The National Land Commission (NLC) has opposed a portion of a proposed bill that aims to mandate property owners with freehold land situated within or near urban areas to pay an annual land levy alongside existing land rates. The commission conveyed to the National Assembly’s Lands committee that implementing such a land levy would constitute double taxation. Kabale Tache, the CEO of NLC, emphasized to the committee that freehold interest should not be equated to leasehold interest.
“There should be no levy charged on freehold land apart from rates,” Ms Tache said while calling on MPs to delete the proposed amendment.
“Freehold interests are superior interest and there is no landlord and therefore no rent can be owed.”
The commission is urging the legislative body to remove the suggested changes to the Land Act of 2012, which aim to institute a land levy on leasehold land. The NLC presented its perspectives before the committee led by Joash Nyamoko during the public participation phase of the Land Laws (Amendment) Bill 2023.
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The Land Laws (Amendment) Bill 2023, proposed by Majority Leader Kimani Ichung’wah, aims to modify the existing Act by introducing a new section, 54(A), mandating landowners within a city or any urban area to make annual land levy payments.
According to the bill, “Owners of freehold land or property located within the boundaries of urban areas or the city are required to pay an annual land levy equivalent to the land rent applicable to a leasehold land or property of the same size in the corresponding zone.” The bill also includes a provision stating that owners of freehold land utilized for agricultural purposes may be exempted from the annual land levy.
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The commission argued that the suggestion to introduce a land levy on freehold property would violate the regulations outlined in the Urban Cities Areas and Cities Act. In its submissions to the committee, the commission stated, “The proposal intersects with the provisions established in the Urban Areas and Cities Act, requiring Senate approval for implementation.” Currently, freehold land or property in the country is owned indefinitely without any annual charges or fees, and many ancestral lands fall under this category. Additionally, Mr. Ichung’wah’s bill aims to amend various land laws to improve efficiency in processes related to grants, dispositions, and compulsory acquisition of lands.
The proposed legislation also aims to modify the National Land Commission Act of 2012 by eliminating time constraints on reviewing all grants and disposition of public land. It suggests enabling the continuous acceptance of historical land injustices claims beyond 2026, thereby supporting provisions extending the timeframe beyond the initial 10 years.
Furthermore, the Bill suggests granting the Lands Cabinet Secretary the authority to approve land acquisition for state projects, a responsibility originally designated for the National Land Commission.
The proposed amendments to the Land Registration Act of 2012, as per the Bill, intend to prevent the registration of any land for which land rent remains unpaid.
The NLC opposed a proposal seeking to permit the national or county government to acquire specific land under section 110 of the Act.
The mentioned section mandates the relevant Cabinet Secretary or County Executive Member to formally request the Cabinet Secretary’s approval for the compulsory acquisition of land.
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“This amendment affects the constitutional provision in Article 174 and 175 on objects of devolution which promotes the autonomy of the national and county governments,” the commission said.
“Article 60, 62 (2&3) and 67(2)(a) of the Constitution mandates the commission to manage and administer public land on behalf of the national and county governments.”
According to the NLC, during compulsory land acquisition, the commission is responsible for transforming private or community land into public land. This process starts with the publication of the intention to acquire, initiating the administrative procedures.
After a thorough examination, the NLC stated that the converted land is administered by the commission, acting on behalf of both levels of government.
The commission referred to the Supreme Court advisory opinion of 2014, affirming that the provisions of the Land Act, 2012 align with the Constitution regarding the NLC’s mandate to safeguard and supervise public interests and rights.