The NLC will be the official manager of all public land. Further to that at the local level, the NLC will play an oversight role over county policy laws governing the use of public land within their respective jurisdiction, to ensure checks and balances:
67. (2) The functions of the National Land Commission are— (a) to manage public land on behalf of the national and county governments; (h) to monitor and have oversight responsibilities over land use planning throughout the country.
In a bid to decentralise the functions of the Commission in the management of public land, the National Land Commission Act 2012 mandates the NLC to liaise with County governments to form County Land Management Boards. Sections 17 and 18 of the Act:
17. In carrying out its functions, the Commission shall work in consultation and co-operation with the national and county governments subject to Article 10 and Article 232 of the Constitution.
18. (1) The Commission shall, in consultation and co- operation with the national and county governments, establish county land management boards for purposes of managing public land.
(8) In the discharge of their functions, the boards shall be comply with the regulations made by the Commission under this Act.
(9) The boards shall - (a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and (b) perform any other functions assigned by the Commission or by any other written law.
In the first year after the General Elections of 2013, the Commission repeatedly complained about budgetary constrains that were affecting its ability to swiftly deliver on its roles and functions. Furthermore, and perhaps more importantly was the Commission's accusations that the National Government was deliberately slow in surrendering functions assigned to the NLC by the Constitution and the National Land Commission Act.
One of these functions is private land acquisition and owner compensation by Government. On the 14th of October 2014, the Chair of the NLC was categorical that the mega Lapsset Corridor project was in contravention of the Constitution because it had not involved the Commission in the process of acquiring, valuing, and compensating private land owners through whose land the transport project's infrastructure would be laid. The Government had instead delegated that function to the State organs involved in the project. "None of them has the mandate to do land valuation and compensation except NLC. All of them hijacked the mandate of the commission." (Swazuri, 2014).
In the final end of things, the NLC must become the custodian of all data relating to land, its resources and use in line with separation of powers previously belonging to the Government. This is expected to pit it and the National Government (and its attendant politically-driven sense of judgement) for the 'right' to handle land matters, in the foreseeable future. In all fairness, the Commission is really the de-jure adviser to the National Government (and by extension, the County Governments), on ordinary matters relating to land;
67. (2) ....... (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; (b) to recommend a national land policy to the national government; (c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
In line with the mandate in Sub-Clause (c) above, the National Land Commission NLC sent out an invitation in July 2013 to all holders of Letters of Allotment of Private Land to present their documents for verification and subsequent registration and issuance of title deeds upon payment "....... of requisite stand premium and appropriate fees." This was done as a first step in line with the legal timeline binding the Commission to register all land in Kenya within 10 years. The National Land Commission Act No 5 of 2012, Section 5(3):
5. (3) Despite the provisions of this section, the Commission shall ensure that all unregistered land is registered within ten years from the commencement of this Act.
Around August of 2014 at the time when the issue of more than 500,000 acres of irregularly allocated public land in Lamu County came up, the Commission announced that it was ready to regularise ownership of private and communal land in parts of the same County by conferring titles to what are traditionally known as Swahili villages.
The NLC is also the de-jure adviser on taxation matters relating to land:
(2) ....... (g) to assess tax on land and premiums on immovable property in any area designated by law; .......
The keen reader will note from Article 67 of the Constitution defining the roles and functions of the NLC that its primary responsibilities are largely of an oversight and advisory nature over other national and county agencies whose mandate is more core in respect to matters of land. Indeed, this fact was highlighted in one of the Supreme Court's Judge's consenting opinion emphasising that the nature of the Commissions's executive scope was indeed limited. Said the Judge of the Supreme Court, Njoki Ndung'u:
358. Similarly, the institutions so crafted under the Constitution, must also not run contrary to the general remit of the functions of Chapter 15- institutions. As oversight institutions, any mandate that they are given in the Constitution of Kenya must be construed as narrowly as possible so as to avoid role conflicts; and should not be extended unreasonably by statute.
The Judge drew the attention of the NLC to the specific verbs in the Article 67 to make her point, repeated herebelow for reference and italicised for emphasis:
"To my mind, the language of Article 67(2)(b) to (h): as to the functions of the National Land Commission, is clear and specific:
(b) to recommend a national land policy to the national government;
(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;
(g) to assess tax on land and premiums on immovable property in any area designated by law; and
(h) to monitor and have oversight responsibilities over land use planning throughout the country” [emphasis supplied].
"The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ – are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap."
Generally, this Advisory Opinion came as a rude shock to many who had mistakenly believed that most land transactions and functions had been taken away from the hands of the parent ministry - dubbed a "den of corruption" for decades, and given to the Commission. Indeed, the NLC chair was often in the news making bold declarations and not afraid to mix it with the Ministry's Cabinet Secretary.