Requirement That President Gives Consent For Transfer Of Beach Plots Is Illegal

Mohamed Balala &10 others vs the Attorney General, Commissioner of Lands and 6 others [2012] eKLR

High Court at Mombasa

Kasango J

17th May 2012

The High Court sitting in Mombasa has ruled that the requirement for presidential consent for persons wishing to acquire or dispose 1st and 2nd row beach plots in Mombasa is unconstitutional. Lady Justice Mary Kasango held that the requirement for presidential consent was unconstitutional and contravened Article 27(1) (4) of the constitution, which prohibits discrimination in any form and states as follows;

“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(4) The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”

In Kenya, land governance and land transactions have a long time been governed by an array of statutes containing provisions and regulations relating to acquisition and disposition of interest in land. Lawyers, litigants, judges and even the public have had to go through no less that 5 statutes to find which land regime governs the transactions they want to engage in. Some of these statutes are Registered Land Act, Registration of Titles Act, the Indian Transfer of Property Act 1882, and Government Lands Act. Parliament recently passed three major land laws to provide for a comprehensive registration system and to repeal the above-mentioned statutes. The Acts passed by Parliament are the Land Registration Act, the Land Act and the National Land Commission Act.

Generally, the Government owns land in Kenya. Under the law, the government can compulsorily acquire private land for fair market compensation and use the land for public utility purposes. In this regard, the government is said to hold the power of eminent domain. Government also leases land to individuals and organizations under certain conditions and within a legal framework by transferring its interest in land to certain applicants of the same.

Within this new Constitutional dispensation, the petitioners in this case who are members of the Laws Society of Kenya, Mombasa Chapter, brought a suit against the Attorney General, Commissioner of Lands and registrars of titles in Mombasa, Kilifi, Lamu and Kwale seeking an order prohibiting them from asking for presidential consent so as to register any land transactions relating to the 1st and 2nd row beach plots. The petitioners argued that there existed no legal backing for this requirement and that the requirement was discriminatory since it did not apply to the whole country but only to Mombasa. They also sought an order declaring that requirement of consent was illegal and discriminative. The respondents in this case did not file any replying affidavit to controvert the petitioners’ application.

In granting the orders sought, the Court noted that the requirement for presidential consent for the disposition or acquisition of 1st and 2nd row beach plots was a contravention of the national values articulated in Article 10 of the Constitution of Kenya; the rule of law, equity, non-discrimination and transparency. Justice Kasango also noted that the requirement for presidential consent was an appendage of yesteryears, which has no place in Kenya today due to its discriminative nature. The court therefore granted prohibitory orders against the respondents requiring presidential consent to transfer 1st and 2nd row beach plots and issued a declaration that such a requirement is illegal. The petitioners were also awarded costs.

Synopsis of land legislation as recently enacted by Parliament

Chapter
Five of the Constitution of Kenya, 2010 makes provisions on Land and
Environment. Article 68 specifically stipulates the mandate of
Parliament in enacting land legislation. It provides that Parliament
shall revise, consolidate and rationalise existing land laws. It shall
also enact legislation to :

a) prescribe minimum and maximum land holding acreages in respect of private land,

b) regulate the manner in which any land may be converted from one category to another,

c) protect, conserve and provide access to all public land amongst other objectives.

To
achieve this end, Parliament has enacted three important pieces of
legislation based on the following principles as stipulated in Article
60. These include:

* Equitable access to land

* Security of land rights

* Sustainable and productive management of land resources

* Transparent and cost effective adminstration of land

The following laws were assented to by the President and came into force on the 2nd of May, 2012.

a) The Land Act (No. 6 of 2012)

This
Act is to give effect to Article 68 of the Constitution and to revise,
consolidate and rationalize land laws. It also seeks to provide for the
sustainable administration and management of land and land based
resources. This law repeals the Wayleaves Act (Cap. 292) and the Land
Acquisition Act (Cap. 295).

b) The Land Registration Act (No. 3 of 2012)

This
law seeks to revise, consolidate and rationalize the registration of
titles to land and to give effect to the principles and objects of
devolved government in land registration. The following laws are
repealed by this piece of legislation:

c) The Indian Transfer of Property Act, 1882

d) The Government Lands Act (Cap. 280)

e) The Registration of Titles Act (Cap. 281)

f) The Land Titles Act (Cap. 282)

g) The Registered Land Act (Cap. 300)

The National Land Commission Act (No. 5 of 2012)

This
makes further provision as to the functions and powers of the National
Land Commission, qualification and procedures for appointments to the
Commission. The function of this Commission will be to recommend a
national land policy to the national government amongst other duties
stipulated in Article 67(2) of the Constitution. It also seeks to give
effect to the objects and principles of devolved government in land
management and administration.

Additional write-up by Cornelius Lupao and Wambui Kamau