Week 5: STATE REGULATION OF PROPERTY RIGHTS IN LAND

5.1 The Social and Political Bases of Regulations

➢ The importance of land goes beyond its value as a commodity.

➢ It is perhaps the most fundamental natural resource and the resource

base that supports most life forms and provides the physical stratum that
sustains political, socio-cultural, economic as well as natural systems.

➢ Despite its numerous uses, land is a rather sensitive and emotive issue in
the country, and therefore a major source of controversy and conflict.

➢ It is for these reasons that land is regulated in Kenya.

➢ But what is the basis of regulation? This question might be answered by

two distinct characters attributed to land use; Social and Political.
Social Uses of Land
➢ Land in Kenya has a lot of social as well as cultural significance.

➢ One scholar describes land as ‘a cultural artifact that holds a very

significant position for one’s orientation towards his or her social and
economic wellbeing.

➢ Land provides the space on which human being live.

➢ It is also the space upon which social amenities and facilities such as
schools and hospitals are built on.

➢ Land also holds infrastructure and other human developments such as

roads and buildings.

➢ More so, land has a lot of cultural significance in Kenya.

➢ According to professor Sifuna, many cultures in Kenya are land-based.

➢ Land is also a cultural heritage that is passed on from one generation to

the subsequent one through inheritance.

➢ Another scholar notes that land is not only part of people’s culture as the
locus where those activities that characterize people’s culture take place

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 but is also a means through which a community preserves its cultural
heritage to pass it on to future generations.

➢ In addition, some communities in the country have sacred and cultural

sites used for rituals and worship.

➢ Land is also of spiritual significance since it is also on land that people

bury their dead, hence being the medium where lies the spirits of ancestors
and the ones we loved.

➢ As such it means a lot for those whose people lie beneath.

➢ Apart from that, land is, in most local communities, a symbol of status in
that the more land one owns, the more respect that person elicits from
society.

➢ In sedentary communities especially, land was perhaps the most treasured

property and symbol of communion for families, clans and villages
throughout the country.
Political Importance of Land
➢ Land is also of considerable political significance.

➢ Firstly, it is the base on which national territories sit.

➢ Secondly, at international law all states have permanent sovereignty over

all natural resources within their territories such as minerals, forests,
wildlife, water and land.

➢ Thirdly, land is an aspect of nationality in that the place where one lives
determines that person’s nationality.

➢ Fourthly, at international level, just like at the national level, land has
continued to be one of the most guarded possessions and object of
sovereignty.

➢ Indeed many wars have been fought between states to protect land they
consider to form part of their territories.

➢ In Kenya, land was a central issue in the struggle for independence.

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 ➢ Despite the advent of political liberation from colonialism, land has
remained an important historical focal point that continues to inform
major political agenda in the post-colonial period and has even been a
subject of violent tribal wars.

➢ Even presently, there are a number of land-related disagreements between

communities on land issues.

➢ In essence land has over the years continued to be a rather emotive and
sensitive issue politically in this part of the world that needs to be
approached rather delicately especially with regard to ownership and use.
Rationale for Regulation
➢ Land is a scarce and finite resource.

➢ Scarce and finite because under normal circumstances it is limited in

supply and cannot regenerate itself, hence a nonrenewable resource.

➢ With the ever increasing human population there can never be enough
land for everybody; besides there are many competing demands for land.

➢ This is perhaps the most fundamental justification for land use control.

➢ In much of the transactions in land in a free economy, parties are left to

their own devices.

➢ Regulation is limited or restricted to only such provisions as may be made

under the relevant legislation.

➢ In a lot of those instances, therefore, there is no direct intervention from

outside to the parties, right to deal with their properties.

➢ Administrative or quasi-judicial organs only come in to supervise the sort

of relationship that the parties have established.

➢ Nonetheless, controlled transactions which assume the form of

administrative or quasi-judicial interventions in appropriate situations are
important because of the perceived weaknesses that some of the parties
involved suffer from or because of the imperatives that are placed in
protecting certain special interests or values.

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 ➢ The case for control is appropriately made if firstly it is recognised that
property owners ought not to be allowed to enjoy roving and unfettered
powers over their property in certain situations.

➢ Such a state of affairs may militate against a general public interest.

➢ It is a general argument that land ownership comprises of four rights; use,

abuse, disposal, and exclusion.

➢ The very essence of land use control is largely intended to guard against
this, such that a private landowner has an obligation to consider the public
good when making land use decisions.

➢ To view land as merely a private commodity belonging to the owner to use

as he or she wishes, is to ignore its intrinsic and ecological values and the
external impacts of abusive land use practices.

➢ There is need therefore for landowners to view land as an object to which

they belong rather than an object belonging to them.

➢ It is only then that they will begin to use it with love and respect, and
responsibly.

➢ There is need therefore for land use to be regulated to ensure that land is
utilised in a sustainable manner that ensures it is available to the present
generation as well as the future generations.

➢ Secondly the case for control can be made where in situations involving
proprietary transactions there are fundamental grounds that imply
interventions to safeguard special interests.

➢ There is the consideration of the social as well as the economic values

which merge to make a very strong case for regulation.

➢ While individual owners have sweeping user rights over the land they own,
the unique characteristics of land as well as its crucial place in the life of
humankind and other factors discussed above, make a compelling case for
public intervention into the regime of private land.
5.2. The Doctrine of the ‘dominium eminent’ [Eminent Domain]
➢ The doctrine of eminent domain gives the government power to take over
property that is otherwise privately owned for the purpose of meeting a

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 public requirement.

➢ The driving principle behind eminent domain is public use.

➢ Eminent domain, otherwise known as compulsory acquisition, is an

inherent government power.

➢ In most jurisdictions, it is conceded that eminent domain may be vested

in other entities which have governmental authority such as public utility
bodies.

➢ The practice originated from Ancient Rome where it is suggested that the
practice of taking private property for public use was widespread.

➢ It entailed seizing private property subject to certain conditions mainly

payment of compensation and there was the public purpose element in
such an exercise of the powers entailed.

➢ The practice was picked up by the English where the sovereign enjoyed
unmitigated power to take private property without restriction or
condition.

➢ For instance, privately owned land would be seized to cater for royal needs
which had no colour of public use. In most cases, the private owner would
not be compensated for their loss.

➢ It was the English Parliament that changed the practice to what is

observed today.

➢ The Parliament approved the transfer of funds in lieu of compensation to

private owners whose land had been taken away for public use.
Justification of Eminent Domain
➢ One of the justifications for this is that sovereign states have had original
jurisdiction of property long before the properties found themselves in
individual hands so that individual possession must be seen to derive from
grants from the state.

➢ Even as the state issues grants to individual owners, there is the radical
title that is retained by the state and that provides a level of control which
enables smooth operation in regard to land use.

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➢ Since it is the state that initially issued the grants to individuals, there is
reservation that the state might at some date in future resume ownership
of that property and so it should be no surprise when the state unleashes
its power of eminent domain to take back the property.

➢ For the above reasons, the sanctity of private property is in reality a mere
phrase.

➢ Scholar P. L. Onalo states that the complete ownership of land vests in the
state.

➢ In the event of the circumstances of a lease, the state has the absolute
right to take back the land on expiry.

➢ Sifuna Nixon states that with regard to land, the State has a moral
obligation to ensure that the land is available to sustain other forms of life
as well.

➢ Compulsory acquisition is one way in which the State lifts the cloak of
private property for public benefit.

➢ (See Sifuna Nixon, ‘Using Eminent Domain Powers to Acquire Private

Lands for Protected Area Wildlife Conservation: A Survey under Kenyan
Law’, 2/1 Law, Environment and Development Journal (2006), p. 84,
available at http://www.lead-journal.org/content/06084.pdf)

➢ Despite criticisms on the dangers posed on private property owners by

eminent domain, it is inarguably a necessary evil in society.

➢ This therefore calls for a necessity to balance these interests for the good
of all the involved stakeholders therein. Utilitarianism?
Rationale for Compensation
➢ The question that still remains is that if there is a rational explanation
behind the exercise of eminent domain, why then offer compensation?

➢ While the base and primary justification for compensation is individual

property rights, there have been a number of schools of thought
contributing to this argument.

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➢ The Natural Law school of thought relies on moral imperatives in that it is
only fitting that full indemnity be availed to the private owner as may be
the subject of compulsory acquisition.

➢ Secondly, there is also the private incentive ground which has been
invoked that compensation must be made available so that private
investors would not be inhibited from being partners in development.

➢ Inhibition can arise when there are fears that the government can at any
time interfere with or take away the fruits of their private ventures without
offering any compensation.

➢ Thirdly, there is the valid ground that has been espoused that requirement
to offer compensation would in all likelihood deter or restrain an
overzealous government from pursuing ambitious public projects some of
which may be white elephant projects simply because it has the powers to
seize private property and apply it to such use.

➢ Requirement of making just compensation can deter any prospects of such

an ambitious adventure on the part of the government.

➢ The idea that there are certain groups of people who may be powerless in
the face of the wide powers that eminent domain comes along with, a
situation that pits individuals against governments is comparable to David
v. Goliath scenario and you need to give a little bit of help to David as in
being charitable which is satisfied by compensation.
Eminent Domain in Kenya
➢ In Kenya, the state can exercise its power of eminent domain by taking an
action to compulsorily acquire privately owned land for the benefit of the
public.

➢ Compulsory acquisition is the power of the state to extinguish or acquire

any title or other interest in land for a public purpose, subject to prompt
payment of compensation.

➢ Under Article 40 (3) (b) of the Constitution of Kenya, 2010, the government
is empowered to compulsorily acquire land for public use.

➢ However, it should be noted that this article gives clear cut provisions as
to when compulsory acquisition is justifiable.

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 ➢ That land acquired within the confines of the concept of eminent domain
must be in accordance with any statutes or be for a public purpose or in
the public interest and that the transfer be carried out in a manner that
is consistent with the provisions of the Constitution which allow the
person who has a legal interest in the land to receive prompt payment in
full of just compensation and also a right to access to a court of law.

➢ Article 40 (3) (b) states thus;

The State shall not deprive a person of property of any description, or of any
interest in, or right over, property of any description, unless the deprivation
is for a public purpose or in the public interest and is carried out in
accordance with this Constitution and any Act of Parliament that—
i. requires prompt payment in full, of just compensation to the person; and

ii. allows any person who has an interest in, or right over, that property a
right of access to a court of law.

➢ Subsection 4 further states that provisions be made for compensation to

be paid to occupants in good faith of land acquired under eminent domain,
who may not hold title to the land.
Compulsory Acquisition in the Land Act, 2012
➢ The Land Act repealed the Land Acquisition Act Cap 295 Laws of Kenya
which initially provided for the mechanisms to acquire land under eminent
domain.

➢ Section 2 of the Land Act defines compulsory acquisition as the power of

the State to deprive or acquire any title or other interest in land for a public
purpose subject to prompt payment of compensation.

➢ In defining transmission, Section 2 of the Land Act recognizes compulsory

acquisition as one of the ways land may pass by operation of the law.

➢ Section 7 of the Land Act lists compulsory acquisition as a means of land

acquisition.

➢ Eminent domain is dealt with substantively under PART VIII (Sections 107
to 133) of the Land Act. The part also provides procedures for compulsory
acquisition, redress for aggrieved land owners and compensation for
acquisition and damage.

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➢ Section 107 provides for preliminary notice. Any authority desiring to
acquire by eminent domain land must publish a notice in either the Kenya
Gazette or County Gazette.

➢ The said notice shall be served on the Commission and any other party
with an interest in the land (see section 107 (7)). Such a notice will be
entered into the register by the registrar.

➢ It was held by the Court of Appeal in Commissioner for Lands v Coastal

Aquaculture Ltd Mombasa Court of Appeal, No. 252 (1996) that the
notice must state the public purposes for which the land is being acquired
and, if it is for a public body, state the name of that body.

➢ Section 109 provides that the Commission must justly and fully
compensate any damages that result from entry into the subject land.

➢ Under Section 111 all parties whose interests have been determined are
entitled to full and just compensation where their land has been
compulsorily acquired.

➢ What amounts to just compensation has, however, been a cause for

dispute.

➢ For instance, in the case of Kanini Farm Ltd. v Commissioner of Land

(1984) eKLR the appellants land had been compulsorily acquired by the
government under the Land Acquisitions Act (cap 295) (repealed). They
challenged the compensation awarded on the ground that it valued the
property as agricultural land when there had been a change of user to
residential and that some of the recipients of compensation were
trespassers of the land.

➢ It was held that a person whose land is compulsorily acquired is entitled

to prompt payment of full compensation as a result of the acquisition as
provided for under Section 75 (1) (c) of the Constitution of Kenya (repealed)
and Section 8 of the Land Acquisitions Act (repealed). The court also held
that when land is compulsorily acquired under the Land Acquisitions
Act, an enquiry to determine the persons interested in the land, the value
of the land and compensation to be paid must be held as required
by Section 9(3) of the Act, and that market value as a basis of assessing
compensation is the price that a willing seller might be expected to obtain
from a willing purchaser and the purchaser may be a speculator but a
reasonable one.

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➢ Any disputes resulting from compulsory acquisition may be referred to the
Land Acquisition Tribunal………………….(see separate material)
Safeguards Against Arbitrary Use of Eminent Domain
➢ Prof. Sifuna, states that the powers of compulsory acquisition should be
strictly regulated to prevent the ruling elite from whimsically alienating
privately owned lands. (See Sifuna Nixon, ‘Using Eminent Domain Powers
to Acquire Private Lands for Protected Area Wildlife Conservation: A Survey
under Kenyan Law’)

➢ In Ocean View Plaza v. Attorney General [2001] ELCR HC Civil case

no.527, the registrar had written a letter to the plaintiff requiring him to
surrender the title deeds of the two subject properties on the grounds that
the allocation had been created on a road reserve, it was however held that
the attempt by the commissioner of lands to cancel the two subject title
deeds lacked the legal efficacy it would require to succeed and was
therefore null and void. This is an example of the numerous cases in which
the power of compulsory acquisition was often abused

➢ The constitution of Kenya 2010, by dint of Article 40 (1) provides for the
right to acquire and own property of any description and in any part of
Kenya.

➢ Sub Article 2 of the same however gives the state or any person the power
to deprive a person of property of any description or interest but in
contemplation of Article 27 (4) which provides for non-discrimination of
any person either directly or indirectly on any ground whatsoever.

➢ Property rights deprived may only be done so with regard to certain

preconditions.

➢ These are that property must be shown to be required for public benefit;
that on a balance of convenience the balance should be such that it
justifies the concurrent hardship that is visited on the property owner so
affected; and upon the exercise of such powers, of compulsory acquisition
of the property of an individual, there must be prompt payment of
compensation to such a property owner. See Article 40 (3) (b) of the
Constitution.

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➢ Article 66 further provides instances where the state may regulate the use
of land. They include interests of defence, public safety, public morality
e.t.c

➢ The Land Act, under Section 124 (1) provides that before the Commission
approves the acquisition of land, it must be satisfied that;

a) the possession of the land is necessary for public purpose or public

interest;

b) the possession of the land is necessary in the interests of defence,

public safety, public order, public morality, public health, urban and
planning , or the development or utilization of any property in such
manner as to promote the public benefit; and

c) the necessity therefore is such as to afford reasonable justification for

the causing of any hardship that may result to any person having
an interest in or right over the property,

➢ The case of K. Nderitu & 23 others v AG & 2 others, Constitutional

Petition No. 29/2012, enumerates these safeguards. The court held that
Art. 40 of the Constitution did grant rights to property to every person.
This right could however, be limited by compulsory acquisition. Before this
could take place, the court had to first demonstrate that this acquisition
was for a public purpose and the process had to be in accordance with
Part 8 of the Land Act, 2012.

➢ Other safeguards relate to property ownership rights of indigenous people.

➢ The court in some instances has refused to allow the government to

confiscate ancestral land belonging to indigenous tribes on account of the
right to life and freedom from discrimination.

➢ Such was the case in Joseph Letuya and 21 others v the Attorney
General and 5 others [2014] eKLR. In this case, members of the Ogiek
community brought a case to the High Court claiming violation of their
land rights. Although the suit was filed in 1997, when the former
constitution was in place, the injustices continued well after the
enactment of the 2010 Constitution and therefore its provisions also
applied. The applicants stated that they were continuously being evicted
from their ancestral home and though they did not hold title deeds, they
were entitled to protection of their land as it was a means of livelihood.

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➢ Further, they argued that taking away their means of livelihood would be
indirectly taking away their right to life. The court held that their right to
life and freedom from discrimination had been violated and that the
evictions were depriving them of their livelihood and that they should be
allocated land to settle on.

➢ See also Centre for Minority Rights Development (Kenya) and Minority
Rights Group International on behalf of Endorois Welfare Council v.
A.G, 276/2003.

➢ Courts have in different case determined that for compulsory acquisition

to be effective, it must strictly follow the procedures under the law.

➢ In Commissioner for Lands v Coastal Aquaculture Ltd, Mombasa

Court of Appeal, No. 252 (1996) Pall JJ observed that for compulsory
acquisition to be lawful it must strictly comply with the provisions of the
Constitution and the Land Acquisition Act (repealed). In this case the
preliminary notice had neither indicated the purpose nor the name of the
public body. The court declared the notice defective and by an order of
certiorari quashed the acquisition. See also K. Nderitu and 23 Others V
A.G above.

5.3 The Doctrine of Police Power

➢ Private land publicly regulated for a number of reasons that have been
discussed.

➢ In carrying the mandate of public regulation, the government or

governmental authorities use police power.

➢ In essence, police power is the machinery that effectuates the transmission

of land through compulsory acquisition, wayleaves, and any other public
use of private land.

➢ The term, “police powers” therefore refers to the power of the state and
governmental authorities to regulate land use in the public interest (such
as the exercise of eminent domain).

➢ In Kenya, this function is derived from the government’s constitutional

mandate to provide for the welfare of its people and from its responsibility
as the custodian of the public interest.

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 ➢ This mandate is exercised through the adoption of appropriate policies,
laws and regulations such as those relating to land use control. (The Land
Control Act, Land Adjudication Act etcetera.)

➢ The laws empower mainly executive branch officials and agencies since
the government itself lacks a human personality.

➢ However, there are some that empower all branches and levels of
government, statutory commissions, and non-executive members. (such
as NEMA, NLC etc.)

➢ Under Article 66 of the Constitution of Kenya 2010, government is vested

with powers to restrict private land use:

i. The State may regulate the use of any land, or any interest in or right over
any land, in the interest of defence, public safety, public order, public
morality, public health, or land use planning.

ii. Parliament shall enact legislation ensuring that investments in property

benefit local communities and their economies

➢ Part VIII of the Land Act 2012 also provides for instances when government
can take over public land.

5.4 The Public Trust Doctrine

➢ The public trust doctrine establishes a trust relation between the

government and the people, in which the government has the
responsibility of regulating certain natural resources such as land, forests
and wildlife on behalf and for the benefit of the people collectively.

➢ In simple terms, the doctrine of trust recognizes that certain defined

property is held by the sovereign in trust for the public.

➢ Specifically, the state and governments serve as "public guardian[s] of

those valuable natural resources which are not capable of self-
regeneration and for which substitutes cannot be made by man.

➢ The public trust doctrine heavily borrows from the classical law of trusts;
however, its application is less rigid.

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➢ It permits both individual citizens and public interest groups adversely
affected to bring legal actions to force government to protect the
environment; at the same time it gives the government legal authority to
protect the public's interest in property which it controls.

➢ The doctrine however maintains the duties of a trustee under the classical
law of trusts.

➢ The government trustee "has a high fiduciary duty of care and

responsibility to the general public."

➢ This includes the obligation not only to preserve the property subject to
the trust, but also to seek injunction against and compensation for any
diminution of the subject of the trust.

➢ For this reason, the public trust doctrine can be used either against the
government for a breach of its duties, or by the government to protect the
trust property.

➢ The government trustee also has an obligation to balance all competing

interests while administering the public trust.

➢ Food for Thought: How does the doctrine of public trust relate to eminent
domain and the doctrine of police power? Is it possible to reconcile the three
concepts?
Evolution of the Public Trust Doctrine
➢ The oldest application of the doctrine relates to the protection and control
of navigable waters and shorelines.

➢ Under Roman law, the seashores, while not strictly the property of the
Roman people, were subject to the guardianship of the Roman people.

➢ Strictly speaking, the seashores "were not considered subject to the

ownership of the State, but simply as under its supervision or
jurisdiction."

➢ Harbours and their underlying soil also were dedicated to the public use
under Roman law, but this status left only an extremely shadowy sort of
ownership in the State.

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➢ These rather vague concepts from Roman law are the roots of modern
public trust doctrine.

➢ The doctrine shortly fell into disuse when the public ownership of
waterways was given to feudal lords and other local powers.

➢ At English common law, the sovereign claimed ownership of navigable

water and so title was both private and alienable.

➢ However, after signing the Magna Carta in 1215 (Charter of English

Liberties), English common law adopted Roman conceptions of the
doctrine which reflected more of a guardianship role rather than a trust.

➢ Following this, the law guaranteed the public fishing and navigation rights
in navigable waters. This can be seen in the case of Ward v. Creswell,
125 Eng. Rep. 1165 (C.P. 1741) where it was affirmed that the right to fish
in the high seas was common to all subjects of the King; thus any exclusive
rights based on prescription were void.

➢ Nearly 100 years after that decision, the House of Lords in Gann v. Free
Fishers of Whitstable, 11 Eng. Rep. 1305 (H.L. 1865) defined the concept
more explicitly by invalidating a nearly one hundred-year-old fee for
anchoring in navigable waters.

➢ The Lords declared:

The bed of all navigable rivers where the tide flows and reflows, and of all
estuaries or arms of the sea, is by law vested in the Crown. But this
ownership of the Crown is for the benefit of the subject, and cannot be used
in any manner so as to derogate from, or interfere with the right of
navigation, which belongs by law to the subjects of the realm
Rationale of the Public Trust Doctrine
➢ Firstly, land and other natural resources are a heritage of mankind that
should be available for present and future generations.

➢ In fact, it is argued that such resources are only held by the State in trust
for future generations and that citizens should- while utilizing them- take
into consideration the interest of future generations.

➢ Therefore, since land is entrusted in the hands of the State on behalf of all
future generations, it is held by the present generation under the same

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 constraints, and the State is entitled to administer this trust by enacting
laws and regulations.

➢ This trust also puts on the individual landowner an obligation to preserve

the land for future generations.

➢ Secondly, its importance and scarcity dictates that its tenure and
distribution be controlled for the benefit of society.

➢ (See Sifuna N, ‘Public Regulation of the Use of Private Land: Opportunities

and Challenges in Kenya’, 5/1 Law, Environment and Development Journal
(2009), p. 38, available at http://www.lead-
journal.org/content/09038.pdf)
The Public Trust Doctrine in Kenya
➢ The Constitution of Kenya 2010 under Article 61 explicitly sets out that all
land in Kenya belongs to the people collectively as a nation, as
communities and as individuals.

➢ The same Article continues to classify land as either public, private or

communal.

➢ Article 62 provides for public land.

➢ Under subarticles 2 and 3, all public land is vested in and held by either
a county government or the national government in trust for the people of
Kenya, and shall be administered on their behalf by the National Land
Commission.

➢ Public land has been defined under Article 62 to include (seen earlier);

a) land which at the effective date was unalienated government land as

defined by an Act of Parliament in force at the effective date;

b) land lawfully held, used or occupied by any State organ, except any such
land that is occupied by the State organ as lessee under a private lease;

c) land transferred to the State by way of sale, reversion or surrender;

d) land in respect of which no individual or community ownership can be

established by any legal process;

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e) land in respect of which no heir can be identified by any legal process;

f) all minerals and mineral oils as defined by law;

g) government forests, government game reserves, water catchment areas,

national parks, government animal sanctuaries, and specially protected
areas;

h) all roads and thoroughfares provided for by an Act of Parliament;

i) all rivers, lakes and other water bodies as defined by an Act of

Parliament;

j) the territorial sea, the exclusive economic zone and the sea bed;

k) the continental shelf;

l) all land between the high and low water marks;

m) any land not classified as private or community land under this

Constitution; and

n) any other land declared to be public land by an Act of

Parliament

➢ The above-mentioned categories are incapable of being privately owned.

➢ As such, government whether county or national, has an obligation as a

trustee to ensure proper management of natural endowments such as land
for the common benefit of their subjects collectively and for the future
generations as well.

➢ Article 73 of the Constitution further states that the authority vested in

state officers is vested in public trust.

➢ This means that any actions of a state officer should be done in the
collective interests of the people of Kenya.

➢ In John Peter Mureithi & 2 Others V A.G & 4 Others Nairobi HCMA
No.158 of 2005, it was held thus;
It is clear from the above provisions that the doctrine of public trust is
recognized and provided for by the superior law of the land and applies in
a very explicit way as regards trust land… Although the doctrine had its

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 origins in Roman law, it is now a common heritage in all countries which
adopted the English Common law
➢ One way in which the government can exercise this public trust is through
land use regulation.

➢ For each of the categories above, there is a corresponding legislation that

regulates its use. (Wildlife Conservation Act, Mining Act, Water Act, EMCA,
etc.)

➢ Courts in Kenya have continued to uphold the doctrine of public trust in

relation to conservation of various aspects of the environment.

➢ For instance in Abdikadir Sheikh Hassan & 4 Others v. Kenya

Wildlife Service 2004 KLR at 214, the plaintiff in this case, on his own
behalf and on behalf of the community, sought an order from the High
Court of Kenya to restrain the defendant from removing or dislocating a
rare and endangered species named the Hirola from its natural habitat.
Judge Mbito observed, “according to the customary law of the people,
those entitled to the use of the land are also entitled to the fruits thereof
which include the fauna and flora, unless this has been changed by law.
According to the Wildlife Conservation Act, the defendant is required to
conserve wild animals in their natural state” The court acknowledged the
historical relationship between the local community and the animal and
held that the agency would be acting outside its powers if it were to remove
any animals or flora from their natural habitat.

➢ Similarly in the Ledidi Ole Tauta & Others V A.G and 2 Others [2015]
eKLR it was held that the Kenya Forest Service Board as a manager and
custodian of state forests, is expected under the doctrine of public trusts,
embodied under Article 10 of the Constitution…. to ensure there is
sustainable development of forests in Kenya for the benefit of all citizens.

➢ In interpreting the doctrine, courts have often associated it with public

participation such that where a public trust prevails, there has to be public
participation.

➢ Such was the case in Cortec Mining Kenya Limited V Cabinet secretary
Ministry of Mining & 9 Others [2015] eKLR.

➢ (See further, Patricia Kameri-Mbote, “The Use of Public Trust Doctrine in

Environmental Law” 3/2 Law, Environment and Development Journal
(2007) at 95 available at http://ww.lead-journal.org/content/07195.pdf)

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5.6 Environmental Imperatives
➢ When Kenya adopted a new Constitution on 27th August 2010, it gave
constitutional recognition to environmental management.

➢ Hitherto, the Constitution was not only silent on environmental issues, its
treatment of land and property focused on private property rights at the
expense of sustainable management.

➢ The Constitution contains provisions that expressly enhance the

enforcement of environmental rights.

➢ Article 42 of the Constitution, for example, recognizes the right to a clean

and healthy environment.

➢ Unregulated use of land may lead to undesirable environmental

consequences such as land degradation, soil erosion, sedimentation of
water bodies, pollution of environmental media, and depletion of biological
resources.

➢ State regulation is aimed at minimizing environmental degradation and

promotes uses that are environmentally sound, ecologically and
economically sustainable.

➢ Environmental imperatives are a logical result of public trust.

➢ Under public trust doctrine, the government has a duty of regulating

certain natural resources such as land, forests and wildlife on behalf and
for the benefit of the people collectively.

➢ This ideal resonates well with the age-long common law principle sic utere
tuo ut alienum non laedas (so use your own as not to cause harm to
others) according to which people are supposed to ensure that their
activities do no result into harm to others or the environment.

➢ The “preventive principle” in environmental law dictates that steps

should always be taken to prevent harm from occurring rather than
waiting to address harm after it has already occurred.

➢ One way of preventing harm from occurring from land use practices is
through formal regulations on land use.

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 ➢ The need to regulate the manner in which land is used is partly due to the
imperative to control the undesirable consequences of certain land use
forms.
5.7. Institutional Arrangements
• There are a number of institutions charged with the mandate of land
administration. These institutions have different functions and deal with
different categories of land.

• After 2010, the mandate of Land administration was devolved to County

Governments. However, the national government still remains the
custodian of public trust land under Article 62 of the Constitution of Kenya
2010.

i.The National Government

• The National government is the custodian of all public trust under section
62 of the constitution of Kenya 2010. It carries out this role through
regulation and police powers. The National Government uses the Ministry
of Lands and Physical Planning to carry out different functions in land
regulation and administration.

ii. The Ministry of Lands and Physical Planning

• The Ministry of Lands is part of the executive arm of government. Its
core function is to implement policy and legislations that are passed or
considered in Parliament.

• One of the functions of the Ministry is to offer Administrative and

Support Services. This function entails overall policy direction and co-
ordination of the Ministry’s functions.

• Different agencies carry out various functions under the umbrella of

the Ministry of Lands and Physical Planning. These agencies include;

o The Physical Planners Registration Board

o Valuers Registration Board
o Estate Agents Registration Board
o Land Surveyors Board

• The boards are tasked with the responsibility of regulating the

qualification, registration and practice of respective professional in the
land sector.

Functions of the Ministry of Lands

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 • Physical Planning- The Ministry of Lands provides advisory opinions
on physical planning, offers National Physical Planning Services,
general principles on land planning. It also comes up with guidelines,
standards and policies with regard to physically planning. The Ministry
of Lands co-ordinates with both the National Government and County
governments.

• Land Adjudication and Settlement- This has to do with

ascertainment of land rights and interests, land consolidation and
adjudication, acquisition of land for settlement of landless persons, the
management of Agricultural Settlement Fund, Management of Group
ranches and arbitration of land disputes.

• Surveys- The Ministry is the official Government agency for land

surveying and mapping.

• Land Administration- Takes a key role in regulation and control of

land use for all categories of land.

• Land Valuation- Valuation is done for the purpose of stamp duty. The
Ministry of Lands is charged with the mandate of all land valuation.
Under this function, it carries out asset valuation and rating and
development of the National Land Value index.

• Land Registration- The ministry registers interests in land,

encumbrances and any land transactions that should be registered
under the Act. Under this function it oversees various District Land
Registries.

iii. The National Land Commission

• After Kenya was plagued by post-election violence in 2007/2008 there was

need for a new land policy and even greater need for land reform.

• The inauguration of the 2010 Constitution thus mandated Parliament to

address land issues through the enactment of law.

• In 2012, Kenya passed three new laws to institute the process of land
reform. These were the Land Act, Land Registration Act, and the National
Land Commission Act.

• The main motivation of the land reforms was to deal with the politicized
and corrupt “den of thieves” that was the former land’s ministry (how
about now?).

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 • The National Land Commission Act established the National Land
Commission which is an independent Constitutional Commission which
would establish its presence countrywide through the County Land
Management Boards.

• The NLC Act sought to transfer many of the powers vested in the old
Ministry of Lands to the newly established National Land Commission.

• The aim of the Commission therefore was to transfer real authority over
land registries, management of public land, settlement schemes, and
other land allocations from the central land to the NLC and the County
Land Management Boards.

• The officials at the Ministry of Lands were not pleased with this new
administration. After 2012, the Ministry of Lands and the executive
branch fought vehemently against the NLC.

• The ministry would withhold funding, fail to turn over information, and
blatant obstructionism.

• Further, the NLC could not get access to inventories of public land or land
registries.
(See https://www.standardmedia.co.ke/article/2000123415/national-
land-commission-accuses-ministry-of-taking-over-its-role)

• National Land Commission derives its mandate from the Constitution of

Kenya 2010, the National Land Policy (2009) and acts of Parliament,
namely the National Land Commission (NLC) Act, the Land Act and the
Land Registration Act, all of 2012.

• The mandate of the NLC is describe as follows;

1. Manage Public land on behalf of the national and

county governments, 67(2) a;

2. Recommend a National Land Policy to the national government, 67(2) b;

3. Advise the national government on a comprehensive program for the

registration of title in land throughout Kenya, 67(2) c;

4. Conduct research related to land and the use of natural resources, and
make recommendations to appropriate authorities, 67(2) d;

5. Initiate investigations, on its own initiative or on

a complaint, into present or historical land

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 injustices, and recommend appropriate redress,
67(2) e;

6. Encourage the application of traditional dispute

resolution mechanisms in land conflicts, 67(2) f;

7. Assess tax on land and premiums on immovable

property in any area designated by law, 67(2) f;

8. Monitor and have oversight responsibilities over

Land Use Planning throughout the country, 67(2) h;
and 9.

9. Perform any other functions prescribed by

national legislation. 6(3)

• The powers of the Commission are drawn from its mandate and are
captured under Section 6 of the NLC Act, 2012.

• Broadly, the mandate of the Ministry of Lands included providing policy

direction, setting national standards and coordination of all matters
concerning lands, housing and urban development.

• The Ministry is responsible for putting in place policies and initiating laws
that ensure sustainable land management and that promote sustainable
housing for all and foster orderly urban development in the country.

• Any person would see the overlap in the mandate of the two institutions.
This was at the core of the rivalry between the NLC and the Ministry of
Lands.

• Following the rivalry, the Commission sought the indulgence of the

Supreme Court vide Advisory Opinion Reference No. 2 of 2014; In the
Matter of the National Land Commission [2015] eKLR

• On December 2, 2015, the five-judge bench declared that the NLC had a
mandate in respect of various processes leading to the registration of land,
but neither the Constitution nor statute law gave it the power to
register land titles. That this task lay with the national government and
the ministry had the authority to issue land titles on behalf of the
government.

• While the Supreme Court did not strip the Commission of any of its roles
under the law, it defined the role of the NLC as an oversight role over the
Ministry of Lands.

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 • The court also ruled that the National Land Commission and the Ministry
of lands should collaborate, co-operate and consult each other on all land
matters as they perform their various mandates as spelt in the
constitution.

• The opinion also provided for independent budget structures, co-operation

between the NLC and the Ministry of Lands and the different roles in land
administration.

• In summary, while the NLC maintained its functions under law, they were
restricted to the processes preliminary to land registration. Matters of
registration were within the ambit of the Ministry.

iv. County Governments

• Under the devolved system of government, counties also play a role in
land administration.

• The National Land Commission Act provides for the establishment of

county level offices called County Land Management Boards which
are an arm of the NLC within the Counties.

• The County Land Management Board are to consist of members appoint

by the governors and county executives with the approval of the county
assembly.

• One of the members of the board must be a surveyor or a physical

planner who will be nominated by the county executive and appointed
by the governor.

• The secretary of this board is appointed by the National Land

Commission.

• The board is to take charge of physical planning and survey within the
county in consultation with the Ministry of lands.

• It may also undertake other roles that might be assigned to it by the

National Land Commission or any other law.

• County Governments also having important roles to play in the

conferment of city, municipality, or town status to any urban area
within their boundaries under the Urban Areas and City Planning Act.

• The management of cities and municipalities is also vested in county

governments.

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 • Under Article 62, the County Government is a public trustee of public
land described under the Constitution.

v. National Environmental Management Authority

• The National Environmental Management Authority is government
parastatal established to exercise general supervision over all matters
relating to environment.

• It was formed in 1999 under the Environmental Management and Co-

ordination Act as a body corporate with perpetual succession and a
common seal.

• The authority became operational on 1/7/2002 upon merger of the

national environmental secretariat and the permanent presidential
commission on soil conservation and afforestation.

• The organization carries out its duties through various departments

which include the: directorate, environmental education and public
participation, environmental planning and coordination, legal services
and the compliance and enforcement department.

• Under these departments NEMA carries out the following functions;

environmental licensing, environmental auditing, environmental
accidents management, environmental inspection, environmental
reporting.

Functions of NEMA

a. To exercise general supervision and coordination over all matters

relating to the environment and to be the principle instrument of
government in the implementation of all policies relating to the
environment.

b. To coordinate the various environmental management activities being

undertaken by the lead agencies and promote integration of
environmental considerations into development policies, plans,
programs and projects with a view of ensuring proper management and
rational utilization of environmental resources

c. To take stock of the natural resources in Kenya and their utilization

and conservation.
d. To establish and review land use guidelines after consulting with the led
agencies and to examine land use patterns to determine their impact on the
quality and quantity of natural resources.

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e. To carry out surveys that will assist the proper management and
conservation of the environment.

f. To advise the government on legislative and other measures for the

management of the environment and the implementation of the
relevant international and regional conventions, treaties and
agreements in the field of the environment.

g. Undertake and coordinate research, investigation and surveys in the

field of environment and collect, collate and disseminate information
about the findings of such research, investigation or survey

h. Mobilize and monitor the use of financial and human resources for
environmental management.

i. Identify projects and programs or types of projects and programs, plans

and policies for which the environmental audit and or monitoring must
be conducted

j. Initiate and evolve procedures and safeguards for the prevention of

accidents which may cause environmental degradation and evolve
remedial measures where accidents occur

k. Monitor and assess activities including carried on by lead agencies to

ensure that such activities do not degrade the environment.

l. Undertake with relevant lead agencies, programs intended to enhance

environmental education and public awareness about the need for
environmental management and enlist public support and encourage
efforts made by other entities in that regard

m. Publish and disseminate manuals, codes or guidelines relating to

environmental management and prevention or abatement of
environmental degradation

n. Render advice and technical support, where possible to entities

engaged in natural resource management and environmental
protection so as to enable them to carry out their responsibilities
satisfactorily

o. Prepare and issue an annual report on the state of the environment in

Kenya and direct lead agencies to submit its reports in their various
sectors and perform such other functions as the government may
assign it.

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• Through compliance and monitoring, the institution also makes sure that
Environmental Impact Assessment (EIA) and audits are carried out for
all developmental activities to ensure they don’t compromise
environmental quality or the availability of resources for other uses and
generations.

• EIA enables the improvement of project design, ensures resources are

used appropriately and efficiently, identifies the appropriate measures for
mitigating the potential impacts of the proposal and facilitates informed
decision making including setting of environmental terms and conditions
for implementing the proposal.

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