An analysis of the draft National Land Commission (Historical Land Injustices) Regulations, 2026
For decades, Kenyans pursuing claims over land lost to colonial displacement, forced evictions, or dubious allocations have complained about one thing above all else: they never really know what is happening to their case once it disappears into the National Land Commission’s files. Investigations opened without clear notice. Decisions made without a hearing. Outcomes that surface only when it’s too late to challenge them, The Commission’s new draft regulations, the National Land Commission (Historical Land Injustices) Regulations, 2026 are built almost entirely around fixing that problem.
The draft, which will replace the 2017 regulations once finalised, doesn’t just tinker with old timelines. It rewrites the architecture of how a claim moves from a handwritten letter at Ardhi House to a published determination in the Kenya Gazette, and at nearly every step, it inserts an obligation to tell someone, record something, or publish a document.
A Committee With Teeth and a Duty to Disclose Its Own Conflicts
The regulations formally establish a Historical Land Injustices Committee (Regulation 6), made up of the Commission’s chairperson and members, with power to form smaller panels of at least three people who can co-opt outside experts in fields like land administration, history, anthropology, surveying or valuation (Regulation 7). Notably, any Committee member with a personal interest in a matter before it must disclose that interest “at the earliest opportunity” and step back from deliberating or voting on it, and that disclosure has to be recorded in the minutes (Regulation 10(5)–(6)). It’s a small provision, but it signals the drafters were thinking about the credibility of the process itself, not just the paperwork around it.
Getting a Claim In On the Claimant’s Terms
One of the more claimant-friendly features survives from the earlier regime: a person doesn’t need a lawyer, or even the official form, to get a claim moving. Regulation 15(4) explicitly bars the Commission from rejecting a claim “solely on the ground” that it arrived as a letter, memorandum or petition rather than the prescribed Form NLC/HLI/01. If someone can’t fill out the form themselves, a Commission officer is required to write it down for them (Regulation 15(3), (5)). Every claim that comes in must be acknowledged in writing using Form NLC/HLI/02, given a reference number, and logged in the Commission’s Register (Regulation 16).
The Disclosure Core: Notice, Records and Publication
This is where the draft does its heaviest lifting.
Notice of investigation (Regulation 21), Once the Commission opens an investigation, it must issue formal notice to the claimant, the respondent, anyone with an identifiable legal or beneficial interest in the land, and any relevant public body. The notice has to spell out the claim reference number, the issues to be determined, the deadline for filing a response, and where applicable the date and venue of the hearing. This is the provision most directly aimed at cases like James Finlays, where a court struck down an NLC recommendation precisely because affected parties were never told an investigation was underway.
A right to be heard, on the record, Respondents get fourteen days to file a written response backed by their own evidence (Regulation 22), and anyone with a stake in the land can apply to join proceedings as an “interested person” (Regulation 23). Hearings can be adjourned but not indefinitely shelved without explanation (Regulation 50).
Transmission of determinations (Regulation 34), Within fourteen days of a determination, the Commission must send certified copies to the claimant, the respondent, every interested person, the Lands Cabinet Secretary where relevant, and the Chief Land Registrar or whichever officer is responsible for implementing the outcome.
Publication (Regulation 35), Every determination must be gazetted, in line with section 15(11) of the NLC Act. Beyond that statutory minimum, the Commission is now given discretion to publish determinations on its own website “or through any other appropriate medium” where it judges this to be in the public interest while also being required to strip out confidential or personal information first.
A permanent, structured record (Regulations 39 and 51), For every claim, the Commission must keep the full paper trail: the original claim, all responses, documentary evidence, witness statements, proceedings, expert reports, the determination itself, and the redress recommended. This isn’t just an internal filing requirement; it’s what makes the disclosure obligations elsewhere in the regulations enforceable in practice.
A public Register (Regulation 52), The Commission must maintain a Register of Historical Land Injustice Claims in both physical and electronic form recording each claim’s reference number, the parties, the land’s location, the claim’s status, the determination, and whether the recommended redress has actually been implemented. This turns what used to be an opaque internal tracking system into something closer to a public case registry.
A formal right of access (Regulation 53, Form NLC/HLI/07), for the first time, a party to a claim has an explicit, form-based right to inspect or obtain copies of documents in the record. The Commission can still refuse where disclosure would prejudice an ongoing investigation, breach a legal prohibition, or expose confidential information against the public interest but the default has shifted from secrecy to access, with refusal now the exception that has to be justified.
Accountability After the Fact
The draft also strengthens what happens once a claimant disagrees with an outcome. Beyond a straightforward right of appeal to the Environment and Land Court within thirty days (Regulation 40), Regulation 42 opens the door to judicial review under the Fair Administrative Action Act on an unusually long list of grounds bias, procedural unfairness, failure to give someone a hearing, irrationality, disproportionality, bad faith, and more. It’s essentially inviting closer court scrutiny of NLC decisions than the 2017 framework did, which fits the broader transparency thrust: a Commission that is required to publish its reasoning is also a Commission that has to be prepared to defend that reasoning in court.
Implementation Is Not Optional Either
Publication doesn’t end the Commission’s obligations. Regulation 37 requires the public authority tasked with implementing a recommendation whether that’s compensation, restitution, or something else to report back periodically on what it has actually done, and to explain itself in writing if it misses the statutory deadline. Paired with the public Register, this closes a loophole that has dogged the historical injustice process for years: determinations that were announced with fanfare but never actually acted upon.
What’s Left Open
Not everything is nailed down. The preliminary assessment stage in Regulation 17 is oddly light on process subregulations: (3) to (5) appear to have been dropped from the draft as published, leaving a gap between the assessment criteria in (2) and the “insufficient information” provisions in (6) onward. Whether that’s a drafting error or a placeholder for revision is worth watching before the regulations are finalised. It’s also worth noting that the 30-day notice period reported earlier in press coverage of the draft doesn’t appear in this version’s Regulation 21 the actual text leaves the hearing notice period to be specified case-by-case in the notice itself, with response deadlines of fourteen days appearing elsewhere in the draft. Taken as a whole, though, the direction is unmistakable. Where the 2017 regulations left claimants largely guessing, the 2026 draft tries to build disclosure into the process at every stage, from the moment a claim is lodged to the moment redress is (or isn’t) delivered.
