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The Appointment of Commissioners in the National Land Commission and its Impact on Land Transactions

16 December 2019
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Recently, the chairperson and 6 members of the National Land Commission (the NLC) were sworn in by the Chief Justice, Justice Maraga. This follows the latest suit filed in the Employment and Labour Relations Court (the Court) which sought to nullify the appointment of the commissioners of the NLC. As a result of the suit, the appointment of 2 members of the NLC was nullified by the Court.  The NLC therefore has 7 out of the 9 members required by law.

The swearing-in of the commissioners comes as a great relief because a number of critical functions undertaken by the NLC had stalled since the term of the previous commissioners lapsed in February 2019. The commissioners of the NLC are appointed to serve for a non-renewable term of 6 years.

The NLC is a key player in land matters in Kenya as the law vests it with various critical functions. These include the power to manage public land, manage compulsory acquisitions, compensation and allotment of public land as well as power to appoint county land management boards. The latter role is critical for investments in land as no land transactions can proceed without the approval of the relevant county land management boards.

One key question for various stakeholders is whether the NLC is now properly constituted and can therefore proceed to execute its various functions as outlined in the law.

In our view, whilst the NLC is not fully constituted due to the vacancy of 2 commissioners, it is properly constituted and can now proceed to carry out its mandate. However, it must ensure that the quorum requirements for a meeting during a period when there is a vacancy are met. The quorum required during a period of vacancy is not less than 3 members. It is also our view that any decisions made by the NLC would not  be held to be null and void on account of the vacancy in the NLC (as would have been the case had a decision been made prior to this appointment).