LAND LAWS POST 2012

E.Mulwa
Law of Property in Land
Lecture 4
OBJECTIVES
1. Historical evolution of Land Laws
2. Introduction of the Constitution 2010 and its effects on land laws
3. Time line of passing of new land laws
4. New land laws explained
INTRODUCTION

• Land issues have been a dominant theme in Kenyan politics for the last century, from the time of the
large-scale land expropriations under British colonial rule and the Crown Lands Ordinance of 1902 to
the present.
• This state of affairs is widely understood by political analysts and ordinary Kenyans alike to be the
result, at least in part, of the on-going ability of powerful individuals and groups to use state power to
allocate land to themselves and to politically-favored groups.
• Historical land injustices, land grievances, and revendications have fuelled political mobilizations and
violent conflict at key junctures in Kenyan politics since the early twentieth century.
• These longstanding tensions and conflicts, culminating in some parts of the country in land-related
electoral violence around the 1992, 1997, and 2007 elections, all contributed to very high levels of
pressure for land law reform in Kenya.
• A series of presidential commission reports and official policy review processes clearly pointed at a
chronic pattern of land abuses by the executive branch, and by the Ministry of Lands (MoL) in
particular
INTRO CONT
• In post-electoral violence in 2008, more than 1000 people were killed and over 300,000
displaced in violence that was partly land-related. This brought Kenya to its lowest point since
Independence, disgracing the ruling elite and adding impetus to longstanding calls for political
reform.
• One result was approval of a new National Land Policy in 2009 after more than a decade of
civil society activism on the land issue. The main lines of the NLP were incorporated into the
2010 constitution.
• Kenya's 2012 land laws provided the enabling legislation to put the new principles and
procedures into practice.
• One of the targets of the new constitution and to a lesser extent the 2012 land laws was to deal
with the politicized and corrupt "den of thieves" that was the old Ministry of Lands. Although
the new land laws in 2012 did less to achieve a radical overhaul of the Ministry of Lands than
many had hoped (see below), some important changes were made.
INTRO CONT
• The Ministry was divested of some of its key land powers -- sole control over the registries, control
over the allocation and management of public land, control over resettlement, powers, to revoke title
deeds found to have been acquired illegally.
• Many important powers of the old MoL were transferred to the NLC by the National Land
Commission Act 2012.
• The NLC was to establish its presence on the ground through deconcentration, via a County Land
• Management board (CLMB) established in each county. Country-level secretaries of the CLMB
were to be appointed by the NLC and paid by the NLC.
• Deconcentration thus intersected with devolution, giving both county executives and county
legislatures a potential say in CLMB composition Potentially significant powers were given to the
new NLC.
• It was supposed to manage and administer public land in the counties, in collaboration with county-
level land-use and physical planning committees.
INTRO

• A key responsibility was to recover public land that had been irregularly or illegally allocated, a mandate
that extended to the investigation of private land that might have been acquired illegally.
• County governments were also given unclearly defined but potentially significant rights over some of land
within their counties, including power to manage ex-Trust Land before and until it was registered as
Community Land under the provisions of the 2012 land laws.
• Trust Land was unregistered land managed by the old county councils (controlled mostly by the ruling
party, with some falling under opposition control after the return to multipartism in 1992).
• Now this land was to be registered and assigned to registered communities, who would manage it
themselves under procedures to be specified in a "Community Land Bill" that was to be written and passed
into law by 2015.
• The net effect was envisioned as a far-reaching overhaul that would bring land administration under the rule
of law, mostly through the actions of the non-partisan and supposedly independent NLC, but with some
powers diffused through devolution to the new county level governments.
Timeline of passing of new land laws
• May 2002
Publication of the Report of the Commission of Inquiry into the Land Law Systems of Kenya (the “Njonjo Commission Report”).
• December 2004
Report of the Commission of Inquiry into Illegal/ Irregular Allocation of Land 2004 (the “Ndung’u Commission Report”) presented to President Kibaki
and released six months later, following widespread criticism of government’s failure to make it public.
• October 2008
Publication of the Commission of Inquiry into Post-Election Violence following the December 2007 General Election (the “Waki Commission Report”).
• 3 December 2009
National Land Policy approved by parliament.
• 4 August 2010
Referendum on new constitution.
• 27 August 2010
Following approval by two-thirds of voters, new constitution promulgated.15 and 22 February 2012
Land Bill, Land Registration Bill and National Land Commission Bill receive first and second readings in the National Assembly. In the run-up to these
readings academics, commentators and members of civil society attending consultative hearings struggle to find up-to-date versions of the bills.
• 22 February 2012
Parliamentary Committee on Land and Natural Resources holds first consultative hearings with members of the public on the day the final draft bills are
released by the government printer. Few attending, including committee members, had the opportunity to read the bills beforehand. Many groups state
publicly that the bills fail to enact the land and environment chapter of the constitution, and call for complete withdrawal and revision of bills. Some
point out that they would fail the test of constitutionality. Minister of Lands and Chair of the Committee on Land and natural Resources reject appeals on
grounds that constitutional deadlines cannot be breached.
• 9 March 2012
National Assembly approves by two-thirds majority an extra 60 days f or wider consultation on the draft bills. Extension is supported by Constitution
Oversight Committee, Legal Affairs Committee and LandCommittee.
Timeline of passing of new land laws
• 19-23 March 2012
Members of the Land Committee undertake tour of Kenya’s 47 counties. Committee’s conduct of consultations
widely criticized for “ineptitude” and “complacency”.
Late March – early April 2012
Land Committee convenes a retreat in Naivasha to discuss its findings, followed by one week “technical
retreat” in Mombasa.
• 16 April 2012
Proposed amendments to land bills become available. Instead of the revision and redrafting widely called for,
the amendments are brief. The most important changes on which commentators were unanimous, such as the
need to detail the role and powers of the proposed national land Commission in relation to the Ministry of
Lands, are left unaddressed.
• 26 April 2012
Largely unaltered land bills approved by Parliament.
• 27 April 2012
Land bills receive presidential assent and are enacted.
CONSTITUTIONAL PROVISIONS RELATING TO
LAND
• Article 40 (1) of the Constitution of Kenya sets out the principles governing land policy and provides
that “Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive
and sustainable”.
• Article 61 (1) states that “All land in Kenya belongs to the people of Kenya collectively as a nation, as
communities and as individuals”.
• Article 40 protects private property rights; 40 (6) states that “The rights under this article do not extend
to any property that is found to have been unlawfully acquired”.
• Article 68 (a) provides that Parliament shall revise, consolidate, and rationalise existing land
laws. Article 68 (c) specifies areas for future legislation, including legislation to prescribe minimum
and maximum private land holding; to regulate the manner in which land may be converted from one
category to another; to “protect, conserve and provide access to all public land”; to protect the
dependents of deceased persons with interest in any land, including spouses in occupation; and to
provide “for any other matter necessary” to effect the land and environment requirements of the
Constitution.
CONSTITUTIONAL PROVISIONS CONT
• The 2010 Constitution of Kenya addressed longstanding grievances over land,
including the centralised, corrupt and inefficient system of administration identified
in a series of reports of inquiry during the 2000s. Article 40 (1) sets out the principles
governing land policy. These include equitable access; security of land rights;
sustainable and productive management of land resources; transparent and cost
effective administration; and elimination of gender discrimination in law, customs,
and practice related to land and property. The process of translating these principles
into law was widely seen as an opportunity to redress Kenya’s grossly skewed
structure of land management and end predatory land practices by the state. It was
one of the first, and certainly one of the most important, tests of the new constitution.
NEW LAND LAWS
• The New Constitution in 2010 enhanced previous land reform efforts by establishing
a legal framework for the administration, use, and management of land in Kenya. It
outlined definitions of land and land systems in Kenya as well as set out a land
legislative obligation on Parliament

• Following the directives of the Constitution in 2010, Parliament has enacted four
main land laws:
1. the Land Act, 2012 (LA),
2. the Land Registration Act, 2012 (LRA),
3. the National Land Commission Act, 2012 (NLA), and
4. the Community Land Act, 2016. (CLA).
NEW LAND LAWS
• The new laws have repealed the following statutes:
• The Indian Transfer of Property Act; The Government Lands Act;
• The Registration of Titles Act; The Land Titles Act;
• The Registered Land Act; The Wayleaves Act; and
• The Land Acquisition Act.
• The following are some of the laws that have not been repealed:
• The Land Control Act;
• The Landlord and Tenant (Hotels, Shops and Catering Establishments) Act;
• The Sectional Properties Act; and
• The Distress for Rent Act.
NEW LAND LAWS
• In 2010, the Constitution of Kenya classified land as:
• Public land– reserved for public use or environmental protection. It is administered
and managed by National Land Commission (NLC) on behalf of the people of Kenya.
• Community land – held by communities on basis of ethnicity, culture or similar
community interest. It is administered under the Community Land Act No. 27 of 2016.
Any unregistered land that is community land is held in trust by the county
governments for the community.
• Private land – held by natural or legal persons. The Ministry of Lands is tasked with
the registration of any interest in private land. It is classified into the following land
tenure system:
• Freehold land tenure system which gives the holder absolute ownership of the land for life. A
freehold title deed generally has no restrictions as to the use and occupation of the land. However,
there are some conditional freeholds which may restrict the use of land for agricultural uses only.
• Leasehold land tenure system which is the interest in land for a specific period subject to payment of
land rent to the government and land rates to the county governments. Once a lease expires, the land
reverts to the owner or the leaseholder can apply for a renewal or extension of the lease.
National Land Commission Act
• The NLCA establishes a Land Commission pursuant to Article 67 of the
Constitution. It contains details of the functions, powers, composition and
administration of the Commission.
• Some of the key areas over which the Commission can exercise powers
include:
• a) management of public land;
• b) recommendations on national land policy;
• c) monitoring land use planning and natural resources;
• d) alienation of public land with the consent of the national and county
governments; and
• e) developing and encouraging alternative land dispute resolution
mechanisms.
National Land Commission Act Cont

• The allocation of public land to private individuals has been a concern for many Kenyans for a
long time. Allocation of public land was within the control of public officers at the Ministry of
Lands, who were susceptible to influence by the executive arm of the Government. The
process of allocation of public land was therefore shrouded in secrecy and often, members of
the public would only realize that public land has been expropriated, after a title deed has been
issued to private persons.
• Allocation of public land to private persons will now be managed and supervised by the
Commission. This creates independence in the allocation process as the executive arm of the
Government will no longer have control of the process. In addition, land available for
allocation will now be Gazetted and notices published in at least two local dailies, prior to
commencement of the allocation process. This will go a long way in creating transparency and
public participation in the allocation process.
Land Act 2012
• This provides the body of Kenya’s substantive law, earlier found scattered in different
pieces of legislation like the Indian Transfer of Property Act 1882, The Government
Lands Act and the Registered Land Act. It repeals the Wayleaves Act Cap 292 and the
Land Acquisition Act Cap 295.
• The law has the effect of embodying Kenya’s substantive law in one statute which
makes easy reference for scholars and practitioners. This Act received presidential
assent on 27th April 2012 with a commencement date of 2nd May 2012.
• The Act requires administration and management of land in Kenya to be guided by
principles of national land policy(Article 60 of Kenya Constitution) as well as the
values and principles of public service(Article 232 of Kenya Constitution).
Land Registration Act 2012
• Prior to enactment of the Land Registration Act, registration of title to land was
designated to multiple statutes resulting into a complex registration system
whose outcomes were illicit dealings, problematic practices and multiplicity and
duplicity of titles. In an effort to tackle these problems, the LRA was enacted.
• It is the procedural law pertaining to interests in all private, public and
community land. As such it paves way for a more uniform and organized land
registration system which in turn eases the processes of registration of land titles.
• It repealed the Indian Transfer of Property Act, the Registration of Titles Act, the
LTA, the RLA and the GLA.
• The Act provides for the establishment of registration units by the Cabinet
Secretary in consultation with NLC and county governments. The registration
units are to be established at county level and at any other levels to ensure access
to land registration services.
Community Land Act

1. Community Land
• The new laws require all land in Kenya, whether private, public or community land, to
be registered. The new laws therefore make provision for the registration of community
land. However, substantive provisions on the administration and management of
community land will be enacted by 2015 as required by the Constitution.
• The main pre-Independence law referred to is the Native Lands Trust Ordinance of
1938, especially as the post-Independence Trust Land Act of 1968 was modeled on this
colonial enactment. While amendments were made since, the Trust Land Act was only
repealed in 2016, replaced by the Community Land Act (CLA). Another early law after
Independence referred to is the Land (Group Representatives) Act, 1968, also repealed
by the CLA in 2016.
Community Land Act
• The Constitution at Article 63 defines community lands as including those:
1. Registered in the name of group representatives (i.e., group ranches);
2. Lawfully transferred to a specific community or declared to be community land by an
Act of Parliament;
3. Lawfully held, managed or used by specific communities as community forests,
grazing areas or shrines;
4. Ancestral lands and lands traditionally occupied by hunter-gatherer communities; and
5. Lawfully held as trust land by the county governments (trust lands).
 Community Land Act
• Communal use of land is defined by the Act as “holding or using land in undivided shares by a
community” (CLA s. 2).
• Arrangements will vary. At one extreme, a community may assign its entire property to individuals and
families under customary rights of occupancy, certificated or not, in which event the community land
will be a composite of ‘private’ parcels, governed by community rules. Or the opposite may be decided
that the property shall be entirely owned, occupied and used in common by all members with no
exclusive occupancy and use rights allocated to individuals, families or groups.
• Other communities may adopt a middle way: defining existing houses and farms as under customary
family occupation and use, and the remaining areas of the community as communal areas.
• The law encourages the latter in requirement that natural resources be used and managed “sustainably
and productively, for the benefit of the whole community including future generations, with
transparency and accountability and on the basis of equitably sharing or accruing benefits” (CLA s. 35).
Community Land Act
• Community lands are by definition lands possessed by communities. Principal title is
therefore to be vested in communities at registration (CON Art. 63 (1), CLA, s. 4).
• Title may be held as a customary, freehold, leasehold or other legal entitlement.
Certificate of Title issued by the Registrar will serve as prima facie evidence of the
community as the absolute and indefeasible owner, except where the title has been
obtained fraudulently (CLA s. 18).
• The procedures for securing freehold, customary or leasehold title are the same; first,
registration of the applicant community, and then application by it for formal survey
and adjudication of its land, the results to be registered as a collective title in a
• Community Land Register set up for this purpose in each county.
Next Week: Interests in Land Part A