County governments cannot allocate or lease public land, High Court.
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The factory entrance to Del Monte Limited. The company has been at loggerhead with both Kiambu and Murang'a Counties over renewal of its leasehold. |
The court last week ruled that allocation and leasing of
public land is the sole and undiluted duty of the National Land Commission
(NLC), consequently barring counties from unilaterally giving out public land.
In the landmark judgement, a judge in Malindi ruled that
county governments have no legal power to allocate and lease public land to
private investors, declaring that, as an independent commission under the 2010
Constitution, the land commission enjoyed unfettered power to manage and
administer public land and is “not subject to direction or control by any
person or authority, and it cannot, thus be considered an agent of the national
or county government”.
Justice James Olola based his conclusion on a 2014
Supreme Court advisory that delineated the powers of the commission on land
matters vis-a-vis county and national governments and his understanding of the
commission’s statutory authority under the National Land Commission Act, the
Land Act and the Land Registration Act.
He dismissed an application by an American consortium,
Cordisons International that had sought to invest Sh23 billion in wind power
production in Lamu since 2009 but has faced obstacles from the commission.
According to the judge, the Supreme Court advisory puts it beyond
doubt that the commission enjoyed exclusive constitutional and statutory
authority to manage public land.
“Article 62(3) on the other hand stipulates that public land
vested in county governments shall be administered on their behalf by the
second respondent (NLC). What then does the administration entail?” said the
judge referring to the commission, which is listed as second respondent.
He said the Supreme Court interpreted Section 8 of the Land
Act to determine that management of public land includes “identifying public
land, keeping a data base of all public land, sharing of data and land mapping,
among others.”
He argued that a contextual reading of the Supreme Court
advisory together with the land Acts means that the power to manage and administer
public land includes “allocation of land, disposing of public land; leasing and
effecting change of user.”
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