Preface

Kenya is the most recent African state to acknowledge customary tenure as producing lawful property rights, not merely rights of occupation and use on government or public lands. This brief researches this new legal environment.
This promises land security for 6 to 10 million Kenyans, most of who are members of pastoral or other poorer rural communities. Analysis is prefaced with substantial background on legal trends in Northern Kenya, but the focus is entirely on Kenya’s Community Land Act, 2016, as the framework through which customary holdings are to be identified and registered.
Official figures for community land area in Kenya do not exist. This is because the boundaries of individual community lands have never been demarcated. Only the area of group ranches is known, listed by the National Land Commission in 2014 as covering 4.3 million hectares. Additionally, the scope of community land is contested in relation to public land, as later discussed.
Community Land Model- Photo Courtesy
Nevertheless, a guesstimate of community land area may be arrived at, by subtracting private and public lands the total land area of Kenya. These too can only be guestimates as chaotic record keeping in Government means that private lands may be between 16 and 29 per cent of the country area, and public lands between 24 and 30 percent of country area. The result is that community lands may encompass up to 60 percent of Kenya, largely within 21 of the 47 counties.
The Constitution of Kenya (2010) Article 63 defines community lands as including those:
1. Registered in the name of group representatives (i.e., group ranches);
2. Lawfully transferred to a specific community or declared to be community land by an Act of Parliament;
3. Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
4. Ancestral lands and lands traditionally occupied by hunter-gatherer communities; and
5. Lawfully held as trust land by the county governments (trust lands).
While this seems clear enough, the last two sub-categories are the subject of contestation between communities and State authorities, the latter claiming that most lands under the 4th and some lands under the 5th are public property.
It is more certain that most community lands are located in the dry northern half Kenya, predominantly occupied by pastoralists, and where the largest areas of former trust lands are located.
No distinction is made by the Kenya Bureau of Statistics between persons living on private, community or public lands, and only the roughest estimate of the number of people on community lands can be given; somewhere between 6 and 10 million people, or up to 20 percent of the estimated total population of Kenya in 2017.
A main conclusion is that while Kenya’s law is positive and even cutting-edge in respects, legal loopholes place communities at risk of their lands not being as secure as promised ahead of formalization, and at risk of losing some of their most valuable lands during the formalization process.
This is mainly due to overlapping claims by the national and local government authorities. Political will to apply the law is also weak. The truism that the law is never enough on its own to secure social change is illustrated. With or without legal protection, the assistance of non-state actors will be needed to help communities secure their lands under formal collective entitlements. The need for judicial interpretation of disputed legal provisions may also be required to ensure new constitutional
principles are delivered.

The Community Land Act, No. 27 of 2016 (the Act) was assented to law by the President on 3lst August, 2016 and it commenced operation on 21st September, 2016.

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The Act aims at:

  • Giving effect to Article 63 of the Constitution of Kenya, 2010 (the Constitution) which provides for a classification of land known as community land. To this end, the Constitution provides that community land shall vest in and be held by communities.
  • Providing for, first, the recognition, protection and registration of community land rights. Second, the management and administration of community land. Third, the role of county governments in relation to unregistered community land and related matters.

The Act repeals the Land (Group Representatives) Act (Chapter 287 of the Laws of Kenya) and the Trust Lands Act (Chapter 288 of the Laws of Kenya).

Salient features

Ownership

Community land in Kenya shall vest in the Community. In this respect, the term “Community” has been defined to mean a consciously distinct and organised group of users of community land who are citizens of Kenya and share any of the following attributes: common ancestry, similar culture or unique mode of livelihood; socioeconomic or other similar common interest; geographical space; ecological space; or ethnicity. The constitution of a community is therefore not limited to ethnic lines as is the case with the current practice.

The Act requires a community claiming an interest in or right over community land to be registered.

Tenure systems and classes of holding of community land

Community land may be held under any of the following land tenure systems:

  • • Customary
  • • Freehold
  • • Leasehold, and
  • • Such other tenure system recognised under the Act or other written law.

Further, community land may be held as communal land, family or clan land, reserve land, or in any other category of land recognised under the Act or any other written law.

Registration of community land rights

The Act requires community land rights to be registered in accordance with its provisions and the provisions of the Land Registration Act, 2012.

In this respect, a Certificate of Title issued by the Community Land Registrar shall be evidence of ownership of the land. This Certificate of Title shall not be subject to challenge, except on grounds of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

The registration of a community as the proprietor of land shall vest in that community the absolute ownership of that land, while, the registration of a community as the proprietor of a lease shall vest in that community the leasehold interest described in the lease, together with and subject to all implied and express rights and privileges.

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Community land registrar and register

The Chief Land Registrar is required to designate a qualified registrar to be the Community Land Registrar responsible for registration of community land.

The Act also requires the maintenance for each registration unit, a community land register in accordance with section 8 of the Land Registration Act, 2012.

Customary land rights

The Act recognises customary land rights including the customary right of occupancy and provides for their adjudication and documentation. The Act also gives customary land rights equal footing in law as freehold and leasehold tenure. In this regard, the term “customary land rights” is defined to mean rights conferred by or derived from African customary law, customs or practices provided that such rights are not inconsistent with the Constitution or any written law.

Subject to the transition and saving provisions under the Act, any person who immediately before 21 September 2016 had a subsisting customary right to hold or occupy land shall upon commencement of this Act continue to hold such right.

Conversion of Community Land

The Act recognizes and permits for the following conversion systems of community land:

  • Conversion of Community land Into private land by; Transfer; Allocation by the registered community, but this has to be ratified by the community assembly.
  • Conversion of public land into community land by, allocation by the commission as stipulated in the Land Act.
  • Conversion of Private land to community land by; Transfer; Surrender; Operation of law in relation to illegally acquired community land; and Operation of any other written law.
  • Conversions to public land by either by; Compulsory acquisition; Transfer; or Surrender
Compulsory acquisition

The Act limits the compulsory acquisition by the State of any interest in, or right over community land only in the instance where the compulsory acquisition is, first, in accordance with the law. Second, for a public purpose. Third, upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

Role of County Government in respect of community land

The main role of the County Government under the Act is to hold in trust on behalf of a community unregistered community land and any monies payable as compensation for compulsory acquisition of any such unregistered community land. Any such monies shall be deposited in a special interest earning account by the County Government and shall be released to the community upon registration of the community land.

A County Government is prohibited from selling, disposing, transferring, and converting for private purposes or in any other way disposing of any unregistered community land that it is holding in trust on behalf of a community.

Community Land Management Committee

The Act establishes a Community Land Management Committee which shall be elected by a community assembly consisting of all adult members of the community. The functions of the Community Land Management Committee shall be to:

  • Have responsibility over the running of the day to day functions of the community
  • Manage and administer registered community land on behalf of the respective community
  • Coordinate the development of community land use plans in collaboration with the relevant authorities
  • √ Promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land, and
  • √ Prescribe rules and regulations, to be ratified by the community assembly, to govern the operations of the community.
Conversion of Community Land

Community land can be converted to either public land or private land and vice versa. The Act provides that at least two-thirds of the community members must approve any conversion of community land. This does not however limit the application of the Land Act, 2012 and any other law in respect of compulsory acquisition of land.

Special Rights and entitlements in community land

A community may, with the approval of its members, allocate land to a member or a group of members for exclusive use and occupation for such a time as the community will determine. However, an individual entitlement shall not be superior to the community title and a separate title shall not be issued.

Further, a pastoral community may grant grazing rights to a non-member of a community.

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Benefit sharing

An agreement relating to investment in community land should be free, open and a result of a consultative process which should involve among other things stakeholder consultations and involvement of the community. The agreement should provide for the payment of compensation and royalties, capacity building of the community and transfer technology to the community.

Dispute resolution mechanisms

A registered community may use alternative dispute resolution mechanisms including traditional dispute resolution mechanisms to settle disputes. However, where all efforts of resolving a dispute fail, a party may institute judicial proceedings.

Group representatives who held land under the Land (Group Representatives) Act

The group representatives who held land under the Land (Group Representatives) Act together with the communities they represent are to be registered as a community under the Act. Land held under by group representatives in this respect may not be sold, leased or converted unless it has been registered under the Community Land Act.

Gazettement of Land Regulation on December 14, 2017

Following the enactment of the new Land law regime post-2010 of the Land Act, No. 6 of 2012, the Land Registration Act No. 3 of 2012 and the Community Land Act No 27 of 2016, several rules have been published through the Kenya Gazette Vol. CXIX – No. 180 dated 08 December 2017. These are The Community Land Regulations, 2017, The Land Regulations, 2017, The Land (Extension and Renewal of Leases Rules, 2017, The Land (Conversion of Land) Rules, 2017, The Land (Assessment of Just Compensation) Rules, 2017 and The Land (Allocation of Public Land) Regulations, 2017

Whispers from the North
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Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.