You are on page 1of 264

Sichangi Adv

REPUBLIC KENYA
REPUBLIC OF KENYA

••

Report of
Report of the Commission
Commission of Inquiry
of Inquiry
into
into the
Ille g Irrc
Irregular Allocation
Illegal/Irregular Mom 431
of
blicTa
Public d
Lal1d

Presented
Presented to

His Excellency
I-lis
Hon. Mwai
MwaiKibaki,
Kibaki,C.G.H.,
C.G.H., M.P.
President and Commander-in-Chief
President and Commander-in-Chief of
of the Armed .Forces
the Armed of the
Forces of the
Republic Kenya
Republic of Kenya

.Inne, 2004
June, 2004

Price: KSh. 600


Price: 600

PRINTED
PRINTED BY
BY THE
THE GOVERNMENT
GOVERNMENT PRINTER,
PRINTER, NAIROBI
NAIROBI
Sichangi Adv

Report of the
Report Coiumission of
theCemrnission of Inquiry
Inquiry
into the
Illegal/Irregular Allocation
IllegallIrregular Allocation
of
Public Land
Public
Sichangi Adv
TABLE OF
TABLE OF CONTENTS
CONTENTS
Page
Page

Forwarding Letter
Forwarding Letter (ix)
Acknowledgements
Acknowledgements :.......................................... (xiii)
(xiii)
Introduction
Introduction :....................................................................... (xvii)
(xvii)
Executive Summary
Executive Summary :............................................................................... (xix)
(xix)

PART ONE
PART

THE CONTEXT
THE CONTEXT 11
1.
1. INTRODUCTION
INTRODUCTION 11
2. AABRIEF
2. BRIEFHISTORICAL
HISTORICAL BACKGROUND
BACKGROUND 11
(a) The Pre-colonial
The Pre-colonial Period
Period 11
(b)
(b) Public Land
Public Land under
under African
African Customary
CustomaryTenure
Tenure 2
(c)
(c) The Colonial
The Colonial Period
Period 33
(d)
(d) Policy
Policy and Administrative Changes After
Administrative Changes After 1948
1948 3
(e)
(e) The
The Practice of Land
Practice of Land Allocation
Allocation After
After 1951
1951 5
(f)
(f) The
The Legal
Legal Position
Position Regarding
Regarding thethe Allocation
Allocation of of Public
Public Land Land
Before
Before and
and After
After Independence....................................................
Independence 6
3. THE
3. THELAND
LAND GRABBING
GRABBING PHENOMENON
PHENOMENON 7
(a)
(a) The
The Disappearance
Disappearance ofof the
the Public
Public Trust
Trust Doctrine
Doctrine in
in the
the
Allocation of Public
Allocation of Public Land
Land 8
(b)
(b) Powers of the Commissioner
Powers Commissioner of
of Lands
Lands to
to Dispose
Dispose of
of Land
Land within
within
Townships
Townships '11
11
(c)
(c) The
The Letter of Allotment
Letter of Allotment as
as an
an Instrument
Instrument of
of Land
Land Grabbing
Grabbing 12
12
(d)
(d) Allocations of
Allocations of Public
Public Land
Land by
by Unauthorised
Unauthorised Persons
Persons 14
(e)
(e) Land within
Land within the Jurisdiction of
the Jurisdiction of Local
Local Authorities
Authorities 14
(f)
(/) Special Lands and
Special Lands and Land
Land Territories
Territories 15
15
4. THE
4. THEMYTH
MYTHOF
OFTHE
THE SANCTITY
SANCTITY OF
OF TITLE
TITLE 15
15
5. PAST
5. PASTEFFORTS
EFFORTS AT
ATRECLAIMING
RECLAIMING PUBLIC
PUBLIC LAND
LAND 17
17
6. THE
6. THECOMMISSION
COMMISSION OF
OFINQUIRY
INQUIRYINTO
INTOILLEGAL/IRREGULAR
ILLEGALIIRREGULAR
ALLOCATION OF PUBLIC
ALLOCATION PUBLIC LAND
LAND 18
18
The Remit of
The Remit of the
the Commission
Commission 20

PART TWO
PART TWO
THE APPROACH
THE APPROACH 23
23
1. STAGE
1. STAGE ONE:
ONE: FORMATION
FORMATION 23
23

(iii)
Sichangi Adv
2.
2. STAGE
ST AGETWO:
TWO: DEFINITION
DEFINITION OF
OF THE PROBLEM
THE PROBLEM 23
. 23
3. STAGE
3. STAGE THREE:
THREE: ACQUIRING,
ACQUIRING, STORING
STORING AND
AND STRUCTURING
STRUCTURING
INFORMATION
INFORMATION . 25
25
(bj
(a) Sources of
Sources of Information
Information , , . 25
(b)
(b) Instruments for Acquiring
Instruments for Information .;
Acquiring Information . 26
26
(c)
(c) Receipt Classification
Receipt Classificationand~~rage
and torage 'ofInformation
of Information . 26
26
(d)
(d) Methods of Analysis
Methods of Analysis . 27
27
(e)
(e) Information
Information Received
Received in Response
Response-totd Summons
Summons . 28
(f)
(/) Information from
Information from Official
OfficialReports
Reports . 29
(g)
(g) Information
Information Received
Received from
from Members
Members of the Public
Public through
through
Letters
Letters and memoranda
memoranda in in response
response totothe.Pubiic Notice ..... :;..;...
the.Public No,ticq 29
. . . ~
(h)
(h) Information froni Volunteers
Information from Volunteds andand Professional
ProfessionalBodies
Bodies . 30
4.
4. MEETINGS
MEETINGS :: , .' 32
. 32
5.
5. MONTHLY
6.
MONTHLY PROGRESS
6. FIELD
PROGRESS REPORTS'
FIELD VISITS
VISITS
REPORTS'
.•
::.:
.
:::.•.............................................
..

•::~t.:,
, ..,.: .
32
32
7. CONSULTATIVE
CONSULTATIVE WORKSHOP
WORKSHOP WITH
WITH OFFICIALS
OFFICIALS FROM
FROM
MINISTRIES
MINISTRIES
:~: : : . 33
8. THE
8. THECOMMISSION'S
COMMISSION'S CONTACT
CONTACT WITH
WITH THE PUBLIC
THE'PUBt1c .: . 34
34
(a)
(a) Public Hearings
Public Hearings ;..• 1••• : •••••••••••••••••••••••••••• 35
(b)
(b) Thematic Hearings
Thematic Hearings . 35
9. CONSTRAINTS
CONSTRAINTS AND
ANDCHALLENGES
CHALLENGES FACED BY THE
FACED BY COMMISSION. 36
THE COMMISSION 36
(a)
(a) The Time Period
The Time Period . 36
(b)
(b) Missing,
Missing, Inaccurate and Incomplete
Inaccurate and Incomplete Records
Records . 37
(c)
(c) Inadequate and
Inadequate and Irrelevant
Irrelevant Information
Information Received
Received in
in Response
Response to
to
Summons
Summons . 38
(d)
(d) The Diversity
The Diversity of Publi~
Public Complaints
Complaints . 39
(e)
( e) Missing Company
Missing Company Records
Records at
at the
the Registry
Registry of
of Companies
Companies . 40
.'
(f)
(f) Operating Social
Operating Social and
and Political
PoliticalEnvironment
Environment . 40
(g)
(g) Addressing the Constraints
Addressing the Constraintsand
andChallenges
Challenges : . 41

PART THREE
PART tHREE
THE LAW
THE LAW RELATING TO TH1
RELATING TO THt ALLOCATION
ALLOCATION OF PUBLIC
OF PUBLIC LAND LAND
IN KENYA
IN KENYA ., :1................................................................
43
1. Introduction
Introduction Ill................................................................
ii 43
2. The
The Legal Meaning of
Legal Meaning of Land
Land in
in Renya
kenya 43
3. Categories of Land
Categories of Land in
in Kenya
Kenya 43

(iv) ;
Sichangi Adv
4. Some
4. SomeCommon
Common Terms
Terms and
and Phrases
Phrases used
used in this
this Report
Report 47
5. Theapplicable
5. The applicable law
law 49
6. The
TheAbuse
AbuseofofCurrent
CurrentLaws
LawsLeading
LeadingtotoIllegal
Illegal Allocation
Allocation of
ofPublic Land
Public Land 52
(a)
(a) Substantive
Substantive Abuses
Abuses ;... 52
~ ..- ~
(b)
(b) Procedural Abuses
Procedural 'Abiises 54
7. THE
7. THEPROBLEM
PROBLEM OF
OFTHIRD
THIRD PARTY INTERESTS
PARTY INTERESTS 55
55
(a)
(a) The
The Problem
Problem !.......................................................................... 56
(b)
(b) Illegality From
Illegality From the
the Very
Very Beginning
Beginning 57
(c)
(e) The Guarantee
The Guarantee of Titleby'
of Title by Government
Government ,. 60
(d)
(d) The Bonafide
The Bonafide Purchaset
Purchasef for
forValue
ValueWithout
WithoutNotice
Notice 61
\,',<

(e)
(e) The Legal
The Position Versus
Legal Position Versus the Reality ...:.:~.~................................
the Reality 62
: I ~, -'. . \'. .. .r: \ ~"

8.
8. POSSIBLE
POSSIBLE SOLUTIONS
SOLUTJONS : "'
:~;::.;.:,.:................... 63
•. ~.. , c' ot;jpo. • I,: \.. • '- .. ',' " " .,J,}

(a)
(a) Where
Where Land has been
Land has been Developed
Developel:! : : : ::. 63
(b)
(b) Where the Third
Where the Third Party
Party isis aa State
StateCorporation
Corporation ..:........................... 64
(c)
(e) Where the Third
Where the Third Party
Party isis aa Bank
Bankororother
otherChargee
Chargee 65
9. THE
9. THEESTABLISHMENT
EST AI3USHMENT OP
OFLAND
LAND TITLES
TITLES TRIBUNAL
TRIBUNAL 67
67

PART FOUR
PART

FINDINGS AND RECOMMENDATIONS


FINDINGS AND RECOMMENDATIONS : ::.. 71
71
1. INTRODUCTION
INTRODUCTION , , 71
. 71
2. URBAN, STATE
URBAN, STATE CORPORATIONS
CORPORATIONS AND MINISTRIES LANDS
AND MINISTRIES LANDS 71
. 71
(a)
(a) Urban Lands
Urban Lands . 71
71
(i)
(i) Urban Lands as
Urban Lands as Public
Public Land
Land . 73
(ii)
(ii) Findings
Findings : . 73
(iii)
(iii) Recommendations
Recommendations . 83
(b)
(b) State Corporations Land
State Corporations Land ; . 86
(i)
(i) Background
Background . 86
(ii)
(ii) State Corporations Land
State Corporations Land as
as Public
PublicLand
Land : . 87
(iii)
(iii) Findings
Findings .. 88
(iv)
(iv) Recommendations
Recommendations . 110
110

(c)
(c) Land Reserved
Land Reserved for
for the
the use
use of
ofMinistries
Ministriesand
andDepartments
Departments . 111
III
(i)
(i) Background
Background . 111
111

(ii)
(ii) Ministries' Lands
Ministries' Lands as Public Land
Public Land . 114
(iii)
(Hi) Findings
Findings . 114
(iv)
(iv) Recommendations
Recommendations 117
. 117

(v)
Sichangi Adv
(d)
(d) The Impact of
The Impact of Illegal
Illegal Allocations
Allocations of
of Urban,
Urban, Ministries
Ministries and
and
Corporations Land
Corporations Land . 118
118
(v) Urban lands
Urban lands •. . 118
118
(vi)
(vi) State Corporations
State Corporations and
and Ministries'
Ministries' Lands
Lands . 120
120
3. SETTLEMENT SCHEMES
SETTLEMENT SCHEMES AND
AND TRUST
TRUST LANDS
LANDS . 122
(a)
(a) Settlement Schemes
Settlement Schemes (Background)
(Background) . 122
122
(i)
(i) Settl~ment Schemes
Settlement Schemes as Public Land
Public Land . 124
124
(ii)
(ii) Findings
Findings . 125
125
(iii)
(iii) Recommendations
Recommendations . 136
136
(b)
(b) Trust
Trust Lands
Lands . 137
137
(i)
(i) Background
Background . 137
137
(ii)
(ii) Trust Lands
Trust Lands as Public
Public Land . 139
139
(iii)
(iii) Findings
Findings . 140
(iv)
(iv) Recommendations
Recommendations . 145
145
(c) The Impact
The Impact ofof Illegal
Illegal Allocation
Allocation of
of Settlement
Settlement Schemes
Schemes and
and
Trust Lands
Trust Lands : . 145
145
(i) Settlement
Settlement Schemes
Schemes :, . 145
145
(ii) Trust
Trust Lands
Lands : . 147
147
4. FORESTLANDS, NATIONAL
FORESTLANDS, NATIONAL PARKS,
PARKS, GAME
GAME RESERVES,
RESERVES,
WETLANDS, RIPARIAN RESERVES,
WETLANDS, RIPARIAN RESERVES, NATIONAL
NATIONAL MUSEUMS,
MUSEUMS,
HISTORICAL
HISTORICAL MONUMENTS
MONUMENTS AND
AND PROTECT~REAS
PROTECTED.AREAS . 148
148
(a)
(a) Background
Background . 148
148
(b)
(b) Forestlands
Forestlands : . 148
148
(c)
(c) Wetlands
Wetlands :: : . 149
149
(d)
(d) National Parks and Game
National Parks Game Reserves
Reserves . 150
(e)
(e) Forest, National Parks,
Forest, National Parks, etc.
etc. as Public
Public Land
Land . 150
(f)
(f) Findings
Findings . 151
151
(i)
(i) Forestlands
Forestlands . 151
151
(ii)
(ii) Wetlands,
Wetlands, Riparian
Riparian Reserves
Reserves and
and Sites
Sites . 159
(iii)
(iii) Game
Game Reserves
Reserves and
and National
National Parks
Parks . 164
(iv)
(iv) National
National Museums
Museums and
and Historical
Historical Monuments
Monuments . 169
169
(v)
(v) Protected
Protected Areas
Areas for
for National
National Security
SecurityReasons
Reasons . 170
(g)
(g) Conclusion
Conclusion : . 174
(h)
(h) Recommendations
Recommendations . 174
(i) Impact Forest Excisions
Impact of Forest Excisions on the Environment
Environment and
and Economy
Economy . 177
177
5. GENERAL FINDINGS
GENERAL FINDINGS . 181
181

(vi)
Sichangi Adv
6.
6. SOME ADDITIONAL
SOME RECOMMENDATIONS
ADDITIONAL RECOMMENDATIONS 188
188
7.
7. CONCLUSION
CONCLUSION 192
192

PART FIVE
PART FIVE

PROPOSALS ON
PROPOSALS ON IMPLEMENTATION
IMPLEMENTATION OF
OF THE
THE COMMISSION'S
COMMISSION'S
REPORT
REPORT 193
(a)
(a) Background
Background 193
193
(b)
(b) Frame Work
Frame Work 193
193
(c)
(c) Strategy
Strategy......... 194
(d)
(d) Programme
Programme 195
195
(e)
(e) Organisation
Organisation 198
(f)
(/) Structures
Structures..................................................................................... 199
(g)
(g) Implementers
Implementers 201
201

APPENDIXES
APPENDIXES

1. Gazette Notice No.


Gazette Notice No. 4559
4559 of
of 2003
2003 \........................................................ 205
205
2. Corrigendum of 44th
Corrigendum th July, 2003
July, 2003 209
209
3. Gazette Notice
Gazette Notice No.
No. 6724
6724 of
of 2003
2003 210
210
4. Gazette Notice
Gazette Notice No.
No. 711
711 of
of 2004
2004 211
211
5. Summons for
Summons for Production
Production of
of Records
Records 212
212
6. Notice to
Notice to the
the Public
Public 214
7. Summons for
Summons for the Production of
the Production of Documents
Documents for
for Examination
Examination 220
220
8. Public Notice
Public Notice 221
9.
9. Illustrations on
Illustrations on Forest
Forest Excisions
Excisions 223
10.
10. The Land
The Land Titles
Titles Tribunal...............................................................................
Tribunal 235
235
11.
11. Members of
Members of Staff
Staff of
of the
the Commission
Commission 241
241

LIST OF REFERENCES
LIST OF REFERENCES 243

ANNEXES
ANNEXES
. (Two
(Two Separate Bound
Bound Volumes)
Volumes)

(vii)
Sichangi Adv

COMMISSION OF INQUIRY
COMMISSION INQUIRY
INTO
INTO
ILLEGAL/IRREGULAR ALLOCATION
ILLEGAL/IRREGULAR ALLOCATION OF
OF PUBLIC
PUBLIC LAND
LAND
Tel: 2731319/2731308/2731321-2
27313191273130812731321-2 NSSF
NSSF Complex,
Complex, Block
Block A,A,
Mobile: 0721-72483"8,0734-750323
Mobile : 0721-724838, 0734-750323 Eastem Wing,
Eastern Wing, 11 Floor
IIIhth Floor
Fax:: 2722815
Fax 2722815 P.
P. O. Box6450-00100
0. Box 6450-00100
E-mail:
E-mail: landcommission@nbnet.co.ke NAIROBI
landcommission(anbnet.co.ke NAIROBI

Date:
Date: .

HIS EXCELLENCY,
HIS HON.MWAI KIBAKI,
EXCELLENCY, HON.MwAI C.G.H., M.P.
KIBAKI, C.G.H., M.P.
PRESIDENT AND
PRESIDENT AND COMMANDER-IN-CHIEF
COMMANDER-IN-CHIEF OF
OF THE
THE
FORCES OF THE
ARMED FORCES
ARMED THE REPUBLIC OF KENYA,
REPUBLIC OF KENYA,
STATE HOUSE,
STATE HOUSE,
NAIROBI
NAIROBI

YOUR EXCELLENCY,
YOUR EXCELLENCY,

RE:
RE: REPORT
REPORT OFOFTHE
THECOMMISSION
COMMISSION OF
OF INQUIRY
INQUIRY INTO
INTO
ILLEGAL/IRREGULAR ALLOCATION
ILLEGALIIRREGULAR ALLOCATION OF
OF PUBLIC
PUBLIC LAND
LAND

Your Excellency appointed


Your Excellency appointed thisthis Commission
Commission by by Gazette
Gazette Notice
Notice No.4559
No.4559
dated 30th June,
dated 30th June, 2003
2003 and
and published
published on on 44th July, 2003
th July, 2003 as as read
read together
together with
with
Gazette
Gazette Notice No.6724 dated
Notice No.6724 dated 22 nd
22 nd September,
September, 2003 2003 published
published on 22nd
on 22 nd
September,
September, 2003;
2003; and Gazette Notice
and Gazette Notice No.711 dated 33rd
No.711 dated February, 2004
rd February, 2004
published 6th February,
published on 6th February, 2004
2004 to to inquire
inquire into
into illegal/irregular
illegal/irregular allocation
allocation
of public set out
public land and set out in
in our
our Terms
Terms of of Reference.
Reference.

Following
Following that commission we
that commission have completed
we have completed the
the inquiry
inquiry and
and
accordingly submit this
accordingly we submit this Report.
Report.

We remain,
We remain,
Your
Your Excellency's most obedient
Excellency's most obedient servants,
servants,
Sichangi Adv
Paul Ndiritu
Paul Ndiritu Ndungu
Chairman
Chairman
Ndungu
~l~ ~
;,; ....•7.
~
u.::.:.:..::'::::::: -.

Michael Aronson
Michael Aronson
Vice-Chairman
Vice-Chairman .......
J1.,.~.~.~
Abdallah Ahmed
Abdallah Ahmed Abdallah
Abdallah

Davinder Lamba
Davinder Lamba
,P.offaeet-4144---

Ann
Ann Kirima
Kirima (Ms.)

Ishan Kapila
Ishan Kapila .........
I.J.~.~)~ .
Odenda I,umumba
Odenda Lumumba ......
f!: ~.
Winston 0. Ayoki
Winston O. Ayoki

Nancy Wanjiru
Nancy Wanjiru Mukunya
Mukunya (Ms.)
(Ms.)

Peter Koech
Peter Koech ..
~ ,.
••••••• I ••••••••••••••••••••••••• II ••••••••••••••

John
John Githongo
Githongo
(Permanent
(Permanent Secretary,
Secretary,
in the Office
Office of the President
President
responsible for
responsible
and Ethics)
and Ethics)
for Governance
Governance
.......~ .. ~ ..~ -.

(x)
Sichangi Adv
Kiriinya
Kiriinya Mukiira
Mukiira
(Permanent Secretary,
(Permanent Secretary,
Ministry of
Ministry of Lands
Lands and
and Settlement)
Settlement) .......~~ .

Rachel
Rachel Arungah
Arungah
(Permanent Secretary,
(Permanent Secretary,
Ministry of
Ministry of Environment,
Environment, Natural
Natural
Resources and Wildlife)
Resources. and Wildlife) .~ ~ .

Eng.
Eng. Erastus
Erastus Kabutu
Kabutu Mwongera
Mwongera
(Permanent Secretary,
(Permanent
Ministry
Ministry of
and Housing)
and Housing)
Secretary,
of Roads,
Roads, Public
Public Works
Works
01/
~~
.L!l!.~
.~
. ~~ .
.

".=...
..

Zachary Onyancha
Zachary Onyancha Ogongo
Ogongo
(Permanent Secretary,
(Permanent Secretary,
Ministry of
Ministry of Local
Local Government)
Government)

Lawrence
Lawrence Agayi
Agayi Orowe
(Designated representative
(Designated representative of the
Permanent Secretary,
Permanent Secretary,
Office of
Office of the
the President
President
responsible for Governance
responsible for Governance & & Ethic
Ethics)$. ) ""-"'I"I'I't4~Pr4 .

Nelson Waruinge
Nelson Waruinge Kimani
Kimani
(Designated representative
(Designated representative of
of the
the 't\. to.. •

Permanent
Permanent Secretary,
Secretary, \ '\J'-.N\.
Ministry
Ministry of Lands
Lands and
and Settlement)
Settlement)

(xi)
Sichangi Adv
David K.
David K. Mbugua
Mbugua
(Designated representative
(Designated representative of
of the
the
Permanent Secretary,
Permanent Secretary,
Ministry
Ministry of
of Environment,
Environment,
Natural
Natural Resources
Resources and
andWildlife)
Wildlife)

Musa Kibiti
Musa Kibiti Rintari
Rintari
(Designated
(Designated representative
representativeof
of the
the
Permanent Secretary,
Permanent Secretary,
Ministry of
Ministry of Roads,
Roads, Public
Public Works
Works
and Housing)
and Housing) ....... ~ .

Muli Nyamai
Muli Nyamai Malombe
Malombe
(Designated representative
(Designated representative of
of the
the
Permanent
Permanent
Ministry
Ministry of
of
Secretary,
Secretary,
Local
Local Government)
Government) w~
•••••••••••••••••••••••••••••••••••••••••••••••••••• .!••••••

Joint Secretaries
Joint Secretaries

Smokin Wanjala
Smokin Wanjala p
..............h-
~ .

Victoria Kattambo
Victoria Kattambo (Mrs.)
(Mrs.) .................... ~
~ . .

Counsel to
Counsel to the
the Commission
Commission

Wanyiri Kihoro
Wanyiri Kihoro
Sichangi Adv
ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS

This Report
This Report is the
the result
result of
of hard
hard work
work support
support and
and commitment
commitment byby many
many
individuals.
individuals. WeWe are
are deeply
deeply indebted
indebted toto all
all those
those who
who supported
supported and
and
facilitated
facilitated our work and
and wish
wish to
to acknowledge
acknowledge them.
them.

We
We wish
wish to
to express
express our
our gratitude
gratitude to
to His
His Excellency
Excellency the the President
President andand
Commander-in-Chief
Commander-in-Chief of of the
the Armed
Armed Forces
Forces ofof the
the Republic
Republic of of Kenya
Kenya forfor
his
his wisdom
wisdom in establishing
establishing this
this Commission
Commission to to inquire
inquire into
into illegal
illegal and
and
irregular allocation of
irregular allocation of public
public land.
land. We
We thank
thank him
him for
for appointing
appointing us us and
and
thereby giving us the
thereby giving the opportunity
opportunity and privilege
privilege of serving
serving our
our nation
nation in
in aa
special way.
special

In addition
In addition thethe Commission
Commission wishes
wishes toto extend
extend its
its appreciation
appreciation to toHon.
Hon.
Amos
Amos Kimunya,
Kimunya, M.P.,
M.P., Minister
Minister for
for Lands
Lands and
and Settlement,
Settlement, the
the Permanent
Permanent
Secretary Mr. Kiriinya
Secretary Mr. Kiriinya Mukiira,
Mukiira, the Heads
Heads of Department
Department in the the Ministry
Ministry
as well
as well as
as their
their staff
staff who
who participated
participated in
in our
our meetings
meetings and
and facilitated
facilitated our
our
investigations.
investigations.

We are
We are also
also grateful
grateful for the
the support
support we
we received
received from
from the
the Office
Office ofof the
the
President and
President and in particular
particular from
from Permanent
Permanent Secretary,
Secretary, the
the Secretary
Secretary totothe
the
Cabinet and Head
Cabinet Head of Civil Service
Service (Ambassador
(Ambassador Francis
Francis K.K. Muthaura)
Muthaurajwho who
ensured that the
ensured that the Commission
Commission was was provided
provided with
with material,
material, financial
financial and
and
human resources. We
human resources. We wish
wish to single
single out
out several
several officers
officers in
in his
his office
office for
for
special
special mention;
mention; namely:
namely: Mr. Mr. Hyslop
Hyslop IpuIpu(Principal
(Principal Administrative
Administrative
Secretary), Mrs
Secretary), Mrs Rosemarie
Rosemarie Kigame
Kigame (Deputy
(DeputySecretary/Administration)
Secretary/Administration)
who served the Commission's Co-ordinator, Mr.
who served as the Commission's Co-ordinator, Mr. Francis
Francis K.K. Musyimi
Musyimi
(Deputy Secretary/Administration),
(Deputy Secretary/Administration), Mr. Mr. Mwarapayo
Mwarapayo A. A. M.
M.Wa-Mwachai
Wa-Mwachai
(Undersecretary/Finance),
(UndersecretarylFinance), Mr. Isaiah
Mr. Isaiah 0.
O. Nyaribo
Nyaribo(Undersecretary/-
(Undersecretary/-
Administration),
Administration), Mr. Mr. Tom.
Tom. P. 0.O. Odhiambo
Odhiambo (Senior
(Senior Assistant
Assistant Secretary/-
Secretary/-
Finance), Ms.
Finance), Ms. Margaret
Margaret Wairimu
Wairimu (Transport
(Transport Officer)
Officer) and Mr.Mr. Dishon
Dishon I.I.
Saunya
Saunya (Supplies
(Supplies Assistant).
Assistant).

We are
We are also
also grateful
grateful to the
the Hon.
Hon. Chief
Chief Justice
Justice Evans
Evans Gicheru
Gicheru who
who met
met us
us
and discussed
and discussed many legal
legal issues
issues pertaining
pertaining to
to our
our work.
work.

We also
We also express
express deep
deep appreciation
appreciation to the
the contributions
contributions of
of Ms.
Ms. Raychelle
Raychelle
Omamo and Mr.
Omamo Mr. Thuita
Thuita Mwangi
Mwangi who
whobriefly
briefly served
servedasasAssisting.
Assisting Counsel
Counsel

(xiii)
Sichangi Adv
and Joint Secretary
Secretary respectively
respectively but left the Commission
Commission to
to serve
serve in
in other
other
official capacities.

The officers
The officers of the
the Standing
Standing Committee
Committee onon Human
Human Rights
Rights served
served inin the
the
Interim
Interim Secretariat
Secretariat and assisted in laying
laying down
down the
the foundation
foundation of
of our
our work.
work.
We are thankful
thankful to those officers
officers and especially to Mr.
Mr. Felix
Felix Kombo,
Kombo, Alice
Alice
Nderitu,
Nderitu, Jane Mulwa., Edmud Kamu, Ezekiel Obanda and,Lawrence
Mulwa, Edmud and.Lawrence Ilua.
Ilua.

Several
Several Ministries,
Ministries, various
various Government
Government Institutions,
Institutions, including
including Parastatals,
Parastatals,
Municipalities
Municipalities and and County
County Councils
Councils responded
responded to to the
the Commission's
Commission's
requests information and thereby
requests for information enriched our
thereby enriched our findings.
findings. WeWearearedeeply
deeply
indebted
indebted toto all
all those
those who
who helped
helped usus in this
this way.
way. We Weare areparticularly
particularly
grateful
grateful to the representatives
representatives of of Ministries,
Ministries, Government
Government Departments
Departments and and
Institutions who
Institutions who attended
attended ourour Workshops
Workshops and and other
other meetings,
meetings, andand
representatives of
representatives of Government
Government agencies who helped
agencies who helped usus in
in various
various ways.
ways.
We wish
We wish toto single
single out
out for
forspecial
specialmention
mention the theMinistries
Ministries which
which sent
sent
representatives to
representatives to our workshop
workshop at the Kenya
Kenya School
School ofof Monetary
Monetary Studies
Studies
in November,
in November, 2003 2003 namely:
namely: Office
Office of of the
thePresident
President(Provincial
(Provincial
Administration and National
Administration National Security),
Security), Ministry
Ministry of Lands
Lands andand Settlement,
Settlement,
Ministry of
Ministry of Roads,
Roads, Public
Public Works
Works andand Housing,
Housing, Ministry
Ministry of of Water
Water
Resources, Management
Resources, Management and and Development,
Development, Ministry
Ministry ofof Environment,
Environment,
Natural
Natural Resources
Resources and Wildlife,
Wildlife, Office
Office ofof the
the Vice-President
Vice-President and andHome
Home
Affairs, Ministry of Livestock
Affairs, Ministry Livestock & Fisheries
Fisheries Development,
Development, Ministry
Ministry ofof Local
Local
Government
Government and the the Ministry
Ministry ofof Agriculture.
Agriculture.

The
The Principal,
Principal, Kenya
Kenya Institute
Institute of
of Mass
Mass Communication
Communication and and Mr.
Mr. Charles
Charles
Manyara
Manyara (Lecturer)
(Lecturer) , Kenya
Kenya Institute
Institute of
of Mass
Mass Communication
Communication helped helped us
us
with
with recording
recording facilities
facilities which
which wewe used
used atat our
our workshops.
workshops. The The Officer
Officer
Commanding,
Commanding, Kilimani
Kilimani Police
Police Station
Station assisted
assisted us
us with
with service
service of
of summons
summons
to several
several witnesses.
witnesses. WeWe thank
thank them
them sincerely
sincerely for
for their
their support.
support.

A
A number
number of of Professional
Professional Organizations
Organizations namely:
namely: TheThe LawLaw Society
Society ofof
Kenya,
Kenya, thethe Institution of Surveyors
Institution of Surveyors 'ofof Kenya,
Kenya, thethe Kenya
Kenya Institute
Institute of
of
Planners, and Kenya Bankers Association held discussions with us and
Planners, and Kenya Bankers Association held discussions with us and
gave
gave us
us memoranda
memoranda that that helped
helped usus shape
shape some
some of of our
our findings
findings and
and
recommendations. We
recommendations. Wedeeply
deeply appreciate
appreciate their
their contribution.
contribution.

Members of
Members of the
the public
public also
also sent
sentmemoranda
memoranda andand complaints
complaints which
which
provided insight
provided insight into
into the
the magnitude
magnitude of illegal
illegal and
and irregular
irregular allocation of
allocation ,of

(xiv)
Sichangi Adv
public
public land.
land. Many
Many of
oftheir
their contributions
contributions were
were used
used to
to enrich
enrich our
our report
report and
and
we therefore
therefore thank
thank all those
those who
who wrote
wrote to
to us
us or
or visited
visited our
our offices.
offices ..

The Media
The Media Houses
Houses also
also contributed
contributed inin various
various ways.
ways. They,
They, among
among other
other
things, kept
things, kept the
the debate
debate on
on 'land
'land grabbing'
grabbing' alive
alive and
and helped
helped usus with
with
important perspectives
important perspectives onon the
the problem.
problem. WeWe thank
thank all
all of
of them
them for
for their
their
contribution.
contribution.

We would
We would like to
to pay
pay special
special tribute
tribute to
to the
the Commission
Commission StaffStaff who
who worked
worked
tirelessly and
tirelessly and efficiently
efficiently toto make our work
make our work successful.
successful. Their
Their dedication
dedication
and commitment
and commitment went went beyond
beyond the the call
call of duty..
duty., WeWeare areparticularly
particularly
indebted to
indebted to Mr.
Mr. Alfred
Alfred Muthee
Muthee (Data
(Data Analyst);
Analyst); Mrs.
Mrs. Dorothy
Dorothy Kaari
Kaari
Mwanzile (Editor);
Mwanzile (Editor); Ms. Juliet
Juliet Wanjiru
Wanjiru Mwaniki
Mwaniki (Personal
(Personal Secretary)
Secretary) and
and
Robert Ochung'
Robert Ochung'aa Amutabi
Amutabi (Typesetter)
(Typesetter) who who worked
worked tirelessly
tirelessly on
on the
the.final
final
report to ensure
report ensure that
that all
all the
the relevant
relevant information
information waswas included.
included. The
The names
names
of all the members
members of of staff
staff appear
appear on Appendix 11 of this Report.
on Appendix Report.

Lastly we are very grateful


Lastly grateful to all those
those who contributed
contributed to our
our work
work in
in one
one
way or another
way another but have not
not been
been specifically
specifically mentioned.
mentioned.
Sichangi Adv
INTRODUCTION
INTRODUCTION

Land retains
Land retains aa focal
focal point
point in Kenya's
Kenya's history.
history. It It was
was thethe basis
basis uponupon which
which
the struggle
the struggle for
for independence
independence was was waged.
waged. It It has
has traditionally
traditionally dictated
dictated the
the
pulse of
pulse of our
our nationhood.
nationhood. It continues
continues to command
command a pivotal pivotal position
position inin the
the
country's social,
country's social, economic,
economic, political
political and
and legal
legal relations.
relations. ItIt isis not
not surprising
surprising
therefore that
therefore that land
land has has since
since the
the colonial
colonial times
times to-date,
to-date, been
been the subject
subject of
myriad state
myriad state managed
managed policy policy and and legal
legal interventions.
interventions. Neither Neither is is itit
surprising that itit has
surprising that has been
been the subject
subject of many
many Commissions
Commissions of of Inquiry.
Inquiry. AtAt
every epoch,
every epoch, the
the needneed toto address
address systemic
systemic landland related
related grievances
grievances has has
forced successive
forced successive regimes
regimes to makemake adjustments
adjustments to to the
the policy,
policy, institutional
institutional
and legal
and legal arrangements
arrangements in the country's
country's land
land relations.
relations.

This Report is
This Report is a product
product of an
an Inquiry
Inquiry by aa Commission
Commission appointed
appointed by His
His
Excellency the
Excellency the President,
President, Hon.
Hon. Mwai
Mwai Kibaki,
Kibaki, vide Gazette Notice
vide Gazette Notice No.
No.
4559 dated
4559 30th June
dated 30th June 2003
2003 and
and published
published onon 44th July, 2003.
th July, The·
2003. The
Commission was
Commission was appointed
appointed toto inquire
inquire generally
generally into
into the
the allocation
allocation of
of
lands, and particular,
lands, and in particular,

(a)
(a) (i)
(i) to
to inquire
inquire into
into the
the allocation,
allocation, to to private
private individuals
individuals or or
corporations,
corporations, of public
public lands
lands or
or lands
lands dedicated
dedicated oror reserved
reserved
for
for a public
public purpose;
purpose;
(ii)
(ii) to collect
collect and collate
collate all
all evidence
evidence and
and information
information available,
available,
whether from
whether from ministry-based
ministry-based committees
committees or from
from any
any other
other
source, relating to
source, relating to the
the nature
nature and
and extent
extent of
of unlawful
unlawful oror
irregular allocations
irregular allocations of such lands;
lands; and
(iii) to prepare
(iii) to prepare aa list
list ofofallalllands
landsunlawfully
unlawfully ororirregularly
irregularly
allocated, specifying particulars
allocated, specifying particularsofof thethe lands
lands andand of of the
the
persons to
persons whom they
towhom they were
were allocated,
allocated, the
the date
date ofof allocation,
allocation,
particulars of all subsequent
particulars subsequent dealings
dealings in
in the
the lands
lands concerned
concerned
and their
and their current
current ownership
ownership and and developthent
development status;
status;
(b)
(b) to inquire
inquire into and
and ascertain-
ascertain-
(i) the identity
the identity of
of any
any persons,
persons, whether
whether individuals
individuals or
or bodies
bodies
corporate, toto whom
corporate, whom any
any such
such lands
lands were
were allocated
allocated byby
unlawful or irregular
unlawful irregular means;
means; and
and
(ii)
(ii) the identity
the identity of
of any
any public
public officials
officials involved
involved in
in such
such
allocations;
allocations;

. (xvii)

... " .
'." .
Sichangi Adv
(c) to carry
carry out
out such
such other
other investigations
investigations into
into any
any matters
matters incidental
incidental
to the foregoing
foregoing as, inin the
the opinion
opinion ofof the
the commissioners,
commissioners, willwill be
be
beneficial to a better
beneficial better and fuller discharge
discharge ofof their
their commission;
commission;
(d)
(d) to carry
carry out such
such other
other investigations
investigations as may
may be
be directed
directed by
by the
the
President
President or the Minister
Minister for
for Lands and
and Settlement;
Settlement;
(e)
(e) to recommend-
recommend-
(i) legal and administrative
legal administrative measures
measures for
for the
the restoration
restoration of
of such
such
lands to their
lands their proper
proper title
title or purpose,
purpose, having
having due
due regard
regard toto
the
the rights
rights of
of any
any private
private person
person having
having any fide
bona fide
any bona
entitlement
entitlement to or claim of right over the lands
lands concerned;
concerned;
(ii)
(ii) legal and
legal and administrative measures to
administrative measures to be
be taken
taken in the
the event
event
that
that such
such lands
lands are for any
any reason
reason unable
unable to
to be
be restored
restored to
to
their proper
their proper title or
or purpose;
purpose;
(iii) criminal
(iii) criminal investigation
investigationoror prosecution
prosecutionof,
of, and
and any
any other
other
measures
measures toto be
be taken
taken against,
against, persons
persons involved
involved in
in the
the
unlawful or irregular
unlawful irregular allocation
allocation of such lands;
lands; and
and
(iv) legal
(iv) legal and
andadministrative
administrative measures
measures for
for the
the prevention
prevention of of
unlawful
unlawful or
or irregular" allocations of such land in
irregular' allocations in the
the future;
future; 11
The appointment
The appointment of of this Commission
Commission was was an indication
indication that
that the
the law
law and
and
practice of
practice of allocating public land
allocating puhlic land in
in the
the country
country had
had led
led to
to a crisis
crisis in
in the
the
country's land
country's land relations
relations warranting
warranting state
state intervention.
intervention. The
The detailed
detailed context
context
of the
of the Commission's
Commission's appointment
appointment is is discussed
discussed in in PART
PART ONEONE of of this
this
Report.
Report.
The Commission undertook
The Commission undertook the
the inquiry
inquiry as
as directed
directed by
by the
the President
President within
within
a cumulative
cumulative period
period of nine
nine (9)
(9) months.
months. The
The resultant
resultant Report
Report as
as presented
presented
is summarized
summarized the
the Executive
Executive Summary,
Summary, which
which follows.
follows.

For the
I For the Full
Full Terms
Terms of Reference
Reference issued the Commission,
issued to the Commission, and
and other
other Instruments
Instruments of
of
Appointment see
Appointment see APPENDICES
APPENDICES 1-4 1-4

(xviii)
Sichangi Adv
EXECU TIVE SUMMARY
EXECUTIVE SUMMARY

This
This. Report
Report comprises
comprises Six main main PARTS
PARTS which
which are
are organized
organized in inlogical
logical''
sequence. Part
sequence. discusses the
ODe discusses
Part One context in which
the context which this
this Commission
Commission was was
appointed in
appointed in historical
historical perspective.
perspective. TheThe main
main question
question answered
answered in thisthis'
part therefore
part is, why
therefore is, why this
this Commission?
Commission? In the the process
process of of answering
answering thethe
question, this
question, this part of
of the
the report
report provides
provides detailed
detailed and
and critical
critical background
background
information about
information about the
the phenomenon
phenomenon of illegal
illegal allocations
allocations of of public
public land
land
(land grabbing)
(land grabbing) in Kenya.
Kenya.

Part
Part Two the methodology,
discusses the
Two discusses methodology, that that is the
the approach
approach adopted
adopted andand
used by the
used the Commission
Commission in in conducting
conducting the the inquiry.
inquiry. The
The problem
problem under
under
inquiry as
inquiry as understood
understood by by the
the Commission
Commission is is defined.
defined. The
The sources
sources andand
methods of acquiring,
methods acquiring, storing
storing and
and analyzing
analyzing information
information are are adequately
adequately
highlighted. This
highlighted. This part
part also
also discusses
discusses the
the main
main challenges
challenges andand constraints
constraints
the Commission
the Commission facedfaced during
during the
the inq~",
inquiv,,The ibe manner
manner in in which
which these
these
constraints and challenges
constraints challenges were
were surmounte4
sunnoun~{SQ - w as not to seriously
as: not seriously impact
impact
upon the
upon the integrity
integrity of
of the
the inquiry
inquiry isis explained
explained in in ~last-
thlast section
sectionofofthis
thispart.
part.

Part Three contains


Part Three contains aa restatement
restatement of of the
the law relating to the allocation
law relating allocation of
public
public land
land in
in Kenya.
Kenya. An An important
important aspect
aspect of of this
this restatement
restatement isis whatwhat
constitutes public
constitutes public land
land in thethe context
context ofof this
this inquiry.
inquiry. The
The relevant
relevant legal
legal
provisions
provisions in various
various statutes
statutes which
which stipulate
stipulate the
the manner
manner in in which
which public
public
land is to be allocated
land allocated are
are briefly
briefly explained.
explained. TheThe allocations
allocations of of public
public land
land
contrary to
contrary to the provisions of law which have resulted in illegal titles are
provisions of law which have resulted in illegal titles are
extensively discussed in
extensively discussed in this
this part.
part. Finally,
Finally, the
the effect
effect of an illegal
illegal title
title and
and
its impact
impact on third party
party or
or "innocent"
"innocent" purchasers
purchasers isiscritically
critically analyzed.
analyzed.

Part
Part Four of this Report
Four of Report contains
contains the the key findings of
key findings of the
the inquiry.
inquiry. It is
is aa
situational analysisofof how
situational analysis how public
public land land was was illegally
illegally allocated
allocated to to
individuals and companies.
individuals and companies. It It provides
provides an an insight
insight into
into what
what actually
actually took
took
place. Examples
place. Examples of how
how public
public land
land was
was grabbed
grabbed andand even
even sold
sold are
are given.
given.
This part
This part also
also contains
contains the
the key specific and
key specific general recommendations
and general recommendations
made
made by by the
the Commission
Commission as as to
to what
what action
action should
should be be taken
taken byby the
the
Government with regard to
Government to illegal
illegal titles
titles to
to land.
land.

Five of the Report


Part Five
Part Report contains
contains the
the key
key proposals
proposals by
by the
the Commission
Commission onon
how the
how the recommendations
recommendations in this Report
Report can be implemented.
implemented. ItItdiscusses
discusses

(xix)
Sichangi Adv

the framework,
framework, strategy
strategy and
and programme
programme of
of implementation
implementation as proposed
proposed by
the Commission.
Commission.

The
The ANNEXES
ANNEXES to the the Report
Report contain
contain among
among other
other particulars, lists of
particulars, lists of
land and names
names of individuals
individuals and corporations
corporations to whom
whom public land
land was
was
illegally allocated. These
illegally allocated. These lists
lists appear
appear in separate
separate bound
bound volumes
volumes (Vol.
(Vol. II
and II) which
which are part of
of this
this Report.
Report.

(xx)
Sichangi Adv
· PART ONE

THE CONTEXT
CONTEXT
Introduction
1. Introduction

This Commission
This Commission of of Inquiry
Inquiry waswas appointed
appointed by His His Excellency
Excellency the the
President to
President to examine
examine in detail,
detail, the
the phenomenon
phenomenon of of illegal
illegal and
andirregular
irregular
allocation of public
allocation public land in Kenya. The phrase "public land" is is used
used inin this
this
report to
report to mean
mean all
all that
that land
land ininwhich,
which, given
given itsitsnature,
nature, andandstrategic
strategic
location, the
location, the public
public retains
retains an interest.
interest. At the
the time
time ofof the
theCommission's
Commission's
appointment, the
appointment, the country
country waswas already experiencing aa major
already experiencing major crisis
crisis in
in its
its
Public land tenure. Land meant
meant for
for public
public purposes
purposes had hadover
overthe
theyears
yearsbeen
been
wantonly and illegally allocated
wantonly allocated to private
private individuals
individuals and and corporations
corporations in in
disregard of the public interest. The privatization of public land
total disregard land in
in this
this
manner is commonly
manner commonly referred to as "Land Grabbing".
So pervasive
pervasive was was this practice
practice that by the the turn
turn of
of the
theCentury,
Century, there
therewaswas
real danger that Kenya could be without aa public land land tenure
tenure system.
system. There
There
is no legal
legal or
or political
political system
system in in the
the world
world which
which condones
condones thethe extinction
extinction
of its public land tenure. A country's physical development planning
of its public land tenure. A country's physical development planning
depends largely on the manner in in which
which itit balances
balances private
private and
andpublic
publicland
land
rights. Kenya
rights. Kenya has two options
options of of recreating
recreating its public
public land
land tenure
tenure system.
system.
Either, the
Either, the system
system cancan bebe recreated
recreated through
through massive
massive and and large
large scale
scale
compulsory acquisitions
compulsory acquisitions of of private
private lands
lands by thethe Government
Government (this (this would
would
have to be undertaken
have undertaken at at aa considerable
considerable cost cost to
to an
analready
alreadyburdened
burdened and and
impoverished tax payer), or,
impoverished or,the
the Government
Government can can embark
embark on onthe
theprocess
processofof
tracing illegally
tracing illegally allocated
allocated public
public land
land with
with a view
view to torepossessing
repossessing and and
restoring the same to the publicpublic forfor its
its original
original purpose.
purpose. TheThereasons
reasonsforforthe
the
emergence and intensification
emergence intensification of illegal
illegal and
and irregular
irregular allocations
allocations ofofpublic
public
land
land areare toto be
be found
found ininthe thecountry's
country'shistorical,
historical, legal
legal and
andpolitical
political
dispensation (In
dispensation (In part,
part, unbridled
unbridled greedgreed andand complicity
complicity of ofGovernment
Government
thus fuelling illicit land markets throughout
officials thus throughout the Country.)
( /

2. A BRIEF
BRIEF HISTORICAL
HISTORICAL BACKGROUND
BACKGROUND

(a)
(a) The
ThePre-colonial
Pre-colonial Period
Period
Land in pre-colonial
Land pre-colonial Kenya
Kenya was
was owned
owned and
and held
held under
under .a
.a complex
complex system
system
of customary
of tenure in
customary tenure in which
which rights of access
rights of access to
to and
and use
use of
of land
land were
were
regulated by
regulated by intricate
intricate rules,
rules, usages
usages and
and practices.
practices. These
These were
were often
often based
based
on communal
on communal solidarity
solidarity such
such as clan,
clan, and
and other
other lineal
lineal heritages.
heritages. In
In the
the
Sichangi Adv
multiplicity Of
multiplicity of customary
customary tenures,
tenures, a number
number of of salient
salient features
features have
have been
been
recorded
recorded by by '¥oters
Miters inin this
this field.'
field.! These
These are
are as
as follows:
follows:

• Under
Under African
African Customary
Customary land land law,
law, there
there was
was aa distinction
distinction between
between
rights
rights of
of access
access to landland and
and control
control of of those
those rights.
rights.
• The
The power
power of of control
control waswas vested
vested inin aa recognized
recognized political
political authority
authority
or entity within
or entity within aa specific
specific community.
community.
• The political
.The political entity
entity exercised
exercised these
these powers
powers to to allocate
allocate rights
rights of of
access to
access to individuals
individuals depending
depending on the
on the needs
needs and and status
status of of the
the
individual
individual in in question.
question.
• Rights
Rights of of access
access werewere guaranteed
guaranteed by by the
the political
political authority
authority on on the
the
basis
basis ofof reciprocal
reciprocal duties
duties performed
performed by the
by the rights
rights holder
holder to to the
the
community.
community.
• Rights
Rights to to land
land were
were determined
determined on on aa continuum
continuum ofof flexibility;
flexibility;
always adjusting and changing
always adjusting and changing as
as circumstances
circumstances demanded.
demanded.
•• There
There was was no no element
element of of exclusivity
exclusivity to
to land
land under
under African
African
Customary Law
Customary Law asas found
found within
within English
English Property
Property Jurisprudence.
Jurisprudence.

(b)
(b) Public
PublicLand
Landunder
underAfrican
African Customary
Customary Tenure
Tenure

It
It must
must be beappreciated
appreciated that thatnotwithstanding
notwitltsfflnding the the apparently
apparently complex
complex
tenurial
tenurial arrangements
arrangements in in the African
African ctIstomary
CHstomary system,
system, thethe concept
concept of of
"Public Land"
"Public Land" asas used
used in this
this Report
Report w4s not alien
was not alien to it. Public
Public land
land fell
fell
under
under what
what are usually
usually referred
referred to asas "Commons",
"Cemmons", thus thus there
there was
was territory
territory
which
which served
served the interests
interests ofof the
the Community
Community in in its
its corporate
corporate status.
status. In
In this
this
category were found
category were found lands
lands such
such asas common
common pathways,
pathways, watering
watering points,
points,
grazing
grazing fields,
fields, recreational areas/grounds, meeting
recreationalareas/grounds, meeting venues,
venues, ancestral
ancestral andand
cultural grounds, and
cultural grounds, and many
many others.
others. NoNo individual
individual or or group
group could
could be be
allocated rights
allocated rights of access
access to such
such public
public lands
lands other
other than
than for
for purposes
purposes for for
which
which they
they had
had been
been setset aside
aside and
and recognized.
recognized. The The community's
community's needs needs
could
could not yield
yield to
to private
private interests.
interests. .

I See for example,


See for example, M.P.K Sorrenson, The
M.P.K Sorrenson, Origins of European
The Origins European Settlement
Settlement inin Kenya,
Kenya,
Nairobi, O.U.P
Nairobi, O.U.P 1968.
1968.
Yl
Y.P GHAI
GHAI and J.P.W.B
J.P.W.B MacAuslan,
MacAuslan, Public
Public Law and Political
Law and Political Change
Change inin Kenya, O.U.P
Kenya, O.U.P
147Q.
19<70.
H.W.Q Okoth
H.W,Q Okoth Ogendo,
Ogendo, Tenants of the
Tenants of the Crown:
Crown: The
The Evolution
Evolution ofofAgrarjdt:
Agrarjan Law
Law and
and
Institutions in Kenya,
Institutions ACTS PRESS
Kenya, ACTS PRESS 1995.
1995.

2
Sichangi Adv
(c)
(c) The
The Colonial
Colonial Period
Period
The British
The British conquest,
conquest, the
the declaration
declaration of a Protectorate
Protectorate and
and later
later aa Colony
Colony
fundamentally altered
fundamentally altered the African
African land
land relations
relations in
in Kenya.
Kenya.
The promulgation
The promulgation of of the
the Crown
Crown Lands
Lands Ordinance
Oroinance of of 1902
1902 and
and later
later the
the
Crown Lands Ordinance
Crown Land'S Ordinance of of 1915
1915 conferred
conferred enormous
enormous powers
powers on on the
the
colonial government
colonial government to to deal
deal with what
what had
had been
been declared
declared Crown
Crown land.
land. In
In
effect, the
effect, the Governor
Governor could
could make
make grants
grants ofof freehold
freehold andand leasehold
leasehold ininfavour
favour
individuals and corporate
of individuals corporate bodies
bodies on
on behalf
behalf of of the
the Crown.
Crown. After
After 1915,
1915,thethe
Governor could make
Governor could make grants
grants of agricultural
agricultural leases
leases of up to to 999
999 years
years and
and
of Town
Town plots
plots of
of up
up to
to 99 years on behalf
years on behalf of of His
His Majesty.
Majesty. By By 1949,
1949, those
those
settlers who had
settlers who had acquired
acquired 99 99 year
year agricultural
agricultural leases
leases were
were allowed
allowed to to
convert them,
convert them, atat aa price,
price, into
into 999
999 year
year leases.
leases. Commercial
Commercial PlotsPlots inin
townships
townships andand urban
urban centers
centers were
were allocated
allocated through
through a system
system of of public
public
auction
auction while
while residential
residential plots within
within municipalities
municipalities were were allocated
allocated through
through
public tender
a public tender system.
system.

(d) Policy
Policy and Administrative
Administrative Changes
Changes After 1948
1948

In September,
In September, 1939,
1939, a Committee
Committee under
under the
the Chairmanship
Chairmanship of of Mr.
Mr. C.E
C.B
Mortimer, then
Mortimer, then Commissioner
Commissioner ofof Lands,Lands, was was appointed
appointed to to make
make
recommendations regarding
recommendations regarding certain
certain aspects
aspects of Land Tenure
Tenure Policy.
Policy. Among
Among
the
the matters
matters to bebe reviewed
reviewed waswas the
the system
system ofofallocation
allocation ofofcommercial
commercial
plots of a general
plots general nature
nature in
in Townships
Townships andand Municipalities
Municipalities andand the
the method
method
of allocating
of allocating residential
residential plots.
plots. The
The report
report of
of this
this Committee
Committee was was published
published
in 1941
in 1941 and
and became
became the the subject
subject matter
matter ofofintermittent
intermittent discussion
discussion and
and
debate in the
debate the Legislative
Legislative Council
Council and
and correspondence
correspondence withwith the
the Secretary
Secretary of
of
State for
State for the Colonies.
Colonies.i 2

With regard
With regard to the allocation
allocation of
of commercial
commercial plots
plots ofof aa general
general nature
nature in
in the
the
Townships and
Townships and Municipalities,
Municipalities, it was decided
decided that
that for
for a trial
trial period
period of twotwo
years, the
years, the previously
previously existing system of
existing system of auctioning
auctioning such such plots
plots be be
abandoned. In
abandoned. In future,
future, such
such plots
plots in
in Townships
Townships wouldwould be be allocated
allocated by by
means
means of of direct
direct grant
grant with
with the
the assistance
assistance ofof aalocal
localcommittee.
committee. The The
allocation
allocation would
would have
have toto be
be subject
subject to
to precise
precise development
development conditions.
conditions. In In
municipalities,
municipalities, it it was
was decided
decidedthat that for
for aa trial
trial period
period of of two
'two years,
years,
commercial plots
commercial plots ofof a general
general nature
nature would
would be be disposed
disposed of of by
by tender
tender

2 This
This information
information was embodied in a COMMUNIQUE
was embodied COMMUNIQUE issued
issued by the Governor
Governor in
in 1951
1951
Sichangi Adv
(c)
(c) The Colonial Period
The Colonial Period
The
The British
British conquest,
conquest, the
the declaration
declaration of
of aa Protectorate
Protectorate and
and later
later aa Colony
Colony
fundamentally
fundamentally altered the
altered the African
African land
land relations
relations in in Kenya.
Kenya.
The
The promulgation
promulgation of the
of the Crown
Crown Lands Lands Ordinance
Oroinance of
of 1902
1902 and and later
later the
the
Crown
Crown Lands Lands Ordinance
Ordinance of
of 19151915 conferred
conferred enormous
enormous powers
powers on on thethe
colonial government to
colonial government to deal
deal with
with what
what hadhad been
been declared
declared Crown Crown land.land. In In
effect, the
effect, the Governor
Governor could could make
make grants
grants of of freehold
freehold and and leasehold
leasehold inin favour
favour
of
of individuals
individuals and and corporate
corporate bodies
bodies on on behalf
behalf of of the
the Crown.
Crown. After After 1915,
1915, thethe
Governor could
Governor could make
make grants
grants of of agricultural
agricultural leases
leases of of up
up toto 999
999 years
years andand
of Town
of Town plotsplots of
of up
up toto 99
99 years
years on behalf of
on behalf of His
His Majesty.
Majesty. By By 1949,
1949, those
those
settlers who
settlers who hadhad acquired
acquired 99 99 year
year agricultural
agricultural leases
leases werewere allowed
allowed to to
convert them, at a price, into 999 year
convert them, at a price, into 999 year leases. Commercial Plots inleases. Commercial Plots in
townships and
townships and urban
urban centers
centers were were allocated
allocated through
through aa systemsystem of of public
public
auction while residential plots within municipalities were allocated through
auction while residential plots within municipalities were allocated through
aa public
public tender
tender system.
system.

(d)
(d) Policy and Administrative
Policy and Administrative Changes After
Changes After 1948
1948

In September,
In September, 1939, aa Committee
1939, Committee under the
under the Chairmanship
Chairmanship of Mr.
of Mr. C.E
C.E
Mortimer, then Commissioner of
Mortimer, then Commissioner of Lands, was appointed to makeLands, was appointed to make
recommendations regarding
recommendations regarding certain
certain aspects
aspects of of Land
Land Tenure
Tenure Policy.
Policy. Among
Among
the matters to be reviewed was the system
the matters to be reviewed was the system of allocation of commercialof allocation of commercial
plots of
plots of a general
general nature
nature in in Townships
Townships and and Municipalities
Municipalities and
and thethe method
method
of allocating residential plots. The report of this Committee
of allocating residential plots. The report of this Committee was published was published
in
in 1941
1941 and and became
became the the subject
subject matter
matter of of intermittent
intermittent discussion
discussion and and
debate in the Legislative Council and correspondence
debate in the Legislative Council and correspondence with the Secretary of with the Secretary of
State for
State for the
the Colonies.
Colonies.' 2

With
With regard
regard to to the
the allocation
allocation of of commercial
commercial plots plots ofof aa general
general nature
nature inin the
the
Townships and
Townships and Municipalities,
Municipalities, it
it was
was decided
decided thatthat for
for a trial
trial period
period of of two
two
years, the previously existing system of auctioning such plots be
years, the previously existing system of auctioning such plots be
abandoned. In
abandoned. In future,
future, such such plots
plots in in Townships
Townships would be
would be allocated
allocated by by
means of direct grant with the assistance
means of direct grant with the assistance of a local committee. The of a local committee. The
allocation would
allocation would have have to to be
be subject
subject to to precise
precise development
development conditions. In
conditions. In
municipalities,
municipalities, it itwas
was decided
decidedthat that forfor aa trial
trial period
period of of two years,
'two years,
commercial plots
commercial plots of of a general
general nature
nature would
would be be disposed
disposed of of byby tender
tender

2 This information
This was embodied
information was embodied in
in aa COMMUNIQUE issued by the Governor
COMMUNIQUE issued Governor in
in 1951
1951

3
Sichangi Adv
instead
instead of
of by
by auction,
auction, inin cases
cases where
where the
the Government
Government considered
considered such
such aa
course desirable
course desirable in the
the public
public interest.
interest.

As
As for
for residential
residential plots
plots the
the practice
practice of of allocation
allocation by by direct
direct grant
grant with
with the
the
assistance of
assistance of a local
local committee
committee which
which had had informally
informally replaced
replaced thethe public
public
tender
tender system
system wouldwould continue.
continue. As
As shallshall become
become apparent,
apparent, these
these
administrative changes
administrative changes inin the
the method
method of of allocating
allocating these
these types
types ofof public
public
land would
land would have have profound
profound and and far
far reaching
reaching effect
effect on
on how
how successive
successive
regimes
regimes were were going
going toto deal
deal with
with land
land in in general
general and
and public
public land
land in in
particular
particular in independent
independent Kenya.
Kenya.

There
There isis a difference
difference of of opinion
opinion as as to the
the real
real reasons
reasons for
for such
such aa change
change ofof
policy
policy andand practice
practice in in the
the manner
manner of of land
land allocation
allocation by by the
the Colonial
Colonial
Authorities.
Authorities. There
There areare those
those who
who argue
argue that
that by
by 1948/49,
1948/49, the
the public
public auction
auction
system had
system had fallen
fallen: into
into disrepute
disrepute as as wealthy
wealthy syndicates
syndicates andand individuals
individuals
often outbid
often outbid the not- so wealthy
thenotso wealthy for all prime
prime plots
plots available.
available. This created
created a
land speculation
land speculation Cartel leading ',to
Cartel leading To serious
serious discontent
discontent within
within the
the entire
entire
Settler community. More
Settler community. More critically;
critically, the speculative
speculative activities
activities threatened
threatened to to
distort
distort the
the agricultural
agricultural development
development agenda agenda which
which hadhad been
been the
the prime
prime
factor
factor for the colonization
colonization of of Kenya.
Kenya.

It was
was therefore
therefore imperative
imperative thatthat the
the Governor
Governor be given given more
tnore latitude
latitude in
in
Controlling
controlling the the manner
manner inin which
whi~h landland could
could pass
pass to to individuals
individuals and and
Corporations.
Corporations. The selection
selection of
of allOttees
alldhees from
from the list of of all
ail applicants
applicants whowho
had responded
had responded to to the
the advertisenlent
advertisement of of the
the plots
plots would
wouid be be done
done after
after
interview by
interview by aa Selection
Selection Btiard
B6lrrd established
established by by. thetheProvincial
Provincial
Administration under
Administration under thethe directidn
direcd~h of the the Provincial
Provincial Commissioner
Commissioner or or
District Commissioner
District Commissioner as the latter4latt~Wss representative.
representative. The The guiding
guiding principles
principles
to be followed
to followed included
included the ability
ability of the
the selected
selected allottee
allottee to paypay for
for land
land
and
and carry
carry out the
the intended
intended develotitnents
developments withinwithin the
the presciribed
prescribed timetime limits.
limits.
Another
Another consideration
consideration was whether
whether, the prospective
prospective allottee
allottee already
already owned
owned
plots of
plots of aasimilar
similar nature
nature elsewhere.
elsewHere. These
These policy
policy and andadministrative
administrative
changes were
changes were formalized
formalized through
througli the
the Circular
Circular issued
issued by the the Governor
Governor in in
1951. The
1951. The trials
trials proved
proved successfiil
successfUl and and it
it would
would appear,
appear, werewere adopted
adopted
permanently.
permanently. .

bn the
~n the other
other hand,
hand, there
there are
are those
tHose who
who argue
argue that
that· the
the policy
policy and
and
administrative
administrati ve changes
changes outlined
outlined abbve
aBbve were
were meant
meant toto further
further crowd
crowd out
out the
the .
natives (as Africans were officially
natives (as Africans were , referred to) and other Non White
officitlfIy referred to) and olher Non White
communities
communities from
from the land market
market by tightening
tightening the Governor's
Governor's control
control onon
the land allocation process. The Natives had already been declared Tenants
the land allocation process. The Natives had already been declared Tenants

4
Sichangi Adv
atat the
the Will
Will of of the
the Crown
Crown by by thethe Crown
Crown Lands Lands Ordinance
Ordinance ofof 1915
1915 (as(as
affirmed by
affirmed by aa judicial
judicial interpretation
interpretation of
of the
the relevant
relevant Provision
Provision in
in the
the
Ordinance). The
Ordinance). The Circular
Circular therefore
therefore isis seen seen by by those
those who who belong
belong to to this
this
School ofof Thought
School Thought as
as aa further
further subversion
subversion of the
of the Rule
Rule of of LawLaw by by the
the
colonial government
colonial government ifif there there waswas any.any. Be Be that
that asas itit may,
may, forfor the
the purposes
purposes
of this
of this Report,
Report, there
there areare two
two inescapable
inescapable conclusions
conclusions that
that cancan bebe made
made
about
about the the main
main objective
objective of of the
the Circular
Circular of of 1951:
1951:
•• The
The Policy
Policy andand Administrative
Administrative changes
changes embodied
embodied in
in the
the Circular
Circular
were meant
were meant to to streamline
streamline the
the allocation
allocation of
of Crown
Crown Land Land so so asas to
to
prevent speculative
prevent speculative accumulationof of land
accumulation land by by the the wealthy.
wealthy.
Speculation had
Speculation had become
become rife
rife through
through the the public
public auction
auction system
system
sanctioned
sanctioned by the
by the Crown
Crown Lands
Lands Ordinance
Ordinance (and
(arid later
later carried
carried overover
into the
into the Government
Government Lands
Lands Act Act (Cap
(Cap 280)).
280)).
•• These changes
These changes were
were exclusively
exclusively meant
meant toto enhance
enhance the the development
development
paradigm of
paradigm of the
the Colonial
Colonial Economy.
Economy. The
The land
land rights
rights andand interests
interests of
of
the Natives
the Natives were
were not
not part
part ofof this
this development
development agenda.
agenda.

(e)
(e) The
The Practice
Practice ofofLand
Land Allocation
Allocation After
After 1951
1951

The Applicant
The Applicant would
would be
be selected
selected for for allocation
allocation following
following ail

Advertisement.The
Advertisement. TheApplicant
Applicantwould wouldbebe required
requiredto. to sign
sign a Letter
Letter of of
Allotment signifying
Allotment signifying hishis acceptance
acceptance of of the
the Terms
Terms and and Conditions
Conditions of of the
the
Offer. He
Offer. He would
would then be required
required to to pay
pay the
the recommended
recommended price price within
within 30 30
days failing
days failing which
which thethe Offer
Offer would
would lapselapse making
making the the plot
plot available
available for for
offer to
offer to someone
someone else. else. AA Letter
Letter of of Allotment
Allotment was was aatemporary
temporary expedient
expedient
and allottees
and allottees were
were permitted
permitted to develop
develop the plot plot inin question
question atat their
their own
own
risk before
risk before the completion
completion of survey
survey of of the
the plot.
plot. AA Letter
Letter of of Allotment
Allotment was was
an offer
an offer and
and notnot aa contract
contract and
and asas such,
such, itit could
could not not be be sold
sold ororotherwise
otherwise
transferred to
transferred to a third
third party.
party. ItIt conferred
conferred no no transferable
transferable interest
interest or or rights
rights
over land
over land in favour
favour of of the
the person
person to to whom
whom ititwas wasaddressed.
addressed. Therefore,
Therefore,
Letters of
Letters of Allotment
Allotment were were never
never soldsold toto third
third parties.
parties. TheyThey served
served the the
purpose they were intended
purpose intended forfor as
as stated
stated above.
above.

Because the
Because the main
main objective
objective of allocating
allocating land in those
those days was (and (and still
still.is
today) encourage development,
today) to encourage development, the land
land was sold at 20% of its estimated
estimated
market value.
market value. For this
this reason,
reason, the
the Special
Special Conditions
Conditions inin the
the Title
Title provided
provided
for development
for development of the allocated
allocated land within aa specified
specified period
period (six
(six months
months
to
to submit
submit Development
Development PlansPlans and
and twenty
twenty four
four months
months to to complete
complete the the

55
Sichangi Adv
development).
development). During
During thisthis period,
period, thethe Grantee
Grantee could
could not
not bebe allowed
allowed toto
sell, sub
sell, sub divide
divide or or otherwise
otherwise deal deal with
with the
the land.
land. The
The Grantee
Grantee was was only
only
allowed to
allowed to mortgage
mortgage or or charge
charge the the land
land to
to finance
finance the
the said
said development.
development.
This
This remains
remains thethe position
position as as of
of today.
today.

TheLegal
(f) The
(0 LegalPosition Regardingthe
Position Regarding theAllocation
Allocation of
of Public
Public Land
Land
Before and After
After Independence
Independence

As, already
As. already indicated
indicated in in the
the foregoing
foregoing discussion,
discussion, the the legal position
legal position
regarding
regarding land
land allocation
allocation during
during thethe colonial
colonial era
era in
in Kenya
Kenya isisembodied
embodied inin
the Crown
the Crown Lands
Lands Ordinance
Ordinance of of 1915,
1915, which
which was was later
later retitled
retitled the
the
Government Lands
Government Lands Act, Cap 280 of the Laws Laws of Kenya
Kenya (the(the Ordinance
Ordinance andand
the.Government
the Government Lands
Lands ActAct are
are actually
actually the
the same
same in substance).
substance). Section
Section 15 15
of the Crown
Crown Lands
Lands Ordinance
Ordinance provided
provided thatthat the
the Commissioner
Commissioner of ofLands
Lands
could
could cause
cause any
any portion
portion of aa township
township plotplot which
which was was notnot required
required forfor
public purposes to
public purposes to be
be divided
divided into into plots
plots suitable
suitable forfor thethe erection
erection of of
buildings for business
buildings business oror residential
residential purposes.
purposes. Such
Such plots
plots could
could from
from time
time
to time
time be disposed
disposed of of in
in the
the prescribed
prescribed manner;
manner; that is is by
by Public
Public Auction
Auction
unless the Governor
unless Governor directed
directed otherwise.
otherwise. The substance
substance of of this
this Provision
Provision isis
repeated
repeated in Section
Section 1212 of
of the
the Government
Government-Lands -Lands Act which
which superceded
superceded the the
Crown
Crown Lands
Lands Ordinance
Ordinance of of 1915
1915 atat independence.
independence.

The only
The only significant
significant difference
difference is that
that the
the word
word "Governor"
"Governor" isis substituted
substituted
by the
by the word
word "President."
"President." TheThe Commissioner
Commissioner was was also
also vide
vide Section
Section 25 of .
the
the Ordinance
Ordinance empowered
empowered to to cause
cause land
land available
available for for leasing
leasing forfor
agricultural purposes to be surveyed
agricultural purposes surveyed and and divided
divided into
into farms
farms not
notexceeding
exceeding
5000
5000 acres,
acres, unless
unless the
the Governor
Governor consented
consented to to the
the leasing
leasing of of farms
farms
exceeding that
exceeding that acreage
acreage butbut only
only upup to 7500 acres.
to 7500 acres. Any
Any lease
lease of
of more
more than
than
this
this acreage
acreage would
would require
require the
the Consent
Consent of of the
the Secretary
Secretary of of State.
State. Again,
Again,
just
just as
as in
in the
the case
case of
of Town
Town Plots,
Plots, such
such leases
leases were
were to to be
begranted
granted through
through
Public
Public Auction.
Auction. These
These Provisions
Provisions are are also
also substantially
substantially replicated
replicated in the the
Government Lands
Government Lands Act save thatthat sections
sections 19 and 20 of the latter latter Act do not
limit
limit the acreage
acreage to be leased
leased byby the
the Commissioner.
Commissioner.

The effect
The effect of the Circular
Circular of 1951
1951 was to formalize
formalize the allocation
allocation of of Crown
Crown
land by
land by direct
direct grant.
grant. It
It would
would appear
appear that
that this
this method
method of of allocating
allocating land
land
became permanent.
became. permanent. The The colonial Governmentmust
colonial Government must have have found
found itit
successful in controlling
successful controlling the
the mischief
mischief of
of land
land speculation.
speculation. ItIt isishowever
however one
one
of the
of the greatest
greatest ironies
ironies in the
the history
history of
of land
land allocation
allocation in
in Kenya
Kenya thatthat what
what

6
Sichangi Adv
appears
appears to to have
have succeeded
succeeded in in the
the colonial
colonial periodperiod (i.e.
(i.e. allocation
allocation by by direct
direct
grant)
grant) is whatwhat later
later facilitated
facilitated the the massive
massive illegal
illegal and and irregular
irregular allocation
allocation ofof
public
public landland byby thethe Government
Government after after independence.
independence. The
The abandonment
abandonment ofof
the
the Public
Public Auction
Auction systemsystem gave gave the
the President
President and and the the Commissioner
Commissioner of
of
Lands
Lands the the opportunity
opportunity to
to allocate
allocate land
land in in ways
ways thatthat amounted
amounted to to abuse
abuse of of
office.
office. Thus
Thus the the very
very Officials
Officials and and Institutions
Institutions that that were
were supposed
supposed totobe be the
the
custodians
custodians of
of public
public landland became
became the the facilitators
facilitators of of illegal
illegal andand irregular
irregular
allocations
allocations of of the
the same.
same. '\

The
The District
District andand Provincial
Provincial Plot Plot Allocation
Allocation Committees
Committees became
became powers
~owers
unto
unto themselves
themselves exercising
exercising the
the authority
authority to to allocate
allocate' public
public land
land onon Ibehalf
behalf
of the President
President without
without reference
reference to to the
the public
public interest.
interest. These
These Committees
Committees
were
were supposed
supposed to to allocate
allocate land
land which
which hadhad been
been duly
duly advertised
advertised by by the
the
Commissioner
Commissioner of Lands Lands in in accordance
accordance withwith the
the relevant
relevant provisions
provisions of ofthe
the
Government
Government LandsLands Act. In otherother words,
words, the Committees
Committees were were toto simply
simply act
act
as Agents
Agents of the Commissioner
Commissioner of of Lands.
Lands.

Apart
Apart from virtually
virtually embracing
embracing the the allocation
allocation of of land
land through
through direct
directgrants,
grants;
successive Commissioners
successive Commissioners of of Lands
Lands have have allocated
allocated and and administered
administered
public land
public land in in ways
ways that
that contravene
contravene certain
certain provisions
provisions of of the
theGovernment
Government
Lands
Lands Act.
Act. Section
Section 18 18 for
for example
example forbids forbids the the sale,
sale, change,
change, lease,
lease,
subdivision of land or
subdivision or other
other dealing
dealing prior
prior to to completion
completion of ofthe
thedevelopment
development
conditions
conditions in the Grant.
Grant. The
The Commissioner
Commissioner is is also
also empowered
empowered totore-enterre-enter
the land
the land and thus terminate
terminate the
the title
title ifif the
the grantee
grantee fails
fails to
todevelop
develop thetheland
land
within the
within the time
time limits
limits set out
out in the Title.
Title. These
These provisions
provisions and and practices
practices
established by
established by the
the Government
Government LandsLands Act Act also
also apply
apply to to the
the allocation
allocation of of
land by
land by Local
Local Authorities
Authorities for whom
whom the Commissioner
Commissioner of Lands Lands acts
acts as as an
an
Agent as
Agent as they
they themselves
themselves although
although having
having the the power
power totomake
make allotments;
allotments;
do not
\ do not have
have thethe capacity
capacity toto do
do so.
so. The
The Commissioner
Commissioner must must still
still bear
bear inin
mind the principle
mind principle of public
public interest.
interest.

3. THE
3. THELAND
LAND GRABBING
GRABBING PHENOMENON
PHENOMENON

A combination
A combination of legal
legal and political
political factors
factors discussed
discussed above
above have
have over
over the
the
years conspired
years conspired to
to facilitate
facilitate illegal
illegal and irregular
irregular allocations
allocations of public
public land.
land.
The Government
The Lands Act
Government Lands Act (vide
(vide Section
Section 3)3) confers
confers powers
powers upon
upon the
the
President to
President to make
make Grants
Grants of of Freehold
Freehold or orLeasehold
Leasehold ofofun-alienated
un-alienated
government land
government land toto individuals
individuals ororCorporations.
Corporations. Certain
Certain Presidential
Presidential
powers are
powers are delegated
delegated to the Commissioner
Commissioner of of Lands
Lands asas provided
provided bybySection
Section

7
Sichangi Adv
33 of
of the
the Act.
Act. Section
Section 77 is is however
however categorical
categorical that
that the
the Commissioner
Commissioner isis not
not
authorized
authorized toto make
make grants
grants ofof landland under section 33 on
under section on behalf
behalf of of the the
President. It is instructive that the Commissioner has over the years
President. It is instructive that the Commissioner has over the years
exercised
exercised powers
powers under under Section
Section 3. 3. A A strict
strict reading
reading of of Section
Section 77 indicates
indicates
that the powers conferred upon the President under section 3 cannot be
that the powers conferred upon the President under section 3 cannot be
delegated (except
delegated (except in in the
the specified
specified circumstances
circumstances discussed
discussed later
later in in this
this
Chapter).
Chapter).
While
While Section
Section 7 of of the
the Government
Government Lands
Lands Act Act permits
permits the the Commissioner
Commissioner
of Lands
of Lands to to execute
execute for for andand on on behalf
behalf of of the
the President
President any any Conveyance,
Conveyance,
lease or
lease or licence
licence of of oror for
for the
the occupation
occupation of
of Government
Government Lands,
Lands, onlyonly the the
President has
President has power
power to to make
make GrantsGrants or or dispositions
dispositions of
of any
any Estates,
Estates,
Interests
Interests or Rights
or Rights in in oror overover unalienated
unalienated Government
Government Lands.
Lands. The The
President
President would have
would have to to notify
notify thethe Commissioner
Commissioner of
of Lands
Lands in in writing
writing thatthat
he
he intends
intends to to make
make aa grant grant of of unalienated
unalienated Government
Government Land
Land toto whoever
whoever
has
has been
been selected
selected as as aa grantee.
grantee. Only Only then,
then, can can aaCommissioner
Commissioner legally
legally
proceed
proceed to to formalize
formalize and
and sign
sign thethe Grant
Grant of of Title.
Title. It It would
would appear
appear thatthat on on
the
the whole,
whole, in
in thethe early
early yearsyears ofofindependence;
independence; public
public land land was was
administered
administered and allocated
and allocated inin the the public
publicinteres
interes -nd ".nd inin accordance
accordance with
with the the
legal
legal provisions.
provisions.
But with
But with the the passage
passage of of time,
time, these
these substantive
substantive and
and procedural
procedural safeguards
safeguards
have been
have been blatantly
blatantly disregarded
disregarded in
in the
the allocation
allocation exercise.
exercise. Public
Public land land has
has
been allocated
been allocated in in total
total disregard
disregard of of the
the public
public interest
interest and and inin circumstances
circumstances
that fly
that fly in in the
the faceface of of the the law.
law. The The practice
practice ofof illegal
illegal and and irregular
irregular
allocations intensified in the late 1980s and throughout the 1990s. Land
allocations intensified in the late 1980s and throughout the 1990s. Land
was
was no no longer
longer allocated
allocated for for development
development purposes
purposes but but asas political
political reward
reward
and for
and for speculation
speculation purposes.
purposes. This
This practice
practice which
which is is usually
usually referred
referred to to as
as
"land grabbing"
"land grabbing" became
became part
part andand parcel
parcel of of official
official grandgrand corruption
corruption
through
through which which land land meant
meant for for public
public purposes
purposes (including
(including land land specifically
specifically
reserved
reserved for public
for public purposes)
purposes) has
has been
been acquired
acquired by by individuals
individuals and
and
corporations.
corporations.

(a)
(a) The
The Disappearance
Disappearance ofofthe
the Public
Public Trust
Trust Doctrine
Doctrine in
in the
the Allocation
Allocation
of Public
of Public Land
Land
ItIt must
must bebe emphasized
emphasized at
at the
the outset
outset that
that the
the powers
powers vested
vested in in the
the President
President
to make
to make grants
grants of of Freehold
Freehold and and Leasehold
Leasehold ofof unalienated
unalienated Government
Government
Land to
Land to individuals
individuals and
and bodies
bodies corporate;
corporate; are
are notnot absolute
absolute or or unfettered.
unfettered.
These powers
These powers are are supposed
supposed to to be
be exercised
exercised strictly
strictly inin the
the public
public interest.
interest. InIn
other words,
other words, thethe President
President "administers"
"administers" the
the land
land inin Trust
Trust forfor the
the people
people of of

8
Sichangi Adv
Kenya.
Kenya. Any
Any allocation allocation of public
of public land is
land is therefore
therefore meant
meant to enhance
to enhance the
the
public
public interest.
interest. The Doctrine
The Doctrine of "Public
of "Public Interest"
Interest" isis itself
itself not not aa theoretical
theoretical
one. A cri t i c al readi n g
one. A critical reading cf the Constitution of the Republic of Kenya reveals of t h e Const i t u t i o n of t h e Republ i c of Kenya reveals
that
that the
the doctrine doctrine revolves
revolves around
around matters
matters touching
touching upon
upon public
public safety,
safety,
securi t y , heal t h ,
security, health, defence, morality, town and country planning, defence, moral i t y , t o wn and count r y. pl a nni n g,
infrastructure,
infrastructure, andand general general development
development imperatives.
imperatives. TheThe doctrine doctrine isis
ttherefore
herefore aa very
very broad
broad one. 3 one. '

The circumstances
The circumstances under which
under which aa public
public officer
officer must
must exercise
exercise statutory
statutory
powers
powers have
have been been the subject
the subject matter
matter of much
of much judicial
judicial discourse.
discourse. InIn this this
regard,
regard, aa long long lineline ofof authorities authorities" 4 from from Commonwealth
Commonwealth and other
and other
jjurisdictions
urisdictions lays down
lays down the Principle
the Principle toto the the effect effect that discretionary
that discretionary powers
powers
deriving
deriving from
from statute
statute must
must be exercised
be exercised reasonably.
reasonably. They
They are not
are not absolute. absolute.
The
The exercise exercise of such
of such discretion
discretion must
must be aa real
be real exercise exercise of discretion.
of discretion. If, in
If, in
the
the statute statute conferring
conferring the
the discretion,
discretion, there
there is
is to to be be found, found, expressly
expressly or or by by
implication,
implication, matters
matters to
to which which the
the authority
authority exercising
exercising thethe discretiondiscretion ought
ought
to have
to have regard,
regard, then,
then, in exercising
in exercising the discretion,
the discretion, they must
they must have regard
have regard to to
tthose
hose matters.
matters. Conversel y,
Conversely, if if tthe he nature nature of the
of the subject subject matter
matter and and the the
general interpretation
general interpretation of
of an an Act Act make make itit clear
clear that
that certain certain matters
matters would
would notnot
bebe germane germane to
to the the matter matter in in question,
question, they
they must must disregard disregard those
those matters.
matters.
TheThe word word "unreasonabl e " i s
"unreasonable" is used as a general description of the things that used as a general descri p t i o n of t h e t h i n gs that
must notnot be
must be done. done. Powers
Powers of
of this this nature nature must
must bebe exercised exercised in in conformity
conformity
wiwith
th tthe
he legitimate
legitimate expectations
expectations ofof the the public. public.

The
The bottom bottom line
line is is that
that public public land
land cannot cannot be
be allocated
allocated to
to individuals
individuals by
by the the
President
Presi dent wiwithout
thout reference
reference to
to the the foregoing foregoing imperatives.
imperatives. He
He cannot cannot dishdish
away
away lland and to people
to people at his
at his personal personal whim
whim oror caprice.
caprice. Yet, this
Yet, this isis what what has has
happened
happened overover the the years years since
since independence.
independence. (It must
(It must however
however be noted
be noted
tthat
hat abuses
abuses were
were also
also not
not uncommon uncommon during
during the
the colonial colonial times
times but
but this this
Commi s si o n' s i n qui r y
Commission's inquiry does not extend to that period). Public land has been does not ext e nd t o t h at peri o d). Publ i c l a nd has been
vari ously
variously alallocated
located forfor political
political patronage
patronage purposes.
purposes. Land
Land has been
has been given
given
out
out either either as
as politicalpolitical reward,
reward, or
or in in returnreturn for
for political
political loyalty.
loyalty. In In extreme
extreme
situations,
situations, publpublic
ic lland
and has
has been been the
the subject subject ofof outrightoutright plunder
plunder through
through

33The
The salient
salient elements
elements of
ofthe
the Public
Public Interest
Interest Doctrine
Doctrine are
are used
used ininSection
Section 75
75of
ofthe
the
Constitution although
Constitution although the
the doctrine
doctrine itself
itself isis nowhere
nowhere defined.
defined.
4 See for example,
example, Associated
Associated Provincial
Provincial Picture
Picture Houses
Houses Ltd.
Ltd. V.
V.Wednesbury
Wednesbury Corporation
Corporation
1947
1947 22 ALL
ALL ER ER 680.
680. See
See also, R R vv Secretary
Secretary of of State
State for
for the
the Home
Home Department
Department andand I
Another,
Another, ex parte
parte Hargreaves
Hargreaves andand Others
Others 1997 1997 1I ALL
ALL ERER 397.
397.

f
1
Sichangi Adv
speculation.
speculation. ThiThis
s latter
lat er phenomenon
phenomenon has
has resulted
resulted in
in the
the unjust
unjust enrichment
enrichment
of
of aa few few people
people at
at great
great expense
expense of
of the
the general
general welfare
welfare of
of thethe public.
public.

The
The power
power given
given to
to the the President
President to
to allocate
allocate public
public land land directly
directly was was
intended
intended toto enable enable hihim
m deal
deal with
with the
the few few cases
cases where
where such such direct
direct
alallotments
lotments were
were necessary
necessary in
in the the national
national interest.
interest. InIn such
such situations,
situations, public public
auctions or allocation
auctions allocation through through selection selection committees, committees, would would be be considered
considered
long drawn
long drawn and cumbersome. cumbersome. The power to allocate allocate land land directly
directly could could not not
have been
have been intended
intended to cover cover each each and and every
every plot available available for for allotment.
allotment. ItIt
is however
is however a fact fact that that not not much much public public land land has has been
been allocated
allocated by by
advertisement and
advertisement and auction auction or selection selection by Plot Plot Allocation
Allocation Committees Committees in in
Kenya for the last 20 years
Kenya years of so. so. We We have have already already observed observed that that this this was
was aa
carry
carry over over from
from the colonial colonial period; period; only only that this time time around,
around, itit was was for for
the wrong
the wrong reasons.
reasons.

Even where
Even where the the President
President hashas delegated
delegated hishis powers
powers ofof making
making directdirect
allocations of
allocations of public
public land
land to the
the Commissioner
Commissioner of Lands,Lands, this
this isis severely
severely
restricted
restricted inin the
the public
public interest.
interest. The
The Public
Public Trust
Trust Doctrine
Doctrine is not
not lost. In
lost. In
this
this regard,
regard, the
the President
President has
has delegated
delegated thethe powers
powers vested
vested in himhim under
under
Section of the GOVerriment Lands Act to the Commissioner to make
Section 3 of the G6{'le"tnment Lands Act to the Commissioner to make
direct allocations
direct allocations of tzblic
public land
land in
inthe
the following
following circumstances
circumstances only.
only.

For religious,
1. For religious, charitable,
charitable, educational
educational oror sports
sports purposes
purposes on on the
the
terms and
terms and conditions
conditions in
in accordance
accordance with
with the
the general
general policy
policy of
of the
the
Government and
Government and the
the terms
terms prescribed for such
prescribed for such purpose
purpose by by the
the
President;
President;
For Town
2. For Town Planning
Planning exchanges
exchanges on on the
the Recommendation
Recommendation of of the
the
Town Planning
Town Planning Authority,
Authority, Nairobi,
Nairobi, within
within the
the total
total value,
value, and
and
subject to the conditions,
subject conditions, laid
laid down
down byby the
the President;
President;
3. The
The sale
sale of
of small
small remnants
remnants ofof land
land in the
the City
City of
of Nairobi
Nairobi and
and
Mombasa Municipality
Mombasa Municipality acquired
acquired for
for town
town planning
planning purposes
purposes and
and
left over after those town planning
left over after those town planning needs have been met;
met;
For . the
4. For, the use
use of local
local authorities
authorities for
for municipal
municipal or or district
district purposes,
purposes,
viz; office
viz; office accommodation,
accommodation, town town halls,
halls, public
public parks,
parks, native
native
locations, fire
locations, fire stations,
stations, slaughter
slaughter houses,
houses, ponds,
ponds, incinerators,
incinerators,
mortuaries, crematoria,
mortuaries, crematoria, stock
stock sale
sale yards,
yards, libraries,
libraries, hospitals,
hospitals, child
child
welfare institutions,
welfare institutions, garages,
garages, housing
housing schemes,
schemes, markets
markets andand public
public
cemeteries;
cemeteries;
5. The
The; extension
extension of existing
existing township
township leases
leases on the
the fulfillment
fulfillment of
of the
the
conditions specified
conditions specified therein
therein as
as precedent
precedent to such
such extensions;
extensions;

10

1
Sichangi Adv
The temporary
6. The
6. temporary occupation
occupation of
of farmlands
farmlands on
on grazing
grazing licenses
licenses
terminable
terminable at
at short
short notice;
notice;
7.
7. The
The sale
sale of
of farms
farms and
and plots
plots which
which havehave been
been offered
offered for for auction
auction
and
and remain
remain unsold,unsold, such such grants
grants being
being subject
subject to to the
the general
general terms
terms
and conditions for the advertised auction sale and the application
and conditions for the advertised auction sale and the application
therefore
therefore being submitted
being submitted w~thin within six six months
months ofof the the date
date of of the
the
auction in the case of farms, except that in the case of godown
auction in the case of' farms, except that in the case of godown
plots,
plots, thethe power
power to to sell
sell shall
shall not
not bebe limited
limited to to six
six months
months from from the the
date
date of of sale.
sale.

ItIt is
is therefore
therefore clear clear from
from the the foregoing
foregoing specifications,
specifications, that
that the
the legislature
legislature
did not
did not intend
intend to to de-emphasize
de-emphasize the
the public
public interest
interest whilewhile vesting
vesting the the power
power
to make
to make direct
direct allocations
allocations of
of public
public land land inin the
the President
President or
or allowing
allowing such such
powers to
powers to be be delegated
delegated to
to the
the Commissioner
Commissioner ofof Lands.
Lands. ThA T¥ problem
problem
however lies in the fact that both the policy makers and legislators could
however lies in the fact that both the policy makers and legislators could
not have
not have imagined
imagined that that the
the very
very officers
officers and and persons
persons who who werewere supposed
supposed toto
act as the custodians of public land would be the same people who
act as the custodians of public land would be the same people who would
would
facilitate the
facilitate the illegal
illegal and and irregular
irregular allocatiOns
allocations of
of the
the same.
same.

(b) Powers ofofthe


(b) Powers the Commissioner
Commissioner ofof Lands
Lands toto Dispose
Dispose of
of Land
Land within
within
Townships
Townships

Section 99 of
Section of thethe Government
Government Lands
Lands Act Act provides
provides that that thethe Commissioner
Commissioner
may cause
may cause any any portion
portion of of aa township
township which
which is is not
not required
required for for public
public
purposes toto be
purposes be divided
divided into into plots
plots suitable
suitable for for the
the erection
erection of of buildings
buildings for for
business or
business or residential
residential purposes,
purposes, and
and such
such plots
plots maymay fromfrom timetime to to time
time be be
disposed of
disposed of inin the
the prescribed
prescribed manner.
manner. The The Commissioner
Commissioner then
then causes
causes the the
plots to
plots to be
be valued
valued to to determine
determine the
the selling
selling price,
price, taking
taking into into account
account the the
basic cost
basic cost ofof thethe land
land and and infrastructure.
infrastructure. The
The Commissioner
Commissioner furth~t
isis further
required to determine
required determine the the land
land rent,
rent, building
building conditions,
conditions, special
special covenants
covenants'
..e.t.c
e.t.c in respect
respect of each each plot.
plot. Section
Section 12 12 ofof the Act provides
the Act provides that the the town
town
plots shall,
plots shall, unless
unless the President
President otherwise
otherwise orders orders in in any
any Particular
rirticular case or
cases be sold
cases sold by auction.
auction. It has already already been been observed
observed that that no no plots
plots have have
been sold
been sold byby auction
auction for more more than than 50 years.years. It can only only be be assumed
a-ssumed that that
the plots
the plots have
have beenbeen soldsold by by direct
direct allotment
allotment pursuant
pursuant to to Presidential
Presidential order; order;
otherwise, they
otherwise, they wouldwould have have been
been illegally
illegally allocated.
allocated. Bin Bot even
even where
where such such
order is given
order given in respect
respect of of aa certain
certain plot,
plot, the
the inherent
inherent restrictions
restrictions based based on on
the public
the public trust
trust doctrine
doctrine still still stand.
stand. (Besides,
(Besides, common
common prudence prudence requiresrequires
that such
that such order
order be given in in writing
writing by by the
the President
President personally)
personally)

11
Sichangi Adv
The wording
The wording of the
of the Act Act leaves
leaves no no doubt
doubt that that the the powers
powers of of the
the
Commissioner of
Commissioner of Lands
Lands to to allocate
allocate plots plots in in this
this category
category are are not
not without
without
limitations. First
limitations. First and and foremost,
foremost, the the Commissioner
Commissioner can only
can only dispose
dispose of of aa
township
township plot plot, , in the prescribed
in the prescribed manner manner if if the
the plot
plot is is not
not required
required for for
public purposes.
public purposes. Secondly, the
Secondly, the township portions must.
township portions must be be subsub divided
divided
into plots suitable
into plots suitable for for business
business or or residential
residential purposes. Thirdly, the
purposes. Thirdly, the plots
plots
should be sold subject to specified building conditions.
should be sold subject to specified building conditions. Fourthly,
Fourthly, the
the
plots
plots must
must be advertised followed
be advertised followed by by actual
actual balloting.
balloting. Every title
Every title
requires
requires the the allottee
allottee of the plot
of the plot to to develop
develop it it within
within 24 24 months
months of of being
being
issued with
issued with thethe title.
title. In In addition
addition to to such
such conditions,
conditions, sectionsection 18(1)
18(1) of of the
the Act
Act
provides that
provides that there
there shallshall be be implied
implied in in every
every title
title aa covenant
covenant by by the
the allottee
allottee
not to
not to sell,
sell, lease,
lease, chargecharge or or otherwise
otherwise dispose dispose of of thethe plot
plot without
without the the
previous written
previous written consent
consent of of the
the Commissioner.
Commissioner. With
With aa viewview to to prohibiting
prohibiting
speculation
speculation inin land land acquired
acquired from from the the Government,
Government, Section 18(1)
Section 18(1) (i) (i)
provides that no application for the
provides that no application for the Commissioner's consent Commissioner's consent "shall
"shall be
be
entertained
entertained unlessunless the the building
building conditions
conditions have have beenbeen complied
complied with".with". The The
clear
clear meaning
meaning of this section
of this section is is that
that the allottee of
the allottee of a Government
Government plot plot must
must
develop
develop itit himself,
himself, within within the the period stipulated in
period stipulated in the
the title,
title, before
before he he can
can bebe
permitted to sell it. If he unable to undertake the development, his only
permitted to sell it. If he is unable to undertake the development, his only
option isis to
option to surrender
surrender the the plot
plot to the Government;
to the Government; failure to
failure to which,
which, the the
Commissioner of Lands may take steps to repossess the land through aa
Commissioner of Lands may take steps to repossess the land through
forfeiture action or by
forfeiture action by re-entry.
re-entry.

(c) The
(c) The Letter
Letter of
of Allotment
Allotment as
as an
an Instrument
Instrument of
of Land
Land Grabbing
Grabbing

It should
It should bebe noted
noted at at the
the outset that most
outset that most of of the
the unalienated
unalienated Government
Government
Land within urban areas and townships in the Country has been allocated
Land within urban areas and townships in the Country has been allocated
by the
h~ the Commissioner
Commissioner of of Lands
Lands pursuant
pursuant to the the exercise
exercise of ofpowers
powers
conferred upon
conferred upon the President by the Government Lands Act.
President by the Government Lands Act. It should also It should also
be restated
be that the
restated that the town
town plots
plots in
in question
question are are supposed
supposed to be be sold
sold byby
auction unless
auction unless the
the President
President otherwise orders. It
otherwise orders. It is to
to be
be assumed
assumed that that all
all
these allocations' have
these allocations have been
been mademade by by public
public auction
auction or or pursuant
pursuant to to
Presidential orders for direct grants. Even where
Presidential orders for direct grants. Even where either of the two either of the two
conditions has
conditions has been
been met in in the
the allocation
allocation process
process by the the Commissioner
Commissioner of of
Lands,
Lands, the
the public
public interest
interest limitations
limitations still remain. Until
still remain. Until June
June 2003,
2003, notnot
withstanding
withstanding the the absolute
absolute prohibition
prohibition of sales
sales ofof undeveloped
undeveloped land, land, there
there
was
was a vibrant
vibrant land
land market
market in such such lands.
lands. TheThe selling
selling and and buying
buying of of
undeveloped
undeveloped leaseholds
leaseholds took took place
place pursuant
pursuant to to consents
consents illegally
illegally given
given by by .
the Commissibner,
the Commissioner, of of Lands.
Lands. The The sales
sales were
were often
often actualized
actualized through
through the the

12
Sichangi Adv
informal transfers of
informal transfers of Letters
Letters of
of Allotment.
Allotment. (This
(This practice
practice could
could be
be inin fact
fact
criminal)
criminal)

As already
As already pointed
pointed out, out, aa Letter
Letter of of Allotment
Allotment was was- not not transferable
transferable toto aathird third
party during the colonial times and in the
party during the colonial times and in the early years of Independence. early years of Independence.
This was
This was due due to to the
the fact
fact that
that such
such aa letter
letter is is not
not in in itself
itself an an interest
interest in in land
land
which is capable of being transferred. (This fact is made clear in the
which is capable of being transferred. (This fact is made clear in the
"definitions"
"definitions" section of
section of Part
Part Three
Three of of this
this Report).
Report). It It isis however
however clear clear that
that aa
letter of allotment has been institutionalized as representing an interest in
letter of allotment has been institutionalized as representing an interest in
land capable of
land capable of being
being bought
bought and and sold.
sold. Through
Through such such letters,
letters, individuals
individuals
and bodies
and corporate are
bodies corporate are able
able to to get
get titles
titles to to' land
land illegally
illegally or or irregularly
irregularly and and
sell the same
sell the same to to third
third parties
parties at at exorbitant
exorbitant prices. prices. On On obtaining
obtaining aa letter letter of of
allotment from
allotment from thethe Commissioner
Commissioner of Lands,
of Lands, the the prospective
prospective allottee allottee would
would
sell
sell itit to
to aa purchaser
purchaser as as ifif the
the letter
letter werewere land land itselfitself atat a apremium.
premium. The The
purchaser then would assume the responsibility of paying the Government
purchaser then would assume the responsibility of paying the Government
levies
levies and charges, and
and charges, and obtain
obtain the the title
title inin his/her
his/her name. name. Thus, Thus, the the original
original
allottee would not feature anywhere in the
allottee would not feature anywhere in the title deeds that are open to title deeds that are open to
examination
examination by
by thethe public.
public. ItIt isis the the existence
existence of of thisthis illicit
illicit market
market that that
fuelled the land grabbing mania
fuelled the land grabbing mania in the Country. in the Country.

The original allottee


The original allottee waswas ableable to to transfer
transfer the the letter
letter ofof allotment
allotment by by paying
paying aa
consent fee
consent fee equivalent
equivalent to to 2%
2% of of the
the selling
selling price
price or or the
the capital
capital value
value ofof the
the
plot whichever
plot whichever was higher. The
was higher. The authority
authority for for this
this fee
fee was
was contained
contained inin
Legal
Legal Notice No. 305
Notice J;'Jo. 305 of of 1994
1994 published
published by by the
the Minister
Minister for for Lands
Lands and and
Settlement
Settlement titled
titled the the Government
Government Lands
Lands (Consents)
(Consents) (Fees) (Fees) Amendment
Amendment
Rules. This
Rules. notice was
This notice was itself
itself illegal
illegal since
since itit was
was contrary
contrary to to Section
Section (18)(18) (1)
(1)
of the
of the Government
Government Lands
Lands Act. Act. AA Minister's
Minister's Legal Legal Notice
Notice cannot
cannot purport
purport
to amend
to amend the the saidsaid Section.
Section. Only Only Parliament
Parliament can amend
can amend an an Act.
Act. Indeed,
Indeed,
Section
Section 31 31 (b)
(b) of of the
the Interpretation
Interpretation and
and General
General Provisions
Provisions Act Act (Cap
(Cap 22 ofof
the
the Laws
Laws of of Kenya)
Kenya) provides
provides that that no no subsidiary
subsidiary legislation
legislation shall
shall bebe
inconsistent
inconsistent with the
with the Provisions
Provisions of
of anan Act
Act under
under which
which such such subsidiary
subsidiary
legislation
legislation isis made.
made. The The informal
informal transfers
transfers of of Letters
Letters of of Allotment
Allotment had had
however
however been been going
going on on long
long before
before the the publication
publication of of this
this Legal
Legal Notice.
Notice.
(The woist
(The worst period
period being
being the the years
years between
between 1992 1992 andand 2002).
2002). The The Notice
Notice
was revoked by
was revoked by the
the current
current Minister
Minister in in June
June 2003.
2003.

By charging
By charging Consent
Consent Fees Fees for
for the
the informal
informal transfers,
transfers, the the Government
Government hadhad
recognized
recognized this
this is
is Illicit
Illicit Land
Land Market
Market and and the
the Government
Government had had ignored
ignored the
the
illegitimate dealing with
illegitimate dealing with land
land matters.
matters. This
This meant
meant that
that the
the Government
Government hadhad
in effect
in effect abdicated
abdicated its its role
role to
to speculators,
speculators, thus distorting
thus distorting the
the economic
economic

13
Sichangi Adv
value of land.
value land. The Government
Government has has over
over the
the years
years acted
acted in
in aadual
dual capacity
capacity
of supplier
of supplier andand buyer
buyer ofof public
public land.
land. Over
Over time,
time, with
with the
the collusion
collusion of of
speculators
speculators and public officials,
and public officials, there
there arose
arose the
the syndrome
syndrome of of the
the "Captive
"Captive
Buyer"
Buyer" of public land.
of public land. The
The "politically
"politically correct"
correct" individuals
individuals at at the
the time
time
would acquire public
would acquire public land
land inin the
the manner
manner described
described above
above and
and dispose
dispose of of itit
target State
to target State Corporations
Corporations at at exorbitant
exorbitant prices.
prices. The
The resultant
resultant emergence
emergence
of land
of land buying
buying syndicates
syndicates and and cartels
cartels crowded
crowded out out anyany legitimate
legitimate
purchasers ofof land
purchasers land for
for development.
development. Even Even the the soso called
called "private
"private
developers" simply bought
developers" simply bought such
such land
land for
for construction
construction and and disposal
disposal to to the
the
public without any
public without any regard
regard totoplanning
planning imperatives
imperatives sincesince Planning
Planning
Legislation (the
Legislation (the Physical
Physical Planning
Planning Act Act 1996)
1996) waswas equally
equally circumvented
circumvented or or
totally ignored.
totally ignored.

(d)
(d) Allocations of Public
Allocations Public Land by Unauthorized
Unauthorized Persons
Persons
Information available
Information available suggests
suggests that that public
public land
land has has been
been allocated
allocated by by
Officers and
Officers and other
other personalities
personalities whowho have have no no legal
legal authority
authority to to allocate
allocate it.it.
Thus, there are situations
Thus, there situations where
where land
land has been been allocated
allocated by Chiefs,
Chiefs, District
District
Officers, District Commissioners,
Officers, District Commissioners, ProvincialProvincial Commissioners
Commissioners and and even
even
Members
Members of of Parliament.
Parliament. The The activities
activities of of these
these personalities
personalities signifysignify the the
complete breakdown of the Rule of Law
complete breakdown Law in in land
land allocations
allocations over over thethe years.
years.
With
With thethe entry
entry of of these
these Officers
Officers in in the
the public
public land land allocation
allocation process,
process,
impunity
impunity set in thus
set in thus complicating
complicating the the problem
problem further.
further. But But perhaps
perhaps the the
most disquieting aspect
most disquieting aspect of
of the
the activities
activities of of the
the Provincial
Provincial Administration
Administration inin
the realm of public
the realm public land
land tenure
tenure was
was the the brazen
brazen politicization
politicization of of the
the same.
same.
Land
Land waswas no longer
longer viewed
viewed as as belonging
belonging to the the Kenyan
Kenyan people
people in in their
their
sovereign
sovereign and and corporate
corporate entity;
entity; but
but as vacant space
as vacant space to be dished
to be dished out out toto
"politically correct" individuals
"politically correct" indi viduals for
for personal
personal enrichment.
enrichment. The The wider
wider social,
social,
economic,
economic, ecological
ecological and. developmental interests
and developmental interests of the Country
of the Country were were
never considered. Because
never considered. Because of of the the confusion
confusion introduced
introduced into into landland
allocations
allocations through
through the involvement of
the involvement entities other
of entities other thanthan the
the ones
ones with
with
legal authority, there
legal authority, there have been cases
cases of double
double and even even triple
triple allocations;
allocations;
with many involving
with many involving forgery,
forgery, thus
thus giving
giving riserise to to intricate
intricate legal
legal issues
issues
which could
which could interfere
interfere with
with planning
planning in in the
the future.
future.

(e)
(e) Land
Land within
within the
the Jurisdiction
Jurisdiction of
of Local
Local Authorities
Authorities
At Independence,
At Independence, all that
that land
land which
which was
was formerly
formerly referred
referred to
to as
as "Native
"Native
Reserves"
Reserves" or "Native Lands"
or "Native Lands" and
and to
to which
which the
the Land
Land Adjudication
Adjudication and and
Land Consolidation Acts
Land Consolidation Acts had not been
had not been applied
applied became
became vested
vested in in the
the

14
Sichangi Adv
County Councils
County Councils ofof the the areas
areas in in which
which they they were were situated.
situated. The The landslands
became known
became known as as Trust
Trust Lands.
Lands. According
According to to the
the Constitution,
Constitution, the
the County
County
Council isis to
Council to hold
hold suchsuch land
land on on Trust
Trust for for the
the people
people ordinarily
ordinarily resident
resident in in
the area
the area in in accordance
accordance with
with the the applicable
applicable Customary
Customary Law.
Law. Thus,
Thus, eveneven in in
the case
the case of of Trust
Trust land,
land, thethe trust
trust doctrine
doctrine as as thethe name
name suggests,
suggests, isis firmly
firmly
embodied. The
embodied. The local
local authorities
authorities are
are notnot supposed
supposed to to deal
deal with
with the
the land
land as as if
itit is
is theirs
theirs to to own
own and and dispose
dispose of of asas they
they wish.
wish. Yet Yet over
over thethe years,
years, the the
county councils
county councils have have dealt
dealt with
with Trust
Trust landland in in ways
ways thatthat defeat
defeat thethe interests
interests
of local
of local residents.
residents. To
To the
the extent
extent that that Trust
Trust landland remains
remains un-adjudicated,
un-adjudicated, itit
must be
must be considered
considered Community
Community Land
Land whose
whose interest
interest is is of
of aa public
public nature
nature
requiring state
requiring state protection
protection against
against illegal
illegal andand irregular
irregular allocations.
allocations.

(0
(f) Special
Special Lands
Lands and
and Land
Land Territories
Territories

There are
There are certain
certain lands
lands which,
which, given their ecological
given their ecological integrity,
integrity, cultural
cultural
relevance or
relevance or strategic location, cannot
strategic location, cannot be allocated
allocated to to private
private individuals
individuals
unless public
unless public interest
interest dictates
dictates that they should.
should. Even
Even where
where such
such lands
lands have
have
to be alienated
alienated for private
private use,
use, certain
certain special
special procedures
procedures mustmust be
befollowed
followed
over and
over and above
above those
those provided
provided for in in the
the Government
Government LandsLands ActAct, oror the
the
Trust
Trust lands
lands Act.
Act. These
These lands
lands are
are considered
considered so so important
important that
that they
they must
must
remain in the public
remain public domain.
domain. The The Government
Government has has aasacred
sacred duty
duty totoprotect
protect
and conserve
and conserve such
such lands
lands from
from alienation
alienation or improper
improper use by individuals
individuals or
corporate
corporate bodies.
bodies. This explains
explains why why Parliament
Parliament has has enacted
enacted specific
specific laws
laws
meant to
meant to protect
protect thethe lands
lands in in question.
question. They
They include
include forests,
forests, wetlands,
wetlands,
riparian
riparian reserves,
reserves, the foreshore,
foreshore, historical
historical sites
sites and
and monuments,
monuments, museums,
museums,
military and other security
military security installations
installations andand many
many others.
others.

These
These lands
lands were
were notnot spared
spared the
the illegal
illegal and
andirregular
irregular allocations
allocations either.
either.
Many such
Many such territories
territories were
were either
either allocated
allocated inin total
total disregard
disregard ofof the
the special
special
procedures under
procedures under the specific
specific laws,
laws, oror contrary
contrary toto their
their ecological,
ecological, cultural
cultural
and strategic
and strategic significance.
significance.

4. THE
THEMYTH
MYTH OF
OFTHE
THESANCTITY
SANCTITY OF
OFTITLE
TITLE

The final
The final stage
stage in in the
the process
process of of land
land allocation
allocation isis achieved
achieved by by the
the
acquisition of aa Title
acquisition of Title Deed
Deed issued
issued by thethe Commissioner
Commissioner of Lands Lands toto the
the
Registered Proprietor.
Registered Proprietor. SomeSome of of the
the land
land registration
registration statutes
statutes inin Kenya
Kenya
declare that
declare that the
the registration
registration of a person
person asas the
the proprietor
,proprietor ofof land
land or
orlease
lease
confers upon
confers upon the person title not capable
person a title capable of of being
being defeated
defeated by by any other
other

15
15
Sichangi Adv
claim(unless such
claim(unless such aa claim
claim be be a fraud
fraud or or anan overriding
overriding interest
interest inin the
the
case of
case of the
the Registered
Registered Land
Land Act). The title
Act). The title deed
deed operates
operates asas evidence
evidence of of
registration. Section
registration. Section 75
75 ofof the
the Constitution
Constitution provides
provides thatthat no
no property
property of of
whatever description
whatever description shall
shall be
be compulsorily
compulsorily acquired
acquired by by the
the Government
Government
unless:
unless:
• It is
It is needed
needed forfor aa public
public purpose
purpose
• The proprietor
The proprietor is is fully
fully and
and promptly
promptly compensated
compensated
• Parliament has enacted a law to specifically
Parliament has enacted a law to specifically provide
provide for
for and
and
regulate such
regulate such acquisition
acquisition (The
(The Land
Land Acquisition
Acquisition Act,
Act, Cap
Cap 295)
295) .

It has
It has been
been argued
argued that that aa combination
combination of of these
these provisions
provisions clothes
clothes TitleTitle toto
land
land with
with legal
legal sanctity
sanctity which
which must must remain
remain untouched
untouched by by the
the State
State unless
unless
and
and until
until thethe same
same has has been
been extinguished
extinguished through through compulsory
compulsory acquisition
'acquisition
as
as laid
laid outout above.
above. In In other
other words,
words, onceonce aa person
person acquires
acquires titletitle toto land,
land, itit
cannot be
cannot be questioned
questioned even even in aa court
court of of law.
law. Lawyers
Lawyers are are wont
wont to to argue
argue on on
behalf of their clients whose titles to land are sought to be impeached that
behalf of their clients whose titles to land are sought to be impeached that
such
such titles
titles are
are sacrosanct.
sacrosanct. This This type
type of of jurisprudential
jurisprudential logic
logic has has over
over the
the
years
years given
given the the title
title deed
deed an an imprimatur
imprimatur of of legal
legal invincibility.
invincibility. In In certain
certain
situations,the
situations, the lawlaw seeks
seeks to to protect
protect such such titles
titles even
even ifif they they werewere
fraudulently acquired
fraudulently acquired as as long
long as as they
they are are aa first
first registration.
registration. We We use use the
the
term seek
term seek herehere because
because the Commission
Commission has serious serious doubts
doubts as as toto whether
whether
such a provision
such provision in in law
law can
can stand
stand aa constitutional
constitutional challenge.
challenge.

On the
On the face
face of
of it,
it, this
this reasoning
reasoning is
is legally
legally sound
sound taking
taking into
into account
account the the
utility of the institution
utility institution of of property
property in
in aa capitalist
capitalist society.
society. Not
Not only
only must
must anan
individual feel
individual feel secure
secure in his his possessions,
possessions, he mustmust also
also be
be able
able to
to transfer
transfer
the same
the same for
for aa fair
fair return.
return. The
The free
free transfer
transfer of
ofproperty,
property, especially
especially land
land
(Economists will
(Economists will argue), encourages and
argue), encourages and in
in fact,
fact, leads
leads to
to its efficient
efficient use
use
for the larger
larger good of of society.
society.

This legal
This legal reasoning
reasoning has has led
led to the
the perception
perception in in the
the mind
mind of of the
the public
public
(including lawyers,
(including lawyers, and and other
other professionals),
professionals), hitherto
hitherto unchallenged,
unchallenged, that that all
all
that matters
that matters for for aa person
person toto be
becushioned
cushioned against
against anyany investigation
investigation or or
challenge is
challenge is toto get
get registered
registered asas a proprietor
proprietor of of land
land or lease
lease and
and toto.be
be
issued with
issued with a title
title deed.
deed. The
The manner
manner in in which
which such such title
title isis acquired
acquired isis
irrelevant. The
irrelevant. The titletitle deed
deed is an
an end
end inin itself.
itself. It is
is this
this extreme
extreme notion
notion of
of the
the
sanctity of
sanctity of title
title which
which has
has fuelled
fuelled thethe illegal
illegal and
and irregular
irregular allocations
allocations of of
public
public land
land in thethe country.
country. This view
view of of the
the title
title deed
deed must
must have
have also
also been
been
embraced
embraced by by Officials
Officials at the Ministry
Ministry of LandsLands and and Settlement
Settlement sincesince they
they

16
Sichangi Adv
facilitated
facilitated thethe wanton
wanton issuance
issuance of of title
title deeds
deeds overover public
public lands
lands as
as illustrated
illustrated
in
in Part
Part Three
Three of of this
this Report.
Report. Thus, Thus, thisthis legal
legal lawlessness
lawlessness has provided
has provided the the
twisted rationale of
twisted -rationale of public
public landland grabbing
grabbing in in Kenya.
Kenya. This This Commission
Commission holds holds
the view that sanctity of title depends on its legality and not otherwise. A
the view that sanctity of title depends on its legality and not otherwise.
title
title acquired
acquired illegally
illegally is is not
not valid
valid inin the
the eyes
eyes of of the
the law.
law.

In
In fact,
fact, there
there is nono such
such concept
concept at at common
common law law as as "absolute" title.s 5 The.
"absolute" title. The
availability
availability of rectification
of rectification and revocation
and revocation (in both
(in both the the Registration
Registration of
of
Titles Act
Titles Act and
and the
the Registered
Registered Land Land Act)Act) emphasizes
emphasizes the the principle
principle thatthat titles
titles
are
are relative,
relative, notnot absolute,
absolute, and and that
that no no title
title isis completely
completely free free from
from the the
danger that
danger that some
some better
better right
right toto land
land maymay be be established.
established. Unfortunately,
Unfortunately, aa
large section of
large section of the juaiclllrY has
the judidiary interpreted' the
nas interpreted the law
law of of title
title to
to land
land in in
absolutist terms. They
absolutist terms. They have have failed
failed to to adequately
adequately appreciate
appreciate the the fact
fact that
that
certain categories of
certain categories of land
land cannot
cannot be be privatized
privatized in in disregard
disregard of of the
thepublic
public
interest.
interest.

5. PAST
PASTEFFORTS
EFFORTS AT
ATRECLAIMING
RECLAIMING PUBLIC
PUBLIC LAND
LAND

The intensification
The intensification of public
public land
land grabbing
grabbing in in most
most parts
parts of
ofthe
theCountry,
Country,
gave rise
gave rise toto public
public resistance
resistance of of the
thepractice.
practice. As Ascommunities
communities and and
neighbourhoods lost
neighbourhoods lost land meant
meant forfor their
their use
use asasplaygrounds,
playgrounds, recreational
recreational
areas, hospitals, schools and other social amenities to the so called "private
areas, hospitals, schools and other social amenities to the so called "private
developers", public
developers", public resentment
resentment set in, leading
leading to organized
organized protests
protests against
against
the now almost
the now almost daily spectre of land grabbing. The protests at first took the
spectre of land grabbing. The protests at first took the
form
form of appeals
appeals andand petitions
petitions to to the
the President
President ororSenior
Senior Government
Government
Officials seeking intervention on their behalf.
Officials seeking intervention on their behalf. But given the fact that
the fact that hardly
hardly
any, remedial action
any remedial action waswas taken
taken following
following thesethese protests,
protests, the
the resistance
resistance
became more belligerent and pronounced. Organized groups could be
became more belligerent and pronounced. Organized groups could be seen
seen
tearing down walls
tearing down walls and and fences
fences erected
erected by by thethe private
private developers
developers in in
desperate efforts to safeguard
desperate efforts safeguard their land.land.

Eventually,
Eventually, however,
however, such
such actions
actions were
were defeated by the resort
defeated by resort to the use of
force by the
force by the grabbers.
grabbers. Often,
Often, they
they would
would enlist
enlist the
the support
support ofof law
law
enforcement agenciestotoprotect
enforcement agencies protectthem
themasas they
they went
went onon with
with their
their
"development activities". Soon,
"development activities". Soon, the
the land
land in
in question
question would
would cease
cease toto be
be
public land and become private property. Some public spirited litigants
public land and become private property. Some public spirited litigants

5 See the discussion


discussion on Indefeasibility
Indefeasibility of Title MEGARRY AND
Title in MEGARRY AND WADE,
WADE, The
The Law
Law of
of
Property, London,
Real Property,
Real London, Sweet
Sweet and Maxwell
Maxwelle"6th Edition
Edition at pp 278-290.
pp278-290.

17
17
Sichangi Adv
went to
went to Court
Court in in aa bid
bid toto protect
protect public
public land.
land. This
This tooktook the the form
form of of
Residents
Residents Associations
Associations filing representative
filing representative suits. The
suits. The Courts
Courts could could in in
certain cases rule
certain cases rule for
for the
the community
community while
while in in others
others they
they ruled
ruled in in favour
favour of of
private
private developers
developers whose
whose titletitle they
they held
held sacrosanct.
sacrosanct. As As itit isis toto be
be expected,
expected,
Courts of law took too long to deliver their verdicts, thus rendering action
Courts of law took too long to deliver their verdicts, thus rendering action
by citizens
by citizens obsolete.
obsolete. With With the the problem
problem becoming
becoming national,
national, civil civil society
society
groups joined
g):pups joined in in the
the struggle
struggle againstagainst landland grabbing.
grabbing. They
They adopted
adopted aa
strategy of
strategy of internationalizing
internationalizing the problem
the problem using human
using human rights rights and and
ecological parameters.
ecological. parameters.

The
The problem
problem of
of illegal
illegal and and irregular
irregular allocations
allocations of public
of public landland alsoalso
attracted
attracted the the attention
attention of of Parliamentary
Parliamentary watch
watch dog dog Committees
Committees such
such as as the
the
Public Accounts
Public Accounts Committee,
Committee, the
the Parliamentary
Parliamentary Investments
Investments Committee
Committee
and the
and the Parliamentary
Parliamentary'Select Select Committee
Committee on on Corruption.
Corruption. The
The Committees
Committees in in
their
their Reports
Reports acknowledged
acknowledged the
the existence
existence of of the
the problem
problem and and suggested
suggested
certain prescriptions toto address
certain prescriptions address it.it. No No official
official actionaction has has been
been taken
taken to to
address
address the the problem
problem on on the
the basis
basis of of such
such recommendations.
recommendations. The
The President
President
on
on his
his part
part issued
issued aa Directive
Directive banningbanning the the allocations
allocations of
of public
public landland in in
1999. However,
1999. However, apart apart from
from the the fact
fact that
that thethe legality
legality of of this
this Presidential
Presidential
directive
directive isis doubtful,
doubtful, it is is common
common knowledgeknowledge that
that itit was
was largely
largely ignored.
ignored.
The practice
The practice of of backdating
backdating Letters
Letters of of Allotment
Allotment (( which which isis aa fraudulent
fraudulent act act
and therefore
and therefore illegal)
illegal) continued.
continued.

Efforts by
Efforts by the
the aggrieved
aggrieved PublicPublic andand Civil
Civil Society
Society groups
groups to to challenge
challenge the the
allocations have therefore proved largely futile or not so effective. The past
allocations have therefore proved largely futile or not so effective. The past
Government had
Government had no no political will to
political 'will to stamp
stamp outout this
this practice.
practice. The The reasons
reasons
for this official reluctance to address a problem that had become so
for this official reluctance to address a problem that had become so
rampant notwithstanding
rampant notwithstanding persistent
persistent public
public outcry
outcry willwill become
become apparent
apparent in in
Part Three
Part Three ofof this
this Report.
Report.

6. THE
6. THE COMMISSION
COMMISSION OF
OF INQUIRY
INQUIRY INTO
INTO ILLEGAL/
ILLEGAL!
IRREGULAR ALLOCATION OF PUBLIC
IRREGULAR ALLOCATION OF PUBLIC LAND LAND

After
After thethe defeat
defeat of of the
the then
then Ruling
Ruling Party
Party KANU
KANU in in the
the 2002
2002 General
General
Elections,
Elections, the People
the People of of Kenya
Kenya expected
expected the the new
new Government
Government to
to address
address
past
past wrong
wrong doingsdoings of of the
the former
former regimes.
regimes. The The victorious
victorious party
party had had
anchored its campaign on an anti- corruption platform. One of the wrongs
anchored its campaign on an anti- corruption platform. One of the wrongs
the
the electorate
electorate wanted
wanted corrected
corrected was the
was the widespread
widespread and
and massive
massive land land
grabbing
grabbing which
which in in their
their perception
perception had had either
either been
been condoned
condoned or or perpetrated
perpetrated

18
Sichangi Adv
by
by the
the past
past regimes.
regimes. ThereThere had had been
been past
past demonstrations
demonstrations against
against land
land
grabbing
grabbing by residents
by residents of of affected
affected areasareas and and other
other interested
interested parties.
parties.
Writings
Writings and Policy
and Policy Reports
Reports on the
on the landland problem
problem in in Kenya
Kenya have have
recommended
recommended the need
the need to to rationalize
rationalize the public
the public tenure
tenure system
system in in the
the
country. Among
country. Among the the common
common suggestions
suggestions isis the the need
need toto protect
protect public
public land
land
from being
from being allocated
allocated by by the
the ruling
ruling elite
elite for
for political
political reasons.
reasons. Such Such land
land
should
should only
only bebe allocated
allocated to to individuals
individuals or or corporations
corporations for for development
development
purposes and in the public interest. Historically,
purposes and in the public interest. Historically, land matters in land matters in general
general
have elicited
have intense and
elicited intense and emotive
emotive national
national debates.
debates.

Given this
Given scenario therefore,
this scenario therefore, itit did not come
did not come as as aa surprise
surprise when when the. the
President
President appointed
appointed this this Commission
Commission just just six
six months
months afterafter taking
taking overover thethe
reigns of power. Although the practice of land
reigns of power. Although the practice of land grabbing was known to the grabbing was known to the
public
public in in general,
general, its its extent
extent and and actual
actual manifestation
manifestation was
was notnot clear.
clear. AA
number of Official Reports had established
number of Official Reports had established that illegal and irregular that illegal and irregular
allocations
allocations of public
of public land land had had been
been taking
taking place.
place. However,
However, withoutwithout aa
systematic
systematic and and thorough
thorough probe probe of of the
the situation,
situation, it it would
would not not bebe possible
possible to to
determine
determine how extensive
how extensive and and deep
deep rooted
rooted the the problem
problem had had become.
become. ItIt
would also be difficult to unearth the types of illegality
would also be difficult to unearth the types of illegality and irregularity that and irregularity that
had
had characterized
characterized land allocations.
land allocations. Critically also,
Critically also, the
the harm
harm donedone to to the
the
Country's economy and general welfare had not been clearly brought toto
Country's economy and general welfare had not been clearly brought
the fore.
the fore. The
The general
general operational
operational spirit
spirit ofof the
the Commission
Commission isis best best captured
captured
by the
by the Preamble
Preamble to to the
the Terms
I
Terms of of Reference
Reference as as follows:
follows:

WHEREAS itit appears


WHEREAS appears that
that lands vested in the
lands vested the
Republic
Republic or dedicated or
or dedicated or reserved
reserved forfor public
public
purposes may
purposes have been
may have been allocated,
allocated, by corrupt
corrupt or
or
fraudulent practices
fraudulent practices or other unlawful
or other unlawful means,
means, toto
private persons,
private persons, and
and that such
such lands continue to be
lands continue be
occupied contrary to the good
good title of the Republic
Republic or
or
inconsistent with the purposes for which
in a manner inconsistent which
such lands
such lands were
were respectively
respectively dedicated
dedicated or or
reserved
reserved .

The complex
The complex political
political and legal
legal web in in which
which land
land grabbing
grabbing schemes
schemes had
had
been operationalized
been requiredan
operationalized required anInquiry
Inquiryofof this
this kind.
kind. At
At the
the time
time this
this
Commission
Commission was appointed, there
was appointed, there were
were other
other Ministerial
Ministerial based
based
Committees, Task
Committees, Task Forces
Forces and atat least,
least, one
one other
other Commission
Commission (commonly
(commonly
referred to
referred to as the "Goldenberg
"Goldenberg Commission
Commission of of Inquiry")
Inquiry") that
that had been
been set
set

19
19
Sichangi Adv
up to
up to probe
probe various
various malpractices
malpractices (including
(including thethe allocation
allocation of of Government
Government
properties such
properties such asas Houses)
Houses) which
which had had resulted
resulted in in the
the plunder
plunder of of public
public
property and
property and massive
massive violations
violations .ofof Human
Human Rights
Rights by the the former
former regime.
regime.
This
This Commission
Commission therefore
therefore fitted
fitted into
into an
an elaborate
elaborate Transitional
Transitional Justice
Justice
Strategy that
Strategy that the
the Narc
Narc Government
Government was was putting
putting in in place.
place. TheThe
Commission's findings
Commission's findings and
and recommendations
recommendations are are supposed
supposed to provide
provide aa
solid foundation
solid foundation for the recovery
recovery of illegally
illegally or
or irregularly
irregularly allocated
allocated public
public
lands. This would ensure that the Government pursues a coherent and
lands, This would ensure that the Government pursues a coherent and
uniform strategy
uniform strategy which
which would guarantee
guarantee equal treatment
treatment for for all.
all.

The Remit of the Commission

From
From the
the Terms
Terms of Reference
Reference as set out in
in Part
Part One
One ofof this
this Report,
Report, itit,can
can
generally be inferred
generally be inferred that
that this
this Commission
Commission waswas expected
expected to to answer
answer aa
number of distinct
number distinct questions.
questions. These
These can
can be
be simply
simply stated
stated thus:
thus:

I.
1. What
Whatisisthe
theextent
extentofofillegal
illegalandandirregular
irregular allocation
allocation of of public
public land
land
(otherwise known as land grabbing)
(otherwise known grabbing) in the Country?
Country?
2. In which
which areas have thesethese allocations
allocations taken
taken place?
place?
3. To
To which
which Individuals
Individuals and and Corporations
Corporations were were these
these allocations
allocations
made?
made?
4. What
4.. What is the
the identity
identity of
of the
the Officials
Officials who
who made
made or or facilitated
facilitated these
these
allocations?
allocations? .
How or
5. How or through
through which
which procedures
procedures did did these
these unlawful
unlawful allocations
allocations
take place?
take place?
What measures
6. What measures can be taken taken toto remedy
remedy the
the situation?
situation?
7. What
What measures
measures can can be
be putput' in
in place
place to
toprevent
prevent future
future unlawful
unlawful
allocations of public
allocations public land?
8. What
What action
action (legal
(legal oror otherwise)
otherwise) should
should be be taken
taken against
against thethe
Officials
Officials who were involved
involved in thesethese unlawful
unlawful practices?
practices?

In
In answering
answering the
the questions
questions detailed
detailed above,
above, the
the Commission
Commission was
was to
to
undertake
undertake the following
following Tasks;
Tasks:

The First Task


The Task would
would be to prepare
prepare' a detailed list of all illegal
detailed list illegal and irregular
irregular
allocations of public
allocations of public land;
land; the
the areas
areas where
where such
such lands
lands are
are situated;
situated; the
the
identity of all
identity of all the allottees (Beneficiaries)
the allottees (Beneficiaries) andand the
the identity
identity of of all
all the
the
Officials
Officials involved
involved inin such unlawful allocations.
such unlawful allocations.

20
20
Sichangi Adv
The
The Second Task would
Second Task would be detail the
be to detail the current
current status
status ofof each
each ofof such
such
lands. Under
lands. this, the
Under this, the Commission
Commission would
would have
have to
to determine
determine whether
whether thethe
land is undeveloped,
land undeveloped, partially
partially developed,
developed, or fully developed.
developed. A A correlative
correlative
.duty would be
duty to this task would be the
the determination
determination of whether
whether the
the said
said land
land had
had
been transferred or
been transferred or in any other
in any other manner
manner disposed
disposed of third parties
of to third parties in
in
subsequent
subsequent transactions.
transactions. The
The question
question asas to whether the
to whether the Third
Third Party
Party was
was
innocent or otherwise
innocent otherwise would
would also
also have
have to
to be
be determined
determined atat this
this stage.
stage.

The
The Third Task would
Third Task recommend to the
would be to recommend theGovernment
Government what what measures
measures
(legal and
(legal administrative) toto be
and administrative) taken to
be taken to recover
recover such
such illegally
illegally or or
irregularly allocated
irregularly allocatedlands
landsandand to
to restore
restore them
them to their proper
to their proper title
title or
or
purpose. In
purpose. the event
In the event that
that recovery
recovery oror restoration
restoration isis not
not possible,
possible, thethe
Commission was
Commission was to
to recommend
recommend alternative
alternative measures
measures toto the
the Government.
Government.

The Task was


Fourth Task
The Fourth Commission to
was for the Commission to recommend
recommend Short-Term,
Short-Term, Mid-Mid-
Term and Long-Term
Term and Long-Term legallegal and
and administrative
administrative measures
measures necessary
necessary toto
prevent future
prevent illegal and irregular
future illegal irregular allocations
allocations of public
public land.
land. To
To this
this end,
end,
the Commission was
the Commission suggest legal
was to suggest legal and
and institutional
institutional reforms
reforms forfor the
the
prevention of future
prevention future land
land grabbing.
grabbing.

The
The Fifth Task was
Fifth Task Commission to recommend
was for the Commission recommend aa range
range of
of punitive
punitive
actions to
actions taken against
to be taken against the Officials
Officials who were
were involved
involved in
in one
one way
way oror
another in these
another these unlawful
unlawful allocations.
allocations.

In making
making these
these recommendations,
recommendations, the Commission was
the Commission was to bear
bear in in mind
mind
the interests innocent Third Parties.
interests of innocent Parties. In In other
other words,
words, itit was
was to to be
be sensitive
sensitive
to the fact that
the fact that somewhere
somewhere along along the line,
line, land
land which
which hadhad been
been grabbed
grabbed did did
change
change hands and ended
hands and ended in thethe name
name of of anan innocent
innocent purchaser
purchaser for for value
value
without
without Notice illegality. The
Notice of such illegality. The Commission
Commission was was toto critically
critically address
address
this problem
this problem and and determine
determine whether
whether an illpgal
illegal title
title ab initio could confer
could confer
legal title
legal title to aa third
third party
party however
however innocent.
innocent. ItIt waswas totorecommend
recommend what what
action
action to be taken
taken in the
the event
event that
that aa third
third party
party could
could notnot acquire
acquire legal
legal title
title
from
from anan. illegal
illegal one. fundamental challenge
one. The fundamental challenge facedfaced by the the Commission
Commission
was how to do justice but within
justice but within the
the strict
strict confines
confines of of the
the law
law ofof the
the land.
land.
Although the
Although the Commission
Commission was was given
given aa wide
wide evidence
evidence gathering
gathering mandate,
mandate,
it is implicit
it is implicit in
in the
the Terms
Terms ofofReference
Reference that
that its
its principal
principal sources
sources of of
information
information would
would bebe official
official Government
Government Records Reports of
Records and Reports of past
past
Commissions Committees. The
Commissions and Committees. The bulk
bulk of
of its
its work
work therefore
therefore would
would entail
entail
collecting
collecting and collating all
and collating all written
written evidence
evidence andand material
material that
that already
already
exists.
exists. This should not
This should not however
however be construed to
be construed mean that
to mean that the
the

21
Sichangi Adv
Commission's work
Commission's work would
would only only be
be restricted
restricted toto the
the collection
collection andand collation
collatior
of evidence.
of evidence. As As it later
later became
became clear,
clear, the
the Commission
Commission was was forced
forced to to seek
seek
information from
information from thethe public
public and and other
other sources.
sources. It It also
also became
became necessary
necessary to to
carry out
carry out further
further investigations
investigations to to verify
verify thethe information
information contained
contained in in the
the
official documents.
official documents. In many
In many instances,
instances, the the records
records available
available were were
incomplete, forcirig
incomplete, forcing the the Commission
Commission to to consult
consult secondary
secondary sources.
sources. In In yet
yet
many other
many other instances,
instances, there
there waswas no correlation
correlation between
between the the information
information on on
record and
record and the
the situation
situation on on the
the ground.
ground. ThisThis necessitated
necessitated somesome field
field visits
visits
to verify
. to verify the
the development
development status status of thethe land
land inin question.
question. TheThe Commission
Commission
had to
had to conduct
conduct interviews
interviews with with selected
selected pastpast and
and present
present public
public officials
officials to to
determine the
determine the social,
social, economic
economic and and political
political factors
factors that
that fuelled
fuelled thethe illegal
illegal
and irregular
and irregular allocations
allocations of of public
public land.
land.

22
22
Sichangi Adv
PART TWO
PART TWO
THE APPROACH
THE APPROACH

In
In this
this part
part ofof the
the Report,
Report, we we discuss
discuss thethe process
process which
which thethe Commission
Commission
went through in conducting
went through conducting thisthis Inquiry.
Inquiry. In In view
view ofof the
the fact
fact that
that the
the subject
subject
matter of
matter of the
the Inquiry
Inquiry (the , illegal
(the illegal and
and irregular
irregular allocation
allocation of public land)
of public land) is a
complex
complex social
social problem,
problem, the the investigation
investigation was was multifaceted
multifaceted and and not
not
necessarily sequential.
necessarily sequential. ThusThus the Inquiry
Inquiry went
went through
through various
various stages
stages until
until
the submission
submission of of this
this Report.
Report.

1. Stage One: Formation


One: Formation
This
This stage
stage entailed
entailed the appointment
appointment of the Commission.
Commission. The formalformal aspects
aspects
of this
of this stage
stage consisted
consisted of of the
the gazettement
gazettement and and swearing
swearing in in ofof the
the
Commissioners... This
Commissioners This was
was followed
followed by the the practical
practical steps
steps ofof establishing
establishing
the Commission's
the Commission's Secretariat.
Secretariat. Before
Before the setting
setting upup of
of aafully
fullyfunctional
functional
Secretariat, the
Secretariat, the Commission
Commission had had an interim
interim arrangement
arrangement with with thethe then
then
Standing Committee
Standing Committee on on Human
Human Rights
Rights by which
which itit was
was permitted
permitted limited
limited
use of the
use the latter's
latter's facilities.
facilities. The
The Commission
Commission used used this
this opportunity
opportunity to to
address critical
address critical conceptual
conceptual andand procedural
procedural issues
issues which
which would
would enable
enable itit
carry out
carry out its
it's work
work well.
well. InInthis
thisregard,
regard, the
theCommission
Commission constituted
constituted aa
planning
planning Committee
Committee to to devise
devise aa number
number of of strategies
strategies through
through which
which itit
would execute
would execute its mandate.
mandate. .

The
The Planning
Planning Committee
Committee firstfirst devised
devised aa tentative
tentative Work Programme
Programme or or Plan
Plan
and an Information
and Information Acquisition
Acquisition Schedule.
Schedule. The The Plan
Plan laid
laid out
out the
the overall
overall
Time
Time Table
Table indicating
indicating thethe various
various targets
targets and
and milestones
milestones to to be
be met
met bybythe
the
Commission within
Commission within the
the time
time stated
stated inin the
the Gazette
Gazette Notice
Notice appointing
appointing thethe
Commission. The
Commission. The Information
Information Schedule
Schedule laid out out the
the manner
manner of ofacquiring
acquiring
relevant information and
relevant information and the Sources from which such information would
Sources from which such information would
be
be retrieved.
retrieved. These
These twotwo documents
documents prepared
prepared by by the
the Planning
Planning Committee
Committee
were then
were then tabled
tabled atat successive
successive FullFull Commission
Commission Meetings
Meetings for for critical
critical
discussion and
discussion and eventual
eventual adoption. While adopting
adoption. While adopting the the two
two documents,
documents, it it
was the
was the understanding
understanding of of the
the.Commission
Commission that that thethe envisaged
envisaged workwork
schedules would
schedules would change
change withwith the
the dictates
dictates ofof time.
time.

2. Stage Two: Definition


Definition of
of the
the Problem
Problem

Having
Having adopted
adopted the general
general framework,
framework, within
within which
which itit would
would proceed
proceed toto
execute its mandate,
execute its mandate, the next challenge for the Commission was to
next challenge for the Commission was to define
define

23
Sichangi Adv
the nature
the nature and
and scope
scope of thethe Problem
Problem under
under Inquiry.
Inquiry. Although
Although the the Terms
Terms of of
Reference were stated fairly specific and clear wording, the exact nature
Reference were stated in fairly specific and clear wording, the exact nature
of the
of the Problem
Problem was was not
not immediately
immediately apparent.
apparent. A A number
number of of fundamental
fundamental
questions had
questions had toto be
be answered
answered before
before the
the Commission
Commission could could embark
embark on on the
the
substantive Inquiry.
substantive Inquiry. The
The following
following questions
questions were
were ofof immediate
immediate interest
interest toto
the Commission:
the Commission:

1. What is Land?
1. What Land?

What constitutes
2. What
2. constitutes "Public
"Public Land?"
Land?"

What are
3. What
3. are the
the various
various categories
categories of
of Public
Public Land?
Land?

What is
4. What
4. is an
an "Allocation"
"Allocation" and how
and how does
does it
it differ
differ from
from an
an
"Allotment" if it does?
"Allotment" does?

What constitutes
5. What
5. constitutes an
an "Illegal
"Illegal Allocation"
Allocation" of Public
Public Land?
Land?

6. What Constitutes
6. What Constitutes an
an "Irregular Allocation" of
"Irregular Allocation" of Public
Public Land?
Land?

Who has
7. Who
7. has the
the legal
legal authority
authority to
to allocate
allocate Public
Public Land?
Land?

8. Under
8. Under what
what circumstances
circumstances andand pursuant
pursuant to what
what conditions
conditions should
should
Public Land
Public Land be
be allocated
allocated to
to an individual or
an individual or body
body corporate?
corporate?

9. What
9. What legal
legal procedures should be
procedures should be followed in the
followed in the allocation
allocation of
of
Public Land?
Public Land?

To answer
To answer these
these questions,
questions, thethe Commission
Commission decided
decided toto organize
organize aa one
one day
day
Workshop
Workshop at at which
which elaborate
elaborate presentations
presentations would
would be be made
made by by experts
experts
drawn from
drawn from thethe Commission,
Commission, relevant
relevant Government
Government Ministries
Ministries and and other
other
Sectors. Various
Sectors. Various presentations
presentations addressing aspects of
addressing aspects of the questions were
the questions were
made at the Workshop.
made Workshop. FromFrom thethe Workshop
Workshop findings,
findings, the
the Commission
Commission was was
able
able to clarify
clarify the
the operational
operational concepts
concepts andand formulate
formulate working
working definitions
definitions
of the same.
same. These
These' concepts
concepts andand definitions
definitions would
would guide
guide thethe Commission
Commission
in
in its
its Inquiry.
Inquiry. TheThe definitions
definitions derived
derived from
from thethe inquiry
inquiry exercise
exercise are are
elaboratedin'
elaborated in part
part three
three ofof this
this Report.
Report. The
The bottom
bottom line line isis that
that the
the
Commission
Commission was able to approach approach its task with aa veryvery clear
clear notion
notion ofof what
what
constitutes public land
constitutes public land and
and how
how the the same
same may
may be be the
the subject
subject matter
matter ofof
illegal and irregular
illegal irregular allocations.
allocations.

24
Sichangi Adv
3. Stage
3. Three: Acquiring,
Stage Three: Acquiring, Storing
Storing and
and Structuring
Structuring Information.
Information.

The Commission
The Commission had had then
then to to decide
decide on on the
the most
most appropriate
appropriate method
method of of
acquiring the
acquiring the information
information necessary
necessary to to enable
enable it analyze
analyze thethe Problem
Problem and and
respond specifically
respond specifically toto the the Terms
Terms of of Reference.
Reference. The The initial
initial tasks
tasks inin this
this
regard entailed
regard entailed the the determination
determination of the
of the Sources
Sources of of Information,
Information, the the
manner of
manner of collecting
collecting or or acquiring
acquiring such such information,
information, and the
and the way
way of of
structuring and
structuring and storing
storing thethe same. This stage
same -.This stage was
was considered
considered crucial
crucial given
given
the fact
the fact that
that the
the sources
sources of of information
information wouldwould be be diverse
diverse and
and thethe amount
amount
massive. The
massive. The success
success of of the
the task
task ofofs'ypthesizing
synthesizing and and analyzing
analyzing such such
information would
information would to to aa very
very large
large extent
extent depend
depend on on how
how itit was
was received,
received,
collated and
collated and stored.
stored. In In this
this regard,
regard, thethe Commission
Commission determined
determined the the
followingtoto be
following be Sources
Sources from from which
which it it would
would collect
collect and and collate
collate
information.
information.

(a) Sources ofofInformation


(a) Sources Information

1.
1. Land Records
Land Records stored
stored in the
the various
various Files
Files at
at the
the Ministry
Ministry of
of Lands
Lands
Registry at Nairobi
Registry Nairobi
2.
2. Land Records
Land Records stored
stored in
in the
the various
various District
District Registries
Registries in
in the
the
Country
Country
3.
3. Official Reports
Official Reports of
of Standing
Standing and and Select
SelectParliamentary
Parliamentary
Committees
Committees
4.
4. Official
Official Reports
Reports byby Commissions
Commissions of of Inquiry,
Inquiry, Committees,
Committees, TaskTask
Forces
Forces and
and Ministries
Ministries
5.
5. Reports
Reports by by Non
Non Governmental
Governmental Organizations
Organizations and
and other
other Civil
Civil
Society groups working on land issues
Society groups working on land issues
6. Reports
6. Reports and
and Memoranda
Memoranda by by Professional
Professional Associations
Associations
7. Reports
7. Reports and
and Memoranda
Memoranda by by Individuals
Individuals
8.
8. Public Complaints
Public Complaints received
received from
from members
members of of the
the Public
Public
~> 9. Statements recorded
Statements recorded fromfrom past
past and
and present
present Officials
Officials during
during
private interviews
private interviews with
with the
the Commission
Commission
10. Documents and
10. Documents and Records
Records submitted
submitted by by Ministries,
Ministries, Departments,
Departments,
State
State Corporations, Local Authorities
Corporations, Local Authorities andand other
other institutions
institutions inin
response to Summons
response Summons for theirtheir production
production by the Commission
Commission
11. Media Reports
11. Media Reports

25
Sichangi Adv
(b) Instruments
(b) Instruments for
forAcquiring
Acquiring Information
Information

The required information


The required information was was produced
produced by by gathering
gathering data
data from
from these
these
multiple sources as well as
multiple sources as interpreting
interpreting and organizing
organizing itit for
for each
each class
class of
of
land. The
land. The 'variables
variables identified
identified for the data
for the data set
set included:
included: land
land reference
reference
number, title
number, number, reserved
title number, reserved or intended use,
or intended current use,
use, current use, area
area inin
hectares, original
hectares, allottee, current
original allottee, current registered
registered owner,
owner, date
date ofof allocation,
allocation,
allocating authority,
allocating authority, developments
developments status
status etc.
etc.
The Commission then
The Commission then developed
developed Instruments
Instruments for the Acquisition
for the Acquisition of of
information from
information from these Sources. Towards
these Sources. Towards this this end, number of
end, a number of Source
Source
specific documents
specific documents in the form form of Summons
Summons and and Notices
Notices were
were developed.
developed.
These included:-
These included:-

1. A Summons for
A Summons for Production
Production ofof Records.
Records. This
This document
document was
was
directed at
directed sources of
at sources of information
information described
described in
in 10 above. (See
10 above.
Appendix 5)
Appendix

2. A Notice to the
A Notice the Public
Public published
published in the
the Media
Media for for submission
submission of of
complaints, information
complaints, information and
and memoranda
memoranda by by members
members of of the
the Public.
Public.
This document was
This document was directed
directed at
at the
the sources
sources of
of information
information described
described
in 9 above.
above. (See Appendix 66 also
(See Appendix also translated
translated into
into Kiswahili)
Kiswahili)

3. A Summons
Summons forfor the
the Production
Production of ofDocuments
Documents for forExamination.
Examination.
This document was
This document was directed
directed at
at those
those public
public officials
officials who
who had
had failed
failed
or neglected to
or neglected respond to
to respond the Summons
to the Summons in above. (See
in 11 above. (See Appe-
Appe-
ndix 7)
ndix 7)

Receipt,Classification
(c) Receipt, Classificationand
andStorage
Storage ofofInformation
Information

The Instruments for


The Instruments for acquiring
acquiring information
information were
were dispatched
dispatched to
to the
the various
various
destinations. Inin response
destinations. response to the Summons
to the Summons and and Public
Public Notice,
Notice, the the
Commission
Commission Secretariat
Secretariat started
started receiving
receiving information
information on illegal and
on the illegal and
irregular al-location
irregular allocation of public land
of public land from
from official,
official, professional
professional and and public
public
sources. The
sources. The information
information so received was
so received was registered
registered and
and receipt
receipt
acknowledged. The
acknowledged. initial registration
The initial registration of information
information was was simply
simply meant
meant toto
serve as
serve as aa record
record ofof all
all information
information coming
coming in and to
in and to provide
provide an an
information
information movement
movement tracking
tracking system.
system. From
From this Record, itit would
this Record, would.be be

26
Sichangi Adv
possible
possible for the Commission
for the Commission to determine
determine atat -a glance the
-a glance the amount
amount ofof
information
information coming
coming in. individual Commissioner
in. An individual Commissioner could
could also be able
able to
to
track
track a specific
specific document
document required
required for
for examination.
examination.

The documents, and


The documents, and other
other information
information received
received werewere classified
classified according
according
to the cluster
to the cluster or typetype ofof land
land to to which
which they
they related.
related. The
The Commission
Commission had had
developed
developed a matrixmatrix of categories
categories of publicpublic land
land at the definitional
definitional stage stage ofof
its Inquiry. This
its Inquiry. This exercise
exercise enabled
enabled the the Commission
Commission to to focus
focus itsits inquiry
inquiry on on
the specific types
the specific types of public land
of public land and and by
by so doing
doing come
come to to terms
terms fromfrom thethe
outset with the
outset with the relevant
relevant laws
laws and and procedures
procedures whichwhich would
would determine
determine its its
conclusions
conclusions as to to whether
whether an an illegal
illegal oror irregular
irregular allocation
allocation hadhad taken
taken place.
place.
The classification exercise
The classification exercise also also enabled
enabled the the Commission
Commission toto identify identify
"Inquiry Relevant Information".
"Inquiry Relevant Information". BecauseBecause of magnitude of
of the magnitude of the
the "Land
"Land
Problem"
Problem" in Kenya, Kenya, manymany respondents
respondents sent sent information
information and and complaints
complaints
which
which were clearly beyond
were clearly beyond its its mandate.
mandate. Most Most of of the
the complaints
complaints in in this
this
category
category dealt
dealt withwith private
private landland disputes;
disputes; somesome of of which
which were were before
before
Courts
Courts of Law. It was
of Law. was therefore
therefore necessary
necessary thatthat this
this type
type ofof information
information be be
sorted
sorted out and the
out and the respondents
respondents informed
informed accordingly.
accordingly. General
General FilesFiles were
were
then opened for each
then opened each category
category of of land
land inin respect
respect ofof which
which information
information and and
documentation
documentation had been received.
had been received. Individual
Individual Files
Files were
were also
also opened
opened for for
each specific case.
each specific case. This
This rawraw data data waswas then
then made
made available
available to to the
the
Commission's
Commission's workingworking TeamsTeams for for analysis.
analysis.

(d) Methods
(d) Methods of
ofAnalysis
Analysis

Based
Based on statement of the
on the statement the Problem,
Problem, definition
definition of Public
Public Land
Land andand thethe
classification of
classification public lands,
of public lands, the
the Commission
Commission developed
developed aa Checklist
Checklist of of
items relating to
items relating illegal and
to illegal and irregular
irregular allocations
allocations of of public
public land.
land. TheThe
Checklist
Checklist waswas used
used by each
each Working
Working TeamTeam in in analyzing
analyzing thethe information
information to to
determine the trends and patterns of illegality and irregularity.
determine the trends and patterns of illegality and irregularity. Towards Towards
this end,
this end, the Commission
Commission had had established
established three
three working
working teams;
teams; i.e.
i.e. aateam
team
on 'Urban, Ministries and State Corporations Land, a
on Urban, Ministries and State Corporations Land, team on Trust landsteam on Trust lands
and Settlement
and Settlement Schemes,
Schemes, and the third
and the third one
one onon Forests,
Forests, Wetlands
Wetlands and and
Riparian Sites, Protected Areas, Museums, Historical
Riparian Sites, Protected Areas, Museums, Historical Monuments and Monuments and
Sites.

The analysis
The entailed the
analysis entailed the identification
identification ofof cases
cases which disclosed either
which disclosed either an
an
illegality or
illegality irregularity on
or irregularity on their
their face
face i.e.
i.e. non-compliance
non-compliance with
with the
the
applicable
applicable rules and standards.
rules and standards. The
The case
case so chosen
chosen was
was then
then subjected
subjected to
to aa

27
Sichangi Adv
thorough scrutiny by
thorough scrutiny by the
the particular
particular land land working
working team.team. OnceOnce it was was
determined
determined that that anan allocation
allocation actually
actually disclosed
disclosed an an illegality
illegality or irregularity,
irregularity,
• it was taken up for audit and verification at the Ministry of Lands
'it was taken up for audit and verification at the Ministry of Lands andand
Settlement.
Settlement. One One member
member of of the
the particular
particular Working
Working Team Team would
would then
then call
call
for the relevant files relating the case under scrutiny for verification of
for the relevant files reiating to the case under scrutiny for verification of
the
the disclosed
disclosed illegality.
illegality. WithWith the the help
help ofof technical
technical Assistants
Assistants from from thethe
Ministry attached
Ministry attached to the the Commission,
Commission, aa concluSion
conclusion wouldwould be be made
made based
based
on the
on the contents
contents of the the files.
files.

This initial
This initial analysis
analysis of of specific
specific casescases waswas meant
meant to to achieve
achieve two two mainmain
purposes namely, to
purposes namely, to identify
identify cases
cases withwith thethe appropriate
appropriate ingredients
ingredients to to
mount thematic
mount thematic public
public hearings
hearings and and toto establish
establish aa model
model for for analyzing
analyzing all all
the
the cases
cases and and information
information that
that hadhad come
come to to the
the Commission
Commission for for thethe
purposes
purposes of of this
this Report.
Report. While
While the the Commission
Commission had had realized
realized veryvery early
early in in
its work
its work thatthat it would
would notnot be
be able
able toto deal
deal with
with each
each and
and every
every casecase ofof illegal
illegal
and irregular
and irregular allocation
allocation of of public
public land,
land, itit decided
decided to to adopt
adopt thisthis approach
approach to to
ensure
ensure that that whichever
whichever case was
case was identified
identified had to
had to bebe as as rigorously
rigorously
scrutinized as possible.
scrutinized possible.

The above
The above method
method ofof analysis
analysis was
was used
used toto process
process the
theinformation
information
received
received from
from the
the determined
determined sources.
sources.

(e)
(e) Information
Information Received
Received ininResponse
Response to
to Summons
Summons
The information
The information received
received from
from Ministries,
Ministries, State
State Corporations,
Corporations, Local Local
Authorities and
Authorities and other
other Government Institutions was
Government Institutions was of of a diverse
diverse nature
nature inin
terms of quality, complexity and relevance. It was subjected to the
terms of quality, complexity .and relevance. It was subjected to the
analytical process
analytical process described
described above.
above. The analysis
analysis revealed
revealed that that some
some of of the
the
information was totally inadequate terms of content; some was partially
information was totally inadequate in terms of content; some was partially,
adequate while
adequate while some
some was quite
quite detailed
detailed and
and went
went aa long
long wayway in
in facilitating
facilitating
the Inquiry.
the Inquiry. Where
Where the the information
information was was either
either inadequate
inadequate or or partially
partially
adequate, Summons
adequate, Summons for better particulars,
particulars, were
were sent
sent toto those
those responsible.
responsible.
The
The detailed
detailed information
information was was put
put through
through an an inventory
inventory exercise.
exercise. ThisThis
entailed the
entailed the preparation
preparation of Lists detailing the Land
Lists 'detailing Land reference
reference number,
number, the the
name of the allottee,
name allottee, the
the allocating
allocating authority,
authority, and
and the
the year
year of
of allocation.
allocation. AA
tentative conclusion
tentative conclusion as as to whether
whether the allocation
allocation was
was illegal
illegal oror irregular
irregular
was made
was made using
using the
the Checklist.
Checklist. The
The reason
reason for this
this conclusion
conclusion was was also
also
'recordedtoto aid
'recorded aid in
in the
the verification
verification process
process (for
(for example,
example, the the land
land inin
question
question may
may have
have been
been set
set aside
aside for
for aa public
public purpose
purpose hence
hence notnot available
available

28
Sichangi Adv
for allocation;
for allocation; or
or the
the person
person oror institution
institution that
that made
made the
the allocation
allocation hadhad no
no
legal
legal authority
authority to
to allocate
allocate the
the land,
land, or or the
the legal
legal procedures
procedures for forallocating
allocating
the said
the said land
land were
were not not followed,
followed, etc).etc). The
The information
information would
would thenthen be
be
subjected to
subjected to a verification process at
verification process at the
the Lands
Lands registry
registry in in the
the manner
manner
already
already described.
described.

(f) Information from Official


Information from Official Reports
Reports

As mentioned
As mentioned earlierearlier some
some important
important information
information was was derived
derived from from
various sources. A
various sources. A number
number of of official
official reports
reports proved
proved to to be
be aa critical
critical source
source
of information
of information and and the
the Commission
Commission was was mandated
mandated to to consult
consult such
such reports
reports
during its
during its inquiry.
inquiry, TwoTwo of of these
these Reports
Reports require
require special
special mention.
mention. The The first
first
one was
one was thethe Report
Report. of of aa Committee
Committee which which had had been
been appointed
appointed by by thethe
Minister for
Minister for Roads,
Roads, Public
Public Works
Works and and Housing
Housing toto investigate
investigate illegal
illegal
allocations
allocations of of Government
Government houses, road
houses, road reserves,
reserves, work work camps
camps and and
materials depots.
materials depots. TheThe Commission
Commission found found thethe Report
Report very
very useful
useful to the the
inquiry and
inquiry and indeed
indeed adopted
adopted somesome ofof its
its recommendations
recommendations particularly
particularly with with
regard to
regard to the
the illegal
illegal allocation
allocation of of Government
Government houses.houses. TheThe other
other important
important
Report was
Report was presented
presented to to the
the Commission
Commission by by the
the Ministry
Ministry of of Lands
Lands and and
Settlement. The
Settlement. The Ministry
Ministry had had set
set up
up committees
committees in in early
early 2003
2003 to to inter alia
inter alia
prepare an
prepare an Inventory
Inventory of publicpublic utility
utility lands
lands countrywide
countrywide and and toto determine
determine
the status
the status of such
such lands.
lands.

The Reports
The Reports were
were also
also Synthesized
synthesized with
with a view
view to abstracting
abstracting the the main
main andand
relevant findings
relevant findings which
which had
had been
been arrived
arrived at
at after
after systematic
systematic investigations
investigations
and inquiries
and inquiries into
into allocations
allocations of of public
public land
land by by earlier
earlier committees,
committees, task task
forces and
forces and commissions.
commissions. The The Commission
Commission has has incorporated
incorporated thesethese findings
findings
in this
in this report
report after
after some
some cross
cross referencing
referencing with
with records
records at at the
the registries
registries and
and
being
being satisfied
satisfied that
that they
they are
are credible.
credible. These
These Reports
Reports willwill nono doubt
doubt form
form an an
important source
important source of of reference
reference during
during thethe implementation
implementation of
of this
this
Commission's Recommendations.
Commission's Recommendations.

(g)
(g) Information
Information Received
Received from
from Members
Members of the Public
of the Public through
through
Letters
Letters and
and Memoranda Response to the
Memoranda in Response the Public Notice
Public Notice

The
The Commission
Commission received
received a substantial
substantial amount
amount of information
information from from the
the
public
public alleging
alleging various
various irregularities and illegalities
irregularities and illegalities inin the
the allocation
allocation of of
public land.
public land. The
The Commission
Commission had had given
given the
the public
public aa period
period of of two
two (2)
(2)
months
months within
within which
which to
to submit
submit complaints.
complaints. This
This time
time limit
limit could
could however
however

29
29
Sichangi Adv
not be
not be adhered
adhered to since
since letters
letters and
and petitions
petitions kept
kept streaming
streaming in in long
long after
after the
the
time had expired.
time had expired. The The Commission
Commission decided decided to to continue
continue receiving
receiving and and
accepting
accepting such petitions and
such petitions and memoranda.
memoranda. This decision was
This decision was arrived
arrived at at
given
given the
the importance
importance of of such
such information
information and and the
the fact
fact that
that the
the Government
Government
would use
would use recorded
recorded information
information long long after
after the
the Commission
Commission had had ceased
ceased to to
exist. The
exist. The petitions
petitions andand letters
letters from
from thethe public
public were
were therefore
therefore received
received by by
the Commission
the Commission throughout
throughout its its tenure
tenure (even
(even during
during the
the preparation
preparation of of this
this
Report).
Report).
Once
Once aa Complaint
Complaint was was received,
received, it it would
would be be classified,
classified, stored
stored and and
subjected
subjected to analysis. This
to analysis. This entailed
entailed an an elimination
elimination exercise
exercise to to determine
determine
what was
what was relevant
relevant for for the
the purposes
purposes of of the
the Commission
Commission in in the
the context
context of of the
the
Terms of Reference.
Terms Reference. Letters
Letters werewere consequently
consequently writtenwritten to to the
the complainants
complainants
informing them
informing them of of the
the status
status of of their
their complaints.
complaints. ThoseThose casescases that
that were
were
determined
determined to to bebe relevant
relevant werewere subjected
subjected to to an
an abstracting
abstracting process.
process. The The
Research Assistants
Research Assistants attached
attached to to thethe Commission
Commission preparedprepared Abstracts
Abstracts of of
each case
each case under
under thethe guidance
guidance of of thethe Commission.
Commission. Tentative
Tentative conclusions
conclusions
about an
about an illegality
illegality or or irregularity
irregularity were were mademade on on the
the basis
basis of of the
the abstracts.
abstracts.
The
The information
information was was then
then keyed
keyed into into the
the computer
computer by by thethe Data
Data Analyst
Analyst
attached
attached toto the the Commission.
Commission. The
The data data waswas thenthen subjected
subjected to to thethe
verification
verification process
process adopted
adopted for for other types of
other types of information.
information. It must must be be
pointed out
pointed out at at this
this stage
stage thatthat while
while all allthe
thecomplaints
complaints received
received went went
through the
through the initial
initial process
process of of analysis
analysis and and abstracting,
abstracting, many many could
could notnot bebe
verified due to fhe
verified due the constraints
constraints highlighted
highlighted below. below.

All the
All the public
public complaints
complaints whichwhich havehave been
been received
received by by the
the Commission
Commission
have been
have been compiled
compiled into into an
an annex
annex which
which will
will form
form the
the basis
basis for
for action
action asas
recommended in
recommended in this
this Report.
Report. The The complaints
complaints whose
whose details
details have
have been
been
verified will
verified will be
be acted
acted upon
upon in in -the
-the same
same manner
manner as as all
all other
other public
public land
land
parcels which
parcels which have have been
been determined
determined by by the
the Commission
Commission as as having
having been
been
illegally or
illegally or irregularly
irregularly allocated.
allocated. The The complainants
complainants may be
may be required
required to to
supply
supply betterbetter particulars
particulars by
by thethe implementing
implementing authority where
authority where it it isis
considered
considered necessary.
necessary. ThisThis digest
digest of of public
public complaints
complaints isis toto continuously
continuously
serve as
serve as a reference
reference point
point for
for those
those who
who would
would like
like to
to provide
provide details
details oror:
add
add to it.

(h)
(b) Information
Information from
fromVolunteers
Volunteers and
and Professional
Professional Bodies
Bodies

Apart from
Apart from information
information sent
sent in
in from
from Official
Official sources
sources in
in response
response toto the
the
Summons for
Summons for production
production of Records,
Records, the
the Commission
Commission also also received
received

30
Sichangi Adv
information
information from from past
past and
and present
present Officials
Officials of of the
the Ministry
Ministry of of Lands
Lands and and
Settlement and also local authorities such the Nairobi City Council. The
Settlement and also local authorities such as the Nairobi City Council. The
information
information was was received
received either
either onon aa voluntary
voluntary basis
basis or
or following
following private
private
interviews of some officials pursuant to a Summons to that effect. This
interviews of some officials pursuant to a Summons to that effect. This
type
type of of information
information provided
provided the the Commission
Commission with an
with an insight
insight into
into thethe
political,
political, social,
social, economic
economic and and administrative
administrative environment
environment that that fuelled
fuelled thethe
practice
practice ofof illegal
illegal and
and irregular
irregular allocations
allocations of of public
public land.
land. This
This insight
insight waswas
not just of theoretical or academic value; the Commission relied on it in
not just of theoretical or academic value; the Commission relied on it in
making
making legallegal and
and administrative
administrative recommendations
recommendations for
for the
the prevention
prevention of of
land
land grabbing
grabbing impunities
impunities in in future.
future.

Closely
Closely related
related to to the
the above,
above, was was information
information received
received from from volunteer
volunteer
members
members of of the
the public.
public. Such Such information
information camecame fromfrom public
public spirited
spirited
individuals
individuals or or crusaders
crusaders for for justice.
justice. The
The secondary
secondary records
records provided
provided by by the
the
volunteers
volunteers were were moremore detailed
detailed than
than the
the complaints
complaints received
received fromfrom the
the public
public
in response
in response to to the
the Public
Public Notice.
Notice. ThisThis information
information disclosed
disclosed extensive
extensive
illegalities and
illegalities and irregularities
irregularities in in the
the allocation
allocation of land
land reserved
reserved forfor research
research
institutions and
institutions and also
also inin settlement schemes. Some
settlement schemes. Some of of the
the information
information was was
confirmed
confirmed by by official
official records.
records.

Information
Information and contributions
and contributions by professional
by professional bodies and
bodies and non non
governmental
governmental organizations was
organizations was considered important in
considered important in clarifying
clarifying the the
Commission's mandate
Commission's mandate and and anticipating
anticipating conceptual
conceptual and
and practical
practical
difficulties that could
difficulties that could bebe generated
generated byby some
some ofof the
the recommendations
recommendations to
to be
be
made by the Commission. In this regard, the Commission received
made by the Commission. In this regard, the Commission received
memoranda
memoranda and/or
and/or held working
working sessions
sessions with
with the
the following:
following:

The Institution
1. The Institution of Surveyors
Surveyors of
of Kenya
Kenya

The Kenya
2. The Kenya Bankers
Bankers Association
Association

3. The
The Kenya
Kenya Institute
Institute of Planners
Planners

The Kenya
4. The Kenya Forestry
Forestry Working
Working Group
Group

5. The
The Justice
Justice and
and Peace
Peace Commission
Commission of
of Kenya,
Kenya, Kitale
Kitale Catholic
Catholic
Diocese
Diocese

31
Sichangi Adv
4. MEETINGS
4. MEETINGS

The Commission
The Commission initially
initially held
held weekly
weekly plenary
plenary meetings
meetings every
every Monday
Monday
during
during the
the entire
entire period
period of of the
the inquiry.
inquiry. The
The meetings
meetings provided
provided aa forum
forum at at
which
which the
the Commissioners
Commissioners ventilated their thoughts
ventilated their thoughts on on various
various aspects
aspects ofof
the inquiry.
the inquiry. As As itit isis totobebeexpected,
expected, many
many issues
issues revolving
revolving around
around thethe
problem of illegal
problem illegal oror irregular
irregular allocations
allocations of of public
public land
land did
did not
not have
have ready
ready
answers. Thus,
answers. Thus, every
every aspect
aspect of thethe inquiry
inquiry process
process had
had to
to be
be discussed,
discussed, andand
debated
debated fully
fully before
before conclusions
conclusions could could be
be arrived
arrived at.
at.

It was
It was during
during these
these weekly
weekly meetings
meetings thatthat the
the Commission
Commission was was able
able to to
review and
review and take
take stock
stock of of the
the various
various aspects
aspects of of its
itswork.
work. Strategic
Strategic
adjustments
adjustments andand modifications
modifications of of the
the work
work programme
programme were were made
made at at the
the
meetings. The
meetings. The Commission
Commission was was able
able to to devise
devise appropriate
appropriate responses
responses. to to
some
some ofof the
the challenges
challenges to its work work as as discussed
discussed in thethe section
section dealing
dealing with with
"Constraints" below.
"Constraints" below. In In between
between the the weekly
weekly meetings,
meetings, the the working
working
groups or
groups or land
land working
working teams
teams metmet on on aa daily
daily basis.
basis. During
During the the last
last two
two
months of
months of its
its tenure,
tenure, thethe Commission
Commission held held daily
daily meetings
meetings including
including
Saturdays and
Saturdays and Sundays.
Sundays. ThisThis waswas necessitated
necessitated by by the
the mass
mass of of information
information
which had
which had come
come intointo the
the Commission's
Commission's possession
possession fromfrom diverse
diverse sources.
sources.
The information
The information had had to
to be
be sifted
sifted and
and analyzed.
analyzed. Complaints
Complaints and and Petitions
Petitions
from the
from the public
public came
came in in varying
varying degrees
degrees of of detail,
detail, relevance,
relevance, clarity
clarity and
and
complexity. This
complexity. This meant
meant thethe Commission
Commission had had toto read
read andand classify
classify the the
information for purposes
information purposes of of deriving
deriving aa matrix
matrix for
for future
future action.
action.

5. MONTHL
5. MONTHLYY PROGRESS
PROGRESS REPORTS
REPORTS

The
The Commission
Commission prepared
prepared and
and submitted
submitted monthly
monthly progress
progress reports
reports about
about
the inquiry
the inquiry toto the
the Minister
Minister ofof Lands
Lands and and Settlement.
Settlement. This
This was
was in in
conformity with
conformity with term
term of
of reference
reference (h)
(h) of the
the Gazette
Gazette Notice
Notice appointing
appointing thethe
Commission. The
Commission. The progress
progress reports
reports not
not only
only kept
kept the
the Minister
Minister abreast
abreast of
of the
the.
inquiry, but
inquiry, but provided
provided an an opportunity
opportunity for for both
both the
the Commission
Commission and and
Government to continually
Government continually appraise
appraise the magnitude of the
themagnitude the problem.
problem.

6.
6. FIELD
FIELD VISITS
VISITS

One
One ofof the
the terms
terms ofof reference
reference required
required the
the Commission
Commission to to prepare
prepare a list
list of
all
all lands
lands unlawfully
unlawfully or or irregularly
irregularly allocated,
allocated, specifying
specifying particulars
particulars of thethe
lands
lands and
and of persons
persons toto whom
whom they
they were
were allocated,
allocated, the
the date
date of
of allocation,
allocation,

32
Sichangi Adv
particulars of
particulars of all
all subsequent dealings in
subsequent dealings in the
the lands
lands concerned
concerned and their
and their
current ownership
current ownership and and development
development status.status. This
This particular
particular requirement
requirement
meant that
meant that the
the Commission
Commission had had to
to conduct
conduct sitesite visits
visits to
to verify
verify the
the situation
situation
on the
on the ground
ground as as compared
compared to to that
that on
on paper.
paper. ForFor example,
example, aaparticular
particular
parcel of
parcel of land
land would
would be be represented
represented on on the
the land
land maps
maps as as aa forest,
forest, while
while onon
the ground
the ground it hadhad changed
changed intointo aa settlement
settlement scheme
scheme or or farmland.
farmland. ItIt was
was
therefore important
therefore important thatthat the
the Commission
Commission appraises itself of
appraises itself of the
the correct
correct
position regarding
position regarding the
the land.
land.

Site visits
Site visits were
were also
also important
important in enabling
enabling the the Commission
Commission determine
determine the the
extent to
extent to which
which lands
lands set
set aside
aside forfor public
public purposes
purposes (such(such asas road
road reserves,
reserves,
school
school playgrounds,
playgrounds, stadia,
stadia, e.t.c)
e.t.c) had
had been
been grabbed
grabbed and and later
later developed.
developed.
The
The records
records at at the
the Ministry
Ministry of of Lands
Lands andand Settlement
Settlement did did not
not have
have allall the
the
particulars regarding
particulars regarding the the allocation
allocation of of public
public landslands within
within municipalities
municipalities
and townships
and townships out out of
of Nairobi.
Nairobi. This
This meant
meant that
that the
the Commission
Commission had had toto visit
visit
district land
district land registries
registries inin order
order to to obtain
obtain and
and verify
verify information
information relating
relating to to
lands which
lands which had had been
been illegally
illegally and and irregularly
irregularly allocated.
allocated. However,
However, the the
district land
district land registries
registries did
did not
not also
also have
have all
all the
the relevant
relevant information.
information.

7. CONSULTATIVE
7. CONSULTATIVE WORKSHOP
WORKSHOP WITH
WITH OFFICIALS
OFFICIALS FROM
FROM
MINISTRIES
MINISTRIES

In December
December 2003,2003, the Commission
Commission organized
organized aa consultative
consultative workshop
workshop at at
which
which keykey officials
officials from
from various
various ministries
ministries were
were invited
invited to
to make
make
presentations
presentations on on a number
number of issues.
issues. The following
following ministries
ministries were
were invited
invited
to participate:
participate:

1. Ministry
Ministry of Lands
Lands and Settlement
Settlement
2. Ministry
Ministry of Roads,
Roads, Public
Public Works
Works and Housing
Housing
3. Ministry of Water
Ministry Water Resources
Resources Management
Management and Development
Development
4. Ministry of Environment,
Ministry Environment, Natural
Natural Resources
Resources and Wildlife
Wildlife
5. Office
Office of the Vice
Vice President
President and Ministry
Ministry of Home
Home Affairs
Affairs
6. Ministry of Livestock
Ministry Livestock and Fisheries
Fisheries Development
Development
7. Ministry of Local
Ministry Local Government
Government
8. Ministry of Agriculture
Ministry Agriculture
9. Office of the President
Office President

The criteria
The criteria for identification
identification of the
the ministries
ministries were
were based
based on
on aa number
number of
of
factors. These
factors. These included
included such
such factors
factors as
as the
the legal
legal and
andadministrative
administrative

33
Sichangi Adv
jurisdiction that
jurisdiction that the
the specific
specific ministry
ministry has has over
over public
public land,
land, the
the amount
amount of of
public
public land
land held
held by
by aa ministry
ministry forfor its
its purposes,
purposes, the
the type
type and
and amount
amount of of
public
public land
land managed
managed by a specific
specific ministry.
ministry. ItI! was
was also
also considered
considered ifif from
from
the available
the available records,
records, aa specific
specific ministry
ministry hadhad apparently
apparently lost
lost large
large chunks
chunks
of its land
of land through
through illegal
illegal and
and irregular
irregular allocations
allocations and
and whether
whether aaministry
ministry
would be
would be aa key
key player
player ininthe
theimplementation
implementation of of some
some of of the
therecom-
recom-
mendations that
mendations that the Commission
Commission was was bound
bound toto make.
make.

The
The main
main objective
objective ofof the
the workshop
workshop was was toto give
give the
the Commission
Commission aa forum forum
to
to understand
understand and and appreciate
appreciate some
some of of the
the administrative
administrative and and operational
operational
environments under
environments under which
which ministries
ministries lostlost their
their land
land through
through illegal
illegal and
and
irregular allocations. Secondly,
irregular allocations. Secondly, the the Commission
Commission intendedintended to to give
give thethe
specified
specified ministries
ministries an opportunity to
an opportunity make suggestions
to make suggestions on on the
the way
way to to
prevent land
prevent land grabbing
grabbing in the the future.
future. This
This waswas considered
considered necessary
necessary so so as
as to
to
make
make thethe ministries
ministries bebe part
part of
of the
the overall
overall solution
solution toto the
the problem
problem underunder
inquiry. In this
inquiry. this regard,
regard, the
the ministries
ministries were
were requested
requested to to give
give their
their views
views on on
the
the following:
following:

• Legal, administrative
Legal, administrative andand policy
policy measures
measures thatthat should
should bebe taken
taken for
for
the
the restoration
restoration of illegally
illegally and
and irregularly
irregularly acquired
acquired public
public lands
lands to to
their
their proper
proper title
• Legal, administrative
Legal, administrative policy
policy measures
measures that
that should
should be be taken
taken inin cases
cases
where
where such
such lands
lands cannot
cannot be restored
restored to their
their proper
proper purpose
purpose and;
and;
• Measures to prevent
Measures prevent such
such illegal
illegal and
and irregular
irregular allocations
allocations of of public
public
land in future
land future

At the
At the end
end of
of the
the workshop,
workshop, thethe Commission
Commission was was able
able to
to determine
determine thethe
extent to
extent to which
which some
some of
of the
the recommendations
recommendations itit was was in thethe process
process ofof
making were in accord
making were accord with
with the official
official thinking
thinking or not.
not. It was
was also
also able
able to
to
determine
determine whether
whether the government fully
the government appreciated what
fully appreciated what inin the
the
Commission's opinion
Commission's opinion were
were the
the causes
causes of
of illegal
illegal and
and irregular
irregular allocations
allocations
of public
public land.
land.

8. THE
THE COMMISSION'S
COMMISSION'S CONTACT
CONTACT WITH
WITH THE
THE PUBLIC
PUBLIC

Although the Commission's


Although the Commission's inquiry
inquiry entailed
entailed mainly
mainly the
the examination
examination of of
records
records and
and documents,
documents, the
the importance
importance of of maintaining
maintaining contact
contact with
with the
the
\public
PUbliC waswas considered
considered necessary
necessary at at the
the outset. The nature
outset. The nature of
of the
the subject
subject
. matter
~atter of the
the inquiry
inquiry was such
such that
that constant
constant communication
communication with
with the
the public
public
\
34
Sichangi Adv
had to
had to be
be maintained.
maintained. TheThe most
most immediate
immediate wayway of of maintaining
maintaining this this contact
contact
was through
was through the.publication
the.publication of
of relevant
relevant notices
notices in in the
the print
print and
and electronic
electronic
media.
media. TheThe notices
notices toto the
the public
public took
took the
the form
form of aa callcall for
for information
information or or aa
caution
caution to to the
the public.
public. The
The cautions
cautions werewere aimed
aimed at at alerting
alerting thethe public
public about
about
certain
certain factsfacts regarding
regarding public
public land.
land. This
This strategy
strategy was was considered
considered
appropriate
appropriate given given the fact that
the fact that unscrupulous
unscrupulous beneficiaries
beneficiaries of illegal
of illegal andand
irregular allocations
irregular allocations of public land
of public hind would
would anticipate
anticipate the the outcome
outcome of of the
the
Commission's
Commission's work and
work and seek
seek to to defeat
defeat the
the same
same at at the
the expense
expense of of the
the
public.
public. (See
(See Appendix
Appendix 8). 8).

(a)
(a) Public
Public Hearings
Hearings

In addition
addition to the use of of public
public notices
notices through
through the
the media,
media, thethe Commission
Commission
scheduled aa number
scheduled number of publicpublic hearings.
hearings. These
These hearings
hearings were
were toto take
take two
two
forms
forms namely, Forums and
namely, Forums Thematic Hearings.
and Thematic Hearings. Public
Public forums
forums werewere toto be
be
held at
held at provincial
provincial level.
level. The main objective
The main objective of these forums
of these forums was was to.to
introduce the Commission
introduce the Commission to to the public. This would provide a
public. This would provide a forum for forum for
the Commission
the Commission to explain and
to explain and clarify
clarify its' mandate
mandate (as(as contained
contained in in the
the
terms of reference) to the people. The forums would also enable the
terms of reference) to the people. The forums would also enable the
Commission to
Commission to gauge
gauge thethe intensity
intensity of public
public feeling
feeling about
about thethe problem
problem of of
land grabbing
land grabbing and and the peoples' prescriptions on how to solve
peoples' prescriptions on how to solve and preventand prevent
the
the problem.
problem. The The Commission
Commission would would also
also be
be able
able to
to place
place its
itsInquiry
Inquiry
within the context of the wider national anti- corruption strategy
within the context of the wider national anti- corruption strategy that the that the
Government
Government had had embarked
erribarked on. on. Lastly,
Lastly, these
these forums
forums would
would enable
enable the the
Commission to de-politicize its Inquiry.
Commission to de-politicize its Inquiry.

(b) Theniatic
The~atic Hearings
Hearings

As their
As their title suggests,
suggests, these
these hearings
hearings were
were designed
designed toto conform
conform to to certain
certain
themes on
themes on illegal
illegal and
and irregular
irregular allocation
allocation ofof public
public land.
land. The
The hearings
hearings
would
would be be based
based on on specific
specific cases
cases identified
identified by
by the
the working
working teams.
teams. They
They
would
would conform
conform to to the various
various categories
categories of public
public land
land identified
identified byby the
the
Commission. Hence,
Commission. Hence, specific
specific hearings
hearings would
would bebe held
held onon forests,
forests, urban
urban
land, land
land, land held
held by
by State
State Corporations,
Corporations, trust
trust land,
land, settlement
settlement schemes
schemes and and
land
land reserved
reserved or dedicated
dedicated for a public
public purpose.
purpose. These
These hearings
hearings would
would be be
educative as
educative as well
well asas investigative. They would
investigative. They would assist
assist the
the public
public toto
understand
understand somesome ofof legal
legal and
and social
social complexities
complexities regarding
regarding the the illegal
illegal
allocation of public land.
allocation land.

35
Sichangi Adv
The hearings
The hearings would wouldbebe designed
designedinin such such aa way
way as as toto enable
enable the the
Commission
Commission cover cover significant
significant historical
historical epochs
epochs when
when such
such allocations
allocations took
took
place.
place. The
The first
first thematic_ hearing would
thematic. hearing would be be held
held inin Nairobi
Nairobi followed
followed by by
seven
seven others
others at provincial
provincial level.
level. No
No generalized
generalized testimonies
testimonies aboutabout the
the land
land
problem
problem wouldwould be be entertained.
entertained. TheThe Commission
Commission would would as as far
far as
as possible
possible
restrict itself to
restrict itself to allocations
allocations of "public
"public land"
land" as
as defined.
defined. The
The hearings
hearings would
would
complement
complement the Commission's
the Commission's overall
overall methodology
methodology of of information
information
gathering,
gathering, and and analysis.
analysis. A A hearing
hearing schedule would be
schedule would be published
published in good good
time for the public to prepare.
time for the public to prepare.

9. CONSTRAINTS
9. CONSTRAINTS AND CHALLENGES
AND CHALLENGES FACED BY
FACED BY THE
THE
COMMISSION
COMMISSION

As
As it is
is to
to be
be expected
expected inin an
an Inquiry
Inquiry ofof this
this kind
kind and
and magnitude,
magnitude, the the
Commission faced
Commission faced a number
number of of constraints
constraints and
and challenges
challenges in in the
the process
process ofof
its work.
its work. Some
Some of of the
the problems
problems were
were resolved
resolved after
after some
some time
time while
while others
others
continued to
continued to adversely
adversely affect
affect the
the Commission
Commission throughout
throughout itsits tenure.
tenure. These
These
problems affected
problems affected the
the work
work of
of the
the commission
commission in varying
varying degrees.
degrees.

(a)
(a) The
TheTime
Time Period
Period

One of
One of the
the most
mostintractable
intractable problems
problems thatthat faced
faced the theCommission
Commission
throughout its
throughout its tenure
tenure was was the limited
limited time
time within
within which
which itit was was toto conduct
conduct
and
and complete
complete its its inquiry.
inquiry. The The Commission
Commission was was directed
directed to to report
report its its
findings and
findings and anyany such
such recommendations
recommendations withinwithin a period
period of of one
one hundred
hundred
and
and eighty
eighty (180)
(180) days from from the
the date
date of
of gazettement.
gazettement. The The limitation
limitation of of time
time
by the
by the appointing
appointing instrument
instrument.had had a lot ofof merit
merit inin that
that itit emphasized
emphasized the the
need
need to deal
deal with
with thethe problem
problem atat hand
hand expeditiously.
expeditiously. ItIt also also forced
forced the the
Commission to be focused
Commission focused from
from the
the very
very beginning
beginning of of its
itsInquiry.
Inquiry. Lastly,
Lastly,
the
the time
time limit meant
meant thatthat the
the Commission
Commission wouldwould conclude
conclude its its work
work without
without
exerting too much cost on
exerting on the
the Exchequer.
Exchequer.

These advantages
These advantages were
were however
however diminished
diminished by the fact that the magnitude
magnitude
and
and extent
extent of illegal
illegal and
and irregular
irregular allocations
allocations ofof public
public land
land had
had been
been
grossly
grossly underestimated.
underestimated. No sooner
sooner had had information
information started
started streaming
streaming into
into
the Commission's
the Commission's secretariat,
secretariat, than
than itit was
was realized
realized that
that the problem
problem waswas so
so
exiensive and
extensive and complex
complex that
that it would
would not not be possible
possible toto unravel
unravel it within
within a
period of one
period one hundred
hundred and and eighty
eighty (180)
(180) days.
days. Initial
Initial evidence
evidence received
received
indicated that
indicated that land grabbing
grabbing was
was aa country
country wide
wide problem.
problem. ItIt had
had occurred
occurred

36
Sichangi Adv
at
at different
different periods inin the
periods the Country's
Country's history
history and
and had
had taken
taken many
many forms.
forms. ItIt
would
would not not bebe possible
possible to to deal
deal with
with every
every aspect
aspect of
of the
the Inquiry
Inquiry within
within the
the
wording of the terms of reference.
wording of the terms of reference.

The
The Commission
Commission would
would require
require aa time
time period
period far
far longer
longer than
than that
that assigned
assigned
by the
by the appointing
appointing Authority.
Authority.

Another
Another time related
time related factor
factor thatthat had
had not
not been
been adequately
adequately appreciated
appreciated was
was
the period it
the period it would
would take take for
for the
the Commission's
Commission's Secretariat
Secretariat to
to be
be established
established
in
in terms
terms of of office
office space,
space, equipment
equipment and
and personnel.
personnel. ItIt took
took at at least
least two
two
months
months before
before the the Commission
Commission was
was fully
fully established
established toto systematically
systematically
embark
embark uponupon its its work.
work. This
This meant
meant that
that the
the Commission
Commission was
was only
only ableable to
to
commence
commence the
the substantive
substantive inquiry
inquiry sometime
sometime in in early
early September
September 2003. 2003.

The time
The time related
related constraints
constraints affected the Commission
affected the Commission in
in aa number
number of
of ways
ways
forcing it to adjust its work plan and aspects of its methodology:
forcing it to adjust its work plan and aspects of its methodology:

•• Firstly
Firstly and
and foremost,
foremost, the
the Commission
Commission could
could notnot manage
manage to to report
report
after one
after one hundred
hundred and eighty
and (180) days.
eighty (180) days. ItsIts tenure
tenure had
had to to be
be
extended for
extended for an
an extra
extra ninety
ninety (90)
(90) days
days to to enable
enable itit finalize
finalize its its
report.
report. .

• Secondly, the
Secondly, the Commission
Commission had toto cut
had cut down
down on on some
some of of itsits planned
planned
activities. In this regard, it was only able to conduct limited site
activities. In this regard, it was only able to conduct limited site
visits to
visits to determine
determine the
the status
status of of development
development of
of identified
identified public
public
land. While
land. While many
many visits
visits to to provincial
provincial registries
registries were were conducted
conducted for
for
verificationpurposes,
verification purposes,notnot all all registries
registries could be
could be visited.
visited. The The
Commission was
Commission was only
only ableable to to verify
verify aa limited
limited number
number of of public
public
complaints
complaints received in
received in resporise
response to to the
the notice
notice for for information.
information.

•• Thirdly, only
Thirdly, only one
one public forum could
public forum could be
be held
held and
and that
that in
in Nairobi.
Nairobi.

•• Fourthly,
Fourthly, the Commission
the Commission had toto abandon
had. abandon some
some ofof its
its planned
planned
activities altogether.
activities altogether.ItIt was
was not
not possible
possible to
to mount
mount the
the planned
planned
thematic hearings
thematic hearings at at all.
all.

(b) Missing,
Missing,Inaccurate,
Inaccurate, and
andIncomplete
Incomplete Records
Records

The bulk of the Commission's


The bulk Commission's work
work entailed
entailed the examination
examination ofof records
records atat
the
the Ministry
Ministry of Lands
Lands and
and Settlement.
Settlement. It was
was envisaged
envisaged that
that most
most of
of the
the

37
37
Sichangi Adv
information regarding
information regarding thethe illegal
illegal and
and irregular
irregular allocations
allocations of of public
public land
land
would be
would be found
found by by perusing
perusing the the relevant
relevant files.
files. This
This waswas necessary
necessary to to
establish the
establish the history
history ofof allocations
allocations and and transactions
transactions relating
relating to to aa given
given
parcel of
parcel of land
land to to ensure
ensure accuracy.
accuracy. Unfortunately,
Unfortunately, throughout
throughout its its tenure,
tenure, the
the
Commission would
Commission would bebe inhibited
inhibited by the the problem
problem of of missing,
missing, inaccurate
inaccurate and and
incomplete records
incomplete records at at the
the Ministry.
Ministry. HighHigh profile
profile cases
cases of
of land
land grabbing
grabbing
(such as
(such as the
the Karura,
Karura, Ngong,
Ngong, Mau and other
Mau "and other Forests,
Forests, thethe Northern
Northern and and
Southern Nairobi
Southern Nairobi By By passes,
passes, town
town andand municipal
municipal stadia
stadia etc)
etc) could
could not not bebe
verified easily
verified easily because
because relevant
relevant files
files had
had gone
gone missing.
missing. In In the
the view
view of of the
the
Commision,this
Commision, this was
was nono accident
accident and and no no reflection
reflection on on the the general
general
I .
competence and
competence accuracy ofof the
and accurac9y the Records
Records Department.
Department. ItIt seemedseemed to to bebe
deliberate.
deliberate.

In certain
In certain instances,
instances, thethe available
available records
records werewereeither
either.. inaccurate
inaccurate or or
incomplete inin material
incomplete material particulars.
particulars. TheThe overall
overall effect
effect waswas that
that thethe
Commission could
Commission could not
not prepare
prepare allall the
the lists
lists of
of allocations
allocations on on the
the basis
basis ofof
these records.
these records. This
This problem
problem meant
meant that the Commission
Commission spentspent aa lot
lot of
of time
time
updating the
updating the lists
lists of allocations
allocations with a limited
limited degree
degree of success
success inin certain
certain
cases.
cases. Some
Some ofofthe thelists
listsprepared
prepared for forthis
thisreport
reporttherefore
therefore remain
remain
incomplete. (See Vol.
incomplete. Vol~JI and II ofof the Annexes).

(c) Inadequate
Inadequate and
andIrrelevant
Irrelevant Information
Information Received
Received in
inResponse
Response to
to
Summons
Summons

As indicated
indicated earlier,
earlier, the Commission
Commission issued
issued aa Summons
Summons for for the
the production
production
of records
of records and
and information
information totoministries,
ministries, departments,
departments, local
local authorities,
authorities,
state corporations and other government institutions. The information
state corporations and otherI
government institutions. The information
required
required was specified
specified inin the
the summons.
summons. A A prescribed
prescribed form
form was
was enclosed
enclosed in
in
the summons guide the respondents in answering to the summons.
the summons to guide the respondents in answering to the summons.
Through
Through thisthis summons,
summons, the the Commission
Commission hoped hoped to to obtain
obtain information
information
regarding the following:
regarding following:

1. The
The amount
amount of public
public land held by the institution
institution since 1962
1962
2. The
The amount
amount of of land
land acquired
acquired byby the
the institution
institution since
since its
its inception
inception
and the price
and price paid
3.. The
3.. The list
list and
andparticulars
particulars of
of public
public land
land allocated
allocated or sold
sold byby the
the
institution
institution to individuals
individuals and corporations
corporations during
during this
this. period
period and
and
the
the price
price obtained
obtained

38
Sichangi Adv
4. The
4. The list
listand
andparticulars
particulars ofofland
land sosoallocated
allocated which
which may
may have
have been
been
allocated illegally or irregularly
allocated illegally or irregularly
Once
Once it received
received such
such information,
information, the the Commission
Commission would would cross
cross reference
reference
the
the same
same with
with the
the records
records at at the
the Ministry
Ministry of of Lands
Lands for for purposes
purposes of of
verification and
verification and compilation.
compilation. Unfortunately,
Unfortunately, the the returns
returns from
from these
these official
official
sources were highly inadequate. Some institutions sent in massive volumes
sources were highly inadequate. Some institutions sent in massive volumes
of
of information
information whichwhich however
however were were largely
largely or or totally
totally irrelevant.
irrelevant. Some
Some
information
information so so sent
sent in was
was found
found to to be
be inadequate
inadequate for for the
the purposes
purposes of of the
the
Commission.
Commission. Some Some ministries,
ministries, state
state corporations
corporations and and local
local authorities
authorities diddid
not
not send
send inin the
the required
required information
information at at all
all either
either out
out ofof negligence
negligence or or
intentionally.
intentionally.
To deal
To deal with
with this,
this, the
the Commission
Commission had had toto re-issue
re-issue the the Summons
Summons toto those those
who
who had
had not
not complied.
complied. This This took
took a lot
lot of
of the
the Commission's
Commission's time. time. ItIt later
later
transpired that some
transpired that some of the the institutions
institutions sent
sent in in irrelevant
irrelevant information.
information. The The
Commission had
Commission had to redesign
redesign thethe Form
Form so so asas toto elicit
elicit relevant
relevant information.
information.
The
The Commission
Commission howevercannot
however cannotrule rule outout sabotage
sabotage of of its
its work
work by by
individual officers
individual officers given
given thethe fact
fact that
that the
the reluctance
reluctance to provideprovide information
information
persisted
persisted to,to the
the very
very end.
end. Returns
Returns from
from County
County and and Municipal
Municipal Councils
Councils
were the
were the worst
worst in in this
this regard.
regard. The
The Commission
Commission was was unable
unable to to get
get the
the
necessary cooperation from
necessary cooperation from the
the Nairobi
Nairobi City City Council
Council and and other
other local
local
authorities despite
authorities despite intervention
intervention by by the
the Permanent
Permanent SecretarySecretary for for Local
Local
Government.
Government. The The Commission
Commission was was therefore
therefore unableunable to to establish
establish the the full
full
extent of land
extent of land grabbing
grabbing in areas
areas administered
administered by local local authorities.
authorities.

(d) The
(d) TheDiversity
Diversity ofofPublic
Public Complaints
Complaints

As
As already
already indicated, one of
indicated, one of the
the main
main sources
sources of of information
information to to the
the
Commission
Commission were were the
the Complaints
Complaints from from members
members of of the
the public.
public. TheThe
Complaints came in by
Complaints carne by way
way ofof written
written letters,
letters, memoranda
memoranda and and petitions.
petitions.
The complaints
The complaints were
were in
in varying
varying degrees
degrees of of clarity,
clarity, relevance,
relevance, detail
detail and
and
complexity.
complexity. TheThe Commission
Commission had had toto examine
examine all all these
these totodetermine
determine
whether
whether aa specific
specific complaint
complaint fell
fell within
within itsits mandate.
mandate. It It had
had also
also to
to notify
notify
the
the complainants about the
complainants about the status
status ofof their
their complaint.
complaint. To To deal
deal with
with these
these
complaints,
complaints, the
the Commission
Commission had had to verify
verify the
the information
information at at the
the Ministry
Ministry
of Lands.
Lands.
Unfortunately,
Unfortunately, the
the majority
majority ofof the
the complaints
complaints referred
referred to
to parcels
parcels of
of land
land in
in
general terms which
general terms which could
could not
not enable
enable aa conclusive
conclusive search
search to
to be
be conducted.
conducted.
Where such
Where such particulars
particulars as
as the
the Land
Land Reference
Reference number
number were
were provided,
provided, the
the

39
Sichangi Adv
problem of
problem of missing
missing files
files would
would return
'return toto haunt
haunt the
the Commission.
Commission. TheseThese
problems notwithstanding, the
problems notwithstanding, the Commission
Commission found found this
this information
information fromfrom
the public
the public to be most
most useful.
useful. ItIt was
was able
able to
to appreciate
appreciate thethe nature
nature and
and extent
extent
of land
of land grabbing
grabbing in the the country.
country. TheThe Digest
Digest of of Public
Public Complaints
Complaints which
which
appears as
appears as one
one ofof the
the Annexes
Annexes to this this Report
Report willwill form
form aa sound
sound base
base of of
investigation and
investigation and enforcement
enforcement of of the
the recommendations
recommendations appearingappearing in in the
the
Report. All
Report. All those
those cases
cases received
received and and listed
listed inin this
this Annex
Annex have
have to to bebe
addressed on the
addressed the basis
basis ofof the
the Recommendations.
Recommendations.
(e)
(e) Missing Company
Missing Company Records
Records at
at the
the Registry
Registry of Companies
Companies
The Commission
The discoveredquite
Commission discovered quite early
early in
in its
its work
work that
that many
many illegal
illegal
allocations of
allocations of public
public land
land were
were made
made notnot to
to individuals
individuals but companies.
but , companies.
These companies
These companies were
were ostensibly
ostensibly registered
registered at thethe Registry
Registry of of Companies
Companies
in conformity
in conformity with
with the
the requirements
requirements of thethe Companies
Companies Act, Act, Cap
Cap 486 of of the
the
Laws of Kenya.
Laws Kenya. The
The Commission
Commission wouldwould not
not have
have fulfilled
fulfilled one
one of of its
its Terms
Terms
of Reference
of Reference if it did
did not
not disclose
disclose the
the names
names of of the
the people
people (either
(either directors
directors
or share
or share holders)
holders) behind
behind these
these companies.
companies. This This meant
meant that that in in many
many
instances, a single
instances, single title
title of land
land required
required aa double
double search
search atat the
the Ministry
Ministry of of
Lands
Lands and at the Registry
Registry ofof Companies.
Companies.
Yet the
Yet the problem
problem of of missing
missing records
records was just as
was just as pronounced
pronounced at the the latter
latter
registry
registry as thethe former.
former. TheThe Commission
Commission received
received full full cooperation
cooperation from from the
the
Registrar
Registrar of of Companies
Companies OfficeOffice Gust
(just as
as it did
did from
from the
the Ministry
Ministry of of Lands,
Lands,
and Settlement)
and Settlement) but but the
the problem
problem of missing
missing records
records could
could notnot just
just gogo away.
away.
It
It is now
now aa real
real possibility
possibility that
that some
some of of these
these companies
companies to to which
which public
public
land
land was
was allocated
allocated diddid not
not actually
actually exist
exist in law.
law. Individuals
Individuals are said said to have
have
acquired blank
acquired blank Certificate
Certificate of of Incorporation
Incorporation Forms either
Forms either from from the the
companies' registry or
companies' .registry or elsewhere
elsewhere which
which they they then
then used
used to to bebe allocated
allocated
public land.
public land. Some
Some companies
companies were were allocated
allocated land land before
before theythey hadhad been
been
incorporated
incorporated under under thethe law.
law. Some
Some other
other companies
companies were were specifically
specifically
formed
formed and and incorporated
incorporated for for the
the purpose
purpose of acquiring
acquiring public
public land.
land. In In yet
yet
other
other instances,
instances, somesome companies
companies had had mere
mere nominee
nominee directors
directors while
while details
details
of the
of the real
real shareholders
shareholders were were not
not disclosed.
disclosed. Thus Thus thethe line
line ofof illegality
illegality isis
long.
long. ForFor a a list
list of
ofcompanies
companies that that were
were allocated
allocated land land and and whosewhose
particulars were
particulars were yet to to be
be found
found at at the
the time
time of of writing
writing thisthis Report,
Report, (see (see
Annexes
Annexes 11and
and 22in
in Volume
Volume II of
of the
the Annexes).
Annexes).
(f)
(0 Operating Social
Operating Social and
and Political
Political Environment
Environment
The
The land
land question
question forms
forms an
an integral
integral part of Kenya's
Kenya's social,
social, economic
economic and
and
political
political history.
history. Long
Long before
before and
and after
after independence,
independence, itit remains
remains the most
themost

40
Sichangi Adv
debated and
debated and highly
highly emotive
emotive issue
issue in the
the Country's
Country's political
political discourse
discourse andand
development agenda. It
development agenda. It is therefore
therefore notnot surprising
surprising thatthat the
the appointment
appointment of of
this
this Commission
Commission to look
to look into
into one
one aspect
aspect of of the
the land
land problem
problem i.e.i.e. public
public
land
land grabbing
grabbing was bound.
was bound toto set set inin motion
motion aa seriesseries of of events
events andand
occurrences
occurrences that
that would
would pose
pose aa challenge
challenge to to the
the Inquiry.
Inquiry.

Public
Public reaction
reaction toto the
the Commission
Commission was was threefold.
threefold. A A large
large majority
majority of of,the
the
public
public welcomed
welcomed the the Inquiry
Inquiry with
with the the expectation
expectation that that the
the problem
problem of of land
land
grabbing would be solved once and for all. They looked forward to the
grabbing would be solved once and for all. They looked forward to the
immediate repossession and
immediate repossession and restoration
restoration of of public
public land.
land. Some
Some expected
expected the the
immediate
immediate prosecutionofof the
prosecution the culprits.
culprits. Another section of
Another section of the
the public
public
received the
received the news
news of of thethe Commission's
Commission's appointment
appointment with
with fearfear andand
trepidation. This
trepidation. This group
group comprised
comprised of of those
those who who were
were beneficiaries
beneficiaries of
of
illegal and
illegal and irregular
irregular allocations
allocations of of public
public land.
land. This
This category
category set set out
out to to
frustrate the work of the Commission from the beginning by either rushing
frustrate the work of the Commission from the beginning by either rushing
to develop
to develop their
their land
land (in (in the
the belief
belief thatthat once
once developed,
developed, the the land
land could
could not not
be repossessed) or to dispose of it. The last group sought to politicize and
be repossessed) or to dispose of it. The last group sought to politicize and
ethnicize the
ethnicize the work
work of of thethe Commission
Commission by misinforming
misinforming communities
communities to to the
the
effect that
effect that they
they were
were targets
targets of victimization.
victimization.

Thus throughout
Thus throughout the the Inquiry,
Inquiry, the
the Commission
Commission had
had to
to tread
tread the
the delicate
delicate
route of
route of heightened
heightened (and
(and in
in some
some instances
instances unrealistic)
unrealistic) expectations
expectations byby the
the
public, misinformation
public, misinformation and and misrepresentation
misrepresentation of
of its
its work.
work.

(g) Addressing the


(g) Addressing theConstraints
Constraints and
and Challenges
Challenges

There is
There is no
no doubt
doubt that
that these
these constraints
constraints affected
affected the
the inquiry
inquiry in in one
one wayway or or
another. But as already indicated, the Commission had to keep devising
another .. But as already indicated, the Commission had to keep devising
ways to
ways to surmount
surmount the the problems
problems posed. posed. While
While the the Commission
Commission did did notnot
succeed in preparing a list of every conceivable illegal or irregular
succeed in preparing a list of every conceivable illegal or irregular
allocation of
allocation of public
public land
land in in the
the country,
country, itit managed
managed to to identify
identify manymany such such
allocations which are highlighted the annexes to this report. In the same
allocations which are highlighted in the annexes to this report. In the same
vein, while
vein, while itit waswas not not possible
possible for for the
the Commission
Commission to
to verify
verify all all the
the
information
information itit had had received
received from from members
members of of the
the public,
public, itit managed
managed toto
compile aa comprehensive
compile comprehensive digest of
digest of suspected
suspected illegal
illegal and and irregular
irregular
allocations based on public complaints, which must be investigated in
allocations based on public complaints, which must be investigated in the
the
near
near future
future so so asas to
to decisively
decisively deal deal with
with thethe problem
problem of of land
land grabbing.
grabbing.
Most importantly, the
Most importantly, the Commission
Commission got
got adequate
adequate information
information on
on which
which
it has
it has based
based its
its findings
findings and
and recommendations
recommendations which
which should
should be
be used
used to
to

41
Sichangi Adv
rectify the problem
rectify the problem now now and
and ininthe thefuture.
future. The
TheRecommendations
Recommendations
made
made by by this
this Commission
Commission are are not
not only
only applicable
applicable to to the
the titles
titles listed,
listed, .
but to all illegal
but to illegal titles.
titles. The
The illegal
illegal oror irregular
irregular allocations
allocations listed
listed in
in this
this
Report may very
Report may very well
well just
just be
be the
the tip
tip of
of the
the iceberg.
iceberg.

42
Sichangi Adv
PART THREE
PART THREE
THE LAW
THE LAW RELATING
RELATING TO
TO THE
THE ALLOCATION
ALLOCATION OF
OF
PUBLIC LAND
PUBLIC LAND IN
IN KENYA
KENYA
1. Introduction
Introduction

In
In this
this chapter,
chapter, wewe briefly
briefly address
address the
the relevant
relevant legal
legal provisions
provisions whichwhich setset
out
out the
the manner
manner inin which public land
which.public land may
may bebe allocated.
allocated. We We also
also discuss
discuss thethe
ways
ways in in which
which these
these laws
laws have
have been
been disregarded
disregarded thus thus leading
leading to to the
the illegal
illegal
allocation
allocation of of public
public land,
land, hence
hence this
this Inquiry.
Inquiry. But
But first
first the
the definitions
definitions of of
public
public land
land and
and critical
sritical terms
terms which
which are
are used
used throughout
thro ghout this this Report
Report are are
highlighted
highlighted below.
below.

The Legal
2. The Legal Meaning
Meaning of
of Land
Land in
in Kenya
Kenya

LAND,
LAND, in in Kenya
Kenya means
means the the soil
soil and
and everything
everything aboveabove andand below
below it. it. ItIt
includes
includes any any estate
estate or
or interest
interest in in the
the land
land plus
plus all
all permanent
permanent fixtures,
fixtures, and and
buildings,
buildings, together
together with
with allall paths,
paths, passages,
passages, ways,
ways, waters,
waters, watercourses,
watercourses,
liberties,
liberties, privileges,
privileges, easements, plantations
easements, plantations and and gardens
gardens thereon
thereon or or
thereunder. However, certain
thereunder. However, certain items
items areare specifically
specifically excluded
excluded by by legislation
legislation
such
such that
that even
even if anan individual
individual were were to to acquire
acquire title
title to
to land,
land, such
such items
items
would remain
would remain vested
vested in in the
the Government.
Government. (an (an example
example isis where
where minerals
minerals
are discovered.)
are discovered.)

It should
It should also
also bebe noted
noted that,
that, while
while included
included in in Kenya
Kenya Laws,Laws, thisthis isis the
the
English
English definition
definition of land.
land. ItIt was
was inherited
inherited like
like many
many other
other legal
legal concepts,
concepts,
from colonial
from colonial England.
England. The The definition
definition largely
largely applies
applies to to registered
registered land
land as as
opposed to
opposed to land
land held
held under
under customary
customary law. law. Land
Land under
under customary
customary law law
refers
refers mainly
mainly to to the
the soil.
soil. There
There is is therefore,
therefore, under
under this
this latter
latter body
body of of law
law aa
clear
clear distinction
distinction between
between landland andand thethe things
things that
that are
are affixed
affixed upon
upon itit such
such
as vegetation,
as trees and
vegetation, trees and buildings.
buildings. Also Also at
at the
the Coast
Coast mainly,
mainly, there
there is is the
the
legal definition
legal definition of landland under
under Islamic
Islamic laws
laws and
and practices.
practices.

3. Categories Land in
Categories of Land in Kenya
Kenya
In
In Kenya,
Kenya, land
land is divided
divided into
into three
three different
different legal
legal categories.
categories. These
These are:
are:
• Government
Government LandLand
• Trust
Trust Land
Land
• Private
Pri vate Land.
Land.

43
Sichangi Adv
Government
Government land land is is the
the land
land that
that was
was vested
vested in the
the Government
Government of of Kenya
Kenya
by Sections
by Sections 204 and and 205
205 of
of the
the Constitution
Constitution that
that was
was contained
contained inin Schedule
Schedule
22 to the. Kenya Independence
the, Kenya Independence Order Order in
in Council
Council 1963
1963 and
and Sections
Sections 21,21, 22,
22,
25 and
25 and 26 26 ofofthetheConstitution
Constitution ofofKenya
Kenya (Amendment)
(Amendment) Act Act 1964.
1964.
Government land
Government land in turn
turn comprises
comprises of of two
two sub-categories
sub-categories i.e.
i.e. un-alienated
un-alienated
Government Land
Government Land and
and Alienated
Alienated Government
Government Land.
Land.

Un-alienated Government
Un-alienated Government Land Land isis defined
defined by by the
the Government
Government Lands Lands ActAct
as meaning
as meaning Government
Government land land which
which is notnot for
for the
the time
time being
being leased
leased toto any
any
other person
other person or in in respect
respect of of which
which thethe Commissioner
Commissioner has has not
not issued
issued any
any
letter of
letter of allotment.
allotment. As is is explained
explained elsewhere
elsewhere in in this
this Report,
Report, un-alienated
un-alienated
Government lands
Government lands areare those
those lands
lands vested
vested in the the Government
Government and and over
over
which no
which no private
private title
title has
has been
been created.
created. They
They dodo not
not belong
belong to to indiliiduals
individuals
or bodies
or bodies corporate
corporate in in their
their private
private capacities; hence they
capacities; hence they are
are not private
not private
lands.
lands. The
The defining element of
defining element of such
such lands
lands isis that
that they
they have
have not not been
been
alienated, meaning
.alienated, meaning given, away or
given, away or ceded
ceded by by the
the Government
Government to to another
another
person or
person or entity.
entity. Un-alienated
Un-alienated Government
Government land land is notnot Trust Land in that
Trust Land that it
is not
is not vested
vested in local
local communities
communities and and held
held on
on trust
trust for
for them
them byby aaCounty
County
Council.
Council.

Alienated
Alienated Government
Government land on
land on the
the other
other hand
hand is is land
land which
which the the
Government has
Government has leased
leased to aa private
private individual
individual or or body
body corporate,
corporate, or or which
which
has been
has been reserved
reserved for for the use
use ofof aa Government
Government Ministry,
Ministry, Department,
Department, StateState
Corporation
Corporation or or other
other public
public institution,
institution, or land
land which
which has
has been
been set
set aside
aside by
way of
way of planning,
planning, for for aa public
public purpose
purpose (this
(this latter
latter category
category isis usually
usually
referred to as public utility land). The defining element of alienated
referred to as public utility land). The defining element of alienated
Government land
Government land isis that
that it has
has been
been reserved
reserved forfor the
the use
use of
of aa Government
Government
institution or
institution or itit has
has been
been setset aside
aside for
for the
the use
use of
of the
the public
public or itit has
has been
been
leas - toto an
leased2. an indi vidual.
individual.

Trust land
Trust land isis the
the land
land that
that is
is declared
declared to to be
be Trust
Trust Land
Land andand defined
defined in in
Section 114
Section 114 of
of the
the Constitution
Constitution of of Kenya.
Kenya. Under both the
Under both the Constitution
Constitution andand
the Trust
the Trust Land
Land Act,
Act, (Chapter
(Chapter 288 288 ofof the
the Laws
Laws of Kenya) trust lands
Kenya) trust lands areare
neither
neither owned
owned by the Government
by the Government nor nor byby the
the County
County Council.
Council. The The
County Councils
County Councils simply
simply hold
hold lands
lands onon behalf
behalf ofof the
the local
local inhabitants
inhabitants ofof the
the
area. For
area. For as long
long asas trust
trust land
land remains
remains un-adjudicated,
un-adjudicated and and un-registered,
un-registered, itit
belongs
belongs to to the
the local
local communities,
communities, groups,
groups, families
families and and individuals
individuals in in the
the
area in
area in accordance
accordance with the applicable
with the applicable' African-Customary
African_Customary Law. Law. Once
Once
registered under
registered under/any-of,
any of the the land
land registration
registration statni-e-S;
sta~rust trust 'land
land is is

44
Sichangi Adv
transformed
transformed into
into private
private land.
land. ItIt then
then becomes
becomes the the. sole
sole property
property of
of the
the
individual or group
individual group in favour
favour of
of whom
whom itit is
is registered
registered

Private land
Private land is land,
land, the
the title
title to
to which
which isis registered
registered in in'accordance
accordance with with any
any
of the
of the laws
laws that
that provide
provide forfor registration
registration of of title.
title. Land
Land maymay be be registered
registered in in
the name of an individual or company. Private land
the name an individual or company. Private land may be created from may be created from
either Government
either Government land land or
or Trust
Trust land
land through
through registration
registration after
after all
all the
the other
other
legal procedures have been strictly followed. As will soon
legal procedures have been strictly followed. As will soon become evident, become evident,
any attempt to create
any attempt create private
private title to public land land without
without following
following the the legal
legal
procedures, results in an illegal
procedures, results in an illegal title. title.

Public land
Public land

Having discussed
Having discussed the different
different categories
categories of land
land in
in Kenya,
Kenya, itit isisimportant
important
to immediately
to immediately comecome to terms
terms with
with what
what constitutes Public Land.
constitutes Public Land. This
Commission of Inquiry was appointed inquire into all cases ofofillegal
Commission of Inquiry was appointed to inquire into all cases illegal
and allocation of Public Land.
irregular allocation
and irregular Land.

Generally speaking,
Generally speaking,public
public landland isis all
all that
that land
land which
which is is vested
vested inin the
the
public
public or held under
or held under public
public tenure.
tenure. It means
means all the the land
land in in which
which every
every
Kenyan has an interest
Kenyan has an interest by virtue being member the public. Thus, aa
virtue of being a member of the public. Thus,
citizen
citizen who comes
comes from
from or or resides
resides in in one
one part
part of
of the
the country
country has has an
aninterest
interest
public land which
in public which isis located
located in in another
another part
part ofof the
the country.
country. ForFor example,
example,
a resident
resident of Mandera
Mandera has has anan interest
interest in
in.what
what happens
happens to to Kakamega
Kakamega and and
Karura forests.
Karura forests. Similarly,
Similarly,aa resident
resident of of Busia
Busia hashas an interest
interest inin what
what
happens to
happens to the ocean
ocean at at the
the Kenyan
Kenyan Coast.Coast. Every
Every citizen
citizen has
has anan interest
interest in
in
what
what happens
happens to the the country's
country's' road road reserves,
reserves, public
public playgrounds,
playgrounds, game game
parks, rivers
parks, rivers etc.
etc. Throughout
Throughout the the inquiry,
inquiry, the
the Commission
Commission was was concerned
concerned
with
with the illegal
illegal allocation
allocation ofof these
these types
types of
of land.
land.

Public land
Public land includes
includes aa wide
wide variety
variety of
of different
different kinds
kinds of
of land
land that
that isis
administered by the Central
administered Central Government