The embattled National Land Commission chiefs have blamed the Ministry of Lands as the greatest impediment to their work, as they exit office today after a controversial six-year stint.
In their exit report seen exclusively by the Star, the Commission whose tenure was rocked by graft scandals, claims the Ministry of Lands continued to encroach on its mandate despite a Supreme Court ruling in 2015.
“The issues have never been effectively resolved and the Ministry of Lands and Physical Planning (MoLPP) continues to date to play vital roles and functions specifically and statutorily reserved for the Commission,” the Muhammad Swazuri-led team said.
The report fails, however, to mention the turmoil that has destabilised the nine-member Commission, especially the turf wars between Swazuri and his deputy Abigael Mbagaya.
The two have been engaged in a power struggle that has spilt into the corridors of justice.
The powers the NLC claims were usurped by the Ministry include collection of land rent, assessment of tax on land premiums on immovable property, issuance of consents and clearance and processing of development applications.
The NLC also complained that the Ministry of Lands led by Farida Karoney has refused to relinquish authority to lease public land and issue licenses to occupy public land.
In its report, the commission says critical members of staff in departments whose functions were transferred by law to the NLC remain within the ministry. It terms this “a gross duplication of roles and violation of the Supreme Court ruling and the laws in force”.
“This duplication of roles in the NLC and MoLPP poses serious threats to the validity of any resultant titles that emanate from such processes. This issue must be addressed moving forward lest the efforts made by government to reform the land sector stand in jeopardy” the outgoing Commission concludes.
However, National Assembly Lands Committee Chair Rachel Nyamai dismissed blaming the ministry as a convenient scapegoat for its failures.
Nyamai said the NLC failed to resolve even a single historical land injustice case, despite receiving more than 388 complaints.
But in the report, NLC said the Ministry of Lands arbitrarily recalled officers it had seconded to the commission, causing staff shortages that undermined its work.
On December 2, 2015, the Supreme Court, then led by CJ Willy Mutunga, declared that the NLC had a mandate regarding various processes leading to the registration of land.
However, the apex court ruled that the Ministry of Lands had the powers to issue land titles.
In his own statement, Swazuri says it took the NLC more than two years to get its footing.
“At its inception, the Commission encountered a lot of resistance, reluctance and outright objection from several interested parties in the land sector that were skeptical of change and the land reform agenda. Fear of the unknown, skepticism and sabotage greeted the Commission,” Swazuri said.
Citing section 32 of the NLC Act, the Commission says the Ministry of Lands failed to hand over to them assets, liabilities, obligations and agreements with respect to the departments whose functions were transferred to the Commission.
“To date, the MoLPP is yet to give an audit of all the assets and liabilities acquired or incurred by the Commissioner of Lands for purposes of transfer to the Commission,” the report states.
It continues: “The failure by the Ministry to transfer assets, liabilities and staff limited the capacity of the Commission to deliver efficient services to the public. This is notwithstanding the fact he Commission inherited more than 7,000 cases from the office of the defunct Commissioner of Lands and to date continues to implement any such orders as are issued by the Court.”
During their tenure the commissioners paid out a total of Sh27.3 billion of Sh33.9 disbursed to it for compensation for the land they compulsory acquired for 77 projects.
Among these projects was the standard gauge railway compensation that led to the arrest and prosecution of Swazuri and four other secretariat staff, including CEO Tom Chavangi.
The prosecutions led to an acrimonious split within NLC, with Swazuri claiming he was 'fixed' by the other Commissioners.
Most of the Commissioners are lined up to testify against him
According to the report, the Commission reviewed 1,136 grants, revoking 554 grants whose land was illegally acquired.
It regularised 90 grants and upheld 154.
Nairobi had the highest review, with a total of 553 grants audited, whereas Makueni had only one.
The commission was also faced with 1,820 court battles challenging its functions, processes and decisions; a majority of cases, 47, were filed from Nairobi.
In the report, the NLC claims the Ministry of Lands failed to consult them, for instance, on the introduction of forms and guidelines for use by both various land registries and the public in completing transactions in 2014. The forms were annulled by the court in 2015.
Despite carrying out the review of grants and disposition of public land in all the 47 counties — and recovering chunks of irregularly and regularly allocated land since the 1960s — the commission said a short time frame hindered them from satisfactorily dealing with all the issues.
The Act establishing NLC states that Commission undertake the review of grants and dispositions within five years of the commencement of Act, effective on May 2, 2012.
The time frame lapsed in May 2017, though it still continues to receive more complaints relating to illegally and irregularly acquired land. Due to lack of legal framework, requests received cannot be ’addressed.
It recommended that Parliament enact a framework for the continuous review of grants and dispositions of public land.
The NLC also complained of poor funding that held back its programmes.
The Commission experienced difficulties in accessing some crucial land records and data from authorities, undermining services in the processing of land administration matters.
“The Ministry and the Commission should ensure that all land records are digitised and that land management is carried out on an interactive user-friendly Geographic Information System-based digital platform. Moreover, they should also develop clear guidelines on access and sharing of land data,” the commissioners said.
“Digitisation of all land records and land administration transactions will promote efficiency, reduce bureaucracy and ease access to records,” they added.
The commission also had more than 7,000 cases inherited from the old Commissioner of Lands. Together, injunctions and court orders delayed implementation of land reform agenda.
However, the commission boasted of compulsory acquisition of land for more than 77 projects at a total cost of Sh27 billion. The commission also said it had laid a firm foundation for the next team that will steer the commission for the next six years.