County governments cannot allocate or lease public land, High Court.

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.”