The National Land Commission (Investigation of Historical Land Injustices) Regulations

Legal Notice 258 of 2017

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Legal Notice 258 of 2017
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LAWS OF KENYA

NATIONAL LAND COMMISSION ACT

THE NATIONAL LAND COMMISSION (INVESTIGATION OF HISTORICAL LAND INJUSTICES) REGULATIONS

LEGAL NOTICE 258 OF 2017

  • Published in Kenya Gazette Vol. CXIX—No. 151 on 13 October 2017
  • Commenced on 13 October 2017
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

Part I – PRELIMINARY

1. Citation

These Rules may be cited as the National Land Commission (Investigation of Historical Land Injustices) Regulations.

2. Application

These Regulations shall apply to historical land injustices that occurred between the 15th June, 1895 and the 27th August, 2010.

3. Interpretation

In these Regulations, unless the context otherwise requires—"claim" means a grievance lodged with the Commission as contemplated in section 15(3) of the National Land Commission Act (Cap. 281);"claimant" means a person or group of persons who have lodged a claim pursuant to section 15(3) of the Act;"Commission office" means the headquarters of the Commission located in Nairobi or any other office that the Commission may designate as its office generally or for a particular purpose;"Commission staff" means member of staff of the Commission appointed under section 22 of the Act or any other persons who are authorised by the Commission to perform functions of the Commission;"Committee" means the Committee established under regulation 11 to investigate claims arising out of historical land injustices and recommend appropriate redress;"community" has the meaning assigned to it under section 2 of the Community Land Act (Cap. 287);"Court" means the Environment and Land Court established under the Environment and Land Court Act (Cap. 8D), and includes other courts having jurisdiction on matters relating to land;"document" means any record made or stored in physical or electronic form and includes written, electronic, audiotape, videotape, digital reproductions, photography, maps, graphs, microfilm or any other data and information recorded or shared by means of any device;"interested person" means a person who is affected by a claim or remedy arising out of historical land injustices;"person of interest" means a person who may be in possession of useful information relating to an investigation into historical land injustice;"present land injustices" means a grievance which occurred after 27th August, 2010; and"remedy" means a remedy that the Commission my recommend after investigating any case of historical land injustice under section 15 (9) of the Act.

Part II – THE PROCEDURE FOR THE INVESTIGATION AND RESOLUTION OF CLAIMS ARISING OUT OF HISTORICAL LAND INJUSTICES

4. Power of the Commission to commence investigations

Pursuant to Article 67(2)(e) of the Constitution and section 15(1) of the National Land Commission Act (Cap. 281) the Commission may initiate investigations on its own initiative or upon a complaint into historical land injustices and recommend appropriate redress.

5. Commencement of investigation and resolution of claims

(1)The Commission may on its own initiative request the public to submit claims arising out of historical land Injustices.
(2)The Commission shall make the request in sub-regulation (1) by—
(a)a notice in at least one daily newspaper with national circulation;
(b)notice in the website of the Commission; and
(c)an announcement on local radio stations.

6. Requisition for Information

The Commission may request from any person including any government department or state organ such particulars, documents and information regarding any investigation, as may be necessary.

7. Lodging a claim

(1)A person may lodge a claim in Form NLC/HLI/01 set out in the Schedule or through a letter, a Memorandum or oral submission of the venue of making claim at any place that the Commission may designate as Commission offices.
(2)The claim lodged shall contain—
(a)the name, address and location of the claimant;
(b)a description of the property including parcel number or other appropriate description where a parcel number is not available;
(c)the date of the claim;
(d)the grounds on which the claim is based and description of the injustice;
(e)the period when the injustice occurred;
(f)the resultant effect;
(g)the particulars of the respondent if any;
(h)the number and particulars of witnesses they wish to call;
(i)any previous attempts made to resolve the injustice; and
(j)the suggested remedy.
(3)A claim shall be accompanied by any document necessary to support the claim.
(4)Where the claim is made at the initiative of the Commission or where it is made in writing, orally or otherwise by a claimant, the claim shall be reduced, by a designated officer of the Commission, into a claim in Form NLC/HLI/01 set out in the Schedule.
(5)The Commission shall acknowledge every claim lodged in Form NLC/HLI/02 set out in the Schedule.
(6)Upon receiving a complaint, the Commission shall vet the claim, against the admissibility checklist in Form NLC/HLI/03 set out in the Schedule and on the confirmation that the complaint has been made in accordance with these Regulations the Commission may—
(a)admit the claim;
(b)reject the claim stating the reasons for the rejection;
(c)refer claimants to other relevant institutions or mechanisms for the resolution of the claim; or
(d)consolidate the claim with other claims of similar nature.
(7)Upon vetting a claim, the Commission shall notify the complainant of its decision to reject the claim, refer the claim to relevant institutions or consolidate the claim, in writing stating, the reasons for the decision.
(8)Upon admission of a claim, the Commission shall, within ninety days, notify the claimant of the admission in Form NLC/HLI/04 set out in the Schedule and issue a notice to appear in Form NLC/HLI/05 set out in the Schedule to the claimant.

8. Register of claims

The Commission shall keep a register of claims in which all claims shall, upon receipt, be entered and given a reference number.

9. Power to place a restriction

The Commission may place a restriction on any land that is subject to a historical land injustice claim that has been admitted under regulation 7(6)(a) pending investigation and determination of the claim.

Part III – CONDUCT OF HEARINGS

10. Establishment of Committee

(1)The Commission may establish a Committee consisting of at least three members of the Commission to hear and recommend appropriate remedies for claims arising out of historical land injustices.
(2)The Committee may co-opt into its membership, persons whose knowledge and skills are necessary to assist the Committee carry out its mandate.
(3)A person co-opted to the Committee—
(a)is entitled to attend the Committee's meetings and participate in its deliberations but shall not vote in any matter before it;
(b)shall take before the Commission's Chairperson the oath or affirmation of office; and
(c)shall be paid such fees as the Commission shall determine.
(4)A decision of the Committee shall be deemed to be a decision of the Commission.

11. Investigations of a claim

A Committee shall in the course of an investigations into historical land injustices undertake—
(a)background checks including official searches, where appropriate;
(b)site visits;
(c)review and verification of documents;
(d)interviews;
(e)public hearings, where appropriate;
(f)consultative meetings with interested parties and persons of interest; or
(g)research.

12. Conduct of hearings

(1)Subject to section 6(2)(b) of the National Land Commission Act (Cap. 281) the conduct of hearings and the procedure to be followed at hearings shall under regulation rules be as directed by the Commission.
(2)The Committee shall sit at such times and such places as the Commission may determine.
(3)The Committee shall not be bound by strict rules of evidence.

13. Hearing Notice

(1)The Commission shall, at least thirty days prior to the hearing date or within such other period as the Committee may determine is fair in the circumstances, send a notice of hearing to all parties to a claim by mail or electronically.
(2)A notice of hearing shall include—
(a)a statement of the purpose of the hearing;
(b)a statement that the Commission may proceed in the absence of a party notified twice but has failed to attend to or participate in a hearing and the party shall not be entitled to any further notice in the proceedings; and
(c)any other information or direction that the Commission considers necessary for the proper conduct of the hearing.
(3)The Commission may, if it is of the opinion that the parties to any proceeding before it are so numerous or for any other reason it is impracticable to give notice of the hearing individually to the parties or persons entitled to receive notice, cause reasonable notice of the hearing to be given to such parties or persons by advertisement in at least one newspaper with national circulation or in such other means as determined by the Commission.
(4)The Commission shall issue summons in Form NLC/HLI/06 set out in the schedule, against a party who repeatedly fails to appear as notified.

14. Notice to appear

(1)The Commission may give notice to any person to appear before it in relation to any investigation or proceedings under these Regulations in Form NLC/HLI/05 set out in the Schedule.
(2)The notice shall be in writing and shall be addressed and delivered by a staff of the Commission or an appointed agent and shall direct such person, in relation to any investigation, to appear before the Commission at such time and place as may be specified in the notice.
(3)The Commission shall ensure that it preserves the dignity of every person during its investigations and hearings.
(4)The Commission may request a witness or any other participant to advise the Commission on the name and particulars of any other person whom they consider to have relevant information relating to the proceedings before it.

15. Notification of special needs

A party shall notify the Commission, as early as possible, of any disability, the need for a translator or any other special needs which the party or their witnesses might have.

16. Disqualification of a member of the Committee

(1)An interested person may, at least seven days prior to a hearing, request a member of the Committee to disqualify themselves from the hearing.
(2)The interested person referred to in sub-regulation (1) shall provide their reasons for the request and where applicable, provide supporting evidence.
(3)Upon receipt of a request for disqualification, the Chairperson of the Committee shall make a ruling on the request.
(4)Where the request is for the disqualification of the Chairperson of the Committee, the Commission's Chairperson shall make the determination and replace the Chairperson of the Committee in respect of that matter only.

17. Appearance at a hearing

(1)A party to a proceeding may act in person or through a representative.
(2)A party or the representative shall promptly notify the Commission, in writing, wherever a person ceases to represent a party.

18. Hearings

(1)The hearings shall be open to the public unless otherwise ordered by the Committee.
(2)Where a hearing is closed to the public, it may only be attended by—
(a)the parties and their representatives;
(b)the witnesses;
(c)members of staff of the Commission; and
(d)such other persons as the Committee may consider necessary.
(3)An exhibit, document, submissions or Committee orders relating to a hearing may be marked confidential and kept separate from the public record.
(4)Access to the material referred to in regulation (3) shall be availed by order of the Committee.

19. Language

(1)The languages to be used during a hearing shall be Kiswahili, English and Kenyan sign language or where appropriate other languages understood by claimants and witnesses.
(2)The Commission shall provide competent interpreters for spoken or sign language, as the case may be, for parties or witnesses appearing before it.

20. Oath or affirmation

A witness shall give evidence after taking an oath or affirmation.

21. Summons to appear

The Commission may issue summons to any person in Form NLC/HLI/06 in the Schedule, to—
(a)appear before it on an appointed date, time, venue and make representations on a matter as required; or
(b)submit such documents or evidence on the claim as the Commission may require.

22. Disclosure of documents

The Committee may, at any stage of the proceeding and before completion of a hearing, make orders for—
(a)the exchange of certified documents which are not subject to a claim of privilege;
(b)the oral or written examination of a party;
(c)the exchange of witness statements;
(d)the reports of expert witnesses;
(e)the provision of particulars; or
(f)any other form of disclosure.

23. Protection of a witness

(1)The Commission shall on its own initiative or on an application by a person, in writing, arrange with the relevant government agencies for the protection of persons placed in danger by reason of their evidence or other interaction with the Commission relating to the investigation of a claim.
(2)The evidence referred to in sub-regulation (1) includes that which has not been given before the Commission.
(3)Any person may make an application, in writing, to the Commission for protection.

24. Adjournment

A hearing may be adjourned, from time to time, by the Committee of its own motion or where it is shown, to the satisfaction of the Committee, that the adjournment is required to permit a hearing to be held.

25. Decision of the Commission

(1)After concluding investigations of the matter, the Commission shall render a decision within twenty-one days.
(2)A decision under sub-regulation (1) shall be in writing and shall contain—
(a)the nature of the claim;
(b)a summary of the relevant facts and evidence adduced before the Commission;
(c)the determination and reasons supporting the Committee's decision; and
(d)a recommendation on the remedy, if any, to which a party is entitled.

26. Decision

(1)A determination made by the Commission shall be —
(a)extracted and authenticated as a decision of the Commission; and
(b)signed by the Chairperson under the seal of the Commission.
(2)A certified copy of the recommendation shall be made available to the parties within sixty working days from the date of determination.
(3)Upon making a determination, the Commission shall within twenty one days furnish the authorities responsible for redress recommended with a copy of the determination for appropriate action.

27. Publication of decisions

The Commission shall publish its decisions and recommendations—
(a)in the Kenya Gazette;
(b)in at least one newspaper with national circulation; or
(c)on the website of the Commission.

28. Appeals

A person aggrieved by the decision of the Commission may, within twenty eight days of the publication of the decisions, appeal to the Court.

Part IV – MISCELLANEOUS PROVISIONS

29. Communication with the Commission

A party who has a representative shall communicate with the Commission through the representative.

30. Power to seek assistance

The Commission may seek the assistance of the National Police Service or any other office of the national or county governments to facilitate its work and enforce its decisions under these rules.

31. Claim made to the Commission by a claimant before the commencement of these Regulations

(1)Claim made to the Commission by a claimant before the commencement of these Regulations shall be investigated in accordance with these Regulations.
(2)Despite subregulation (2), nothing in these Regulations shall nullify any action taken by the Commission before the coming into effect of these Rules.

SCHEDULE

FORMS

FORM NLC /HLI/01(r. 7(1)(4))
The Historical Land Injustices Rules, 2016
LODGING A HISTORICAL LAND INJUSTICE CLAIM
 
Ref. No ...............................................Date: ..................................................
(To be filled in duplicate)
Part I - Personal Details of Claimant(s)
1. Name of Claimant: .............................................................................................
2. Address ...........................................................................................................
(a) ID/Passport Number ....................................................................................
(b) Registration No/Incorporation No. (Where applicable) ...................................
3. Date of the Claim ..........................................................................................
4. Grounds on which the claim is made
.............................................................................................................................
..............................................................................................................................
5. Number and particulars of witnesses
..............................................................................................................................
...............................................................................................................................
6. Period when the injustice occurred ......................................................................
7. Resultant effect
...............................................................................................................................
...............................................................................................................................
8. Previous attempts to resolve the injustice ............................................................
9. Contact Person (in case the claimant is not an individual): ..............................
Telephone .......................................................................................................
Email .............................................................................................................
Postal Address ...............................................................................................
Part II - Particulars and description of the Property
Please complete the following particulars of the property you wish to make a claim on:
1. Land Reference Number/Parcel Number/other physical description:
........................................................................................................................
........................................................................................................................
2. Acreage (if applicable): ................................................................................
3. County ........................................................................................................
4. Sub-County .................................................................................................
5. Location .....................................................................................................
6. Sub-Location ..............................................................................................
7. Village .......................................................................................................
8. Physical features ......................................................................................
9. Settlement/Development Characteristics ................................................
10. Boundaries ...........................................................................................
11. Any other information the claimant wishes to provide ............................
Part III - Suggested remedy
Kindly suggest your preferred resolution to your claim
..........................................................................................................................................
Signature/Thumb Print of the Claimant or the Duly Authorised Representative of the Claimant
..................................................................................................................................
Date .............................................
TO BE SUBMITTED TO:
The Secretary/CEO
National Land Commission
P.O. Box 44417-00100
Ardhi House, 12th floor, wing B

________________________________

FORM NLC HLI 02(r. 7(5))
The Historical Land Injustices Rules, 2016
ACKNOWLEDGEMENT FORM
Claim Ref Number: .............................................................
To:
Date:
The Commission hereby acknowledges receipt of your Historical Land Injustice claim dated the .................. day of ....................... 20 .............. which is under consideration.
You will be notified of the progress in due course.
Name ..................................................
Signed .................................................
CEO/ SECRETARY TO THE COMMISSION
..................................................................

________________________________

FORM NLC HLI 03(r. 7(3))
The Historical Land Injustices Rules, 2016
ADMISSIBILITY CHECKLIST FORM
This form shall be used to assess all Historical land injustices claims
NO.ADMISSIBILITY CRITERIAYESNOREMARKS
1.Did the historical land injustice occur between 15th June 1895 and 27th August 2010?   
2.Was violation of right in land based on-   
(a) law   
(b) policy   
c) treaty   
d) administrative action   
3.Was the historical land injustice-   
(a) colonial occupation   
 b) independence struggle   
c) treaty or agreement   
 d) development induced   
 e) inequitable land adjudication   
 f) politically motivated or conflict based eviction   
 g) corruption or other form of illegality   
 h) natural disaster   
 i) any other cause approved by the Commission including-   
 (i) illegal acquisitions   
 (ii) multiple allocations   
 (iii) exclusion of source of livelihoods   
4Does the claim contradict the law that was in force at the time when the injustice began?If yes, explain   
5Was the claimant an occupier or proprietor of landon which the claim is based?   
6Does action or omission on the part of claimant amount to surrender or renouncement to the right on land?   
7Is the claim brought within a period of five years from the date of commencement of this Act?   
8Has the historical land injustice not been sufficiently resolved. If yes, indicate previous attempts at resolution   

________________________________

  
FORM NLC/HLI/04(r. 7(8))
The Historical Land Injustices Rules, 2016
NOTICE OF ADMISSION OF CLAIM
 
Claim Ref Number: ......................................
To: ................................................................
Date: .............................................................
 
The Commission has assessed your Historical Land Injustice claim and finds itAdmissible for further investigation by the Commission. You will be contacted in due course
Not admissible for the following reasons:
..........................................................................................................................................
..........................................................................................................................................
Name ..................................................
Signed ................................................
 
CEO/ SECRETARY TO THE COMMISSION
.....................................................
 
___________________________
FORM NLC/HLI/05(r. 7(8), 15(1))
The Historical Land Injustices Rules, 2016
 
NOTICE TO APPEAR
 
Claim Ref Number: ....................................... Date: ............................................
To:
......................................................................................................................................
......................................................................................................................................
Summary of Claim:
......................................................................................................................................
......................................................................................................................................
 
You are hereby requested to appear before the Historical Land Injustices Committee sitting at ........................ on the ........................ day of ....................... 20 .............. at ........................am/pm to give information in reference to the above claim. You are also requested to bring any supporting documents or any witnesses you may consider relevant.
Acknowledgement of receipt
Name of Claimant ........................................Signature ....................................
Date ............................................................
Return to CEO/ Secretary

________________________________

FORM NLC/HLI/06(r. 14(4) & 22)
The Historical Land Injustices Rules, 2016
SUMMONS
Claim Ref Number: .......................
To:
....................................................................................................................................
.....................................................................................................................................
Date: ..............................................................
Claim:
..........................................................................................................................................
Pursuant to Article 67(2)(e), 252(3) of the Constitution of Kenya and Section 6 of the National Land Commission Act, you are hereby summoned to appear before the Historical Land Injustices Committee sitting at ................................ on ....................... day of ........................... 20 .......................... at ....................... am/pm. to give evidence in reference to the above claim. You are also required to bring any supporting documents.
Name .................................................................
Signed ................................................................
CEO/SECRETARY TO THE COMMISSION
Served upon ...................................................Signature.......................................
Date ...............................................................
Place .............................................................
Time .............................................................
Served by ......................................................Signature ......................................
 
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