Section 45 of the community land act states;
The following laws are repealed-
(a) the Land (Group Representatives) Act, (Cap 287); and
(b) the Trust Lands Act, (Cap 288).
GROUP RANCHES
It is noteworthy that the group ranch concept has not been adequate in protecting the land
rights of pastoralist communities.
The challenges that were faced during the governances of group ranches before the post 2016
legal regime were:
1. Group representatives, who were entrusted with land management, dispossessed group
members by disposing group land without consulting members who, in many cases,
were unaware of these transactions. As a result there have been conflicts and
bloodshed in many parts where this law was applicable.
2. Dispossessions also arose where non-group members were registered as group
members leading to violent conflicts during the allocation of shares.
3. Abuse and disregard of the principles and procedures established under the Land
(Group Representatives) Act for its proper administration occasioned disputes resulting
in delays in issuance of titles in areas where the law applied.
4. Another factor leading to numerous conflicts in pastoral areas is the fact that the
majority of these communities have not registered their holdings and have failed to
keep records as required by the Act, because of illiteracy and lack of awareness of the
legal requirements.
5. Group representatives tasked with the administration of group ranches have in certain
cases mortgaged the land without the knowledge of group members. Continued
subdivision of these lands resulted in environmental degradation which results in the
reduction of livestock and poverty.
TRUST LAND
The challenges that were faced during the governance of Trust land;
The Commissioner of Lands perpetuated this abuse by alienating trust land in some instances
against the provisions of sections 117 and 118 of the repealed Constitution and section 53 of
the Trust Land Act. County councils were mandated with the task of setting apart an area of
trust land for public use and occupation.
The Trust Land Act granted the Commissioner of Lands powers to administer these lands as an
agent of the council. Complaints could often arise ranging from instances of;
1. Violation of the constitutional and statutory provisions relating to the setting apart of
trust land.
2. The Commissioner of Lands overstepping his mandate under the Trust Land Act.
3. Abuse of position by civic leaders and council officials leading to the alienation of trust
land contrary to the provisions of the repealed Constitution and the repealed Trust Land
Act.
The Truth, Justice and Reconciliation Commission (TJRC) Report highlighted the case of Mosiro
adjudication section in Kajiado District where the Minister for Land approved the application of
the Land Adjudication Act to trust land. The process of adjudication commenced and, contrary
to the provisions of the Land Adjudication Act, authorities failed to give the inhabitants of
Mosiro Land Adjudication Section an opportunity to help in the demarcation of the boundaries.
The authorities went ahead to demarcate the land to persons who were not residents of the
area, including the daughters of the then Director of Land Adjudication and to at least 31
government officials. This eventually led to a court case in James Ndungu Wambua v Republic
and others, where the respondents instituted legal proceedings claiming that they had not
been afforded the opportunity to point out or demarcate the land they claimed and that some
of the land was allocated to non-residents. It was also brought to the attention of the Court of
Appeal that the survey officer did not in fact go to the ground but surveyed the land from the
map and created surplus plots which were allocated to non-residents, including government
officials and their relatives and friends.
Regulations also still have scope before their final promulgation to require conversion of group
ranches to be proceeded by external reassessment of membership to remedy cases where
women, families without livestock, or other members of the pastoral community were unfairly
excluded at registration of the ranch, due in part to weak vigilance on this in the law.
The group representatives who held land under the Land (Group Representatives) Act together
with the communities they represent are to be registered as a community under the Act. Land
held under by group representatives in this respect may not be sold, leased or converted unless
it has been registered under the Community Land Act.
A registered community may use alternative dispute resolution mechanisms including
traditional dispute resolution mechanisms to settle disputes. However, where all efforts of
resolving a dispute fail, a party may institute judicial proceedings.
REFERENCE
Text Book Kariuki Ouma Ng'etich - Property Law Book - 2016
