The place of the old Land regime of Land Laws in Current Proprietary Land Transaction and the appraisal of the new Land Laws

• Following a dynamic change in the land reforms on land administration and management in Kenya The New Constitution of Kenya 2010, Article 61 has equipped us by providing a legal structure on what land is and land systems. It has also poses a great responsibility and obligation to the parliament to enact new laws in accordance to management and administration of such statutory laws include, the Lands Act, The Land Registration Act and The National Land Commission.

• Previously, past land regimes like, The Crown Ordinance, The lands Titles Act, Registration of Titles Act, Registration of lands Act, The Government Lands Act, The land control Act and the Indian Transfer Property Act were in existence, however they were repealed by the Lands Act (2012), Lands Registration Act (2012) and National Land Commissions Act (2012), However still, this laws are still in play and are applicable in the background and has combined  all other  land systems  into  form  the three statutes as highlighted above.

• The Land Title Act, it was enacted in 1908 majorly for the aim of facilitating land alienation at the Coastal region. It’s applied in the current land transactions as the procedure of adjudicating private claims over any piece of land which is not successfully claimed by private individuals reverted back in the colonial government upon independence in the Kenyan government and this procedure is followed up to now. 
• The Registration of Documents Ordinance, All the documents registered under this ordinance was subjected to a 999 period of leases which had been converted into freeholds by the commissioner pursuant to his power under the 1915 Crown Land Ordinance. Currently under the new land regimes, the agricultural lands are subjected to the 999years lease and the urban areas to 99years.
• The Registration of Titles Act, was enacted in 1920.It facilitated the registration of all the prime plots. Its application to the current proprietary land transactions it’s that its main purpose is to insure titles to land and regulation.

On to the appraisal of the new land laws,

• It has repealed  old statutes and reconciled them into three main statures which have in fact made it easy to get the legal procedures of ownerships, conveyance and finally disposing off property. It has also fostered the registration of title system. Other than that ,it has compressed  previous land  system into 3, majorly the public land, the private and the community land.

• Another key feature is that it has led to the formation of Environmental and Land Court which related to disputes of the land, herein the court has Original and appellate jurisdiction to listen to matters pertaining land and in accordance with Article 162(2).Under the Environmental and Lands Court Act, Section 3 states that its principle objective is to facilitate the just expeditious, proportionate and accessible resolution of disputes . Lastly it has equipped a new machinery of registration system.

REFERENCE

Constitution of Kenya 2010

Conveyancing Principles and Practice, Tom Ojienda

The Constitution Review Commission (CKRC)

Environment and Lands Courts Act  CAP19

Lands Act NO 6 OF 2012

Land Registration Act NO 3  OF 2012

National Land Commission Act NO.5 OF 2012

Where does the Bailiff get the Power to Execute?

Where does the Bailiff get the Power to Execute under the Civil Procedure Code and under the High Court (Organization and Administration) Act?

1. When there is a warrant for arrest to direct judgment-debtor to be brought up 

[Order 22, rule 32.]

Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.

2. Where the defendant may be called upon to furnish security for appearance, 

 

[Order 39, rule 1.] At any stage of a suit, other than a suit of the nature referred to in paragraphs ;-

(a) to (d) of section 12 of the Act, the court is satisfied by affidavit or otherwise—

(a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him—

(i) has absconded or left the local limits of the jurisdiction of the court; or

(ii) is about to abscond or leave the local limits of the jurisdiction of the court; or

(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof; or

(b) that the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court.

Endorsement on process

[Order 22, rule 20.]

Process for execution(1) When the preliminary measures (if any) required by the foregoing rules have been taken, the court shall, unless there is cause to the contrary, issue its process for the execution of the decree.

 [Order 22, rule 21.]

(1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the court may examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

Under the High Court (Organization and Administration) Act, 

Execution and Taxation of Bills of Costs

39. (a) For efficient service delivery the High Court shall adopt active management of the Courts’ execution processes.

((e) A separate register of matters with post judgement activities shall be maintained to track the progress of the matters.

Challenges facing Human Rights Defendants

Challenges faced by Human Rights Defendants

Considerations about the security of defenders often begin with physical security – that is, the bodily integrity and liberty of defenders and the security of physical spaces where they live and work. Protection actors who support defenders in their physical security often help them to analyse risks and threats, create security plans and help them to secure their work.

Mental Impact : While recognising the significance of mental health issues amongst defenders and the impact of burnout on the sustainability and resilience of movements, there are concerns that this approach, when pushed upon individuals and groups in isolation, can inadvertently place heavy burdens on defenders. That is, it signals to defenders that not only do they need to adopt practices that keep them safe both physically and in the digital world, they are also expected to be psychologically healthy in the face of overwhelming odds and against cultures of human rights practice.

 

 

Freedom from constant threats – the absence of war, living without fear and violence, freedom of movement, stability, security, smiling children, homes, going for a walk at night unimpeded, etc. 

Economic security – employment, food, social justice, the absence of oppression, etc. Political security – democracy, freedom of thought, freedom of choice, legitimacy, the rule of law, solidarity, the United Nations, etc.

 

Environmental security – eco-friendliness, environmentalism, unpolluted air(tear gases) and water, etc.Activism can come in many different forms. It doesn’t have to be rallies or marches. HRDS according to Kenya National Human Rights Commission encounter daily risks that include; harassment, interference and intimidation by state and non-state actors, insecurity, corruption, lack of adequate resources, discrimination and sexual violence against women HRDs, and interference with the work of HRDs by both government agents and hostile cultural environments.

Health security:recommendation in terms of health protection, accessiblemedicaltreatment.The psycho-social wellbeing of defenders has been greater recognition of the high levels of burnout, fatigue, anxiety, depression, anger and post-traumatic stress disorder amongst human rights defenders, and of the need to address these in security measures.  “Well-being “in action” and “being physically and emotionally healthy”. Inspired by Audre Lorde, it emphasises the importance of self-care “not as a selfish act, but rather as a subversive and political act of self-preservation . 

Injustices:On another end  new  high-level challenges are  emerging disproportionately impacts  many communities, and the youth are forced to face many other injustices: deaths in custody, high rates of youth detention, racism and discrimination, high suicide rates, and poor healthcare,factors make it difficult for HRDs to promote human rights principles, and lack cooperation from police officers and amongst themselves.

The following are the recommendations which this research  proposes to human rights defenders, the government and other stakeholders to take keen consideration on promoting favourable working environment for HRDs in the country;-

• Encourage the law reforms to enable HRDs gain legal recognition and thus become part and parcel of the Law protection program.This will help in bridging the gap between them with the government functionaries a good number of whom perceive defenders negatively.
• International and regional partners, donors, embassies, African and UN bodies should be keen to monitoring human rights situation in  Kenya and intervene especially at this time where violations of human rights and the situation of HRDs generally is quite tense, more so on the election period.
• Good professional and financial status is vital for the safety and security of journalists. Journalists who work professionally and are financially well facilitated face less risk than those who operate unprofessionally and without sufficient resources. We therefore, advice media owners to consider this reality and act accordingly.

 

• The government should ensure that the police force observes, respect and protects the rights of journalists when undertaking their daily duties in the country.The police force should create a criminal system that provides an independent investigation to investigate all cases involving HRD journalists who were killed or assaulted while on duty and those  who need special protection on high interest  cases.
• The government should create a civic space and conducive environment for civil society and human rights defenders to work freely.The government should develop a national policy and law that recognizes and protects human rights NGOs and human rights defenders in Kenya.
• The government should amend some provisions of the current laws such as (Cybercrimes Act, Media Act, 2016), Access to Information, Political Parties Act,The Online Content Regulations and the Statistics Act, 2015 and its Regulations in order to expand civic space and freedom of expression in the country.Subsequently to provide an inclusive environment to the public and other key stakeholders when developing laws regarding media services, access to information and freedom of expression should be provided.

 

• The government should create an environment for civil society and the media to operate in accordance with the rights enshrined in the Constitution of Kenya , International Covenant on Civil and Political Rights (ICCPR) and the UN Declaration on Human Rights Defenders. At a minimum, the following conditions should be ensured: freedom of association; freedom of expression; the right to operate free from unwarranted state interference; the right to seek and secure funding; and the State’s duty to protect.
• The government and international development partners should support the implementation of the National Human Rights Action Plan by allocating sufficient resource  through an independent funding mechanism directly from the Ministry.
• The government should end the culture of impunity for violations against innocent people, journalists and human rights defenders by ensuring that investigations are promptly and impartially conducted, perpetrators are held accountable, and victims obtain appropriate remedies.
• Government leaders should take CSOs sector as a vital link to the community development especially in terms of job creation, economy, welfare and social services, development, human rights and welfare of the democratic country. The NGOs sector should be given respect, protection, recognition and cooperation rather than scorn and isolation even in matters relating to coordination with their registration.
• Relevant authorities should fully investigate all cases of intimidation and attacks against civil society activists and human rights defenders to bring perpetrators to justice and deter similar acts.

Other vital recommendations include:

• Engage more advocates who will be readily available to provide legal aid and protection to HRDs like Sheria Mtaani by Shadrach,Article-19, Kituo Cha Sheria.The is an ultimate need to continue to advocate and act as a voice for the amendment of the laws that have been identified as been a stumbling block towards the work of HRDs in Kenya.
• Utilize the current country’s major legal reform to fight for inclusion of HRDs rights and protection in the Constitution and to educate ourselves more on our rights and responsibilities. That is the only way we will be able to hold our duty bearers to account. Let’s focus less on the people in politics and more on the development agenda.

• Increase protection and emergency funds in order to avoid delays in the provision of services to affected HRDs.

• Conduct thorough media campaigns and change of behavior trainings in areas where HRDs are threatened due to some social cultural issues.