The Five-Year Limitation on Addressing Historical Land Injustices: A Critical Appraisal of the Land Commission (Amendment) ACT 2025

Introduction

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In Kenya, land has historically functioned as more than an economic asset, for it embodies identity, heritage and socio-political power. The discourse on historical injustices may be traced back to the colonial period, the British invasion of the Protectorate in 1885, which anchored the historical injustices that continue to manifest in forced evictions and inequitable land ownership have transcending generations up to the present day. In recognition of these injustices, the 2010 Constitution established the National Land Commission (herein referred to as the NLC) under Article 67 (2) (e), mandating it to investigate present and historical land injustices and recommend appropriate redress. However, the recent enactment of the National Land Commission (Amendment) Act 2025(herein referred to as the NLC (Amendment) Act 2025) has introduced a significant procedural shift by imposing a five-year limitation period within which such claims must be lodged.

Although the government justify these amendments as a necessary measure to enhance administrative efficiency, legal certainty and finality in land ownership, it has equally raised profound constitutional and practical concerns. According to critics, the five-year deadline might jeopardise Article 48’s guarantee of access to justice, especially for marginalised communities who still encounter obstacles when trying to use the legal system. Furthermore, others argue that the restriction goes against the Constitution’s doctrine of transitional justice and compromises the NLC’s mandate of promoting equity and reconciliation in land governance.

This article critically examines the legitimacy, justification and ramifications of the five-year limitation on historical land injustice claims under the NLC (Amendment)Act 2025. It examines whether the restriction aligns with Articles 40, 47 and 48 of the Constitution and evaluates how well it balances victims’ rights. It aims to ascertain if the amendments are a step in the right direction towards efficiency and closure or a step backwards in the pursuit of addressing historical land injustices.

Rationale and Legislative Intent of the Five-Year Limitation

Proponents of the NLC (Amendment) Act 2025 argue that the five-year limitation was required to encourage administrative efficiency in the NLC by restoring its mandate to review historical land allocations and address injustices. The amendment included a five-year window for the NLC to review grants and dispositions of public land issued before 27 August 2010, with the option to petition Parliament for an extension under Section 14 (14) of the NLC (Amendment)Act. Section 14 (9) allows registration of determinations made by the NLC in reviewing and granting dispositions with the High Court, and to be published in the gazette (Section 14 (11) & Section 15 (11)).

Furthermore, Section 14 (12) & 15 (12) of the NLC (Amendment) Act allows a person aggrieved by a decision made by the NLC can apply for review for determination under Section 7 of the Fair Administrative Actions Act. Overall, these arguments need to be balanced against the moral and constitutional obligations to provide restitution to victims of historical injustice.

Implications of the Five-Year Limitation in Addressing Historical Land Injustices

Article 40 (6) guarantees every person the right to acquire and own property of any description, which excludes property unlawfully acquired. The five-year limitation potentially undermines this right by foreclosing claims to land that was historically alienated through illegal or unjust statutory actions. Victims who are unable to file claims within the set period may lose the opportunity for redress, thus entrenching past injustices. Furthermore, the limitation could indirectly validate land titles that were initially obtained through fraud or illegality simply because procedural time has elapsed. This raises a constitutional tension between security and certainty of legal titles and substantive justice, calling for a balancing test consistent with Article 24 on the limitation of rights.

Article 47 and Article 48 impose an obligation on the State to ensure that administrative and legal procedures are accessible, expeditious and equitable. By imposing a time frame for filing historical land injustices claims, the amendment risks excluding marginalised groups who often lack legal avenues to access justice in addressing historical land injustices.

In the context of transitional justice, the principle of non-retrogression requires States to avoid measures that diminish existing rights or remedies. The imposition of a time bar in addressing historical land injustices effectively narrows the scope of redress available under the 2010 Constitution framework, unless justified under Article 24. The five-year limit may therefore be unconstitutional.

The NLC (Amendment) Act, 2025, remedial approach of addressing historical land injustices undermines the core function of the Limitation of Actions Act, specifically under Sections 7,9 and 10, which are premeditated to bring finality to property disputes.

Sections 7,9, and 10 of the Limitation of Actions Act embody the maxim interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to litigation), for it provides a 12-year bar for a possessor to gain an indefeasible right to the property. By perpetually resuscitating historical land claims and overriding the 12-year bar for review and revocation, the NLC (Amendment) Act, 2025, creates title uncertainty.

Moreover, the NLC (Amendment) Act, 2025 provides a shield for historical land injustice claimants by exempting them from the duty of due diligence, for it allows claims that could have been persuaded decades ago to be resurrected. It will introduce an element of iniquity towards long-term holders who may have made substantial improvements to the land, relying in good faith on the statutory protection of the Limitation of Actions Act. The Limitation of Actions Act enforces the maxim vigilantibus non dormientibus aequitas subvenit (equity aids the vigilant, not those who sleep on their rights), for it penalises inaction if an owner fails to assert their right to recover land within the 12-year window under Section 7.

Lastly, the NLC’s determination of what constitutes ‘historical land injustice’ under Section 15 is inherently subjective and depends on complex factual findings. Despite the process being remedial, it is prone to political influence and extensive litigation since the findings of the NLC can be challenged in courts. This creates a multiplicity of actions, which further delays the final resolution of historical land disputes, directly contradicting the efficiency goal of the Limitation of Actions Act.

Implementation Challenges and Institutional Incapacity of the NLC

The success of the amendments depends heavily on the NLC’s institutional capacity. Periodically, the NLC has struggled with the digitisation of land records, hampered by overlapping and inconsistent government policies, inadequate funding, political interference & corruption and jurisdictional turf wars with the Ministry of Lands. Imposing a five-year deadline without addressing the above challenges risks creating superficial compliance rather than promoting access to justice.

Due to a lack of public inclusion and awareness in regards to the functions of the NLC, many afflicted communities and victims remain unaware of the new timeline, which may lead to more mass exclusion once the timeline lapses. Furthermore, challenges faced during the documentation of historical land injustices (language barriers, ignorance, etc.) especially in the rural areas, impede filing claims. Without clear procedural guidelines or a comprehensive database of historical injustices, the NLC may find it difficult to conclude pending investigations within the prescribed timeframe.

Conclusion

The imposition of a five-year limitation on addressing historical land injustice claims under the NLC (Amendment) Act presents a critical juncture in Kenya’s pursuit of land reform. While the amendments seek to promote certainty and administrative efficiency, it also risks raising concerns about the realisation of constitutional rights and the spirit of restorative justice envisaged under the 2010 Constitution. A rigid time bar excluding victims who continue to grapple with structural barriers to justice leads to perpetuating the very inequities the NLC was established to address. A balanced approach is required that safeguards victims’ access to justice while ensuring efficiency does not eclipse equity. Henceforth, Kenya should adopt a context-sensitive and inclusive approach that strengthens institutional capacity, enhances public awareness and preserves access to justice in the NLC. Only through such a balanced framework can the country meaningfully reconcile its commitment to both legal certainty and historical redress to land injustices.

Written by Grace Gakii Mutwiri and Paul Nyaosi

This article is for informational purposes only and does not constitute legal advice.