REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 6 OF 2013
BETWEEN
AMONI THOMAS AMFRY …………………………… 1ST PETITIONER
NAGIB MOHAMED SHAMSA ………………………. 2ND PETITIONER
AND
THE MINISTER FOR LANDS ……………………… 1ST RESPONDENT
THE HON ATTORNEY GENERAL …………….. 2ND RESPONDENT
AND

  1. DR. MOHAMED SWAZURI
  2. DR. TOMIIK M KONYIMBIH
  3. DR. ROSE MUSYOKA
  4. DR. SAMUEL TOROREI
  5. SILAS KINOTI MURIITHI
  6. ABIGAEL MBAGAYA
  7. MUTHONI NJOGU
  8. CLEMENT ISAIAH LENANCHURU
  9. ABDULKADIR ADAN KHALIF ……. INTERESTED PARTIES
    JUDGMENT
    Introduction
  10. The issue for consideration in this decision is whether the court should issue an order directed at the President to Gazette the Chairperson and Members of the National Land Commission established under Article 67 of the Constitution in accordance with the provisions of the National Land Commission Act, 2012 (Act No. 5 of 2012) (“the Act”).
  11. The procedure for the appointment of the Chairperson and Members of the Commission is set out in the First Schedule to the Act which provides:
    FIRST SCHEDULE
    PROCEDURE FOR APPOINTMENT OF CHAIRPERSON
    AND MEMBERS OF THE COMMISSION
    PETITION 6 OF 2013 JUDGMENT 4.2.2013 Page 2
    (1) The President, in consultation with the Prime Minister shall, within fourteen days after the commencement of this Act and whenever a vacancy arises, constitute a selection panel comprising—
    (a) a nominee of the Office of the President;
    (b) a nominee of the Office of the Prime Minister;
    (c) a representative of the Cabinet Secretary;
    (d) two persons, of opposite gender, nominated by the Non- Governmental Organisations Council, who have demonstrated competence and capacity in matters related to natural resources;
    (e) one person who is a citizen of Kenya, nominated by the Kenya Private Sector Alliance from their member organizations who has demonstrated competence and capacity in the land sector.
    (f) a nominee of the Association of Professional Societies in East Africa; and
    (g) a nominee of the National Gender and Equality Commission:
    Provided that after the first elections under the Constitution, the nominee of the office of the Prime Minister under subparagraph (b) shall not constitute membership of the selection panel.
    (2) The Public Service Commission shall—
    (a) convene the first meeting of the selection panel, at which the members of the selection panel shall elect a chairperson from among their number; and
    (b) provide the selection panel with such facilities and other support as it may require for the discharge of its functions under this Act.
    (3) The selection panel shall, within seven days of convening, by advertisement in at least two daily newspapers of nationwide circulation, invite applications from persons who qualify for nomination and appointment for the position of the chairperson and members referred to under section 8.
    (4) The selection panel shall within twenty one days after the expiry of the deadline for receipt of applications under paragraph (3)—
    (a) consider the applications received under paragraph (3) to determine their compliance with the provisions of the Constitution and this Act