INTRODUCTION 1.1 The Background of the Study In most developing countries, the problem of optimum access to land i.e.

access for whom and under what conditions- remain a serious unresolved issue, frequently with high efficiency and welfare costs, environmental consequences and explosive political manifestations. Land is typically misallocated among potential users and worked under incomplete property or user. The starting point for understanding current tenure issues in Sub- Sahara Africa requires a backwards look at both pre-colonial system of land and people management, and the ways in which the establishment of colonial authority affected land tenure system. The origin and nature of the land question in Kenya as well as the rest of Sub Saharan Africa has its roots in the colonial era. The alienation and acquisition of land, the imposition of English property laws, the celebration of title in the alienated areas and the introduction of tenure reforms in the Africans areas/native reserves. The post-colonial state adoption of the colonial based legal framework of land administration. Another fundamental factor contributing to the land question is the use of political patronage for purposes of establishing and sustaining political loyalty, overtime, deepened the problem of landlessness and made the land question more complex. (U. Weber, J.K Mutai et al; 2000) The land question and landlessness that resulted with the establishment of the colonial state therefore had to be resolved without disturbing the existing framework. Doing so had two important consequences: it gave rise to constitutional arrangements that favored sanctity and inviolability of private property; it also led to the adoption of the colonial-based legal and administrative framework on land. With these, the new elites continued to

accumulate using the state framework and therefore accumulation moved in tandem with an increase in landlessness. Landlessness also increased as a result of contradictions in the land reform program. Resettlement efforts and the land purchase program were introduced in the early 1960s but did not resolve these problems for a variety of reasons (Kanyinga, K 1998). The new elites evolved to be the most advantaged group in acquiring private properties in the form of land. A majority acceded into the land rights in the white highlands t the expense of the poor squatters, while others bought out the poor from the settlement schemes. Political patronage also evolved to be the most important means of acceding to land rights. Indeed, political patronage increasingly undermined other means of accessing land including purchasing. (U. Weber, J.K Mutai et al; 2000) Public land however defined, includes land held by government ministries, departments, statutory bodies and agencies. It also includes land controlled and managed by local authorities in townships, municipalities and cities and that belonging to parastatals or other enterprises wholly owned by the government. Principally, despite the varied government control over this category of land, public land is a national resource, the use of which should be governed by a policy that supports the Government’s macro-economic, human development and redistribution goal.

Government ownership of natural resources provides for resource access either through lease arrangements delegation of trusteeship to lower levels of authority. The primary control retained in the relevant government ministry and administered though its machinery such as in the case of Kenya, administrative chiefs and local authorities. The political nature of organs such as administrative chiefs and local authorities opens up opportunities for inconsistency in access and insecurity in tenure with limited channels of redress. (Juma, Calestous and Ojwang J.B 1996)

1.2 The Research Problem The study will investigate factors that have contributed and continue to play a fundamental role in promoting illegal and irregular allocation of public land focusing on Mau Forest Complex as the case study. The task of the study is to explicate the phenomena of illegal public land allotment The country having experienced a major crisis in public land tenure where land meant for public purposes had over the years been illegally and irregularly allocated to private individuals and corporations in total disregard of the public interest. This policy concern is based on the understanding that sound public tenure, consequently development imperative depends largely on the manner in which the country balances private and public land rights. The research will explore the history of the land question n regard to the current culture of misappropriation of public land, investigate the factors culminating to these problems, the causal effects and ultimately offer vital insights into feasible solutions. 1.3 Justification This research has been sparked by the rising need and due to the public outcry of the degradation of the Mau water towers resulting into massive suffering of a vast number of people whose dependence on this resource is

significantly. On further investigation, it has been determined that the major cause for this devastation is artificial. On further investigation on the matter, it has come out clear that the culprits have formed a culture of allocating themselves and their cronies, land that has been set aside for public interest across the country. Other such controversial allocations of public resources include; Karura Forest, Ngong Road Forest, the coastal area uneasy antagonism among indigenous African squatters versus Arab land owners, versus private foreign ownership, and government ownership, According to the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Government Printer, Nairobi), public land misappropriation has seen Public land transferred to private ownership without following due process…. the Commission Report asserts, the practice of illegal allocations of land increased dramatically during the late 1980s and throughout the 1990s: “Land was no longer allocated for development purposes but as political reward and for speculation purposes … ’land grabbing’ became part and parcel of official grand corruption through which land meant for public purposes … has been acquired by individuals and corporations” (p.8). Since the late 1980s to date, those politically correct and influential personalities have been allocated public land, not for development but financial speculation. In most of these allocations no planning was done as required under the Act. Public utilities, forests, nature reserves and even national parks have not been spared the agony of abuse. Under these circumstances therefore, there is need to review the overall land policy framework with a view to overhauling all Acts pertaining to land administration, acquisition, survey, and disposition or otherwise, so as to foster an economically efficient, socially equitable and environmentally sustainable land tenure and land use system free from constant abuse. (U. Weber, J.K Mutai et al; 2000)

This study is set to illuminate the policy formulation and implementation impact on the land use. It shall endeavor to show how the disjointed characteristics of the formulation and implementation processes contribute to poor performance of these policies. The weak policy formulation and enforcement has failed to harmonize existing land tenure system and the country’s land laws to address the problem. The study shall investigate the impact of colonialism, the reforms that have continued to be embraced regardless of some of their detrimental effects. We shall demonstrate how these reforms have created loopholes for the misappropriation of land. In the light of political patronage, the plight of public land seems to be in a miasma. The findings of this study can be used to inform the land reform process, enlighten the land laws amendment process and the constitutional formulation process. The [A statement warranty of time, energy and money] The study hopes to provide a vital insight in the current plight of public lands in Kenya with the view of providing vital information that could be useful to the government, the public and other stakeholders who would be interested in information concerning public lands, a significant fraction of Kenya lands. 1.4 Objectives 1. To assess the policy factors and laws charged with management of public land in Kenya contributed to public land grabbing. 2. To establish the impact of political patronage on land tenure system. 3. To determine the nature and performance of the land administrative institutions and laws in Kenya in regard to public land. 4. To assess the impact of colonialism on the land question.

1.5 Research Question 1. How has weak policies and abuse of laws charged with management of public land in Kenya contributed to public land grabbing? 2. What extent are the politically inclined irregular allotments of public land? 3. What role has the government departments played in the irregular and illegal allocation of public land? 4. How has colonial legacy impacted on land issue in Kenya?

1.6 Operation Definition of Variables in the Research Question Public land: consists of all land that is owned by the government. Public land is the land in relation to which the state, its agents or assigns can exercise the power of ownership, meaning the right and incidence of use and abuse, appropriation and misappropriation. Land tenure System: refers to the terms and conditions under which rights to land and land-based resources are acquired, held, transferred, or transmitted. That is, land tenure denotes the quantum of property rights that a given society has decided to allow individuals or groups thereof to hold, and the conditions under which those rights are to be enjoyed. Government land: This sis land owned by the government and which was inherited at independence (former Crown Land) for her own use. It includes

unalienated or unutilized government land reserved for future development by the government itself, or that land that may be available for alienation to the general public for various uses. This type of land is administered under the Government Lands Act, cap 280. The government is the custodian of the public land, and the president is vested with relevant authority under the appropriate Land Act to administer the same. The Act also empowers him to delegate the same powers to the Commissioner of Lands who exercises them on a day to day basis in respect to public lands. Trust: land is held under trusteeship by various county councils as per section 115(1) of the constitution of Kenya. The land is held by County Councils on behalf of local communities, groups, families and individuals in accordance with applicable African Customary Law until it is registered under any land registration statutes, following which it is transformed into private land and becomes the sole property of the individual or group in favor of whom it is registered. This land was known as the Native Land Unit, Native Reserves or Special Areas prior to independence. Trust Land is administered under the Trust Land Act; cap 288 under section 5 of the Act, the commissioner of land is empowered to administer the land reforms such as adjudication and registration programmes. Private land is land which is registered in accordance with laws that provide for registration of title, and is registered in the name of an individual or a company, and may be created from either government land or trust land through registration after all legal procedures have been strictly followed. Policy is a definite course or method of action selected as by a government from among alternatives and in the light of a given conditions to guide and usually determine present and future decisions. Political patronage

Colonialism Land laws

1.7 Limitations of the study Methodology Sampling bias Bias and error Time factor Large population Accessibility to population

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