With the enactment of the new Constitution and the adoption of the National Land Policy, most of the problems associated with land in Kenya will begin to be resolved. The new Constitution (Chapter 5 Sections 60—68) classifies land into public, private and community and points out that all land in Kenya belongs to the people collectively as a nation, communities and individuals.
Public land in Kenya
Public land in Kenya refers to land unalienated by the Kenya Government, used or occupied by a State organ, which no individual or community ownership can be established, minerals and mineral oils, Government forests, and game reserves.
Other lands that fall into this category are water catchment areas, national parks, Government animal sanctuaries, roads, rivers, lakes and other water bodies, the territorial sea, the exclusive economic zone and the sea bed. The continental shelf, land between the high and low water marks and any land not classified as private or community land also fall in this categoiy.
Other pieces of land will be held by the national government in trust for the people and administered on their behalf by the National Land commission.
Community land in Kenya
Community land in Kenya will be held by communities on the basis of ethnicity, culture or similar interest. Community land comprises land registered in the name of group representatives, transferred to a specific community and land held, managed or used by communities as community forests, grazing areas or shrines.
Other pieces of land that fall under community land are ancestral lands and those traditionally occupied by hunter – gatherer communities, held as trust land by the county governments
Private land in Kenya
Private Land in Kenya consists of land held by a person under freehold tenure and leasehold tenure.
Non-citizens in Kenya and Land
A non-citizen can only hold land on leasehold tenure, and the lease cannot exceed 99 years. Any land whose lease was beyond this – like the 999 leaseholds held by some multinational companies or individuals will revert to 99-year leaseholds
National Land Commission in Kenya
National Land Commission is established by the new Constitution and its functions are:
- Manage public land on behalf of the national and county governments
- Recommend a national land policy to the national government
- Advise the national government on a comprehensive programme for the registration of titles
- Conduct research on land and the use of natural resources.
- Investigate present or historical land injustices, and recommend redress
- Encourage the application of traditional dispute resolution mechanisms in land conflicts
- Assess tax on land and premiums on immovable property and have oversight over land use.
Land policy in Kenya
The Cabinet and Kenya Parliament approved the new land policy, which recognises land not just as a commodity for trade, but also as a principal source of livelihood. This will correct the injustices against women, children and minority groups. The policy further plans to stop hoarding of land or speculation by introducing taxes to discourage ownership of idle land.
The land policy also gives the State power to regulate private land. A classic example is the 117-year old Married Womens Property Act of 1882 targeted for repeal to pave way for a more responsive and modern matrimonial Act sympathetic to spouses whose contribution to the matrimonial property cannot be quantified.
The current law, which was borrowed from outdated British statutes, discriminates against women while the courts have been inconsistent over disinheritance of women and widows.
The new Kenya law will protect the rights of widows, widowers and divorcees by providing the right to co-own matrimonial property.
The law will further curb the sale of family land without the involvement of spouses. To correct historical injustices, the land policy seeks to go as far back as 1895 when Kenya became a colony under the British.
Pastoralists will benefit from the repeal of the Group Representatives Act so that individual rights are recognised yet ensure they maintain their unique land use.
At the Coast, the Government will make an inventory of its land at the 10-mile strip, and vest it under communities, which will hold it in trust for the residents. Currently, much land at the Coast is in the hands of powerful families, some absent landlords, who charge ground rent. Some of the land is idle and thousands of people who live on it are squatters.
At the same time, the Government hopes to establish public plots along the coast for recreation, and open up access roads to the beach. ‘The construction of walls along the high water mark will be regulated.
Land Reform Transformation Unit
Land Reform Transformation Unit will prepare the ground for the reforms in the implementation of the National Land Policy. The unit will oversee the establishment of organs that will drive reform in the ministry. The unit will design an effective vehicle for transformation. The Minister will have an oversight role over the unit and other functions that will drive land reform.
The Steering Committee will be appointed by the Permanent Secretary. It will comprise people with knowledge of public sector reform, land policy, administration and management. The members of will be drawn from the public service, civil society, academia and private sector.
Slums in Kenya – Informal settlements in Kenya.
The Kenya Government has grand plans for informal settlements and slums. Already, slum-upgrading projects in Nairobi and other towns in Kenya are changing lives of the residents. They have access to clean waten electricity and have more space and thus a clean environment. In Kibera, Nairobi, the first phase of the slum—upgrading project is complete and hundreds of families have since moved to their new homes. This has paved way for the start of the phases that will benefit more city residents.
To comprehensively deal with the matter, Government policy proposes an inventory of genuine squatters and residents of slums. lt also calls for removal of those squatting on unsuitable land and resettling them elsewhere. ln the policy, sale and transfer of land meant for squatters will be prohibited to safeguard the rights of the landless.
ln the policy, Government has power to compulsorily acquire land to effects plans for public projects and benefit. The title for the land will be vested on the people of Kenya collectively as a nation, communities and individuals.
Land administration in Kenya
Land dispute resolution mechanisms in the past have been handled by a number of institutions, leading to emergence of challenges, such as conflicting interpretation of the law derived from multiple statutes dealing with land disputes.
The country too has suffered from lack of adequate expertise in solving the conﬂicts by land disputes tribunals and the courts of law, leading to numerous unresolved disputes.
Land administration will never be the same again once the National Spatial Data Infrastructure is implemented, as it will combine surveyors’ data with other vital records, such as the owner’s land reference number, water and electricity connections, and rates payments.
Unplanned subdivision of land has seen an escalation of national disasters, such as land-slides, and the spatial plan goes beyond land use and addresses suitability analysis of all land in Kenya, encompassing zoning of the country to ensure sustainable development, at a time when there is a crave for subdividing land, leading to mushrooming of informal settlements further threatening food security.
Land tenure in Kenya
The country is in the process of transiting from the old land registration tenure of 999 years, to a shorter one of 99 years, at a time when digitisation is also taking place to promote efﬁcient management of land for sustainability, prosperity and posterity