Malindi Law Society & 12 others (All Suing as Officers of the Mombasa Law Society on their behalf and on behalf of the membership of the society) v Attorney General & 2 others (Petition 19 & 291 of 2016 (Consolidated)) [2021] KEELC 4748 (KLR)

The court held that constitutional supremacy under articles 1 and 2 requires courts to ensure all branches of government act within the law, relying on the Supreme Court's advisory opinion in Re IIEC and the South African Doctors for Life decision. Interpreting the Constitution and testing statutes for constitutionality is a judicial, not legislative, function.

The Fifth Schedule 18-month period applied to enactment of the original legislation (NLC Act and Land Act, 2012), which was not challenged. No provision of law bars Parliament from amending from time to time statutes it previously enacted, and articles 67 and 68 prescribe no timelines.

The Bill was considered by both Houses, referred to a mediation committee which invited public views including from the Law Society of Kenya, received memoranda from institutions and members of the public, and its report was laid before both Houses before debate and passage. Applying Doctors for Life and local authorities, participation need only be reasonable and real in the circumstances.

The provision is a legitimate distinction aimed at remedying historical injustices against indigenous Kenyans, consistent with RM v Attorney General, where distinctions pursuing a legitimate aim are lawful. The court could not see how the petitioners were discriminated against by a provision operationalising a constitutional mandate.

The provision has far-reaching implications on ownership rights within the defined 'controlled land'. Once a limitation was demonstrated, the State was incumbent to justify it under article 24, but on the material presented there was no reasonable justification; the societal need did not outweigh the individual's right to deal with property.

Article 40 must be read subject to article 65, which limits non-citizens to leasehold tenure not exceeding 99 years; the limitation in section 48 is therefore not unreasonable. Section 98's amendments to section 152 merely streamline existing law.