Access to Land Justice: an Overview of the Environment and Land Court in Kenya

Abstract

Access to land justice is the ability of marginalised communities confront, manage daily legal problems and seek redress and demands for their rights in land which is a key element of sustainable development. However, access to justice in land is a growing problem in Kenya for marginalised groups mainly due to institutional and structural challenges. The creation of the Environment and Land Court (ELC) by Kenya‟s 2010 Constitution (CoK) and the Environment and Land Court Act (ELCA) was considered as transforming access to land justice. The ELC was envisaged to use its expertise as an effective and efficient tool to enable expeditious and cost-effective access to land justice. However, this has not happened due to various barriers of poverty, complex laws and technicalities of procedure, lack of alternative dispute resolution (ADR) legal framework, backlog of cases, corruption in the Courts, lack of knowledge of rights, physical access and bias towards women, the youth and persons with disabilities (PWDs) and the lack of political will and commitment. The study used two research methods to collect and analyse data. First, was desktop review of secondary and primary data to analyse the variables. Secondly, a comparative study was done of some best practices namely: Queensland, New South Wales (NSW) and South Africa which revealed that Kenya had a number of lessons to learn on how the marginalised groups can access land justice. In particular, financial autonomy and independence, enactment of ADR laws and mandatory mediation, comprehensive jurisdiction including criminal and human rights, public participation and the creation of monitoring and measuring tools for access to land justice. In conclusion challenges in access to land justice in Kenya would only be achieved if the institutional and structural challenges in the entire justice delivery system would be addressed. Some recommendations offered revolved around the enactment of an ADR legal framework, enhancement of legal aid, expand jurisdiction of the ELC to deal with environmental crimes and human right issues, financial autonomy and independence of the judiciary, employment more judges and developing a monitoring tool for access to land justice.