THE LAND LAWS (AMENDMENT) ACT NO.28 OF 2016 PART 3

AMENDMENTS MADE TO THE NATIONAL LAND COMMISSION ACT NO. 5 OF 2012-PART 3

The Land Laws (Amendment) Act No. 28 of 2016 (the “LLAA”) received presidential assent on 31^st August, 2016, coming into force shortly thereafter on 21^st September, 2016.

Legal Redress of Historical Injustices

The LLAA, has introduced provisions on investigation and adjudication of claims arising out of historical land injustices to give effect to Articles 67 (2) (e) of The Constitution of Kenya which deals with the National Land Commission’s function of initiating investigations on its own initiative or on a complaint, into present or historical land injustices, and recommending appropriate redress into present or historical land injustices and reparation.

A “historical land injustice” is now defined under the National Land Commission Act (the “NLCA”) as a grievance which:-

a)      was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice;

b)      resulted in displacement from habitual place of residence;

c)      occurred between 15^th  June 1895 when Kenya became a British East African Protectorate  and 27^th August 2010;

d)      has not been sufficiently resolved and subsisted until 27^th August 2010;

e)      meets the following criteria:

                                    i.            it is verifiable that the act complained of resulted in displacement of the claimant or other form of historical land injustice;

                                  ii.            the claim has not or is not capable of being addressed through the ordinary court system on the basis that the claim contradicts a law that was in force at the time when the injustice began or the claim it is debarred under the Limitation of Actions Act (Cap 22 of the Laws of Kenya) or any other law.

f)       the claimant was either a proprietor or occupant of the land upon which the claim is based;

g)      it is brought within five (5) years from 21^st September, 2016; and

h)      no action or omission on the part of the claimant amounts to surrender or renouncement of the right to the land in question.

The National Land Commission (the “NLC”) has been mandated to receive, admit and investigate all historical land injustice complaints and recommend appropriate redress by various authorities as provided.

For a claim alleging historical land injustice to be permissible, it has to be occasioned by: colonial occupation; inequitable land adjudication process or resettlement scheme; independence struggle ;politically motivated or conflict based eviction; a pre-independence treaty or agreement between a community and the government; development-induced displacement for which no adequate compensation or other form of remedy was provided; corruption or other form of illegality; natural disaster; or any other cause approved by the NLC on a case by case basis.

Upon the successful investigation of any successful case of historical land injustice referred to it the NLC may recommend various remedies including restitution, compensation, refund, revocation, resettlement on an alternative land and reallocation of the land and declaratory and preservation orders.

Any authority mandated to act under the recommended redress must do so within three (3) years upon determination of a claim of historical land injustice.

The provisions relating to legal redress of historical injustices shall stand repealed after ten (10) years from 21^stSeptember 2016.