In 2015, an advocate filed Petition No.54 at the Constitutional and Human Rights Division of the High Court against among other parties the Lands, Housing and Urban Development secretary.
The cause of action arose out of the gazettement of regulations, issuance of grants, leases and certificates of titles promulgated by the then Land secretary.
The contention was that the said regulations and ownership documents issued thereunder did not meet the test of having been put in place after mandatory advise from the National Land Commission (NLC), constitutional public participation and statutory parliamentary approval.
In a bid to ensure compliance with the court order, the Land secretary vide Gazette Notice Number 390, Vol CXIX - No. 6 of 13th January, 2017 appointed and gazetted a Task Force with broad membership drawn from the Ministry of Land and Physical Planning, NLC, Kenya Law Reform Commission, State Law Office, Institution of Surveyors of Kenya, county government of Nairobi and the Law Society of Kenya.
The implications of the ruling are serious and time is of the essence with urgent need to comply with the conditions laid by the court. The ruling has shock waves.
The judge was emphatic that in default of compliance by the Land secretary with the requirement to correct the identified within one (1) year from December 19, 2016, the regulations, ownership documents and forms promulgated shall become null and void for all intend and purposes.
It’s important to note that any interest so created out of the said title and other ownership documents for instance perfected charges would be null and void as well.
This is a reason enough why the banks would dread any noncompliance or delay by the Land secretary in complying with the court order.
The task ahead is herculean and challenges abound. First, a lot of goodwill has to be marshalled from the institutions and shareholders whose input appears to have been brushed off if not sidestepped and who think that the due process in enacting the regulations and deriving the forms of title documents was short-circuited.
In a bid to promote and uphold public interest and stave off adverse effects in the economy the learned judge issued a conditional validity on what would have otherwise and strictly speaking been invalid title documents. The relief is shortlived.
The caveat now is that no title documents should be issued until such a time as the new regulations shall be in place and that any act from now done under the impugned land regulations is null and void.
The new anticipated regulations are the bedrock of any title document issuance moving forward and specifically after December 19, 2016.
Despite the foregoing, the issued ruling has a silver lining. It is a clarion call to policy and key decision makers to pay homage to the law and follow the laid out procedures in the law when making decisions.
This is especially so for decisions with economic repercussions like the impugned decision.
Ibrahim Kitoo is advocate, High Court of Kenya.