Article Index
Page 5 of 10
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.