws;

• The Land Titles Act,
• The Registration of Titles Act,
• The Registration of Land Act,
• The Government Land Act and
• The Indian Transfer of Property Act.

It should be noted that the repeal of the above laws notwithstanding, the existing transactions and titles are preserved by the Act[15].

THE LAND ACT 2012

The purpose of this statute is to give effect to Article 68 of the constitution of Kenya 2010, to revise, consolidate and rationalize land laws in Kenya and to provide for the sustainable administration and management of land in Kenya. [16]

The important highlights of this statute include the following;

ü      The Act provides for the land systems in Kenya namely[17];

• Freehold
• Leasehold
• Customary land holding

ü      The Act provides for the methods of land acquisition which include[18];

·        allocation;

·        land adjudication process;

·        compulsory acquisition;

·        prescription;

·        settlement programs;

·        transmissions;

·        transfers;

·        long term leases exceeding twenty one years created out of private land; or

·        any other manner prescribed in an Act of Parliament

ü      Under Part III and IV the Act provides for  the administration and management of  public Land in Kenya, previously this was regulated by the Government Land Act.

ü      Under Part V the Act provides for  the administration and management of private land in Kenya.

ü      The Act provides for the Creation of and administration of secondary/ derivative interests in land these include leases,charges,and easements. Particularly on charges,the Act  provides for elaborate procedures on creation of Charges which include;

• The Act provides for new forms of charges namely formal, Informal and customary charges.[19]
• The Act provides elaborate remedies and rights of the parties in a charge instrument[20], in particular the Act affords a chargor more protection namely; Chargor  right of redemption, the chargor  right to be informed of a variation in the interests rates[21], the right of consolidation and  foreclosure prohibited are prohibited and the chargor right to have his interest being safeguarded during the chargee exercise of  the statutory powers of sale[22]. These provisions on charges have the net effect of  the law envisaging that security contracts  relating to land should be charges and not mortgages.

ü      The Act provides for minimum and maximum land holding in Kenya, this provision however remains postponed until the cabinet secretary in charge of land has been appointed.

ü      The Act provides for compulsory land acquisition and establishes a land settlement fund.

THE NATIONAL LAND COMMISSION ACT 2012

The purpose of the Act is to make further provision as to the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission; to give effect to the objects and principles of devolved government in land management and administration.

THE ENVIRONMENT AND LAND COURT ACT, 2011

This Act establishes a judicial forum for adjudicating matters relating to land and environment, it is of the same status as the High court.[23]

CONCLUSION

From the foregoing discussion, it is clear that the clamor for land reforms in Kenya has at last yielded excellent legislative provisions, but these remains mere provisions which benefits can only be enjoyed through effective implementation.

---

[1] The Constitution of Kenya Review Commission (CKRC) Report 2005

[2] Article 260 of the Constitution of Kenya 2010

[3] Article 68 of the Constitution of Kenya 2010

[4] Article 61 of the Constitution of Kenya 2010

[5] Preamble to the Land registration Act

[6] Sec 2 of Land Registration Act

[7] Sec 56(5) of Land Registration Act

[8] Sec 24 of Land Registration Act

[9] Sec 25 & 26 of Land Registration Act

[10] Sec 28 of Land Registration Act

[11] Sec 44 of Land Registration Act

[12] Sec 45 of Land Registration Act

[13] Sec 93 of Land Registration Act

[14] Sec 101 of Land Registration Act

[15] Sec 105 & sec 106 of Land Registration Act

[16] Preamble to the Land Act 2012

[17] Sec 5 of the Land Act 2012

[18] Sec 7 of the Land Act 2012

[19]Sec 2 of the Land Act 2012  

[20] Sec 90 of  the Land Act 2012

[21] Sec 84 of  the Land Act 2012

[22]Sec 97 of  the Land Act 2012

[23] Sec 4 of the  Environment and Land Court Act, 2011

THE LAND LAW REFORMS IN KENYA.

THE LAND LAW REFORMS IN KENYA.

During the clamor for change and reforms in Kenya, one of the most prominent issues that Kenyans   agitated for was reforms in land administration and management. It is in this regard that the constitution of Kenya 2010 endeavored to satisfy this clamor, by providing amongst other things a reformed legal framework for the administration, use and management of land in Kenya.

The constitution of Kenya 2010, establishes a legal framework on land by providing inter alia; Definitions of land and land systems in Kenya as well as setting out a land legislative obligation on Parliament.

It is in response to this legislative obligation that parliament enacted new land regime in 2012, namely; The Land Act 2012, The Land Registration Act 2012 and The National Land Commission Act 2012.These Legal regime replaced the past regimes which included amongst other laws; The Land Titles Act,The Registration of Titles Act, The Registration of Land Act, The Government Land Act and The Indian Transfer of Property Act.

The New Land Regime In Kenya

 The new land regime in Kenya comprises of The Constitution of Kenya 2010, The Land Act 2012, The Land Registration Act 2012 and The National Land Commission Act 2012.