Week 6

COMMUNITY LAND

6.1 What is community land?

 Community land in Kenya is governed by the provisions of the Constitution

of Kenya 2010, the Community Land act, 2016, and the Land Act, 2012.

 Community land is described in the constitution of Kenya 2010 to include;

(a) land declared as such under Article 63(2) of the Constitution;
(b) land converted into community land under any law;

 All such land is vested in the community.

 A “community” is defined under Section 2 of the Community Land Act,

2016 to mean a consciously distinct and organized group of users of
community land who are citizens of Kenya and share any of the following
attributes-
(a) common ancestry;
(b) similar culture or unique mode of livelihood;
(c) socio-economic or other similar common interest;
(d) geographical space;
(e) ecological space; or
(f) ethnicity

 Therefore, a community may, but need not be, a clan or ethnic community
in order to claim community land rights.
 Ownership of community land can be held as communal land, family or
clan land, reserve land or in any other category of land recognized under
the Act or other written law. See Section 12 of the CLA
 In addition, Community land can be held in land tenure systems such as
customary, freehold, leasehold or any other tenure system recognized by
law.

6.2. What are community rights? What are Community Land Rights?

1
 Before the National Land Policy of 2009 (the current policy), there was
great conviction that the best way to sort out the land mess in Kenya was
by converting customary tenures into private ownership.
 This conviction was fueled by the misconception, or rather the belief that
privately owned land would spur more economic growth than land held
under a customary tenure.
 If you can recall, similar sentiments had been made by the colonialists
during their bout of land reformation between 1930 and 1950.
 Colonial laws and policies gave false premiums on private property rights
to land focusing on individual ownership to land.
 Of course, this gave Europeans the most productive land and disinherited
Africans.
 After independence, the African leadership continued with the same
approach.
 Despite this, communities continued to own and use land according to
their customary rules through communal arrangements. In pastoral areas,
especially due to the modes of using land, communal ownership to land
remained the preferred method of owning land.
 This policy was pursued with remarkable consistency by successive
governments over the years, and the extent of its implementation has been
impressive.
 The adoption of the National Land Policy for Kenya in 2009 and the
Constitution in 2010 sought to correct this error with the inclusion of
communal tenure as a category of land ownership. It gives constitutional
recognition to communities and enables them own and use land as
communities.
 Consequently, community land rights were recognized by law.
 Community land rights are therefore the collective entitlements that can
be claimed by landowners in respect to a parcel of land recognized as
community land in Kenya.

2
  Community land rights are reinforced by Article 40 of the Constitution of
Kenya 2010, which states that every individual has the right either
individually or in association with others to acquire and own property of
any description and in any part of Kenya.
 Community rights on the other hand are entitlements that a community
as defined in the Community Land Act may claim in respect to their status
as a community. Such rights include culture and the right of recognition.

6.3 Community Property Rights in Historical Perspective

 The system of land ownership in pre-colonial Kenya was largely communal

and it was strictly guided by the customary law of the various
communities.
 Land was owned and belonged to the whole community rather than
individuals who only had access rights.
 The political authorities in the community exercised control rights over the
land.
 In these African settings, it can be seen that land was held as a trans-
generational asset, the management of the land was done at different levels
of the social organisations and the use of the land was done in a function-
specific manner.
 The coming of the colonialists saw the introduction of formal systems of
land ownership and also introduced conceptual, legal and sociological
confusion in traditional tenure systems.
 The British settlers took advantage of the nomadic nature of most African
communities as a basis of claiming that Africans did not own any
particular property and were completely oblivious to the idea of property
ownership.

 Customary law and its attendant rights were treated as inferior to the
private formal property rights based on English law, newly introduced as

3
 the tenure for white settlers. The wisdom of this was that private tenure
was the most suitable tenure regime to ensure agricultural productivity.

 This necessitated a dual system of land law with English law applying to
areas occupied by white settlers, and customary law applying to the areas
occupied by the natives, the “native reserves”

 Late in its tenure, the colonial government initiated a policy of converting

customary land tenure to individual private ownership. The Registered
Land Act was enacted purposely to remove claims to land based on African
customary land law.

 Both the Trust Land Act and the Land (Group representatives) Act were
meant to transition customary to individual tenure in areas where
immediate individualization of land could not be undertaken.

Trust Lands Act (Repealed)

 The Trust Lands Act provided for the management of trust land. Trust land
consist of areas that were occupied by the natives during the colonial
period and which have not been consolidated, adjudicated or registered in
individual or group names, and native land that has not been taken over
by the government.
 The Act vested all trust lands in local authorities or county councils which
have since been abolished after 2013 General Election.
 In respect of the occupation, use, control, inheritance, succession and
disposal of any Trust land, the Act granted every tribe, group, family and
individual all the rights which they enjoy or may enjoy by virtue of existing
African customary law or any subsequent modifications thereof.

4
  The Act provided for an elaborate procedure to be followed in case the
government or the county council wanted to set apart any part of Trust
land for public purposes. The procedure inter alia, protects the rights of
residents from expropriation of Trust land without compensation.

The Land (Group Representatives) Act

 This Act recognized group tenure over land prior to the current land
governance arrangements.

 It also provided for the incorporation of representatives of groups who have

been recorded as owners of land under the Land Adjudication Act (now
repealed)

 The Act defined a group as a “tribe, clan, family or other group of persons,
whose land under recognized customary law belongs communally to the
persons who are for the time being the members of the group, together
with any person of whose land the group is determined to be the owner”.

 The Act established the position of a Registrar of Group Representatives

whose roles were to supervise the administration of the groups, and ensure
proper records of the groups were kept. The registrar presided over election
of group representatives, who upon incorporation had powers to sue and
be sued in their corporate name, and to acquire, hold, charge and dispose
of group property.

 The group representatives had a duty to hold any property which they hold
as such, and to exercise their powers as such, on behalf and for the
collective benefit of all the members of the group, and fully and effectively
to consult the other members of the group on such exercise.

5
  The registrar also ensured resolution of disputes either through internal
mechanisms or through the District Magistrate‟s Courts

One of the problems that was faced during this transitional period was the many
claims under customary law after initial registration under the RLA was done.

 Under the RLA, a title issued in the name of a proprietor was evidence of
absolute ownership of the land by that proprietor.

 Remember, however, that land was in many cases owned communally. The
registration of communal land in a single person’s name therefore caused
a lot of conflict and was a cause for divergent judicial opinions.

 For instance, In Obiero v Opiyo, [1972] E.A 227 the Plaintiff had been
registered as the absolute proprietor of the title in question and no
encumbrances were noted on the title. The defendant was the step-son of
the plaintiff and was claiming title to the property under customary law
and claimed that the plaintiff had obtained the title through fraud. It was
held that even if the registration had been procured fraudulently, the
plaintiff’s title of first registration was indefeasible and subject to no
encumbrances as the register reflected none and accordingly the title was
free from all interests and claims. The naturalist school of thought
advanced the idea that no legislature would have intended to create
consequences as severe as those which flow from a positivist interpretation
of the RLA and that the legislature meant to preserve the rights and
interests under customary law.

 Similarly in Samwel v Priscilla Wambui HCCC 1400 Justice Muli held

that the purpose of registration must in all cases understood to be

6
 preservation of the family land and not to disenfranchise other members
of the family who may not have gotten their names registered.

 On the contrary, the cases of Esiroyo v Esiroyo and Obiero v Obiero, it

washed that first registration of land extinguishes customary claims, trust
and rights over that land.

 Despite this however, many local communities in Kenya continued to

manage land. This is attributable to the resilience of customary tenure,
which withstood sustained subjugation, suppression and denial of
juridical content in official parlance.

 Kenya’s National Land Policy (NLP) and the Constitution of Kenya, 2010
recognize the lack adequate legal attention and treatment for community
land in Kenya. In response, the two have made provisions for community
land, and presented an opportunity to craft new land laws for its
management and protection.

6.4 Management of Community Land Rights: Legal Regime

i. The Constitution

 Article 60 of the Constitution provides that land shall be held in a manner

that is equitable, efficient, productive and sustainable and in accordance
with the principles of equitable access and security of land rights among
others.

 Article 40 guarantees the right to property for every citizen.

 The constitution vests community land in communities identified on the

basis of ethnicity, culture or similar community of interest.

 Article 63 recognizes and defines community land.

 The Constitution, under Article 68 also requires parliament to enact

legislation on land within eighteen months from August 2010 when the
constitution was promulgated, and on community land within five years.

7
  Any unregistered community land is to be held in trust by county
governments on behalf of the communities for which it is held.

ii. Land Registration Act

 The Land Registration Act gives provisions for revision, consolidation and
rationalization of the registration of titles to land, in order to give effect to
the principles and objects of devolved government in land registration, and
for connected purposes.

 The Act applies to registration of interests in land under all the three land
tenure regimes established by the constitution.

 It defines a community as: a clearly defined group of users of land

identified on the basis of ethnicity, culture or similar community of interest
as provided under Article 63(1) of the Constitution, which holds a set of
clearly defined rights and obligations over land and land-based
resources.

 It requires a community land register to be maintained in each land

registration unit. The community land register is to contain: a cadastral
map showing the extent of the community land and identified areas of
common interest; the name of the community; a register of members of the
community; the user of the land; the identity of those members registered
as group representatives; the names and identity of the members of the
group; and any other requirement as shall be required under the law
relating to community land.

 The Registrar is to issue a certificate of title or certificate of lease, but

is prohibited from registering any instrument purporting to dispose of

8
 rights or interest in community land unless it is in accordance with the
law relating to community land.

 Certificate of reservation- interim certificate issued by registrar before

certificate of title is issued

iii. County Governments Act

 The County Governments Act provides for county governments‟ powers,

functions and responsibilities to deliver services and for connected
purposes.
 The county Governments Act, read together with Article 186 and Fourth
Schedule of the Constitution, assigns the county executive committees a
number of roles that relate directly or indirectly to community land.
 Some of these functions include agriculture and county planning and
development.
 To carry out its functions under planning and development, county
governments are to perform inter alia, land survey and mapping;
boundaries and fencing; and housing which will inevitably affect
community land.

iv. The Community Land Act 2016

 The Community Land Bill was passed on 31st August 2016 to become law
 It is a legal framework that provides for the recognition, protection and
registration of community land rights; management and administration of
community land; to provide for the role of county governments in relation
to unregistered community land.
 In essence it is the primary regulation in the management and
administration of community land in Kenya.

9
  This Act was enacted just 10 days before the constitutional deadline and
it came into force to give effect to Article 63 (5) of the Constitution that
provides on community land.

 The Community Land Act also repealed the Land (Group Representatives)
Act, and the Trust Lands Act, which formerly provided for community land.

 In a nutshell, the Community Land Act reiterates the prohibition against

disposal of unregistered community land. This does not limit compulsory
acquisition for public purposes to which all landholders are vulnerable. In
general, the Community Land Act instructs counties to hold compensation
for the affected community until it secures formal title.

6.5 Tenets of a Community Land Legislation in Kenya

Tenure systems under Community Land

Section 4(3) of the CLA provides that community land shall vest in the
community and may be held under any of the following tenure system

(a) customary;

(b) freehold;

(c) leasehold;

Classes of holding community land (s. 12)

12. Community land maybe held-

(a) as communal land;

(b) as family or clan land;

(c) as reserve land; or

(d) in any other category of land recognized under this Act or other written
law.

Unregistered community land

S6. (1) County governments shall hold in trust all unregistered community land
on behalf of the communities for which it is held.

10
S6.(7) Upon the registration of any unregistered community land in accordance
with this Act, the respective registered community shall, assume the
management and administrative functions provided in this Act and the trustee
role of the respective county government in relation to the land shall cease.

Procedure of registration

 Provided for in Section 7 of the Act.

 S7(2) The community land registrar shall by notice in at least one

newspaper of nationwide circulation and a radio station of nationwide
coverage, invite all members of the community with some communal
interest to a public meeting for the purpose of electing the members of the
community land management committee.

 S7(3) The notice shall also be given to the national county administrators
and county government administrators in the area where the community
land is located.

 S7(4) The community land registrar may use all available means of
communication including electronic media to reach the community
members.

 S7(5) The community shall elect between seven and fifteen members from
among themselves to be the members of the community land management
committee as provided in section 15, who shall come up with a
comprehensive register of communal interest holders.

 S6. (8) A county government shall not sell, dispose, transfer, convert for
private purposes or in any other way dispose of any unregistered
community land that it is holding in trust on behalf of the communities
for which it is held.

 S7(6) The community land management committee shall come up with the
name of the community and shall submit the name, register of members,
minutes of the meeting and the rules and regulations of the committee to
the Registrar for registration.

11
 In a nutshell………

 Community land registrar advertises inviting members of community to

public meeting to elect members of community land management
committee

 Community selects 7-15 members

 Committee comes up with comprehensive register of communal interest

holders, name of community

 Committee forwards above plus minutes of meeting and rules and

regulations to registrar for registration.

Functions of the community land management committee (s. 15)

S15 (4) The functions of the community land management committee shall be
to-

(a) have responsibility over the running of the day to day functions of the
community;

(b) manage and administer registered community land on behalf of the

respective community;

(c) coordinate the development of community land use plans in

collaboration with the relevant authorities;

(d) promote the co-operation and participation among community

members in dealing with matters pertaining to the respective registered
community land; and

(e) prescribe rules and regulations, to be ratified by the community

assembly, to govern the operations of the community.

Community assembly

 S15. (1) A registered community shall have a community assembly which

shall consist of all adult members of the community.

 S15 (2) The quorum for decision making by the community shall not be
less than two thirds of the community assembly.

12
  S15 (3) The community assembly shall elect between seven and fifteen
members of the community assembly to constitute the community land
management committee.

Note: Section 15 (5) Any decision of a registered community to dispose of or

otherwise alienate community land shall be binding if it is supported by at least
two thirds of the registered adult members of the community, while all other
decisions of the registered community shall be by a simple majority of the
members present in a meeting.

Contents of a community land register(s. 10)

(a) a cadastral map showing the extent of the community land and identified
areas of common interest;

(b) the name of the registered community;

(c) a register of members of the registered community which shall be updated

annually;

(d) the user of the land;

(e) such particulars of members of the registered community as the Registrar

may determine;

Further Note: For the avoidance of doubt, until any parcel of community land
has been registered in accordance with this Act, such land shall remain
unregistered community land and shall, subject to this Act, be held in trust by
the county governments on behalf of the communities for which it is held
pursuant to Article 63(3) of the Constitution.

Customary right of occupancy

 Every member of a community has a right of occupancy on customary land

 The right is capable of being allocated by the community to an individual

person, family, group of persons, clan, an association, partnership or body
corporate wholly owned by citizens of Kenya;

 It is also capable of being of indefinite duration; and is governed by

customary law in respect of any dealings.

13
  It can be made to a registered community and upon approval by the
registered community, the registered community shall issue a certificate
of customary right of use and occupancy in the prescribed form.

Conversion of land

S. 21 (2) A registered community shall, before the conversion of registered

community land into any other category of land seek and obtain approval from
two thirds of the assembly in a special meeting convened for that purpose.

a. Conversion To Public Land (S. 22)

 22. (1) Community land may be converted to public land by-

(a) compulsory acquisition;
(b) transfer; or
(c) surrender.
 (3) Reversionary interest of such land shall lie with the community in the
first instance upon expiry of such public use interest.

 (4) Transfer of community land shall, subject to the approval of the

members of the registered community in a community meeting, be done
in accordance with the Land Act, 2012 and any other applicable law.

b. Conversion To Private Land (S. 23)

 23. Registered community land may, subject to the approval of the

registered community, be converted to private land through-
(a) transfer; or
(b) allocation by the registered community, subject to
ratification of the assembly as provided in section 21(2).( i.e.
2thirds majority)

c. Conversion Of Public Land To Community Land (S. 24)

 24. (1) Public land may be converted to community land by allocation by

the Commission in accordance with the Land Act, 2012

14
  (2) Conversion of public land to community land under subsection (1) may
be effected on a case by case basis.

 (3) The Commission may, by an order published in the gazette identify

other specific parcels to which subsection (2) shall not apply.

d. Conversion Of Private Land To Community Land

 25. Private land may be converted to community land by-

a) transfer;
b) surrender;
c) operation of the law in relation to illegally acquired community land;
or
d) operation of any other written law.

Individual Rights on Community Land

 27. (1) A registered community may upon application and with approval of
the members of the registered community, allocate part of its registered
community land to a member or a group of members of the community for
exclusive use and occupation for such period as the registered community
shall determine.

 (2) Despite subsection (1), a separate title shall not be issued for such
parcel.

 (3) An individual entitlement under subsection (1) shall not be superior to

community title in any way.

 (4) A member granted exclusive use of a parcel of land under this section-

a) shall pay to the registered community such premium or fees

commensurate to the use as may be determined by the
community from time to time;

b) may develop the land subject to the provisions of any laws and
regulations relating to land use;

15
 c) may not assign or lease the land to a third party who is not a
member of the community;

d) shall put the land into lawful use;

e) shall surrender the land back to the community if the member

no longer shall be entitled to quiet enjoyment of the land.

 S 31(2) For the purposes of this Act, contracts and transfers over
community land shall be carried out in a manner similar to transactions
over private land as provided in the Land Act, 2012 and registered as
provided in the Land Registration Act, 2012.

 36. (1) Subject to any other relevant written law, an agreement relating to
investment in community land shall be made after a free, open
consultative process and shall contain provisions on the following aspects-
a) an environmental, social, cultural and economic impact
assessment;

b) stakeholder consultations and involvement of the community;

c) continuous monitoring and evaluation of the impact of the

investment to the community;

d) payment of compensation and royalties;

e) requirement to re-habilitate the land upon completion or

abandonment of the project;

f) measures to be put in place to mitigate any negative effects of the

investment;

g) capacity building of the community and transfer technology to

the community;

h) any other matters necessary for determining how local

communities will benefit from investments in their land.

16
 (2) An agreement relating to investment in community land shall only be
made between the investor and the community.

17