Land Control Boards (LCBs) play a central role in regulating controlled transactions involving agricultural land. Their mandate, statutory framework, consent requirements and the consequences of non-compliance are discussed in detail in the earlier article on Land Control Boards in Kenya.
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Against this background, the recent reconstitution of the Land Control Boards introduces a new dimension to the existing framework, particularly through the inclusion of technical professionals in the Boards. The changes raise important questions about how the reconstituted Boards will affect the administration of land transactions, the efficiency of the consent process and the wider land market.
The reconstitution therefore strengthens the technical capacity of LCBs. However, it also raises an important question: does the composition provide sufficient legal expertise for the decisions the Boards are required to make?
The New Composition of Land Control Boards
The new Boards generally comprise the Deputy County Commissioner as Chairperson, the Land Administration Officer as Secretary, and three technical officers: the Sub-County Agricultural Officer, Sub-County Surveyor and Sub-County Physical Planner.
Each brings expertise relevant to the matters considered by LCBs. Surveyors can address parcel identification and subdivision, physical planners can consider land-use issues, while agricultural officers can assess agricultural productivity. This aligns with section 9 of the Land Control Act, which requires Boards to consider matters including economic development, good husbandry and the effect of proposed subdivisions on agricultural productivity.
However, the Board’s mandate is not limited to technical assessment.
The Legal Dimension of LCB Decisions
Section 6 identifies transactions involving agricultural land that are void without the requisite LCB consent. Section 8 governs applications for consent, while section 16 requires reasons to be recorded where consent is refused. The Board must therefore apply statutory requirements when determining whether a transaction should receive consent.
This is where the question of legal expertise arises. No advocate or other specifically designated legal officer appears in the new composition. Yet LCB proceedings may require the Board to determine questions of statutory interpretation, jurisdiction, validity of documents and constitutional compliance.
Article 65 and Citizenship of Corporate Purchasers
The gap becomes clearer under Article 65 of the Constitution. Article 65(1) restricts non-citizens to leasehold tenure not exceeding 99 years, while Article 65(3) sets out when a body corporate or trust qualifies as a citizen.
Section 9(1)(c) of the Land Control Act requires the Board to consider these citizenship requirements when determining an application. A corporate applicant may therefore require scrutiny of its ownership structure and beneficial interests, and not merely its incorporation documents.
This is a legal determination. While the agricultural officer, surveyor and physical planner provide essential technical expertise, none is specifically appointed to provide legal expertise on questions of constitutional compliance, corporate ownership, statutory interpretation or the validity of documents.
The issue is therefore not whether technical expertise is necessary, but whether it is sufficient for a Board whose decisions can determine whether a controlled transaction may lawfully proceed.
Legal Errors and Later Litigation
The importance of legal expertise becomes clearer when the consequences of an error by the Board are considered.
Where a Board grants consent without properly addressing a legal requirement, the issue may only emerge after the transaction has been completed. A purchaser may have paid the consideration, documents may have been executed and the transaction may have been registered, only for the validity of the transaction to be challenged later before the Environment and Land Court.
This is particularly relevant where the issue concerns the citizenship of a transferee under Article 65. A company may be incorporated in Kenya, yet the constitutional question is whether it qualifies as a citizen for purposes of holding land. Determining that question may require consideration of its ownership structure and, in appropriate cases, beneficial interests.
The point is therefore not that every mistake by an LCB automatically makes a transaction void. Rather, a legal issue that could have been identified and addressed when the application was before the Board may instead become the subject of litigation years later.
The courts have repeatedly been required to examine the legality of LCB decisions. In Mwereni Group Ranch v Lungalunga Land Control Board & another [2025] KEELC 18641 (KLR), for example, the Court considered whether the Deputy County Commissioner had authority to purport to nullify a consent that had already been granted. Similarly, disputes concerning the validity and authenticity of LCB consents demonstrate the importance of the Board acting within its statutory mandate and maintaining proper records.
This raises a practical question: if an LCB is already the statutory decision-making body, should it not also have access to legal expertise capable of identifying these issues before they become disputes before the courts?
Article 47 of the Constitution of Kenya imposes a drafting standard the Boards cannot presently meet
Section 16 of the Land Control Act requires reasons where consent is refused. Article 47(1) requires administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and Article 47(2) entitles a person adversely affected to written reasons. The Fair Administrative Action Act, 2015 gives that effect. Section 8(2) declares a Board’s decision final and conclusive and not questionable in any court, but that finality clause has not prevented review. Republic & another v Land Control Board Mukaa Subcounty & another [2025] KEELC 4999 (KLR) is itself proof that the courts will examine the exercise of the discretion and the sufficiency of reasons. Reasons drafted to satisfy Article 47 and withstand review are a legal drafting exercise. Nothing in the new composition supplies that skill.
Jurisdiction and authority
Mwereni Group Ranch v Lungalunga Land Control Board & another [2025] KEELC 18641 (KLR) a Deputy County Commissioner purporting to nullify a consent already granted is a functus officio problem. It is precisely the kind of error a legally trained member identifies in the room, before it becomes a judgment. Gremmo and Mohamed Siaka Ali show the same for documentary authenticity: a Board with no member trained to interrogate instruments is the weakest point in the chain, and the point at which forgery is cheapest to insert.
The safeguard question
The obvious objection to introducing a legal practitioner onto the Board is the potential for conflict of interest. A practising conveyancing advocate, for example, could potentially appear before the same Board in respect of transactions involving clients whom the advocate represents.
That concern, however, does not necessarily require the exclusion of legal expertise from the Board. It can instead be addressed through appropriate safeguards.
One option would be for a legally trained member to be nominated through the Law Society of Kenya and appointed on terms that minimise conflicts of interest. The member could be prohibited from appearing before the Board in a professional capacity within the relevant sub-county, required to make a declaration of interests, and required to recuse themselves from any matter in which a conflict arises. The recusal and the reasons for it should be recorded in the Board’s minutes.
Another, narrower option would be for a legal officer from the Ministry of Lands to attend Board proceedings in an advisory, non-voting capacity. While this would not give the Board a permanent legal decision-maker, it would at least provide access to legal expertise when questions of statutory interpretation, constitutional requirements, procedural fairness or the validity of documents arise.
The important point is that the present composition does not expressly provide the Board with a dedicated legal expert, even though the Board exercises statutory powers whose consequences may involve complex questions of land, constitutional and corporate law.
The issue, therefore, is not whether lawyers should replace the agricultural, surveying or planning experts. It is whether legal expertise should complement those disciplines at the point where the decision is made, rather than only becoming available after the decision is challenged before a court.
Statutory Compliance and the First Schedule
The question of legal expertise cannot be separated from a more fundamental question concerning the statutory composition of the Boards.
Section 5 of the Land Control Act provides for the constitution and appointment of Land Control Boards, but the detailed composition is set out in the First Schedule. The Schedule provides that a Land Control Board shall consist of:
- the District Commissioner of the district in which the land control area is situated, or a District Officer deputed by the District Commissioner, as Chairperson;
- not more than two other public officers;
- two persons nominated by the county council having jurisdiction within the area; and
- between three and seven persons resident within the Board’s area of jurisdiction.
The Schedule further provides that between eight and twelve persons are to be appointed as members of the board and that more than one-half of the members must be owners or occupiers of agricultural land within the area of jurisdiction.
The difficulty is immediately apparent.
The First Schedule is drafted for a pre-devolution institutional structure. It refers to a District Commissioner, District Officer and county council. County councils ceased to exist under Kenya’s devolved constitutional structure. Yet the statutory Schedule has not been comprehensively reformulated to correspond with the institutions through which Land Control Boards are currently administered.
The current administrative model is materially different. Recent appointments have used the Deputy County Commissioner as Chairperson and have included officers such as the Land Administration Officer and other technical officers. Indeed, previous Gazette appointments under section 5 have already demonstrated this shift from the literal language of the First Schedule to an administrative structure based on the post-2010 governmental framework.
This creates an important legal question: where is the statutory bridge between the composition prescribed by the First Schedule and the composition now being appointed by the Cabinet Secretary?
The issue is not merely semantic. The composition of a statutory body is ordinarily a matter of law. Where Parliament prescribes who should constitute a body, the appointing authority must exercise the appointment power within the limits of the enabling legislation.
This is particularly important because the First Schedule does not simply prescribe the number of members. It identifies categories of persons who are to constitute the Board and imposes a further requirement that more than half of its members be owners or occupiers of agricultural land within the area.
The current composition therefore raises several questions.
First, who performs the statutory role previously assigned to persons nominated by the county council? The county councils referred to in the Schedule no longer exist.
Second, how does the current number and categorisation of public officers correspond with the Schedule’s requirement of “not more than two other public officers”? Where the Board includes the Chairperson, Secretary, Agricultural Officer, Surveyor and Physical Planner, the statutory categorisation of those officers becomes important.
Third, how is the requirement that more than one-half of the members be owners or occupiers of agricultural land being satisfied and verified under the current appointment system?
Fourth, and most importantly for this discussion, the Schedule does not expressly identify legal expertise as one of the categories of expertise to be represented on the Board.
That omission is significant because the modern LCB is dealing with questions that extend beyond the technical characteristics of agricultural land. The Board may have to consider the legality of the proposed transaction, the constitutional status of the transferee, the statutory requirements for consent, the sufficiency of documents presented to it and whether its own decision is supported by lawful reasons.
The result is an unusual position: the statutory framework contains detailed provisions concerning who should sit on the Board, but does not expressly provide for a person whose professional expertise is specifically directed towards the legal questions arising from the Board’s mandate.
This is why the case for legal expertise should not be understood merely as a proposal to add another professional to an otherwise complete technical team. It is also an argument for bringing the statutory composition itself into line with the constitutional and administrative reality within which LCBs now operate.
A legislative review of the First Schedule could therefore address two issues simultaneously: first, updating the composition of LCBs to reflect the post-2010 constitutional and devolved governmental structure; and second, considering whether the statutory composition should expressly provide for legal expertise.
Such a review would also provide an opportunity to clarify the status and role of the Secretary, the technical officers, the local land-owning or occupying members and any legally trained member, including their respective functions, appointment criteria and conflict-of-interest obligations.
The issue is therefore broader than whether an advocate should be added to the 2026 Boards. It is whether the statutory architecture governing the composition of Land Control Boards still adequately reflects the institutions, expertise and constitutional obligations that those Boards are expected to operate within today.
Conclusion
The 2026 reconstitution strengthens the technical capacity of Land Control Boards through agricultural, surveying and physical planning expertise. However, the legal dimension of their mandate remains unaddressed.
LCBs exercise statutory powers with consequences that may involve Article 65, Article 47, corporate ownership, documentary validity and jurisdiction. This raises a broader question: does technical expertise alone sufficiently reflect the nature of the decisions entrusted to LCBs?
A review of the First Schedule presents an opportunity to modernise the composition of the Boards and consider the inclusion of dedicated legal expertise, with appropriate safeguards against conflicts of interest. The aim would not be to replace technical expertise, but to ensure that legal and technical questions are addressed together before consent is granted or refused, rather than after a dispute reaches court.
