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Kenya Parliament proposes change of land law to ease backlog of cases

communitylandrights

IN SUMMARY

  • The Statute Law (Miscellaneous Amendments) Bill, 2013, will, among other things, introduce amendments to the Land Adjudication Act that will reduce the window period for appeal from the current 60 working days to 21 days. 
  • All new land cases are being filed in the High Court, but according to the Constitution, parliament was supposed to establish courts within the counties with the same status as the High Court to hear land and environment cases.
  • From 2012 to date, out of the 5,419 land cases that have been filed, only 539 have been concluded, while 15,080 are pending.

Kenya has proposed new legal measures to expedite settlement of land disputes to reduce the backlog of land cases at the High Court.

The Statute Law (Miscellaneous Amendments) Bill, 2013, will, among other things, introduce amendments to the Land Adjudication Act that will reduce the window period for appeal from the current 60 working days to 21 days.

Stakeholders in the land sector have welcomed the proposed amendment drafted by House majority leader Aden Duale on October 28. The Bill is also intended to align the Land Adjudication Act with the Constitution by amending Article 23(3), replacing “Trust Land” with “Community Land,” as per Article 63 of the Constitution.

Currently, according to Section 29(1) of the Land Adjudication Act,  “Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within 60 days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing.”

All new land cases are being filed in the High Court, but according to the Constitution, parliament was supposed to establish courts within the counties with the same status as the High Court to hear land and environment cases.

Justice Pauline Nyamweya, the head of the Land and Environmental Division, said the High Court is bogged down by small land claims that could have been handled by senior magistrates if parliament had established county courts to hear the cases.

In 2011, a total of 18,138 court cases were filed, 17,756 were concluded while 78,872 both old and new were still pending. From 2012 to date, out of the 5,419 land cases that have been filed, only 539 have been concluded, while 15,080 are pending.

Mwenda Makathimo, the executive director of the Land Development and Governance Institute, said, “The issuance of title deeds has been delayed because of disputes, and  the  60-day window for appeal is frustrating because it is longer than that of the High Court, which is within 14 working days,” he said.

But Mr Makathimo maintained that the government should start implementation because the lack of service delivery from the Ministry of Land has impacted negatively on the property sector, as people cannot build and set up new projects.

He further noted that regulations on community land should be effected immediately, because in the areas where minerals and oil are found there is friction between the national government and local communities.

Last month, British exploration company Tullow Oil suspended drilling operations in Turkana County following protests by villagers, led by politicians, demanding more jobs at the sites. The locals were protesting the lack of opportunities in the oil sector on what they consider their traditional land.

The land sector has been riddled with corruption since Independence in 1963, and was one of the most emotive topics during the deliberations for a new Constitution.

Stakeholders are now debating whether the new land laws that have been enacted by parliament are in conformity with the National Land Policy — set up in 2009 — and the Constitution, taking into account the regular conflicts between the Lands, Housing and Urban Development Ministry led by Charity Ngilu and the chairman of the National Land Commission Mohamed Swazuri. Ms Ngilu has faced numerous accusations of usurping the role of the commission.

Mr Swazuri said the chapter on land borrowed from the National Land Policy, and that despite the proposed amendments to the Land Adjudication Act, his organisation has completed a draft Community Land Bill and finalised regulations of various land laws.

Lumumba Odenda, the national co-ordinator of the Kenya Land Alliance, an NGO dealing with reform of policies and laws governing land in Kenya, said it is commendable that efforts are being made to correct the anomalies in land administration through legislation, which could reduce or expedite land matters that are contentious.

The EastAfrican

 

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