On promulgation of the 2010 Constitution, important aspects of community land were addressed in Article 63, essentially dealing with what was formerly designated as “trust land.”
Article 63(2) reads thus;
“(2) Community land consists of—
(a) land lawfully registered in the name of group representatives under the provisions of any law;
(b) land lawfully transferred to a specific community by any process of law;
(c) any other land declared to be community land by an Act of Parliament; and
(d) land that is—
i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
iii) lawfully held as trust land by the county governments,but not including any public land held in trust by the county government under Article 62 (2).”
Article 63(5) reads thus;
“(5) Parliament shall enact legislation to give effect to this Article.”
As a result of Article 63, the Community Land Act (Act No. 27 of 2016) was enacted and its preamble reads as follows:-
“AN ACT of Parliament to give effect to Article 63 (5) of the Constitution; to provide for the recognition, protection and registration of community land rights; management and administration of community land; to provide for the role of county governments in relation to unregistered community land and for connected purposes”
The Community Land Act, 2016 was assented to by the President on the 31st day of August, 2016 and the commencement date was the 21st day of September, 2016.
The Act repealed the Land (Group Representatives) Act, (Cap 287) and the Trust Lands Act, (Cap 288); two Acts which had been in the statute book since the 26th day of June, 1968 and 1st day of March, 1939 respectively.
The “Community Land” was defined in Section 2, (bearing the marginal note ‘Interpretation’) of the Community Land Act, 2016 exactly as follows:-
“community land” means includes-
a. land declared as such under Article 63(2) of the Constitution;
b. land converted into community land under any law;”
And now comes the great legal paradox!
In the High Court in the case of Kelly Malenya v Attorney General & another; Council of Governors(Interested Party)  eKLR, Honourable Justice E.C. Mwita on 7th June, 2019 held that Section 2 of the Community Land Act is unconstitutional in its definition of “community land” for vagueness i.e. the words “means” and “includes,” used together cause confusion. The declaration of invalidity was, however, suspended for twelve months to enable the National Assembly take steps to resolve the ambiguity. In default, the declaration of unconstitutionality had to take effect after lapse of twelve months. The exact orders of the High Court were;
a) A declaration is hereby issued that Section 2 of the Community Land Act is unconstitutional in its definition of community land for vagueness.
b) The declaration of invalidity is however suspended for twelve months to enable the National Assembly take steps to resolve the ambiguity. In default, the declaration of unconstitutionality shall take effect after twelve months.
The deadline given by the Court to remedy the anomaly has not been adhered to by the National Assembly.
To the best of my research, no appeal was filed to the Court of Appeal and no stay orders exist thus the High Court decision stands. There is no pending and published Bill in the National Assembly.
A declaration having been made that the definition of the Community Land under Section 2 of the Community Land Act, 2016 is unconstitutional means there is no definition of what constitutes Community Land. Community Land is subject of the Act and there being no definition of what constitutes Community Land, the Act is rendered completely nugatory.
It is surmised that the very substratum of the legislation has been evaporated thereby obliterating the Act from the statute book!
The magnitude of the unconstitutionality can be gauged from Section 5(2) of the Community Land Act, 2016 which recognized Customary Land Rights and Section 5(5) had guaranteed continuity of those rights.
All this indicates to grave reality; customary land rights do not presently exist in the country –a recipe for confrontation and strife.
There are and will be myriad of legalities which will and can arise as a result of not amending the Community Land Act, 2016 and the rights of citizens under the Act have and are being eroded. The uncertainty and the lacuna will be great concern to Kenyans and the legal reality can and will be exploited by indiscreet speculators and fraudsters who deal with lands which are not registered.
The impasse does not augur well for those engaged in the enactment and amendment of laws.
The Law Reform Commission and the Honourable Attorney-General and the Solicitor-General will have to now belatedly counter the legal mayhem which has been created.
Hopefully, the matter will be addressed most urgently.
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