Kenya - Land Governance Country Profile

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and regional issues and obligations through specifically addressing low level of implementation of the provisions, outdated conventions, lack of coordination in the management of trans boundary resources, un harmonised regional legislations/policies, lack of national safeguards and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