Authority
The National Land Commission NLC is a constitutional Commission under the Constitution of Kenya 2010. Excerpts from Chapter 5 - Land and Environment, Part 1 - Land, Article 67, 248:
67. (1) There is established the National Land Commission.
248. (2) The commissions are— (b) the National Land Commission;
The Authority of the NLC is far-reaching and encompasses all land in Kenya including that which will be under the direct administration by the County governments. Excerpts from Article 62:
62. (2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, ....... .
(3) Public land ....... shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
To this end, the old powerful position of Commissioner of Lands would cease to exist after October 18, 2013 whereby its authority and functions were to be transferred to the NLC under the New Constitution's transitional provisions. The process was not without a hitch, however.
On the 25th October 2013, the Cabinet Secretary for Lands, had to de-gazette her own appointment of an acting Director-General for Lands made only a few weeks before on October 11, after both the Commission and Joint Committees of the National Assembly's and the Senate's Departmental Committees for Lands and Delegated Legislation stressed that the NLC was the sole body authorised by the Constitution and the law (the Land Act and Land Registration Act) to issue land title deeds. The Public Service Commission also explained to the Committees that the Cabinet Secretary had usurped her powers to create such a position within the Public Service.
Nonetheless, the Commission must work with State agencies that have a long historical memory of administering large tracts of land such as the Kenya Wildlife Service, the Kenya Forest Service, and the Kenya Railways among others. It must also consider the input of specialised organs such as the National Environment Management Authority when making decisions on change of land use. For example in October 2014, the NLC granted the Kenya Railways Corporation permission to access all the land required for the laying of the Standard Gauge Railway line after consultations with the KWS in whose National Parks much of the line would pass through on its way to Nairobi from the port of Mombasa.
The NLC is a custodian and partner to justice and arbitrator in so far as matters concerning land use and ownership in Kenya are concerned. It must first perform a situation analysis on the present state of land issues to bring itself up to speed in order to be an effective referee on matters of land.
Many of these matters are of a historical nature. Others are more recent and are as a result of the absence of adequate land policies. Excerpts from Article 67:
67. (2) The functions of the National Land Commission are— (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;
At various times in 2014, the NLC did hold the first of a series of public hearings designed to review grants and disposition of public land by summoning those claiming to own the affected lands.
On July 31 2014, the President publicly ordered the Lands Cabinet Secretary to repossess about half a million (500,000) acres of public land believed to have been irregularly obtained by private companies and individuals in Lamu County. Although the constitutionality of the President's order was swiftly questioned by the Commission for the Implementation of the Constitution CIC, the NLC, careful to walk circumvently with regard to upholding the law, chose to treat the President's order as a normal complaint and instead launched investigations into the issue.
Said the Chair of the NLC, “To us, this is a complaint we received from the national government represented by the President". The Commission began its probe by invoking its authority to conduct such an investigation when it summoned the owners of the said land to appear before it. Article 252:
252. (3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations— (c) the National Land Commission; ........
