1. INTRODUCTION

•  On 15^th October 2025, the President assented to law, among others, the Land (Amendment) Act. The centrality of land as a factor of production needs no gainsaying , thus, the need to internalize the changes brought by the amendments.

2. LAND (AMENDMENT) ACT, 2025 

• The following amendments are introduced by the latest amendments;

1. Definition of Registrar: The Amendment Act introduces the definition of “Registrar” to the Land Act and adopts the definition in the Land Registration Act. This amendment clears any ambiguity one may have when reference is made to a Registrar in the Land. The amendment is welcome as it creates statutory harmony.
2. Registration of allocated public land: The amendment Act introduces sections 12(13) to (16) which require that the allocation of public land must culminate in the registration of the land in the name of the person allocated. No similar requirement existed before and this was a loophole exploited for land grabbing. This is a progressive development of the law.

Contrary to social media reports, the act does not interfere with freehold titles.

3. NATIONAL LAND COMMISSION (AMENDMENT) ACT, 2025 

• The following amendments are introduced by the latest amendments;

1. Review of Grants and Dispositions;

• Section 14 of the current NLC Act, which is inoperative by effluxion of time, has been repealed. The Act gave NLC 5 years from May 2012 to review grants. This timeline lapsed in 2017. Section 12(1) grants NLC a 5-year mandate from 4^th November 2025 to review grants and dispositions on public land. While this may seem progressive, it imposes a 5-year terms that does not exist in article 68(c)(v). NLC should not have time limit of 5 years because no such limit exists in the constitution. This amendment is therefore retrogressive.
• There is further folly in the amendment since NLC is only allowed to review grants and dispositions issued before 27^th August 2010. This means that any grant after 27^th August 2010 cannot be reviewed. This restriction in time is in bad faith as any irregularity that happens after 27^th August 2010 shall not be impeachable.
• Section 14 (7) provides that no revocation of title shall be effected against a bona fide purchaser for value without notice. This amendment, which existed in the previous act, is at odds with article 40(6) of the Constitution. A title that is the product of an illegal process is not protected by law under any doctrine, include that of “bona fide” purchaser for value without notice. The Supreme Court found as much in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)
• Section 14(9) to (13) provide for registration of a determination by NLC in court. This is to make it an enforceable judgment of the High Court. This amendment is well intention but is not in harmony with the constitutional architecture of our courts. It would be constitutionally sound to register determinations by NLC in the Environment and Land Court.

1. Historical Land Injustices. Section 15 of the Act has been amended, marginally as follows;

• Previously, this section invoked article 67(3) of the Constitution. This misnomer has been rectified as the amendment properly invokes article 67(2)(e) of the Constitution as the basis for resolving historical land injustices.
• The amendment now gives NLC the power to initiate investigations into historical land injustices on its own motion. Previously, this could only be upon an application being made. This amendment is progressive.
• The amendment has also deleted the requirement that a historical land claim had to be submitted within 5 years of commencement of the Act in 2012. This amendment is progressive. 5 years is a short time to compile and lodge all historical land claims.
• The amendment has introduced that right to review a decision of the NLC by an aggrieved by way of judicial review. This ensures checks and balances of the mandate of NLC and is therefore progressive.
• The amendment has introduced the requirement that decisions of the NLC on historical land claims must be published in the Kenya Gazette. This engenders the constitutional principle of transparency. It also fosters public information and is progressive.
• The amendment has introduced a one-year time period within which the NLC has to resolve a claim. This is progressive since it ensures expeditious determination of claims.
• The amendment provides that the section will stand repealed within 5 years. No basis exists for this limitation.
• The amendment also introduces section 26A which prohibits garnishing of funds of the commission. Banks are to take note. From a governance perspective, this provision is Janus-faced, for it preserves funds od the commission for the discharge of tis functions. However, it is also prone to abuse by officers of the Commission who are unwilling to comply with court orders issued against the commission, with Judgment Creditors being left without a meaningful remedy. This amendment, however, aligns with the Supreme Court’s advisory opinion in In re National Land Commission [2025] KESC 12 (KLR).

4. CONCLUSION

• The new amendments to the Land Act are marginal and timely. The amendments to the National Land Commission Act, though well intentioned are prone to abuse and there may be need to re-look the amendments as discussed above.

Yours faithfully,

KOMM Advocates

www.komm.co.ke

Email: [email protected]