The Place of Assistant County Commissioners in Land Administration in Kenya
Position Paper

Introduction
The new Constitutional Dispensation has radically altered land administration in Kenya. Through Chapter 5, the Constitution of Kenya (CoK), 2010 delineates the normative principles that are to guide land administration in Kenya. These principles, which have been expanded upon by subsequent legislation made in pursuance of Chapter 5, identify the roles and responsibilities of various authorities involved in land administration. It should be noted that the entire gamut of laws that regulated transactions in land have either been repealed or amended to accommodate these principles of land administration. These laws include the Indian Transfer of Property Act of 1892, the Land Titles Act, the Registered Land Act, and the Government Lands Act, and the Registration of Titles Act. The new laws enacted in their place are: the Land Act (2012), the Land Registration Act, and the National Land Commission Act.
Land administration is conducted under the auspices of public administration. Prior to the 2010 Constitution, land administration was handled by the Ministry of Lands as well as the Provincial Administration. The Cok, 2010 envisages that land administration should be streamlined and conducted by a specialized body- the National Land Commission. Drawing from the Sessional Paper No. 3 of 2007, the National Land Commission is expected to implement the land policy in collaboration with relevant state and county authorities. The introduction of devolved governments in Kenya’s Constitution has created a novel mechanism of public administration in Kenya, and with it, complexities regarding the roles and function of various state and county officials. One such office is the Office of County Commissioner, which is established by the National Government Co-ordination Act (No. 1 of 2013). The office of the County Commissioner was created with the aim of coordinating national government functions at the County level. The place and role of County Commissioners and their Assistants in the administration of public land forms the subject matter of this position paper.
Problematizing and Contextualizing Land Administration in Kenya
The two main bodies entrusted with land administration in Kenya are the Ministry of Lands and the National Land Commission. The Ministry of Lands is part of the executive and is tasked with certain duties and responsibilities. These are: registration, valuation, and physical planning and adjudication settlement. The ministry of lands is part of the National Government. The National Land Commission is the constitutionally mandated body tasked with the management of land on behalf of county and national governments, advising the government on matter of land registration as well as researching on land use management. As presently constituted, the National Land Commission is operational and liaises with County governments on matter of land administration. According to Section 17 of the National Land Commission (NLC) Act, the NLC is required to consult and cooperate with National and County governments in accordance with Article 10 and 232 of the CoK, 2010. The County Land Management Boards shall be responsible for: processing applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and the performance of any other function as may be allocated to it by the National Land Commission or any other law.
Section 8 of the National Government Coordination Act (NGCA) of 2013 vests in the President the powers to coordinate national functions of ministries, state, and government departments. Section 8(2) gives the President the power to appoint National Government Administrative Officers to help in coordinating the government functions at the national level. Section 9 of the Act appoints the Cabinet, and establishes that the Cabinet Secretary shall be the direct link between the President and Parliament, whichever the case may be. Part III of the NGCA, 2013 establishes several key offices that help discharge the coordinating function of the national government at the county level. These officials are appointed by the Public Service Commission. According to Section 15 (2), the following officials shall be appointed by the Public Service Commission:
a) A county commissioner in respect of every county;
(b) A deputy county commissioner in respect of every sub-county;
(c) An assistant county commissioner in respect of every ward; (d) A chief in respect of every location; (e) An assistant chief in respect of every sub-location; and (f) Any other national government administrative officer in respect of a service delivery unit established under section 14.
The NGCA is categorical, at Section 16, that the national government administrative officials appointed under Section 15(2) shall have all the power and authority necessary for their performance of their duties. Section 17 of the NGCA, 2013 emphasizes that the officials appointed shall discharge all the coordinating activities on behalf of the national government in their jurisdictional capacities. Issues of jurisdiction are important because without jurisdiction, any action undertaken by the official is rendered void ab initio. These functions shall be discharged at the county level and any other decentralized unit in pursuance of written law and the Constitution. Section 18 of the Act provides for the establishment of a mediation committee in cases where there is a concurrence of powers between national government officials and county governments.
The Jurisdictional Capacity of Section 15 Appointees on Matters Land
The National Government and Coordination Act of 2013 does not specifically elucidate on the powers of coordinating officials appointed under section 15 of the Act. However, it appears that their role is to provide efficient and effective coordination of national government activities at the county levels. Their duties may thus involve issues of land administration. Since Section 17 gives them full powers to discharge their jurisdictional mandates, it must be taken to mean that they may even handle land issues should they come to their attention.
The Ministry of Lands is the executive part of the national government tasked with the discharge of specific mandates. At the County level, the functions of the Ministry of lands are discharged by officials appointed under Section 15 of the National Government Coordination Act. Section 15 clearly establishes that the Office of the President is charged with ensuring coordination of all national functions at the national and county government level. Since the national government and the County governments have specific mandates to discharge without interfering with each other’s jurisdictional capacities, the involvement of officials appointed by section 15(2) in land management does not infringe on the ability of the County Land Management Boards to discharge their duties under section 18 of the National Land Commission Act. The NGCA is specific as to the coordinating function of these public administrators. The Ministry of Land, which is headed by a Cabinet Secretary directly answerable to the Office of the President and Parliament, has executive mandate in land administration. In the discharge of its functions at the national and county level, it uses the Section 15 appointees to execute its mandate in collaboration with County Governments. As such, the use of County Commissioners, Deputy County Commissioners, Assistant County Commissioners, et al. to administer the mandate of the Ministry of Lands is consistent with the Constitution and the Land Laws of Kenya. Their role is to augment executive functions and ensure that national functions relating to land administration are effectively and efficiently resolved. In their exercise of powers, they shall have full jurisdiction to entertain any all those functions they are permitted to discharge under the Constitution and the National Government Coordination Act.
Their jurisdiction over land issues in their respective capacities (ward, sub-county, location) shall not be limited by any person. Section 17 protects these employees of the national government from jurisdictional incompetence by giving them full powers with which to execute their mandate. The place of County Land Management Boards is not impeached by the exercise of authority of these national government officials appointed under Section 15 of the National Government Coordination Act of 2013. The role of County Land Management Board is to support the National Land Commission to discharge its mandate at the County level. This is in appreciation of the mandate of the National Land Commission, which is tasked with the administration of land for both national and county governments. The roles of County Land Management Boards are to processing applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and the performance of any other function as may be allocated to it by the National Land Commission or any other law. On the other hand, the Ministry of Lands is tasked with functions of land valuation, survey, registration, physical planning, and land adjudication. From the foregoing, it is evident that the roles of the national government vis-à-vis those of County Land Management Boards and the National Land Commission are distinct, separate and not in conflict. As such, national government employees appointed by Section 15 of the NGCA do not violate the provisions of any land law when they discharge their executive functions as may be prescribed to them by the Office of the President (OP) through the various ministries, including that of Lands. They are protected in the exercise of their functions by Section 22 of the NGCA, which protects them from assuming personal liability in the bona fide exercise of their functions. In case of a conflict between the powers of these officials with the county government, section 19 provides for mechanisms of resolving the dispute by referring it to a mediation committee.
Conclusion
Assistant commissioners have the jurisdiction to entertain land issues pursuant to their executive functions relating to national coordination at the ward level. Deputy Commissioners have this jurisdiction at the Sub-county level, and County Commissioners exercise their jurisdiction at the county level. Chiefs and assistant chiefs have jurisdiction to settle land issues at the location and sub-location level. It is worth pointing out that in the discharge of their mandate, these national government officials (Section 15(2) employees) must remain alive to the Constitutional principles relating to land management enunciated in Article 60(1) of the CoK, 2010. These principles relate to fair administration. They are: equitable access to land; (b) security of land rights; (c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

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[ 1 ]. It is worth noting that Article 60 of the Constitution enunciates the principles of land administration in Kenya. The most pertinent among these are: (a) equitable access to land; (b) security of land rights; (c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with the Constitution. The principles are to be reviewed regularly by the national government and through legislation.
[ 2 ]. The National Land Commission is established under Article 67 of the CoK, 2010. Its functions are enumerated as: (a) to manage public land on behalf of the national and county governments; (b) to recommend a national land policy to the national government; (c) to advise the national government on a comprehensive Landholding by non-citizens and for the registration of title in land throughout Kenya; (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; (e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress; (f)to encourage the application of traditional dispute resolution mechanisms in land conflicts; (g) to assess tax on land and premiums on immovable property in any area designated by law; and (h) to monitor and have oversight responsibilities over land use planning throughout the country. (3) The National Land Commission may perform any other functions prescribed by national legislation.
[ 3 ]. This is done through established County Land Management Boards. Section 18 of the NLC Act provides for the establishment of the boards.
[ 4 ]. The composition of the County Boards is envisioned by S. 18 (2) of the NLC Act to include: (a) not less than three and not more than seven members appointed by the Commission; and (b) a physical planner or a surveyor who shall be nominated by the county executive member.
[ 5 ]. Section (4) of the NGCA, 2013.
[ 6 ]. Section 15(1).
[ 7 ]. Section 17.
[ 8 ]. These are: registration, valuation, and physical planning and adjudication settlement.
[ 9 ]. These includes land valuation, survey, registration, physical planning, and land adjudication.
[ 10 ]. The entire text of Section 19 reads thus: (1) where a dispute arises as to the mandate or powers of any of the officers, or roles of respective officers of the county governments and those of the national Government, a mediation team shall be constituted to deal with the dispute. (2) The mediation team constituted under subsection (1) shall consist of two eminent persons appointed by the Governor and two eminent persons appointed by the Cabinet Secretary for the time being responsible for national government co-ordination. (3) The mediation team shall be guided by the constitutional principles and the respective constitutional mandates of each respective government. (4) The mediation team shall undertake and finalize its task within a period of fourteen days. (5) Should the mediation team fail to resolve the dispute within the stipulated time, the matter may be referred to the Summit under the Inter-Governmental Relations Act, 2012 (No. 2 of 2012) for resolution.
[ 11 ]. Article 60(1) of the Constitution.