On 19th December 2016, Hon Justice Onguto delivered a Judgement in the case of Anthony Otiende Otiende Vs Public Service & 2 others (2016) eKLR which has sent the country into shock over the validity of the titles they hold when he made a declaration that the registration forms as promulgated by the CS-Lands well as the consequent forms of titles are unconstitutional, null and void. Worse was that there was misreporting by various news outlet to the effect that the security banks and financial institutions are holding are of no value in light of the said judgement.

That said, what orders and declarations were made by the court as regards the referenced topic? I will endeavour to explain & interpret them herein below.  The case was instituted by way of a constitutional petition under Section 110 (2) of the Lands Registration Act.

The Section deals with delegated legislation and provides as follows:

1) The Cabinet Secretary…may prescribe

a) the forms to be used in connection with this Act…

2) In making the regulations, rules or prescribing any matters required under this Act, the Cabinet Secretary “SHALL” take into account the advice of the Commission as required under the Constitution and such regulations or rules shall be tabled before Parliament for approval.

The court in making its determination, stated that indeed in prescribing the forms for purposes of the disposition of land, the CS failed to consult the National Land Commission and further failed to table the forms before parliament for approval. The court stated that the wording of section places a mandatory obligation on the CS to do these 2 things and not a discretionary obligation. This is emphasized by the use of the word “SHALL” on the section as opposed to the use of the word “may” or “can, which word connotes a duty and imperative obligation and not a mere directive one.

On this basis, and noting that the CS disregarded this mandatory statutory requirement, the court was called upon to make a determination on whether the forms that have been used by the public for purposes of land transactions since 2013 were valid.

The court noted that where a non-parliamentary body/third party is mandated by the law with the task of making delegated legislation, it is the role of parliament to supervise the laws legislated by the third party as it is the primary role of parliament to make legislation. It is for this reason that the law requires and demands parliamentary approval.

The CS was thus found wrong to have prescribed the forms in isolation and without the necessary consultation and approval. The forms as is were therefore declared null and void.  The court, even in declaring the prescribed forms as unconstitutional, was conscious of the fact that an outright declaration of invalidity would certainly interrupt the registration processes of various titles and create doubt and uncertainty over the titles that have been disposed or transacted over under the said forms.

So as to cure this issue, the court went on to invalidate the impugned forms but at the same time and in the public interest suspended such invalidation to avoid throwing the entire system of registration of title into disarray and chaos. The court then made the following declarations;

• The court declared that the registration forms as well as forms of title including Leases, Title Deeds, Grants and Certificates of Title or of Lease made and promulgated by the CS-Lands without the advise of or input of the National Land Commission and without the necessary public participation and or parliamentary scrutiny and approval are unconstitutional null and void;
• However considering the immediate consequences of the above declaration on the registration of titles processes, the declaration of invalidity is hereby suspended for 12 months to enable the CS to regularise the situation by undertaking consultation with the NLC, engaging the public participation, and seek parliament’s approval. This means that the public may proceed to dispose and transact with these forms for 12 months pending the promulgation of other forms by the CS.
• The court stated that the declaration of invalidity will not operate retroactively. This means that thought the court notes that the titles the public may have acquired for either personal or commercial transactions such as security for facilities will not be treated as invalid even if the forms that were used in obtaining these titles were not valid. It therefore does not affect titles that were acquired prior this judgement.
• That should the CS not comply in promulgating new forms within the 12 months, then any forms transacted after the 12 month suspension period will be null and void and any consequential transactions undertaken using these forms after the said reprieve period will be null and void.

Conclusion

In conclusion, the misreporting that the titles or securities you hold are invalid are false is a misinterpretation of the judgement. The declaration of invalidation of title is not retroactive and therefore does not affect your title. Further there will be no stay of transactions as there is a 12 month reprieve period within which the invalidation of the forms for disposal of land under the Lands Registration Act has been suspended.

We will note to update you once the CS complies with the court orders and publishes the new forms. We hope that this article has been useful to you.