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Supreme Court deals blow to Swazuri Commission

SUPREME-COURT-BUILDINGNAIROBI, Kenya, Dec 2 – The National Land Commission (NLC) suffered a blow on Wednesday when the Supreme Court found that the power to register land and issue Title Deeds rests with the Minister for Lands.

Reading the Bench’s binding recommendations, Chief Justice Willy Mutunga explained that, “as the ultimate expression of the right to property,” the power to register land and issue Title Deeds rightfully rested with the Executive which derives its power directly from the Kenyan electorate.

The Bench also found that the NLC does not have the power to collect land taxes but only to, “assess them,” as outlined in Article 67(2) of the Constitution.

It did however stress the need for the two bodies to “co-operate and collaborate,” in the execution of their functions.

In light of an overlap in mandates, Mutunga directed the Attorney General and the Kenya Law Reform Commission to carry out “a professional review of the land statutes.”

His deputy Kalpana Rawal said the overlap can be put down to concessions made in the drafting of the Constitution.

Restating the need for the two organs to play nice, Mutunga said the framers of the Constitution required collaboration in order to ensure each was checked and balanced and none abused their powers over the historically contentious commodity: land.

In a concurrent opinion, Justice Njoki Ndungu dealt the biggest blow to the NLC by finding that the framing of its functions in the Constitution, “presume it to be facilitative and not the primary.”

NLC Chairman Muhammad Swazuri sought to put a positive spin on the advisory opinion and what it means for the Commission going forward by attempting to downplay the conflict that preceded the court’s intervention.

“The registration of land is not a big deal. It’s a matter of record keeping. What we wanted is to be part of the process and the Supreme Court has made it clear that we need to collaborate in the execution of our functions,” he told Capital FM News.

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And in the spirit of collaboration, he said the Commission was looking forward to cordial relations with the newly appointed Lands Cabinet Secretary Jacob Kaimenyi.

The NLC sought an advisory opinion from the Supreme Court on its functions vis-à-vis that of the Ministry of Lands after a supremacy battle.

READ: Land Commission ‘must toe the line’ – Ngilu

The Court was forced to deliver the advisory opinion on Wednesday after the parties failed to reach a consensus as they’d initially been advised by the court.

READ: Ngilu disowns report seeking to end NLC row


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