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
History of land in Kenya
Kenya has struggled with land reforms from as early as 1895. Some of the issues include outdated land laws, long and tedious process of planning, surveying, adjudication, settlement and registration of land, irregular allocation of land, squatting and landlessness, unsustainable land utilisation, lack of access to land by some members of the society, such as women and youth, and utilisation of arable land for housing and non-agricultural activities, to mention but a few. Many Kenyans have acquired land by buying shares in land buying companies that acquire large tracks of land and subdivide them into individual pieces, especially in the former white highlands.
Land is a basis for livelihoods for Kenyans long before the Europeans came to Kenya. On the arrival of Europeans, many Africans were displaced from their land and it was given to white settlers for the establishment of large—scale farms. When Kenya got independence the white farmers were living in fear that their farms would be taken over by Africans. A meeting between Jomo Kenyatta and the Kenya National Farmers Union Chairman, Lord Delamere, led to the re-appointment of Bruce McKenzie as Agriculture Minister, a position he held in the colonial government.
The Government, however, encouraged Africans to get into large scale farming and set up institutions, such as the Agricultural Finance Corporation (AFC) and the Agriculture Development Corporation (ADC) to assist the African Farmers in large scale farming strategies. The Kenyatta government encouraged an agriculture, policy whose basis was export as a source of economic development, basically consolidating land as a primary source of economic development for the young nation.
Cooperatives were not new as African smallholder farmers had fought for the formation of their own cooperatives in the 1950s. The ﬁrst legislation on cooperatives in Kenya was the Cooperatives Societies’ ordinance Act of 1931, which was reviewed in 1932 and 1945.
In 1946, the colonial government started supporting the idea of cooperatives for Africans and established the Department of Cooperatives and the office of the Registrar of Cooperatives. Africans were allowed to register cooperatives for cash crops, such as coffee and pyrethrum. At Independence, there were about 1,030 cooperatives.
The first Cooperative Societies Act (Cap 490) was formulated in 1966 based on recommendations from the International Labour Organisation (ILO). It was repealed and replaced by the Cooperative Societies Act, No. 12 of 1997.
In 1964 with independence, the cooperatives were organized into four tiers — grassroots or primary cooperatives, cooperative unions, national cooperative organisations and the national apex body, the Kenya National Federation of Cooperatives. By 1965, the Government was using cooperatives as a vehicle to introduce African socialism and strengthen ties between people from different regions of Kenya and accelerate development as set out in the Sessional Paper 10 of 1965 on African Socialism and its application to planning in Kenya. Mzee Kenyatta encouraged Africans to return to rural areas to farm, with a popular slogan of the 1960s ‘turudi mashambani’. This was based on the fact that Kenya was an agricultural country and labour to work the land would be a contributing factor to social economic development.
The Cooperative Bank of Kenya was established in 1965 and formally registered as a bank in 1968, a landmark for the people-led efforts at improvement of their social and economic status.
The 2010 Constitution has led to a series of developments, which have dramatically changed the land tenure policies and laws.
As Kenya celebrates its 50th birthday, it has broken from the past and made some deliberate steps, anchored in the Constitution, to provide a roadmap for development and planning for every inch of Kenyan soil for up to 2050, and correct the historical mistakes to enhance social justice, national cohesion and political stability.
All the 75 pieces of legislations — sometimes contradicting each other – scattered in various sections of the old constitution have now been harmonised. The archaic ones have been repealed under the new dispensation.
The 2010 Constitution has seen the creation of the National Land Policy.
The Ministry of Lands has initiated the National Spatial Plan, which is aimed at planning for every inch of land in the country to facilitate social justice and national cohesion.
This will be achieved with the coming into effect of National Land Commission Act, 2012, whose members assumed office on February 27, 2013. The members appointed to save in the NLC are Abdala Swazuri (chairman) Dr. Tomilik Konyimbi, Dr Rose Musyaka. Samuel Tororei, Silas Kinoti, Abigael
The Swynnerton Plan
The Swynnerton Plan primary objective was aimed at converting communal land ownership into individual land title. It started in central Kenya and targeted to adjudicate 750,000 fragmented pieces of small plots which were to be consolidated into farms and registered.
The plan saw an increased agricultural production and diverts the attention of Africans from focusing too much on the white highlands. Land consolidation was extended to Nandi and other parts with arable land in Rift Valley.
The Swynnerton Plan also committed government to support African farmers. Government was to support the farmers by marketing their products, and also encourage them grow cash crops such as coffee, pyrethrum, maize and tea.
This led to the doubling of agricultural produce by small holders in Nyanza and Central Provinces between195Li and 1963.
One of the most remarkable achievements was that production of Arabica Coffee drastically rose, although the white farmers still feared this would lead to undercutting and falling of grades.
The enactment of the Land Registration Act, 2012, and the Lands Act, 2012, has seen the country transition from the old land tenure of 999 years to 99 years.
There are still some challenges because 50 years after independence, the issue of the 10-mile strip at the Coast covering 1,128 parcels of land measuring 80,000 hectares in Kwale, Kilifi, Malindi and Lamu still persists. This has left 128,000 families as still squatters in their ancestral land. The issue has been outstanding since 1895.
Kenya’s aspirations and dreams of industrialisation in the past five decades since 1963 have been grounded on land and the policies governing the utilisation of this inelastic resource.
Land has always been critical to Kenya‘s economic, social, political and cultural development and was a major trigger for the struggle for independence against colonial settlers who occupied the choicest arable land.
Although Kenya occupies 582,645 square kilometres, its more than 40 million people still rely on the 20 per cent arable land for settlement, housing and food production.
Since 1956, a total of 1.92 million parcels of land on 8.09 million hectares have been registered under the sub-division of Trust Land Registration of individual titles and more than 4.3 million titles issued. So far, over 268,000 families have also been settled in 459 schemes on over 1.2 million hectares of land, While 401 group ranches with 65,000 members, occupying about 2.0 million hectares have also been incorporated and registered.
Increased population has led to unplanned settlement, haphazard development and increased pressure on prime land.
The pressure has in turn caused intense competition, giving rise to conﬂicts evidenced from the pre-colonial days of Persians, Arabs sultans and British colonial settlers.
The current land administration system and policies date back to 1894 when the colonial authorities established legal framework borrowed from Britain and India.
Background of settlement schemes in Kenya
Kenya’s current settlement pattern dates back to the coming of the White man and the construction of the Uganda railway between 1896 to 1902.
The development of urban settlement from these early days was concentrated along the rail line where towns and cities cropped up, such as Mombasa, Nairobi, Nakuru and Kisumu.
The railway would later be expanded to open more branches for easy access to the white highlands where other smaller towns away from the corridor opened by the railway. ‘
However, the genesis of the settlement schemes in Kenya dates back to days of the First World War when volunteers joined the military in London and opted to come to the East African Protectorate to fight. These 1,200, soldiers belonging to East African Mounted Rifles were from South Africa, Rhodesia and Britain.
They were later joined by the 25th battalion of Royal Fusiliers, otherwise known as the Legion of the Frontiersmen, recruited by Daniel Drisco and ultimately numbered 1,116 men.
The ‘soldiers’ Who survived the sun and the enemy fire after the surrender of Germany on November 25, 1918, were not very keen to return to Britain even after their battalion had earlier been disbanded on June 29, 1918.
Those Who survived by the end of World War I did not Want to return to Britain as the War Council in Nairobi decided to establish the Soldier Settlement Scheme. Under the scheme, majority were gifted farms where the smallest measured 160 acres.
By the end of this settlement exercise, there Were 250 small farms and 800 large ones in Nanyuki, Kericho, Kiu and Trans Nzoia where they embarked on dairy and pig farming in the 1,031 farms, which had so far been allocated.
The craze for land among the soldiers was such that by November 1919, there were 2,000 applicants while an additional 1,000 settlers ﬂooded into the country from Britain.
Before World War I, the government had only allocated 4,736,000 acres of land to white settlers but the influx of soldiers saw 2,888,000 acres more allocated to the soldiers. In total white settlers were occupying 240,000 square miles against a paltry 48,348 square miles in the hands of Africans.
The inﬂux of white farmers created a demand for labour, which natives were not keen to provide as they were engaged in their own food production.
Previously there was an arrangement where some of the big settler farmers allowed squatters to use part of their lands on condition they worked on the farm for six months without pay.
This and the acute shortage of labour forced the settlers to demand that the government force Africans to provide cheap labour. The Africans were also prohibited from growing crops which competed for markets with the produce of settlers.
The settlers, under the leadership of Lord Delamere and William McMillan, successfully lobbied the government to enact some laws, which would compel Africans to work in white farms at minimum pay. So as to end the competition posed by Africans, the squatter scheme was abolished and Africans were banned from engaging in some activities, such as cash crop farming or rearing large number of animals on European farms.
Having effectively dealt with the issue of competition and ﬂooding of the market by African farmers the government, at the insistence of the settlers also passed a raft of laws which, among other things, made it compulsory for all adults to pay hut tax.
As the soldiers grew more belligerent with some favouring settling labour disputes with ﬂogging, racial relations between Europeans and Africans soured even as Asians who had been excluded from owning land in the White Highlands petitioned London.
There was bitterness among the disinherited Africans intensiﬁed their grumbling, which led to the appointment of the Land Commission in Kenya in 1933.
This Commission was supposed to look into, among other things, the boundaries hemming the White highlands and would ultimately concede that some Africans had indeed lost land the government rejected any calls for restitution. In effect, the government had reduced the indigenous people whose land had been seized by the settlers into squatters on their own ancestral land.
Government policies and regulations designated squatters as labourers not tenants. It is estimated that by the end of 1930s there were at least 130,000 squatters in Europeans farms.
The land tensions and labour policies triggered off widespread animosity of Africans towards the settlers and buttressed Kikuyu Central Association and its leadership, most notable among them Jomo Kenyatta.
The government reacted swiftly and expelled all squatters from Central Kenya from European farms. By 1948, the number of squatters had swollen to 220,000.
This created a squatter movement, which started oath administration among members who became more militant against the government.
When Winston Churchill’s Conservative government took over from Labour, there was a shift in land policy in Kenya Where individual land tenure was started. This marked the beginning of the 1954 Swynnerton Plan, which resulted with land consolidation.
From now on, land ceased to be communal and was turned into individual. This method was more pervasive in Central Kenya Where residents had been conﬁned into villages during the emergency era.
By October 1955, the colonial government had forced more than one million Kikuyu and Embu into 854 villages. At the same time the land of 2,000 freedom fighters and detainees was confiscated by the government and their houses demolished.
It is against this background that government started land consolidation which saw the amalgamation of 750,000 fragmented pieces of land which were consolidated into farms and registered and individual title deeds issued.
This consolidation gave loyalists m opportunity to amass land as they allocated themselves parcels conﬁscated from freedom fighters and detainees whose now landless dependents became labourers.
The Swynnerton Plan committed the government to support progressive Africans, who in this case were loyalists and were given assistance in getting inputs and marketing their produce.
When it became apparent in the 19605 that Kenya Was about to gain independence, there was uncertainty among the Whites who paradoxically continued ﬂocking Kenya instead of ﬂeeing. This inﬂux saw the population of Whites in Kenya rise from 42.000 in 1953 to 54,000 in 1956.
Forgive and forget: Africanisation of land in the 1960s
In February 1960, Michael Blundell formulated and championed a plan where the government would either buy or allow settlers to continue owning the 3,600 European agricultural holdings.
Bruce McKenzie who was later appointed a minister by President Jomo Kenyatta proposed the creation of a fund provided by Britain and international loans, which would be repaid by African farmers to buy out Europeans.
It was agreed that a total of 180,000 acres would be bought at a cost of £6—8 million.
Britain was to provide money for buying land while the World Bank would ﬁnance development through another loan.
A new Land and Settlement Board would choose settlers who had to be conﬁrmed by presidents of regional assemblies.
This policy known as the Yeoman Scheme Was established where land was meant for experienced farmers who had capital. The beneficiaries were required to contribute £500 each so as to secure land at the White highlands.
In yet another scheme the beneficiaries were required to contribute £100 each as m assurance to be allocated land between the White Highlands and the Reserves.
Between 1962 and 1965, the UK provided £18 million to fund the acquisition of European mixed farms, on which no interest was due until 1969. McKenzie, James Gichuru and Jackson Angaine administered the funds.
The transition of land from whites to Africans was shaped by the policy of forgive and forget, adopted by Kenyatta in a bid to avoid panic ﬂight by white farmers. It was also meant to win the support of Britain instead of compulsory occupation of lands occupied by the whites.
Kenyatta’s government, with the support of Britain, initiated the Million Acre Scheme in 1962 to buy 1.5 million acres of land for settlement. This averted land grabs which would have wrecked large farms and compromised food production and foreign exchange and investments.
Under this scheme, 350,000 families were to be settled on the land purchased at a cost of £255 million out of which Britain was providing £21 million to be paid back in 30 years.
The land was directly purchased by the Central Lands Board. Government statistics indicate that between 1960 and 1968, two million acres of land in Rift Valley formerly owned by whites was purchased. Ultimately 1.1 million acres was used to settle between 45,000 to 50,000 families or 250,000 people.
By the time the funds for buying land for settlement dried up, the Government could not buy four million acres of land which was being used as plantations and ranches. Some of these prime lands were passed on to Agricultural Development Corporation which was supposed to hold it in trust for the government for future use, especially in research.
Apart from the government settlement, some people directly bought land from whites on willing buyer willing seller basis and by 1969, a total of 1,260 acres had been bought.
Under another type, Haraka Settlement Scheme, 13,000 families were settled on small parcels of land which had been subdivided from rundown or abandoned white owned farms.
Between 1964 and 1965, the government allocated 200,000 acres of the land it purchased to cooperative farms. Most prominent of these was the O1 Kalou Scheme in Nyandarua, where 2,000 families got 2.5-acre private plots each.
In the new settlements, several hundred white farmers’ houses and 100~acre plots with farm houses code-named Z plots were reserved by the Lands and Settlement Minister Jackson Harvester Angaine for sale to senior community figures.
By 1964, the Kenyans were already pushing the British for a second ‘million-acre scheme’, which would focus on large farm transfers.
After lengthy deliberations with Kenyans, led by McKenzie, it was agreed that £18 million would be loaned to Kenyans between 1966 and 1970. Of this, only £6 million was to be used for farm buy-outs where 100,000 acres a year could be taken over, of which 20,000 acres would be reserved for subdivision and settlement schemes. The Agricultural Development Corporation (ADC) was to buy the remainder as single farms.
Fifty years after independence, J63 settlement schemes have been established across the country covering 1.0 million hectares on which l86.000 families are settled.
The 1970s transfers
This era was characterised by the transfer of land formerly owned by Europeans (especially in the coveted White highlands) to Africans.
The land in the hands of the Europeans translated to mixed farms, which were earmarked for settling 50,000 African families. Some of the tools identified for achieving this goal included one million acres still owned by Whites and a further four million acres under ranches and plantations, mostly owned by foreign companies.
The settlement of Africans in the 1970s came against a backdrop of the revamping of the Agricultural Finance Corporation (AFC) to enable it to provide credit to farmers for buying and rehabilitating large farms.
By 1972 an estimated 2,500 large scale farmers had been given credit by AFC amounting to £2.5 million. An additional £2.5 million had also been advanced to 14,500 small scale farmers.
To safeguard and maximise agricultural production the government implemented a policy in 1971 which halted any further subdivision of large farms for settling the small scale farmers.
In the same breath, the government took control of abandoned large farms formerly owned by Europeans and used for settlement. The government also adopted another policy of Shirika Settlement Scheme where a number of families were settled on a large farm, which was, however, not subdivided and was collectively owned.
But this policy did not work well as most Shirika schemes ended up incurring heavy debts as they could not be run profitably.
At the same time, the government or the Shirika settlements could not cope with the huge demand for land. It is worth noting that during this period, other Ways of owning land included final settlement schemes such as Lugari in Western Kenya. However, majority of the beneficiaries of this scheme had no concept of loan repayment.
Consequently most of their land (80 per cent) ended up being forfeited after the owners defaulted in payments
It was also during this period that land buying companies cropped up as peasants pooled resources and bought shares in companies which bought land formerly owned by Europeans. This land was later subdivided among the shareholders Hundreds of the land buying companies cropped up, especially in Central Province and bought land in Laikipia, Nakuru, and Trans Nzoia among others.
These companies later faced a multitude of problems to the shareholders after they were hijacked by corrupt directors and government officers who transformed them into cash cows.
Registers were manipulated and bogus shareholders created to aid the crooked directors in swindling the peasants.
The mismanagement of the land companies became so rampant
The Mbo-I-Kamiti case
Mbo-I-Kamiti was incorporated as a limited liability company in 1970 after 4,630 peasants contributed between Kshs10 and kshs30 from 1968, and ultimately amassed a total of kshs24 million after each member gave at least Kshs1,000.
The amount raised enabled them to buy prime coffee estates owned by Kamiti Valley Estate, a name they adopted, discarding their original identity, Kihoto.
The shareholders chose seven directors to oversee the day to day operations.
This land buying company has, however, become a case study of what can go wrong in such an enterprise for it has been dogged by controversies, indebtedness and grand corruption leading to death of directors and employees.
For the past four decades, justice has evaded the 4,630 peasant farmers who contributed their meagre resources to form Kihoto Company, in a bid to liberate themselves from the crippling poverty. The farmers bought eight pieces of land measuring 13,409 acres in different parts of Kiambu, Murang’a and Naivasha, crowning their possessions with a purchase of 350 acres of land in Loresho, Kiambu. Fifty acres were planted with coffee.
At the height of its glory, Mbo-I-Kamiti Kamiti owned vast coffee estates, a coffee factory, tea estate and had controlling shares in a tea factory as well 10 luxurious houses in the posh city estate.
During this golden era, Mbo-I-Kamiti owned kilooma,(284 acres), Matropi(298 acres), Anmer (218 acres) Kabazi (218 acres) Bardgate (325 acres) and Kiura (365 acres), as well as Loresho( 350 acres and Fairview (250 acres).
Besides the coffee estates, Mbo-l-Kamiti also owned Gachuruba Tea Estate (450 acres) Olmorogi Ranch and Drinmore Estate measuring 4,521 acres as well Summer Estate (7,000 acres).
Today, the land buying company is almost insolvent and has bank loans estimated at more than Kshs2 billion. Some of the land has since been sold while the shareholders still wait to be allocated land 44 years later.
that in October 1986, the government formulated a policy which compelled land buying companies to allocate land to shareholders as soon as possible and were supposed to be dissolved immediately after.
When one such company, the 70,000—member Ngwataniro Mutukanio Land Buying Company, was bedeviled by problems, the government directed that directors who had allocated themselves more land that they were entitled forfeit it to facilitate settlement of genuine and landless shareholders.
The Settlement Trustee Fund
At its conception in the early 1960s, the Settlement Fund Trustee was represented in the districts by the District Commissioners who chaired the District Squatter Selection Committee.
The District Commissioner identified deserving persons and forwarded the names to the Director of Land Adjudication and Settlement who in turn made an offer to the identiﬁed deserving persons.
The SFT was started shortly before independence in 1963 where applicants for land had to apply for the same to the Commissioner of Lands through the DC.
Initially, the beneficiaries were supposed to get a 33 year old lease if he or she satisfied the demands which included putting up a house six months after allocation.
If the conditions stipulated by the government were met to the satisfaction of the SFT officer, a land owner’s lease was then converted from 33 years to 99 years.
Unlike freehold titles, the SFT land attracted a down payment of between Kshs480 and Kshs1, 200 by 1966, followed by an annual rent ranging from Kshs 90 to Kshs 240.
The beneficiaries of the SFT land were strictly forbidden from selling the land unless with express authority from the Commissioner of Lands
Land registration and consolidation
Whilst most attention was focused on the former white highlands, individual land registration, consolidation and the issue of land titles continued in the former reserves.
The Kenyatta government started giving individual titles and consolidating fragmented holdings for long-term agricultural improvement, to reduce the cost of land litigation and the fear of land expropriation.
The colonial government had virtually completed consolidation in Kiambu, Kirinyaga and Nyeri in late 1950s but the process was slow in Murang’a due to corruption by some chiefs where peasants got less than 10 acres while chiefs ended up with huge chunks.
By 1965, registration and consolidation had been done in Embu and Meru, Kakamega and Bungoma, and parts of the Rift Valley.
In the large pastoral areas, such as Maasai land, where land was communally owned consolidation and registration was very difficult.
It is worth noting that there are 387 group ranches in 15 districts covering 2,503,980 hectares in pastoral areas. Despite all this, the registration system created alongside the land consolidation programme was proving inadequate. This is because majority of land sales and inheritances were not registered, but executed informally on the ground, to avoid paying fees, to bypass restrictions on plot subdivision or due to ignorance.
Great strides have since been made towards adjudication as a total of 1,555,479 titles covering 8.01 million hectares had been issued as at 2008.
Since 1963 to date, adjudication work has been completed in Central and Western Provinces with the exception of some sections in Busia district.
However, no adjudication has been done North Eastern Province and the strife torn Tana River District.
The genesis of land grabbing In the 1970s, there was rapid urbanisation. Urban areas witnessed an increased population from two million in 1979 to six million in 1999.
The effect of this population explosion was the emergence of unplanned urban centres and population clusters as land meant for agriculture was used for urban settlement.
It is instructive that in 1978, a World Conference on Environment was held in Paris which changed national land policies around the world, including Kenya. It was resolved that every country must come up with Human Settlement policy.
Consequently the Human Settlement Strategy of 1978 paved way for the categorisation of urban centres based on their capacity to grow and provide services.
Some of the services which were put in consideration in setting up such canters in Kenya were postal services and telephone exchange.
Prior to formulation of this policy, the government had drafted the Nairobi Metropolitan Growth Strategy, which created the blueprint of all the bypasses which are being implemented now.
The plan was to create satellite of towns not far away from the capital city so as to decongest the city’s CBD. The satellites identified by the 1973 blueprint were Kikuyu, Athi River, Limuru, Ruiru and Thika. At the same time, Nairobi was supposed to have limited development so as not to generate so much traffic.
But this never came to be for soon after, the National Bank was erected in 1976, followed by Kencom House in 1977, Cooperative Bank (1979), Nyayo House (1982 to 1983), Utalii House (1983) and finally, Times Tower (1991 to 1992).
These massive public buildings have greatly contributed to traffic congestion in the city as they attract a lot of traffic as people come to seek services.
Zoning policies have been flouted as a result, leading to proliferation of urban informal settlements, insecurity, violence and environmental degradation.
19805 peasantisation of agriculture
Kenya’s land policy in the 1980s was inﬂuenced by the prevailing political climate brought about by the death of President Jomo Kenyatta in 1978 and the ascension of his Vice-President Daniel arap Moi to presidency.
One of the first things the Moi government did was to lift the ban on allocation of beach plots imposed by Kenyatta.
After the 1979 general elections, Moi abolished the Ministry of Lands and Settlement and placed the department in Office of the President.
It was during this time that the government froze settlement schemes although a handful was used for political rewards.
In a programme some call the “peasantisation of agriculture”, the Shirika Settlement Schemes land, formerly owned jointly, was subdivided.
The large White owned farms which had been reserved intact were also sliced up while ranches and estates were snatched up by Africans.
Between 1983 and 1984, land buying companies were hit by a series of cases as nearly 100,000 shareholders had not been allocated land. The government was forced to order the dissolution of 1,000 land buying companies and the subdivision of the land.
And as land started being used to reward political loyalty, speculators started snapping up whatever public land they could lay their hands on.
During this period, although land adjudication had been progressing quite well, it stalled even though by 1980, two thirds of the land had been adjudicated.
The suspension of adjudication adversely affected pastoral land which had proved difficult to demarcate in North Eastern Province, Marsabit, Isiolo, Turkana, Samburu and the Coast.
At land problem at the Coast had been building up for some time, prompting the government to formulate the 1979-1983 Development Plan.
This plan was aimed at reviewing the land rights of the indigenous squatters but the government got stuck with the policy of willing buyer willing seller and the sanctity of title deeds.
It was also during this period that land related conflicts were first witnessed in December 1981 after Nandi and Luhya farmers clashed at the borders of Nandi and Kakamega districts. More violence was also witnessed in Narok.
In Central Province, despite land consolidation having been successfully executed, population explosion forced uneconomical subdivision of land as government was forced by academicians to consider putting a ceiling on minimum land ownership.
Agricultural Development Corporation farms, which comprised farms formerly owned by Europeans, were still being divided and sold. Politically correct individuals were allocated choice pieces of ADC land, which they later sold.
1990s land rights demands
The country started the decade with a series of revolts triggered by dissent towards the government over what critics termed as corruption and theft of public lands. Anglican Bishop Alexander Muge had told the government to stop theft of land before he was killed in a road accident.
Land rights demand would also crystallise into agitation for second liberation in the 1990s and usher ethnic clashes in 1991, which caused displacement of thousands of Rift Valley residents.
In the build-up to the 1992 elections, land was used as a tool for raising campaign money as state owned parastatals were compelled to buy parcels of land from well- connected speculators at inflated rates.
There were instances where senior government officers were cited as beneficiaries of public land.
Land meant for prisons, hospitals, schools and staff quarters was not spared. Ln Nairobi and other urban centres across the country, open spaces and parks, including cemeteries, were also targeted. Some 60,000 acres of forests land too were excised and chunks allocated for settlement or sold. Nairobi’s Karura forest was excised and allocated even though it had not been degazetted. Between 1990 and 1995, NSSF spent Kshs32 billion in land that turned out to be useless as it included designated road reserves.
There were instances where individuals had been allocated an official residence belonging to the police station bosses and public slaughterhouses.
Seeking cure in the new millennium
After years of operation without clear policy guidelines concerning land, the government embarked on a stock-taking mission of the wrongs in the land sector at the dawn of the new millennium. To achieve this end, the government started correcting the malaise in the Ministry of Lands by establishing a Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy Framework, Constitutional Position of Land and New Institutional Framework for Land Administration led by Charles Njonjo in 2002.
Soon after there was an attempt to audit what was ailing the land sector following the establishment of yet another judicial commission
Paul Joseph Ngei, one of Kenya’s most controversial politicians who had been jailed alongside Kenyatta in Kapenguria in 19505 was also a Lands minister from 1985 to 1988.
Ngei’s political intrigues read like a novel for he had the capacity to make Kenyatta spend sleepless nights and was one of the few politicians who saw the amendment of the constitution to allow the president to pardon him (Constitution Amendment Act No.1 of 1975) so he could contest in a general election after he had been found guilty of an election offence. Earlier in 1966, Ngei had been suspended as a Maize Marketing Board boss after he was implicated in smuggling occasioning a severe shortage of maize in the country.
A commission appointed by the president to probe the issue however exonerated him.
He had made a name as Bwana Mashamba for challenging the colonialists to forfeit the land they had stolen from Africans. During a parliamentary debate on December 1, 1983, Ngei surprised Parliament when he enumerated the problems bedeviling his ministry.
“Owners of parcels of land which had been surveyed and adjudicated eight years earlier are still waiting for title deeds,” he said.
This, Ngei explained, had denied farmers who desperately needed collateral to secure loans access to credit while those who had invested in commercial buildings in market centres also had no proof of ownership.
He gave an undertaking before Parliament that his officers, led by himself and two assistant ministers as well as senior land ofﬁcers, would to go round the country from December 16, 1983.
of inquiry into the illegal/ Irregular Allocation of Public Land, otherwise known as the Ndung’u Commission.
The Commission’s brief was to look at the illegally/ irregularly allocated public land. This commission led by lawyer Paul Ndung’u who had served in the Njonjo Commission made some major findings, which sum up the major problems bedeviling the land sector in the country since 1963.
In a nutshell, the Ndung’u Commission established that some 200,000 illegal titles were created between 1962 and 2002 and close to 98 per cent of these were issued between 1986 and 2002.
The commission further found that categories of public land affected included forests, settlement schemes established for the poor, national parks and game reserves, government civil service houses, government offices, roads and road reserves, Wetlands, research farms, state corporations lands, trust lands.
Beneficiaries of grabbed land included ministers, senior civil servants, politicians, politically connected businessmen, and even churches and mosques.
On acquiring titles, most grabbers would very quickly sell the land to state corporations at hugely inﬂated values. The irony was that state corporations would lose their land to grabbers for free, and then be pressured to buy other lands for millions of shillings.
The commission recommended the government try to recover some of the land which had been grabbed and observed that given the very large number of titles involved there was need to establish a Land Titles Tribunal, with a simpliﬁed system of processing cases making it possible to dispose of a case in a matter of one or two days.
The commission further recommended that laws relating to land, some of which had been inherited from the colonial government, be reviewed to take into account the changed political and social equation.
Although some of the most drastic recommendations of the commission like the revocation of the illegal titles and the repossession of the illegally acquired land have not yet been effected, the commission led to some positive developments.
The establishment of a National Land Policy, which kicked off in 2003, was a direct consequence of the commission’s recommendations and has been instrumental in effecting sweeping changes and the ultimate establishment of a National Land Commission whose members have now been gazetted.
With the drafting of the national land commission and the anchoring of the policy in the 2010 Constitution, the powers of the president in as much as allocation of land have been scrapped as all public land has now been vested in the National Land Commission.
The Ndung’u Commission found that the land grabbing mania, which intensiﬁed in the 1990s, was triggered off by multiplicity of factors among them the powers conferred to the President by the Government Lands Act.
The Ndung’u Commission, which was gazetted on July 4, 2003 comprised of Paul N joroge Ndung’u as chairman, MichaelAr0nson (Vice Chair, Abdallah Ahmed Abdallah, Ann Kirima, Ishan Kapila, Odenda Lumumba, Winston Ayoiki, Peter Koech, Thuita Mwangi and Smokin Wanjala who were joint secretaries together with Raychelle Omamo (now Defence Cabinet Secretary) and Wanyiri Kihoro.
Other members Were Permanent Secretaries in ministry of environment, Natural resources, Wildlife, Roads, Public Works, Local Government, Office of the President, Governance and Ethics, and Lands and Settlement.
The commission found that under the Government Lands Act the president had powers to make grants of freehold or leasehold titles on un-alienated government land to individuals or corporations.
The president delegated some of these powers to the Commissioner of Lands. This saw public land being allocated in total disregard to public interest.
The practice of illegal and irregular allocation intensiﬁed in the late 1980s and reached the peak in 1990s as land was not used for development but for political reward and for speculation pure poses where allotees later sold it to prospective developers.
The Commissioner of Lands assumed sweeping powers and invoked Section 9 of the Government Lands Act where he could alienate any portion of a township, which was not required for public and subdivided into plots for erection of buildings for business or residential purposes.
Instead of selling plots through auction as had been the trend in 1950s, the presidential powers were used to directly give land.
The issuing of letters of allotment to beneficiaries of public land fuelled the selling and buying of such plots, creating a vibrant market which took place pursuant to consents illegally given by the Commissioner for Lands.
Under this arrangement the original beneﬁciary could transfer the letter of allotment by paying consent fee (two per cent of the selling price) as provided for by Legal Notice number 305 of 1994, published by the Minister of Lands and Settlement. This notice contravened section 18(l). The notice was revoked in June 2003.
Interestingly, some of the people who gave out public land did not have the authority to do so. Such people included chiefs, District Officers, District Commissioners as well as Provincial Commissioners and Members of Parliament.
Grabbing of public land led to resistance and protests by outraged residents. Grabbers also resorted to the use of force at times using the police to protect them and their land.
There have been attempts to ﬁght land grabbing by non-governmental organisation and parliamentary Watchdog committees, such as Public Accounts Committee and Parliamentary Select Committee on Corruption.
In 1999, President Daniel arap Moi banned allocation of land.
After the Kanu government was defeated in 2002, the new Narc regime under President Mwai Kibaki formed the Ndung’u Commission. The new millennium heralded unprecedented changes which are crystallised by the scrapping of the 75 pieces of legislation.
This and the shift to the devolved system of government, a slightly different version of the 1963 Majimbo (federal system of government) has transited the Ministry of Lands from the old analogue age where the land registry was manual into a digital era even as its services are decentralised from Ardhi house to the 47 counties.