Kenya: National Land Commission (Investigation of Historical Land Injustices) Regulations, 2026

Kenya's National Land Commission has published the National Land Commission (Investigation of Historical Land Injustices) Regulations, 2026, establishing a comprehensive procedural framework for the investigation and resolution of historical land injustice claims in Kenya. The Regulations set out the processes for filing, screening, investigation, hearing, determination, review, and appeal of claims, while also prescribing timelines, remedies, and procedural safeguards to guide the exercise of the Commission’s mandate.

The Regulations are particularly significant given the central role that land has played in Kenya’s historical and political development.

Although article 67(2)(e) of Kenya's Constitution mandates the Commission to investigate historical land injustices and recommend appropriate redress, section 15 of the National Land Commission Act (NLC Act) provides the statutory framework for the exercise of the mandate. However, the Commission has lacked an effective regulatory framework since the annulment of the 2017 Historical Land Injustices Regulations by the National Assembly in 2018.

Enacted pursuant to the National Land Commission (Amendment) Act, 2025, the Regulations fill this gap by providing the procedural mechanism necessary to operationalise section 15 of the NLC Act and facilitate the resolution of longstanding land grievances.

Key highlights

The key highlights of the Regulations are outlined below.

They include the scope of claims covered, the process for lodging and reviewing claims, the Commission’s powers during investigations, hearing procedures, decision-making timelines, publication requirements, available review and appeal mechanisms, and the treatment of claims filed before the Regulations came into force.

Scope of application

The Regulations apply to historical land injustices that occurred between 15 June 1895 (when Kenya became a British protectorate) and 27 August 2010 (when the Constitution of Kenya was promulgated).

The Commission has the powers to initiate investigations on its own initiative or upon a complaint, pursuant to article 67(2)(e) of the Constitution and section 15(1) of the NLC Act. The Commission has the mandate to investigate both present and past land injustices. A present land injustice means a claim that arose after the promulgation of the Constitution (27 August 2010), while a historical land injustice concerns events occurring between 15 June 1895 when Kenya was declared a British Protectorate and 27 August 2010.

Although section 15(15) of the NLC Act, as amended in 2025, retains a sunset clause of five years, replacing the 10-year sunset clause that was introduced by the Land Laws (Amendment) Act, 2016 the High Court in Okoiti v Attorney General & 2 others; National Land Commission & 3 others (Interested Parties) [2025] KEHC 17900 (KLR) found that the Parliament of Kenya cannot impose a time limitation on the Commission’s constitutional mandate to investigate and determine historical land injustice claims, which mandate endures for an indeterminate period.

Methods of lodging claims

The Regulations allow any aggrieved person to lodge their claim either through the prescribed form (NLC/HLI/01), a letter, a memorandum or an oral submission at any place designated as a Commission office. Where a claim is made orally, an officer designated by the Commission will reduce it into writing ensuring that literacy is not a barrier to access.

Preliminary review of claims

Every claim is vetted against a standardised admissibility checklist to determine whether it qualifies as a historical land injustice claim. The Commission considers (among other reasons) whether:

• the claim relates to events that occurred between 15 June 1895 and 27 August 2010;

• it concerns events occurring after 27 August 2010;

• the alleged violation of land rights arose from a law, policy, treaty or administrative action; and

• the alleged injustice falls within the recognised categories of historical land injustices, such as colonial occupation, development induced displacement, inequitable land adjudication, politically motivated evictions, corruption, illegality, natural disasters, or other recognised causes.

Following this review, the Commission may admit the claim, reject it with reasons, refer the claimant to another appropriate institution, or consolidate it with similar claims. The Regulations require that claimants must be notified of the vetting outcome in writing. Where a claim is admitted, the Commission must notify the claimant within 90 days and invite the parties to appear before it for further proceedings.

Power to restrict land

Where the Commission admits a claim for historical land injustices, it may place a restriction on the land subject to the admitted claim pending the hearing and determination of the claim.

Committee based investigation

To hear a claim for historical injustices and make appropriate recommendations, the Commission may establish a committee of at least three members of the Commission. The Committee may co-opt persons with relevant knowledge and skills necessary to assist the committee in delivering its mandate, though co-opted members cannot vote. A decision of the committee on a claim before it is deemed a decision of the Commission.

In order to make sure that the committee process is fair and impartial, the Regulations provide for a mechanism through which a person can request for the disqualification of a member of the committee from hearing a claim provided that the request is made seven days prior to the hearing. Upon receiving such a request, the chairperson of the committee is required to determine whether disqualification is warranted. Where the request concerns the chairperson of the committee, the determination is made by the Commission’s chairperson, who may appoint a replacement chairperson for purposes of that matter.

Hearing procedures

Once a claim has been admitted, the Commission must provide all parties at least 30 days’ notice of the hearing, either by mail or electronically. Hearings are to be generally open to the public unless the Commission directs otherwise. Proceedings may be conducted in English, Kiswahili, Kenyan sign language, or any other language appropriate to ensure meaningful participation by the parties. The Committee is not bound by the strict rules of evidence applicable in court proceedings and may adopt flexible procedures to facilitate a fair hearing. Parties may appear and present their case in person or through a representative.

Witness protection

Where a witness faces a risk to their safety as a result of providing evidence or otherwise participating in the investigation of a historical land injustice claim, the Commission may, either on its own motion or upon application, take steps to secure the witness’s protection. This protection extends not only to individuals who have already provided evidence but also to prospective witnesses who may be at risk before providing their testimony.

Decision making

The Commission must conduct its investigation within one year and issue a written determination within 21 days after concluding its investigations. The determination must set out the nature of the claim, summarise the relevant facts and evidence, state the Commission’s findings and reasons, and include any recommendations on the appropriate remedy. The decision must be signed by the chairperson under the Commission’s seal, and certified copies must be provided to the parties within 60 working days. Where the Commission recommends redress, any authority mandated to implement the recommended remedy is required to do so within three years of the Commission’s determination.

Publication of decisions

The Commission’s decisions and recommendations must be made public through publication in the Kenya Gazette, in at least one newspaper with national circulation, or on the Commission’s official website. This requirement promotes transparency and ensures public access to the Commission’s findings and recommendations.

Review and appeals

A person aggrieved by a determination of the Commission may apply for review under section 7 of the Fair Administrative Action Act within 28 days of the publication of the determination. In addition, a person dissatisfied with a decision of the Commission including on review, may appeal to the Environment and Land Court within 28 days of the publication of the decision.

Transitional provisions

The Regulations apply to all historical land injustice claims that were filed with the Commission before the Regulations came into force, and such claims are to be investigated in accordance with the procedures set out in the Regulations. However, the Regulations do not invalidate or affect any action lawfully taken by the Commission before their commencement, thereby preserving the validity of all prior proceedings, decisions, and administrative steps.

Conclusion

The Regulations mark an important step in implementing section 15 of the NLC Act and they provide a clear procedural framework for the resolution of historical land injustice claims. By establishing structured processes for the filing, screening, investigation, hearing, determination, and review of claims, the Regulations enhance transparency, certainty, and accessibility in the Commission’s exercise of its mandate. They also introduce timelines for investigations and implementation of recommended remedies, while safeguarding due process through review and appeal mechanisms. Ultimately, the Regulations provide a practical pathway for addressing longstanding land grievances and advancing the constitutional objective of achieving redress for historical land injustices in Kenya.

The Regulations address a procedural gap that became apparent following the annulment of the 2017 Regulations. Although the Environment and Land Court subsequently held in Republic v National Land Commission & 6 others; Tuei & 4 others (Interested Parties); James Finlays Kenya Ltd & 12 others (Ex parte) (Being Members of Kenya Tea Growers Association & Kenya Tea Growers Association) [2023] KEELC 16903 (KLR) that the absence of regulations did not invalidate the Commission’s constitutional mandate, finding that the provisions of section 15 of the NLC Act were sufficient to guide the Commission, The Court acknowledged that regulations serve the important function of streamlining the Commission’s processes.

Therefore, these Regulations seek to fulfil that function by prescribing detailed procedures governing the receipt, investigation and determination of claims.

The Regulations appear to respond to procedural fairness concerns that have arisen in previous litigation. In James Finlays, the Court set aside the Commission’s recommendations after finding that there was no evidence that affected parties had been notified of proceedings and that the Commissions failure to notify these parties and afford them an opportunity to be heard constituted a grave violation of their right to fair administrative action rendering the resultant decision a nullity.

The detailed hearing, notice and participation provisions contained in the Regulations may assist in reducing similar challenges in future proceedings.

Philip Coulson is a senior partner in Bowmans' Nairobi office and heads the Corporate and Commercial Department. Cecil Kuyo is a partner at the Nairobi office specialising in commercial litigation and alternative dispute resolution. Maurice Masiga is an associate at Bowmans Kenya who has experience acting for private clients, multinational corporations, investors, and state-facing entities in complex, high-value disputes.