The Cabinet Secretary for Lands issued Land Adjudication (Application) Order 2019 gazetted as Legal Notice 150 of 27 August 2019 which purported to open up community land in Isiolo for adjudication. Consequently, surveyors from the Survey Department commenced survey of land in Isiolo County. Following repeated and well-documented complaints from residents and leaders of Isiolo County concerning the implications of Legal Notice 150, the Cabinet Secretary issued Land Adjudication (Application) (Amendment) Order, 2019 dated 20 December 2019 and gazetted as Legal Notice 1 published in Kenya Gazette Supplement No. 1 of 10 January 2020. Legal Notice 1 amended Legal Notice 150 by specifying community land in Isiolo County that would be subject to adjudication. However, as highlighted below, Legal Notice 1 does not address the concerns previously raised concerning Legal Notice 150.
Consultation and public participation
One of the concerns raised consistently by Isiolo County residents and leaders is that the process of adjudication currently being undertaken by the Ministry of Lands was commenced without adequate public participation as required by law. Simply amending Land Adjudication (Application) Order 2019) gazetted as Legal Notice 150 of 27 August 2019 does not cure the process of this initial defect, but rather attempts to sanitise an otherwise defective process. The constitutional principle of public participation binds the national and county governments including all their organs and officers to openness, accountability and public participation in dealing with public interest issues. Both Legal Notice 150 and Legal Notice 1 were issued without any consultation with the communities whose beneficial interest in the land is affected. The County Government and the Cabinet Secretary should have consulted the communities before proceeding to open up the community land to adjudication and acquisition by private individuals.
The Cabinet Secretary previously indicated that she had received a request from the County Government to undertake the adjudication. The alleged request is a report by the Isiolo County Assembly dated 28 November 2019 which proposed areas to be adjudicated. According to this report, the Assembly claims to have conducted public participation on the issuance of titles between 8-16 November 2019. However, this report is misleading and inaccurate in several respects. Firstly, the report claims that the Assembly consulted local leaders on 13 November 2019. Notably, the meeting referred to here was in fact a political rally convened by the Assembly and County Executive at the Isiolo Municipality headquarters where only a select few invited individuals were allowed to attend. Instead of consultations, the meeting took the form of a political rally where the Assembly and County Executive leadership addressed those invited to the meeting by verbally attacking those who had raised concerns over the adjudication process. Secondly, the report claims that the Assembly consulted Members of Parliament from Isiolo County on 16 November 2019. No such meeting with MPs took place. Additionally, putting aside the already-mentioned flaws of the report aside, the Assembly did not present the draft of the report which included areas to be adjudicated to the people who stand to be directly affected. Ideally, the draft report should have been extensively discussed with the people in all wards in Isiolo County. Consequently, the report cannot be considered to have been a result of extensive and effective public participation within the meaning of the Constitution of the Republic of Kenya, 2010. As the legal custodian of unadjudicated community land on behalf of communities, the Isiolo County Government has a legal obligation to undertake effective public consultation and to receive the consent of the people of Isiolo County before making such a request to the Cabinet Secretary. No approval was sought or granted.
Areas earmarked in the Legal Notice extend to (almost) all land in Isiolo County
The Schedule attached to Legal Notice 1 lists seventy-seven (77) areas in all wards in Isiolo County, including settled areas, towns and market/trading centres, as areas to which the Adjudication Order applies. In other words, most of the land in Isiolo County is subject to this adjudication order and will therefore be adjudicated from community land and subject to individual titles. As previously indicated by the County Government, the process of town planning that it embarked on in accordance with the Physical Planning Act 2019 and for which it issued a Notice of Intention to Plan on 17 September 2019 was to be restricted to towns and market/trading centres where residents would acquire land titles. This process was not intended to extend to community land outside these towns and trading centres. However, the Cabinet Secretary has made it clear through Legal Notice 1 that almost all land in Isiolo County (beyond towns and trading centres) would be adjudicated and individual titles issued. The people of Isiolo County have consistently expressed their objection to the conversion of their community land in this manner. The effect of Legal Notice 150 was to commence the process of opening up community land in Isiolo County to adjudication and the issuance of titles. Legal Notice 1 has in fact confirmed this intention to convert community land to private land to be held by individuals as opposed to being held by the community. This would effectively deprive communities of land which they have beneficially used for communal purposes for generations.
Further, Legal Notice 1 refers to ‘settled areas’ without precisely defining what this means, that is, what specific areas are considered as ‘settled areas’. Due to this ambiguity, it is impossible to tell exactly what areas the adjudication order does or does not apply to.
The legal status of Isiolo Holding Grounds
Legal Notice 1 still excludes the Isiolo Holding Grounds from adjudication, ostensibly signalling that the Cabinet Secretary believes the land to be public land. As previously asserted, communities in Isiolo County, however, maintain that the Isiolo Holding Grounds is community land. Assuming (at least for the sake of argument) that the land in question is not community land, but rather public land as asserted by the government, one factual and legal question arises. The fact that for decades since it was allegedly set aside, the land has not been utilised for the intended public purpose as a disease-free buffer zone. This means that Section 12(9) of the Land Act 2012 should apply, and the land should therefore automatically revert to its previous status as community land. The effect of Legal Notice 150 and Legal Notice 1 is to sanitise the Cabinet Secretary’s erroneous belief that Isiolo Holding Grounds is public land. The people of Isiolo maintain that this land is community land.
Remarkably, a number of areas included in the Schedule in Legal Notice 1 lie within the Isiolo Holding Grounds. This contradicts the notice’s earlier express exclusion of land within the Isiolo Holding Grounds. Whilst specific areas have not been precisely indicated, possibly in order to avoid areas in the Isiolo Holding Grounds, Legal Notice 1 opens up extensive portions of land – up to three square kilometre radius (750 acres) – further increasing the risk of overlap in larger towns and essentially covering entire towns in the case of smaller settlements.
Some of the areas included in Legal Notice 1 as subject to adjudication, but which nonetheless fall within the Holding Grouds are Noloroi, Kipsing, Longopito, Lenguruma and Tuale (all in Oldonyiro Ward) and Kambi Sheikh, Akadeli/Bules Dima and Leparua (all in Burat Ward). In order to avoid encroaching on Isiolo Holding Grounds, which is and remains to be community land, the County Government of Isiolo is strongly encouraged to clearly identify and register the community’s claim over the grounds so as prevent any further confusion.
The legal status of land claimed by Kenya Defence Forces
Legal Notice 1 purports to exclude Military and Security Installations in Isiolo from the adjudication order thereby implying that the land on which these are located is public land. As the people of Isiolo have consistently asserted, some of the land on which military and security installations are located and some of the land claimed by the Kenya Defence Forces (KDF) is community land, particularly in Burat, Ngaremara and Gambella. The question of the determination of the status of this land is pending before the National Land Commission (NLC) and the High Court of Kenya. The High Court has in fact issued conservatory orders pending the determination of the dispute. Through Legal Notice 1, the Cabinet Secretary is essentially adopting a legal position on the question of the status and ownership of all land in Isiolo County claimed by the KDF and other security forces and attempting to sanitise the KDF’s claim over land which the people of Isiolo County believe to be community land. Further, the Cabinet Secretary’s actions are prejudicial as they not only pre-empt but also frustrate the ongoing judicial process over the land in question.
Further, despite purporting to exclude land claimed by the KDF from the adjudication order, Legal Notice 1 nonetheless lists some of these subject areas in its schedule, thereby opening them up to adjudication despite the existing legal dispute over their status. These areas are Kambi Sheikh, Akadeli/Bules Dima and Leparua (all in Burat Ward).
The legal status of land earmarked for the LAPSSET Corridor and Isiolo Resort City projects
Legal Notice 1 excludes land earmarked for the LAPSSET Corridor and the Isiolo Resort City from the adjudication order, thereby implying that this land has since become public land. As consistently asserted by the people of Isiolo County, most of the land earmarked for these projects in Isiolo County was originally community land. In accordance with the legal requirements governing compulsory acquisition, specifically Articles 40, 60 and 66 of the Constitution of Kenya 2010, Sections 7, 107-103 of the Land Act 2012 and Sections 5 and 22 of the Community Land Act 2016, persons whose land has been compulsorily acquired for a public purpose must be promptly and adequately compensated. Communities and persons in Isiolo County whose land was so acquired (or whose land will be so acquired) are yet to receive adequate compensation. By implying that the land earmarked for LAPSSET Corridor and the Isiolo Resort City is public land, the Cabinet Secretary is attempting to circumvent the legal process of compulsory land acquisition and dispossess communities and individuals in Isiolo County of their rightful property. The people of Isiolo County maintain that until such a time as full compensation shall have been paid for the land earmarked for these projects, the land remains community land and any implication to the contrary is unlawful.
DEMAND: Revocation of Legal Notice 150 and Legal Notice 1
Despite repeated appeals to the Cabinet Secretary, and despite the Cabinet Secretary’s meeting with elders and leaders from Isiolo County, and despite the Cabinet Secretary’s promises to consider the concerns raised by the people of Isiolo County, the amendment in Legal Notice 1 does not address any of the concerns raised, as has been highlighted above. Communities in Isiolo County expressly requested the Cabinet Secretary to revoke Legal Notice 150 because it is incurably defective. The communities’ concerns cannot adequately be addressed, and their interests protected by a mere amendment to Legal Notice 150. Legal Notice 1 cannot, therefore, cure Legal Notice 150.
Consequently, the people of Isiolo County demand, yet again, the following:
a) Immediate revocation of Legal Notice 150 of 27 August 2019 and Land Adjudication (Application) Order 2019) and Land Adjudication (Application) (Amendment) Order, 2019 dated 20 December 2019 and gazetted as Legal Notice 1 published in Kenya Gazette Supplement No. 1 of 10 January 2020.
b) The ongoing survey and demarcation of land in Isiolo County should immediately be halted until all outstanding issues as mentioned above are satisfactorily resolved.
c) In relation to all community land in Isiolo County, an orderly process should be adopted where communities, residents and other stakeholders are adequately consulted through a robust and inclusive public participation process, and their approval sought and received; areas strictly needed for settlement identified, including beneficiaries; proper mapping undertaken; and mapped areas marked for adjudication.
d) Areas utilised for communal purposes identified, protected, registered and managed in accordance with the Community Land Act 2016.
e) Prompt and adequate compensation should be paid to communities and persons whose land is earmarked for the LAPSSET Corridor and Isiolo Resort City before these projects can proceed.
f) The Isiolo Holding Grounds should immediately be released to Isiolo County Government to hold in trust for communities as community land.
g) The ongoing court process aimed at determining the legal ownership of the land in Burat, Ngaremara and Gambella whose ownership is disputed by KDF and communities in Isiolo should be respected.
As members of the Kenyan Parliament (both National Assembly and the Senate) from Isiolo County, we hereby reassure the people of Isiolo County of our unrelenting efforts to ensure that this matter is sufficiently addressed to the satisfaction of the people of Isiolo County. We intend to continue our concerted efforts to engage with relevant national and county government organs with a view to ensuring that the people’s concerns are taken into account and that community land in Isiolo is accorded the due protection of the law.
Hon. Fatuma Adan Dullo, CBS, M.P, Senator, Isiolo County
Hon. Rehema Dida Jaldesa, M.P, Women Representative, Isiolo County
Hon. Abshiro Soka Halake, M.P, Nominated Senator, Isiolo County
Hon. Hassan Oda Hulufo, M.P, Isiolo North Constituency
Hon. Abdi Koropu Tepo, M.P, Isiolo South Constituency
H.E Dr. Abdi Ibrahim Issa, Deputy Governor, Isiolo County