1. Country Context

The Republic of Kenya is located in the Eastern part of the African continent lying between latitudes 5° North and 5° South and between longitudes 34° and 42° East. It is almost bisected by the equator, and shares borders with Ethiopia and South Sudan to the North; Uganda to the West; Tanzania to the South; Somalia to the North East; and the Indian Ocean, the natural boundary to the South Eastern side, with a coastline of about 536 Kilometers.

Kenya has an area of approximately 582,646 (Km²) comprising 97.8% land and 2.2% water surface. Only 20% of the land area can be classified as medium to high potential (suitable for arable agricultural) and the rest of the land is mainly arid or semi-arid (suitable for extensive livestock production, wildlife and irrigated farming). Agricultural land makes up 48% of the land area. According to the Kenya National Bureau of Statistics are 43 million people in Kenya as 2015. Seventy eight percent of the population is rural area.

2. Policy and Legal Framework for Land Governance

There are several policies and laws relevant to Land Governance in Kenya. These are as follows:

2.1 The National Land Policy (NLP)

The National Land Policy (NLP), adopted in December 2009, is intended to guide Kenya toward sustainable and equitable land use and replace the existing patchwork of often incompatible laws. Its overall objective is to secure rights over land and provide for sustainable growth, investment and the reduction of poverty. It outlines broad and substantial reforms to the land management and administration system. The policy:

1. recognizes and protects customary rights to land;
2. outlines principles of sustainable land use and provides productivity and conservation targets and guidelines;
3. calls for reform of land management institutions to ensure devolution of power, increased participation and representation, justice, equity, and sustainability;
4. establishes the National Land Commission, District Land Boards, and Community Land Boards;
5. calls for the development of a legal and institutional framework to handle land restitution and resettlement for those who have been dispossessed; and
6. calls for reconsideration of constitutional protection for the property rights of those who obtained their land irregularly.

The policy under chapter four provides for the implementation framework where it is recommended that government;

• Harmonise and coordinate the roles of regulatory and enforcement agencies;

• Enhance coordination among various sectoral land use activities to promote integrated land use planning and management;

• Improve dissemination of land use information at all levels of the country;

• Harmonise laws and policies;

• Address interpretation of property rights and inconsistency with concessionary rights;

• Address legal tools and mechanisms to support conservation of heritage and culture;

• Address weak policies and legal mechanisms for resource protection outside protected areas;

• Address issues of restrictive policies and legal mechanisms for land resource use in protected areas;

• Address the problem of numerous and uncoordinated sectoral policies in industrial and commercial sectors; and

• Address international and regional issues and obligations through specifically addressing low level of implementation of the provisions, outdated conventions, lack of coordination in the management of trans boundary resources, un harmonised regional legislations/policies, lack of national safeguards and inadequate public participations.

The policy is a 2016 development and as such, its implementation is underway and the extent of its implementation cannot be brought in light, though it cannot go unnoticed that Kenya has recently passed the Kenya Community Land Act, 2016 which among the objectives is to harmonise the conflicting perceptions regarding land tenure systems as it elevates the status of customary land holding to that of other tenures such as leasehold and freehold land interests.

The Act also is to provide for the recognition, protection and registration of community land rights, management and administration of community land, to provide for the role of county governments in relation to unregistered community land many of which are some of the recommendations of the policy.

Other than this a lot has to be done in order to effectively implement the provisions of the policy for as the situation stands at present, it leaves a lot to be desired if implementation of this policy is to be fully realized.

2.2 The Constitution of Kenya 2010

The Constitution of Kenya (2010) declares that “land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles: (a) equitable access to land; (b) security of land rights; (c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practice related to land and property in land; and (g) encouragement of communities to settle land disputes through recognized local community initiatives consistent with this Constitution” (Article 60).

Under Article 61 all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and also categories land into three broad categories namely; Public. Private and community land. The Constitution further established the National Land Commission to manage public land on behalf of the national and county governments and requires Parliament to enact laws relating to the management and administration of land in Kenya.

Under Article 40 the Constitution provides for sanctity of property rights. It acknowledges individual rights as well as rights in association with others to acquire and own property. Limitations are drawn against the state to ensure no legislation or state action deprives a person of any rights over or interests in land. Compulsory acquisition for public purposes is permitted but full payment, or compensation must be promptly done.

2.3 The Land Act No.6 of 2012

This Act provides a mechanism for sustainable administration and management of land. For conversion of public land into private land parliamentary consent is required, and helps reduce abuse of power by the president or any other institution. It further provides the methods of Land acquisition which include allocation, transmission, compulsory acquisition, settlement programs, transfers and long term leases.

The important highlights of the Act include the following:

• It provides for the land systems in Kenya namely, Freehold, Leasehold and Customary land holding;

• It provides for the methods of land acquisition which include allocation;land adjudication process; compulsory acquisition; prescription; settlement programs;transmissions and transfers;

• It provides for long term leases exceeding twenty one years created out of private land or any other manner prescribed in an Act of Parliament;

• Under Part III and IV the Act it provides for the administration and management of public Land in Kenya, previously this was regulated by the Government Land Act.

• Under Part V the Act it provides for the administration and management of private land in Kenya.

• It provides for the creation of and administration of secondary/ derivative interests in land these include leases, charges and easements. Particularly on charges, it provides for elaborate procedures on creation of charges which include new forms of charges namely formal, Informal and customary charges.

• It provides for elaborate remedies and rights of the parties in a charge instrument in particular the Act affords a chargor more protection namely; Chargor right of redemption, the chargor right to be informed of a variation in the interests rates, the right of consolidation and foreclosure prohibited are prohibited and the chargor right to have his interest being safeguarded during the chargee exercise of the statutory powers of sale. These provisions on charges have the net effect of the law envisaging that security contracts relating to land should be charges and not mortgages

• It provides for minimum and maximum land holding in Kenya, this provision however remains postponed until the cabinet secretary in charge of land has been appointed.

• The Act provides for compulsory land acquisition and establishes a land settlement fund.

2.4 The Land Registration Act No.3 of 2012

The purpose of this Act is amongst other things to revise, consolidate and rationalize the registration of title to land as well as too give effect to the principles of devolved government in Kenya.

The important highlights of the Act include the following:

• It defines a charge as including a Mortgage this presupposes that mortgages in Kenya will acquire the character of charges. The statute emphasizes that a charge shall always operate as a security only and no a transfer;

• It provides for the establishment of a land registry and for the appointment of a chief registrar of land;

• It provides for the effect of registration of an interest in land;

• It provides for the doctrine of indefeasibility of Title as well as elaborate exceptions to the doctrine namely misrepresentation, Fraud and unprocedural acquisition of land.

• It provides for additional overriding interests which include inter alia, Spousal rights over matrimonial property, trusts including customary trusts, rights of way, national rights of light, leases, charges and rights obtained through prescription.

• It provides for elaborate transfer and registration procedures of interests in land these procedures include inter alia the transfers’ documents to be presented at registration which include; copy of ID certificate, passport photos and where applicable a marriage certificate and the process of execution of transfer documents has an interesting change in that the documents must be executed and witnessed and the person executing the documents must be examined by the chief registrar of land unless where the chief registrar dispenses with such examination;

• It provides for elaborate provisions relating to co-tenancy and Partition, which enacts the common user law principles on Co-tenancies in Statutory provisions. Of particular interest is the Protection of spouses in co-tenancies;

• It recognizes the Jurisdiction of the Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011,on matters emanating from the Act.

2.5 The National Land Commission Act No.5 of 2012

This is make further provisions for the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission, to give effect to the objects and principles of devolved government in land management and administration and for connected purposes. Note: the National Land Commission can determine changes to land ownership and rights over land.

2.6 The Environment and Land Court Act, 2011

This Act establishes a judicial forum for adjudicating matters relating to land and environment, it is of the same status as the High court.

2.7 Land Control Act 1967 (Revised 2010)

This is an Act of Parliament enacted to provide for controlling transactions in agricultural land.

2.8 Environmental Management and Coordination Act (Act No.8 of 1999, Revised 2012)

Under Section 44: The[National Environment Management Authority] shall, in consultation with the relevant lead agencies, develop, issue and implement regulations, procedures, guidelines and measures for the sustainable use of hill sides, hill tops, mountain areas and forests and such regulations, guidelines, procedures and measures shall control the harvesting of forests and any natural resources located in or on a hill side, hill top or mountain area so as to protect water catchment areas, prevent soil erosion and regulate human settlement. All private land situated on hill sides and hill tops shall by virtue of this section be governed by the Environmental Management and Coordination Act.

2.9 The Community Land Act of 2016

Provides for the recognition, protection and registration of Community Land rights, management and administration of Community Land, for the establishment of and the powers of Community Land management committees, provides for the role of county governments in relation to unregistered Community Land and for connected purposes. The Act focuses firmly upon formalizing provisions elevating the status of customary land holding to have equal force and effect with freehold and leasehold interests under community title. It asks communities to define and register themselves and await adjudication, survey and registration.

Section 4 is coached in clear and unambiguous wording providing that community land in Kenya shall vest in the community and the state may regulate the use of community land in accordance with Article 66 of the Constitution. The section further provides for the tenure under which the land shall be held to include customary, freehold, leasehold and such other tenure system recognised under the Act or any other written law. Subsection (3) elevates the status of customary land and provides thus; customary land rights including those held in common shall have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer. This elevation puts customary land rights at equal footing with the other tenure systems in Kenya and therefore it is no longer inferior before the mind-sets of Kenyan ordinary citizens.

All unregistered community land under Section 6 shall be held in trust for the communities for which it is held. Under the Act communities can register their interests in land in accordance with the provisions in section 7 of the Act which registration shall be done by the community land registrar who shall be designated by the Chief Land Registrar and there shall be maintained for each registration unit a community land register in accordance with the Act.

Under section 12, community land may be held as communal land; as family or clan land; as reserve land; or in any other category of land recognised under the Act or any other written law. Section 14 provides that a customary right of occupancy in community land shall in every respect be equal in status and effect as to a right of occupancy granted in any other category of land and shall be capable of being allocated by the community to an individual person, family, group of persons, clan, an association, partnership or body corporate wholly owned by citizens of Kenya among others.

Part three provides for administration and management of community land where land shall be managed by the community land management committee comprised of between seven and fifteen members elected by the community assembly. The committee shall be responsible for running of the day to day functions of the community, manager and administer registered community land on behalf of the community, coordinate the development of the community land use plans, promote co-operation and participation among community members in respect to community land and prescribe rules and regulations to govern the operations of the community.

Part four deals with the nature of the community land title and upon registration, the land shall vest in the community absolutely, the registration of a lease shall vest in the community. Section 17 and 18 provide that title under this Act is indefeasible except as provided by the Act or any other written law. The same shall be subject to encumbrances, easements, restrictions and conditions contained therein.

Part five provides for conversion of land whereby community land may be converted to public land under section 22 by compulsory acquisition, transfer or surrender. However that reversionary interest upon conversion shall lie with the community upon expiry of such public use interest. The land may also be converted to private land through transfer or allocation by the registered community, subject to ratification of the assembly. Equally under section 24, public land may be converted into community land by allocation by the commission in accordance with the Land Act, 2012. Private land may also be converted to community land under section 25.

Part six provides for special rights and entitlements in the community land to include individual rights on community land under section 27, grazing rights under section 28, designation of other land use rights in community land under section 29, non-discrimination under section 30 where every member of the community has a right to equal benefit from community land. Section 31 provides for transactions in community land, 32 for leases over community land, 33 for cancellation of rights of leasehold and section 34 provides for existing rights to use and occupy community land.

Part seven provides for environmental and natural resources management where natural resources on community land are dealt with under section 35, section 36 addresses benefit sharing, section 37 makes provision for rules And by-laws, 38 caters for regulation of community land use planning,

Part eight addresses settlement of disputes relating to community land where section 39 provides for dispute resolution mechanisms, 40 provides mediation, 41 for arbitration, 42 deals with judicial proceedings.

Part nine on general provision provides under section 43 for unlawful occupation of community land which is amounts to an offence under the Act punishable by a fine not exceeding five hundred thousand shillings or imprisonment to a term not exceeding three years or to both upon conviction. The Act repeals the Land (Group Representatives) Act Cap 287 and the Trusts Land Act Cap 288. Group representatives are provided for under section 47 and the power to make regulations by the Cabinet Secretary under section 48 of the Act. The Act has one schedule that provides for transitional provisions.

3. Pending Land Bills

• The Evictions and Resettlement Bill 2015: Provides for procedures for the evictions of unauthorized occupants from Private orPublic Land and the resettlement of displaced persons coerced or involuntary displacement andfor matters incidental and related thereto.

• The Minimum and Maximum Land Holding Acreages Bill 2015: Provides for minimum and maximum land holding acreage in respect to Private Land and for connected purposes.

4. Tenure Systems

The NLP and the Constitution recognize three types of tenure in Kenya. These are public, private (freehold or leasehold tenure), or community/trust land, which is held, managed and used by a specific community.

• Public land is land held by the government either directly or through other administrative arms. Article 62 of the Constitution provides for public land and defines what constitutes such land. The land management of such land is vested in the National Land Commission on behalf of both the national and county governments. Such land includes alienated government land; land held by any state organ; land transferred to the state by sale or surrender; land which no individual ownership can be established, land where no heir can be identified, all minerals and mineral oils; government forests; game reserves; water catchment areas, national parks; government animal sanctuaries and specifically protected areas; all roads and thoroughfares; all rivers, lakes, and other water bodies; territorial sea, the exclusive economic zone and the seabed; the continental shelf; land between high and low water marks and any land not classified as private or community land. Including in the classification of public land, land that is not classified as private or community land, may go towards preventing and or curbing incidences of grabbing of land seen as unclaimed. Such public land is to vest and be held by: either a county government in trust for the people resident in the county, and administered on their behalf by the National Land Commission; or the national government in trust for the people of Kenya and it is to be administered on their behalf by the National Land Commission.

• Private land consists of registered land held by any person under any freehold tenure; land held by any person under leasehold tenure and any other land declared to be private land under any Act of Parliament. The institution of private rights denotes that the entitlement conferred on an owner defining his rights, privileges and limitations for use of a resource should ideally be immune from government interference. However, since land is a natural resource, that is finite and of importance to man control by government is necessary for its sustainable management. The attributes for private property include clarity, exclusivity, transferability and enforceability.

• Community land refers to land vested in and held by communities identified on the basis of ethnicity, culture or similar community of interest. Article 63(1) of the Constitution provides that community land is to vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. It consists of land lawfully registered in the name of a group representative; land transferred to specific community as community forest, grazing areas or shines; ancestral land and land that is traditionally occupied by a hunter-gatherer community or lawfully held as trust land by the county government. However, non-registration does not defeat the right of such communities to enjoy the benefits accruing from the community land in question. Article 63(3) is to the effect that any unregistered community land is to be held in trust by county governments on behalf of the communities for which it is held. Recognition of community land is an acknowledgement of the fact that communal tenure systems are still very much part of the social and economic fabric of ethnic communities in Kenya, explaining its resiliency in spite of the neglect by formal laws. Community tenure is central to Pastoralism as a form of land use due to the role of cultural norms and practices in land holding among pastoral communities.

5. Land Administration and Institutions

There are several institutions that are involved in land governance in Kenya. The major ones are:

5.1 The Ministry of Lands and Physical Planning

The Ministry is charged with the responsibility of providing policy direction and coordinating all matters related to lands and physical planning. The ministry’s functions include: registration, valuation, surveying, adjudication settlement and physical planning.

It has three key departments:

• The Department of Land: This is charged with the responsibility of ensuring efficient administration and sustainable management of the land resource in the country. Its mandate is to formulate and implement land policy, undertake physical planning, register land transactions

• Department of Physical Planning: This department aims at achieving a balanced regional development over the national geographic space for the benefit and welfare of all. Key activities include; Feasibility studies into matters concerning physical planning and advising on matters concerning

• Department of Survey: This department implements the Government’s policy of sustainable exploitation of land and its natural resources. It is also tasked with carrying out hydrographic surveys for safe navigation, exploration and exploitation of natural resources of rivers, lakes.

5.2 The National Land Commission (NLC)

The mandate of the National Land Commission (NLC) is drawn from the National Land Policy of 2009, Constitution of Kenya 2010, National Land Commission Act, 2012, the Land Act 2012 and the Land Registration Act of 2012. The NLC is concerned with: managing public land on behalf of the national and county governments; advising the government on land registration; researching on land use and management; and finding ways to redress historical injustices, among others.

The specific functions of NLC are:

• On behalf of, and with the consent of the national and county governments, alienate public land;

• Monitor the registration of all rights and interests in land;

• Ensure that public land and land under the management of designated state agencies are sustainably managed for their intended purpose and for future generations;

• Develop and maintain an effective land information management system at national and county levels;

• Manage and administer all unregistered trust land and unregistered community land on behalf of the county government; and

• Develop and encourage alternative dispute resolution mechanisms in land dispute handling and management.

5.3 Environment and Land Court

The Court is established under section 4 of Environment and Land Court Act, 2011. This is an Act of Parliament to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes.

Section 13(2) of the Environment and Land Court Act provides that the Court:

• shall have jurisdiction to deal with disputes relating to environmental planning and protection, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources, compulsory acquisition of land, land administration and management,

• public, private and community land and contracts or other instruments granting any enforceable interests in land; and

• Any other dispute relating to environment and land.

5.4 Magistrates Courts

It is important to note that the Magistrates Courts still have jurisdiction to entertain land matters subject to their pecuniary jurisdiction. This was set out in Kenya Gazette (Notice Number 16268). If the dispute affects a community, then a representative of the community appointed by members of that community can file the relevant claim on behalf of the other members of the community. This is provided for under Order 4 rule 4 of the Civil Procedure Rules 2010 which relates to representative suits.

5.5 Other Institutions

Other institutions are:

• The Institution of Surveyors of Kenya (ISK): The ISK is the professional organization in this country that brings together the “landed” professionals. It brings together the disciplines of the surveying profession namely the Valuers, Land Surveyors, Geomatic Engineers, Registered Estate Agents, Property Managers, Building Surveyors, Land Administration Managers and Facilities Managers. The key objectives of the Institution is to promote professional ethical performance of services rendered by our members and also to ensure that our members actively contribute towards the development of national and international policies, strategies and plans for land management in a sustainable manner. It offers a Diploma in Land Management Surveyors that equips such the graduate with better ways of handling the process of land administration with a view to achieving optimum returns from such land.

• The Kenya Land Alliance (KLA): The KLA) is formally a Trust and registered as a NGO established create an institutional framework for land laws and policy

advocacy. It conducts the following activities lobbying and advocacy for policy and legislative reforms; participation in the national debate on land reform and adoption of constitutional principles on land and property, the environment and natural resources and facilitating and coordinating the networking, information gathering and sharing among KLA members and others.

• The Land Development and Governance Institute (LDGI). The LDGI was incorporated as a not-for-profit organization to fill the apparent gap in the land sector between pure advocacy associations and professional associations. It offers a bridge for communities and stakeholders to meet policy makers as well as for policy makers to meet communities for effective policy formulation and implementation. Advocates for good policies, laws and practices, track implementation of policies through our regular Scorecards and policy analysis forums; empower society by sharing information through media, artwork and capacity building forums at county level and carry out research to establish

innovations in land use and development; capacity build technical officers, land owners, users and managers at the county level on the constitutional and policy provisions on land and convene several county level forums, featuring topics such as land management and administration, land use planning, sub-divisions, boundaries and dispute resolution.

6. Taxation of Land in Kenya

In Kenya the law imposes land tax in the following ways; stamp duty on property leases which is levied at a flat rate of 1% on period leases up to three years and at a flat rate of 2% on period leases exceeding three years. There is also stamp duty on property transfers which is levied on property transfers at varying rates, depending on the location of the property. The rate is flat at 4% on properties located in municipalities and 2% on properties located outside municipalities. Land tax is specifically levied as a local tax with varying rates depending on the location of the land. The highest rate is 8% which applies in Nairobi.

7. Gender Concerns in Kenya Land Governance

The Constitution under Art. 18 provides for equal treatment of all persons under the law. Under Art. 19 provision is made for equal treatment of women and men in the political, economic, cultural and social spheres and prohibits discrimination on grounds of sex, race among others. Art. 60 of the Constitution of Kenya provides that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles vide: equitable access to land; security of land rights; sustainable and productive management of land resources; transparent and cost effective administration of land; sound conservation and protection of ecologically sensitive areas; elimination of gender discrimination in law, customs and practices related to land and property in land; and encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

It further provides for the implementation of the above principles through a national land policy developed and reviewed regularly by the national government and through legislation. The National Land Policy provides for improvement of gender equity in land use, management, and ownership. It provides for the need to protect women’s right to inherit land, protect the land rights of widows and divorcees and establish a matrimonial property framework that provides equal rights to land for men and women during marriage and upon dissolution of the marriages.

The requirement of spousal consent under the Land Act for the execution of any charge or sale of a matrimonial home is intended to protect the women. Further under the Land Registration Act, 2012, women rights are protected by allowing for joint tenancy including a presumption of joint tenancy for any land obtained for co-ownership and use by both spouses. The law grants a legal interest in land held in one spouse’s name where the other has contributed to it through his or her labour. All this is intended to protect women’s rights in respect to land since time and again they have been looked at as weak and vulnerable by society.

8. Summary of Challenges, Gaps, Conflicts and Duplications

In summary, the challenges and gaps in land governance are as follows:

• Insecure land tenure, in particular, for the urban and rural poor, for women, for HIV/AIDS-affected households, for pastoralists, and other vulnerable groups in both urban and rural areas;

• There are outdated analogue land registers;

• Conflict over mandate between the NLC and the Ministry of Lands;

• Numerous boundary disputes;

• Insecure tenure for the youth and women;

• Outdated and highly bureaucratic methods of land adjudication;

• Poor land administration characterized by limited access to land information due to poor quality records, extended technical processes, lack of transparency, and user friendliness;

• Weak and/or ineffective mechanisms for fair, timely, affordable, transparent, and accessible resolution of land disputes;

• Poor governance in land administration, management, and dispute resolution;

• Deeply entrenched vested interests have denied the land reform process the much needed political and business support. Many powerful people in politics and business, especially the beneficiaries of the past flawed land regime and those who are angling to benefit from a non-streamlined land sector, see the reforms as a hindrance to personal wealth and power;

• Lack of political goodwill as senior national and county government officials as well as several members of parliament are deeply entangled in land-grabbing and other irregular land allocation cases. Many of them will go any length to ensure the desired land reforms don’t see the light of day;

• The laws that have so far been enacted to effect land reforms have not counted for much because of poor implementation. In fact, even the legislative reforms have lost momentum;

• Weaknesses in terms of resources, capacity and independence among the public institutions charged with managing land. This weakness epitomized by the power struggles and persistent wrangling between the National Land Commission (NLC) and the Ministry of Land, Housing and Urban Development; This has impeded the government’s ability to move ahead in terms of economic development; and

• NLC has also not reached a level of functional independence as it still relies very much on the national government for its staff needs and resource allocation, making it vulnerable to manipulation and control.

9. Recommendations

• Establish programmes relating to the land use planning, land surveying and mapping, establishment of computer based land information management systems;

• Strengthen capacity to populate adequately the departments in both National and count government as well as the private sector specifically in such technical areas as physical planning, land surveying, valuation, ICT and land administration;

• Strengthen local and traditional conflict resolution bodies through education and legal assistance. The NLP calls for Land Boards to use alternative dispute resolution mechanisms;

• Raise comprehensive awareness about land rights.

• Kenya’s land reform process should prioritize: a strong political will to achieve land reforms; supporting state organs to deliver on their mandates; acquisition of land to settle the landless; securing land rights and tenure in various contexts for citizens and non-citizens; developing a land use policy to promote land settlement and productive land use; and facilitating public access to information and participation in land management and utilization.