In a significant ruling delivered on November 28, 2025, the High Court of Kenya at Nairobi has declared three key sections of the National Land Commission Act, 2012 (No. 5 of 2012) unconstitutional, null, and void.
The judgment, arising from a constitutional petition filed by activist Okiya Omtatah Okoiti (HCCHRPET/E349/2021), affirmed that Parliament cannot enact legislation that limits or impedes the continuous, time-unrestricted constitutional mandate of the National Land Commission (NLC).
The case was heard by Justice E.C. Mwita, with the Attorney General, the Ministry of Lands, and the Parliament of Kenya listed as the 1st, 2nd, and 3rd Respondents, respectively. The National Land Commission (NLC), Kenya Tea Growers Association, Eastern Produce Kenya Ltd, and the Kericho County Government were named as Interested Parties.
Mr. Omtatah challenged the constitutional validity of several sections of the NLC Act: 14(1), 14(9), 15(3)(e), 15(10), and 15(11).
The core of the petitioner’s argument was that the impugned provisions improperly imposed arbitrary time limits on the NLC’s core constitutional functions, specifically:
- The time within which the NLC could review grants or dispositions of public land to establish their propriety or legality.
- The time within which the NLC could admit, register, and process claims on historical land injustices.
The petitioner contended that the Constitution does not set such time limitations, and Parliament, under Article 67(3), is only empowered to add to the NLC’s mandate, not diminish it.
Justice Mwita’s determination focused on whether the imposed time limits diminished the NLC’s constitutional functions as enshrined in Article 67(2)(e) and Article 68(c)(v) of the Constitution. The court concluded that the functions of reviewing grants and investigating historical injustices are continuing functions for an indeterminate period.
The court issued a declaration that sections 14(1), 14(9), and 15(3)(e) of the National Land Commission Act are inconsistent with the Constitution and are therefore unconstitutional, null, and void.
Details of the Unconstitutional Provisions:
| Section | Summary of Provision | Reason for Unconstitutionality |
| Section 14(1) | Required NLC to review all grants of public land within five years of the Act’s commencement. | The function of reviewing grants and dispositions is a continuing constitutional function, not a one-off mandate tied to a time limit. |
| Section 14(9) | Allowed NLC to petition Parliament to extend the five-year period for review. | Since the constitutional function is continuous, Parliament cannot be given discretion to limit or extend the NLC’s mandate. |
| Section 15(3)(e) | Required a historical land claim to be brought within five years from the Act’s commencement. | This provision contravenes Article 67(2)(e), which mandates NLC to investigate “present or historical” land injustices—a function for an indeterminate period. |
The court, however, upheld the validity of two other challenged sections by interpreting them purposively to support the NLC’s function:
- Section 15(10): This section requires any authority mandated to act on NLC’s recommendations for redress of historical land injustice to do so within three years. The court ruled this provision is Constitutionally Valid, interpreting it as an encouragement for expeditious action and not a limitation on the lifespan of the NLC’s decision.
- Section 15(11): This section provides that Section 15 shall stand repealed within ten years. The court determined that the future repeal of the statutory section would not affect the discharge of NLC’s continuous constitutional mandate.
The judgment establishes a clear principle that Parliament’s legislative power over the NLC is subordinate to the Constitution. The final declarations were:
- The Constitution does not provide time limits or anticipate the imposition of statutory time limits on any of the mandates or functions of the National Land Commission.
- Article 67(3) of the Constitution does not vest Parliament with power to enact legislation to oust or impede the constitutional mandate and functions of the National Land Commission.