Land Tenure Issues in Taita Hills
November 16, 2018The Process of Land Adjudication in Kenya
December 4, 2018
Previous blog in a series: Land Tenure Issues in Taita Hills
Land remains a contentious and problematic issue in Kenya, particularly land held in areas predominantly perceived as the traditional home of a community. Land reforms in Kenya were mainly run under systems set up by colonialists from as early as 1885. Through the years land laws have evolved, however, structures and methods have remained largely centralized with minimal progress towards developments in adjudication and titling.
Research in Taita Hills revealed that the operation of law is a mundane process. Informal mechanisms are still used from the inheritance of ownership to dispute resolution. The community is not fully educated about their rights to land and the processes involved. This has led to continued perceptions of land injustice and only recently has formal adjudication addressed some of these issues. Title deeds are yet to be issued and many areas around Kenya remain contentious and ripe for land dispute.
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[1]. The parliament of Kenya enacted new land laws, including:
- The Land Act 2012[2],
- The Land Registration Act 2012[3],
- The National Land Commission Act 2012[4]
- Community Land Act of 2016[5]
These legal regimes replaced the past regimes which included, amongst other laws, the Land Titles Act, the Registration of Titles Act, the Registration of Land Act, the Government Land Act and the Indian Transfer of Property Act.
These new land laws have constitutional backing unlike in the previous regimes’ which provided no framework on land legislation and where land laws were enacted not as a constitutional requirement but out of necessity.[6]
The Land Act 2012 sought ‘to revise, consolidate and rationalize land laws; and to provide for the sustainable administration and management of land and land-based resources’.[7] This Act was amended following the introduction of the Land Laws (Amendment) Act 2016. The Act brought about amendments to the Land Act 2012, Land Registration Act 2012 and the National Land Commission Act 2012. The amendments were necessary to correct errors and inconsistencies in the statutes and to clarify certain definitions, as well as to introduce some pertinent changes to land law and conveyancing in Kenya. This Act applied to all land declared as public, private and community land under the constitution.
In 2010, the Constitution of Kenya classified land as:[8]
- Public land[9] – 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[10] – 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[11] – 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.
Since our research applied new technologies to the data capture element of land registration, we first looked into various methods of acquisition of titles to land in Kenya. These are coming up in the next blog posts.
Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher
[1] Article 68 of the Constitution.
[2] See: No. 6 of 2012. http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf
[3] See: No. 3 of 2012. http://kenyalaw.org/lex/rest//db/kenyalex/Kenya/Legislation/English/Amendment%20Acts/No.%206%20of%202012.pdf
[4] See: No. 5 of 2012. http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/National_Land_Commission_Act___No_5_of_2012_.pdf
[5] Article 63 (5) of the Constitution.
[6] Chapter Five.
[7] See: http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf
[8] See: https://eregulations.invest.go.ke/menu/117?l=en&embed=true&includeSearch=true
[9] Article 62 (4) of the Constitution of Kenya, 2010.
[10] Article 63 of the Constitution of Kenya, 2010.
[11] Article 61(2) of the Constitution of Kenya, 2010.
