We wish to bring your attention to the attached judgment delivered by the High Court of Kenya on 19th December, 2016 in Anthony Otiende Otiende versus Public Service Commission and 2 Others (Petition Number 54 of 2015).

One of the main issues raised in the Petition relates to the validity of the registration forms as well as forms of title including Leases, Title Deeds, Grants and Certificates of Title or of Lease (the “impugned forms”) made and promulgated by the Cabinet Secretary, Ministry of Housing, Land and Urban Development (the “Secretary”) without the input of the National Land Commission (“NLC”), participation of the public and parliamentary scrutiny.

The Petitioner had challenged the validity of the impugned forms citing that under Section 110 (2) of the Land Registration Act (the “LRA”) the Secretary could only promulgate the forms upon receipt of NLC’s advice and approval by Parliament. He further contended that the continued absence of NLC’s input was a constitutional infringement on the public’s right to own property.

The Court made a finding that under Section 110 of the LRA, Parliamentary approval and the advice of the NLC ought to have been taken into account prior to the promulgation of any rules or regulations. In addition, public participation was necessary.

Based on the foregoing the Court made the following orders:

  1. a declaratory order that the registration forms as well as forms of title including Leases, Title Deeds, Grants and Certificates of Title or of Lease made and promulgated by the Secretary without input of the NLC, necessary public participation and or parliamentary scrutiny and approval are unconstitutional null and void;
  2. Given the impact on registration of titles processes currently ongoing and already undertaken, the declaratory order in 1) above is suspended for twelve (12) months to enable the Secretary initiate meaningful engagement with the public, seek and take into account the advice from the NLC on the impugned regulations and forms and seek Parliamentary approval;
  3. the declaration of invalidity will not operate retroactively.

It is worth noting that the declaration of invalidity will not affect titles and forms already issued. In addition, the declaratory order will only be effected if at the expiry of 12 months (from the date of the judgment), the Secretary fails to engage NLC, the public and Parliament.

In a Press Statement published in the Daily Nation on Thursday, January 19, 2017 (attached) the Cabinet Secretary has confirmed that he has appointed and gazetted a Task Force with membership from the Ministry of Lands and Physical Planning, NLC, Kenya Law Reform Commission, State Law Office, Institute of Surveyors of Kenya, County Government of Nairobi and Law Society of Kenya to carry out the exercise within 2 months and ensure that the draft regulations are completed and submitted to Parliament for approval within the period granted by Court.

We will keep you updated on the developments.