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Community Land Act

Community Land Act Summary

WHEN DID IT COME INTO OPERATION?

  • The Community Land Act was signed into law by the Presidenton 31st August, 2016. It came into operation on 21st September, 2016.
  • The purpose of the Act is to:
    • give effect to the Constitution Art. 63 which provides for Community Land
    • provide recognition, protection and registration of community land rights
    • provide for the management and administration of community land
    • provide for the role of County Governments in relation to unregistered community land

WHAT IS COMMUNITY LAND?

  • Simply put, this is land belonging to or vesting in a community.
  • Section 2 of the Act defines a community as a consciously distinct and organized group of community land users who are Kenyan citizens and share any ofthe following attributes:
    • common ancestry
    • similar culture or unique mode of livelihood
    • socio-economic or other similar common interests
    • geographical space
    • ecological space
    •  
  • Section 4 provides that a community land in Kenya shall be owned by the community either under customary, freehold, leasehold or other land tenure system.
  • The Act recognizes customary land rights which may be adjudicated and documented for registration. This right has equal force and effect as freehold or leasehold rights. Customary land rights can be acquired through allocation, registration or transfer
  • Every person has the right either individually or in association with others, to acquire and own property of any description in any part of Kenya.

 

  • The Government may regulate the use of Community Land in the interest of defence, public safety, public order, public morality, public health, or land use planning.(Section 5)
  • Article 66 of the Constitution requires Parliament to enact laws such as this one to ensure that investments in property benefit local communities and their economies.
  • The Government cannot compulsorily acquire Community Land without following the proper legal process, and paying compensation promptly to the owner/ owners.
  • Under Section 6, the County Government holds all unregistered community land in trust on behalf of community.
  • Any money paid in compensation for compulsory acquisition of unregistered community land shall be held in trust for the community. That money is deposited in a special interest earning account by the County Government. The money is released to the community upon registration of community land.

After unregistered community land is registered, the community shall take over the management and administrative functions over the land. The trusteeship role of the County Government at that point ends.

  • The procedure for registration of community land is set out in Section 7 of the Act:
    • Community Land Registrars and Adjudicators shall be appointed to oversee the adjudication and registration of community land.
    • The Community Land Registrar publishes a notice in at least one newspaper of nationwide circulation and a radio station of nationwide coverage, or any other means of communication available e.g. Electronic media, inviting all members of the community with some communal interest to come to a public meeting organized for the purpose of electing the members of the Community Land Management Committee. This notice is also given to the National County Administrators and County Government Administrators in the area.
    • The community meets on the appointed day and elects between seven (7) and fifteen (15) members from among themselves to be the members of the Community Land Management Committee.
    • The Community Land Management Committee shall prepare a comprehensive register of communal interest holders. It comes up with a name for the community and submits the name, register and minutes of the meeting and rules and regulations of the committee to the Community Land Registrar for registration.
  • Section 8 of the Act provides for the procedure for recognition and adjudication of community land:
    • The Cabinet Secretary shall issue a notice of intention to survey, demarcate and register the community land. The notice shall name the community, describe the land to be adjudicated and invite all persons with overriding interests or any other claim to the land to lodge their claim within sixty (60) days.
    • The Cabinet Secretary shall have the land surveyed. The survey will not include the parcels already in use for public purposes and any adjudicated private land.
    • A cadastral map of the land shall then be produced and presented to the registrar for registration under this Act and the Land Registration Act, 2012.
  • For the avoidance of doubt, the Cabinet Secretary shall develop the adjudication programme and ensure that the new and existing adjudication programme shall, subject to this Act, be governed by the law applicable to it immediately before to the commencement of this Act and shall be concluded within three years of the enactment of this Act (Section 46).
  • If at the lapse of the time specified by the Cabinet Secretary there is any adjudication programme not finalized, the Cabinet Secretary shall gazette new completion dates and finalize the registration under the provisions of this Act.
  • The Director of Land Adjudication, an adjudication officer, demarcation officer, survey officer or a recording officer involved in an adjudication programme shall be deemed to be officers of the National Government.

Under section 12, community land can be held:

  • As communal land
  • As family or clan land
  • As reserve land
  • Any other category recognized by law.

Under section 13, a registered community can through a majority vote at a general meeting agree and resolve to reserve a portion of the community land for communal purposes.

Any land which has been used communally for public purposes even before this Act came into force is deemed to be public land and is vested in the National or County Government depending to the use it was put for.

A community may set aside part of registered community land for public purposes. Such land must be accordingly gazetted by the National Land Commission (Section 26).

A registered community can decide to reserve special purpose areas which shall be used exclusively for:

  • Farming
  • Settlement
  • Community conservation
  • Cultural and heritage sites
  • Urban development
  • Any other purpose for the promotion or upgrading of public interest.
  • A registered community may grant a right of occupancy or use of community land to any person including an individual, a family, group, clan, association, partnership or a body corporate wholly owned by Kenyan Citizens (Section 14).
  • A customary right that existed before the Act came into force is recognized as a right of occupancy.
  • An application for recognition of occupancy right is decided by the community and considers the proposal of the adjudication team. The decision must also observe equality and non-discrimination on the basis of gender, disability, minority, culture or marital status.
  • After the community approves, it shall issue a certificate of customary right of use and occupancy.

THE COMMINITY ASSEMBLY & COMMUNITY MANAGEMENT COMMITTEE

  • A registered community shall have a Community Assembly consisting all adult members of the community.
  • The Community Assembly shall appoint between 7 - 15 members to a Community Land Management Committee which will manage the community land.
  • The functions of the Community Land Management Committee are to:
    • Manage day to day functions of the community
    • Manage and administer registered community land on behalf of their community
    • Coordinate the development of community land use planning with relevant authorities
    • Promote cooperation and participation among community members in dealing with matters pertaining to their community land
    • Prescribe rules and regulations to be ratified by the Community Assembly to govern the operations of the community.
  • Disposal of community land will have to attain the vote of at least two thirds of the registered community members.
  • All other decisions of the community shall be made by a simple majority of the members present in a meeting.
  • The community may, subject to law, make rules or by-laws for regulating the management and administration of their land (Section 37). Such rules may provide for:
    • Regulation of investments on the land
    • The determination of terms of any leases granted for purposes of investment;
    • The conservation and rehabilitation of the land;
    • Land use and physical planning; and
    • Any other relevant matter.
  • The management of community land is subject too National and County Government laws and policies relating to: -
    • fishing, hunting and gathering;
    • protection of animals and wildlife;
    • water protection, securing sufficient residual water, hydraulic engineering and safety of dams;
    • forestry;
    • environmental laws;
    • energy policy; and
    • exploitation of minerals and natural resources.

THE CERTIFICATE OF TITLE

  • The registration of a community as the proprietor of land vests in that community the absolute ownership of that land together with all it rights and privileges (Section 16).
  • The rights of a registered community to community land can only be defeated by leases, charges or other encumbrance registered over the land and such overriding interests as declared by section 28 of the Land Registration Act (Section 17).
  • A certificate of title will be issued upon registration, transfer or transmission of land to a community and the title will be prima facie evidence of ownership and it will be indefeasible except for fraud or misrepresentation or if its acquisition is tainted by illegality, corruption or un-procedural acts (Section 18).
  • A registered community may on its own or at the request of the County Government submit to the County Government for approval, a plan for the development, management and use of the community land (Section 19)
  • The plan shall consider any conservation, environmental or heritage issues relevant to the land; it shall comply with the values and principles of the Constitution and must be ratified by the members of the registered community.
  • A registered community shall put in place the necessary measures to conserve resources in community land.
  • The conversion of community land to private or public land requires at least two thirds support of the registered community members. Section 34 provides that any conversions commenced after the promulgation of the Constitution of Kenya, 2010 shall be null and void.
  • Community Land may be converted to Public Land through (Section 22): -
    • Compulsory acquisition
    • Transfer
    • Surrender
  • Registered Community Land may be converted to Private Land through (Section 23):
    • Transfer
    • Allocation by the registered community, subject to ratification of the assembly.
  • Public Land may be converted to Community Land by allocation by the National Land Commission on a case by case basis (Section 24). The Commission may identify specific parcels of Public Land which cannot be converted to Community Land.
  • Private Land may be converted to Community Land through:
    • Transfer
    • Surrender
    • Operation of the law in relation to illegally acquired Community Land
    • Operation of any other written law.

INDIVIDUAL RIGHTS ON COMMUNITY LAND

  • A registered community may upon application and approval by members, allocate part of its registered community land to a member or a group of members for their exclusive use and occupation for a period as decided by the community. In such a case, the individual or group is not issued with a separate title, and their rights shall not be superior to the community title (Section 27).
  • A member granted exclusive use of a parcel of land:
    • Shall pay to the registered community such premium or fees commensurate to the use as determined by the community from time to time.
    • May develop the land subject to any provision or law regulating the land
    • May not assign or lease the land to a third party who is not a member of the community
    • Shall surrender the land to the community if the member shall cease to be entitled to the land or no longer needs the land.
  • Community land in a pastoral community shall be available for use by members of the community for the grazing of their livestock subject to conditions for grazing that the community may impose as to:
    • Number and kind of livestock
    • Rotational grazing
    • Grazing plan
    • The right of the community to use the portion of the land in accordance with this Act.
  • A registered community may grant grazing rights to a person who is not a member of the registered community subject to the same conditions for grazing. The community may by special meeting withdraw this right if due to drought or reasonable cause, the cancellation is in the interest of the residents of the community.
  • Grazing rights may be withdrawn to any member who fails to observe the conditions of grazing.
  • Unless a person has written authority of the registered community, it is an offence punishable by fine not exceeding Kshs. 100,000/- or imprisonment for a period not exceeding 6 months for a person to:
    • Erect or occupy any building or structure on designated grazing land
    • Plough or cultivate any portion of the land
    • Take up abode on or occupy any portion of the grazing land
    • Obstruct the access to any watering place on the land or interfere with the operation of any windmill, water pump, water pipe, dam or storage tank.
  • A registered community may reserve special purpose areas to be used exclusively for (Section 29):
    • Farming
    • Settlement
    • Community conservation
    • Access and rights of way
    • Cultural and religious sites
    • Urban development
    • Any other purpose for the promotion of public interest.
  • Every member of the community has a right to equal benefit from community land.
  • Every man or woman married to a member of the community shall gain automatic membership of the community which shall continue unless the spouses legally divorce and the woman remarries or the woman remarries after the death of a spouse (Section 30).
  • A person who before 21st September 2016 held a right to use and occupy any part of community land under law, may continue to use and occupy the land under the same terms and conditions until the lease expires, after which the requirements of this Act will apply (Section 34).

NATURAL RESOURCES ON COMMUNITY LAND

  • Natural resources on community land shall be used and managed:
    • Sustainably and productively
    • For the benefit of the whole community including future generations
    • With transparency and accountability
    • On the basis of equitable sharing of accruing benefits
  • A registered community may enter into an agreement relating to investment in community land with an investor (Section 36). The agreement must be approved by two thirds of the adult member of the Community Assembly meeting called to consider the offer, and at which a quorum of two thirds of the adult members are represented. The community may request the Government or other relevant stakeholders for assistance in considering the offer. This agreement shall be made after a free, open consultative process and shall contain provisions on the following aspects—
    • an environmental, social, cultural and economic impact assessment;
    • stakeholder consultations and involvement of the community;
    • continuous monitoring and evaluation of the impact of the investment to the community;
    • payment of compensation and royalties;
    • requirement to re-habilitate the land upon completion or abandonment of the project;
    • measures to be put in place to mitigate any negative effects of the investment;
    • capacity building of the community and transfer technology to the community; and
    • any other matters necessary for determining how local communities will benefit from investments in their land

DISPUTE RESOLUTION MECHANISMS

  • A registered community may use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms where it is appropriate to do so, for purposes of settling disputes and conflicts involving community land.
  • Any dispute arising between members of a registered community, a registered community and another registered community shall, at first instance, be resolved using any of the internal dispute resolution mechanisms set out in the respective community by-laws.
  • Where a dispute or conflict relating to community land arises, the registered community shall give priority to alternative methods of dispute resolution.
  • A court or any other dispute resolution body shall apply the customary law prevailing in the area of jurisdiction of the parties to a dispute or binding on the parties to a dispute in settlement of community land disputes so far as it is not repugnant to justice and morality and inconsistent with the Constitution.
  • Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to mediation.
  • The mediation shall take place in private or in informal setting where the parties participate in the negotiation and design the format of the settlement agreement.
  • The mediator shall have the power to bring together persons to a dispute and settle the dispute by—
    • convening meetings for the hearing of disputes from parties and keep record of the proceedings;
    • establishing ground rules for the conduct of parties; structuring and managing the negotiation process and helping to clarify the facts and issues; and
    • helping the parties to resolve their dispute.
  • If an agreement is reached during the mediation process, the agreement shall be reduced into writing and signed by the parties at the conclusion of the mediation.
  • Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to arbitration.
  • Where the parties to an arbitration agreement fail to agree on the appointment of an arbitrator or arbitrators, the provisions of the Arbitration Act (No. 4 of 1995) relating to the appointment of arbitrators shall apply.
  • Where all efforts of resolving a dispute under this Act fail, a party to the dispute may refer the matter to court. The Court may:
    • confirm, set aside, amend or review the decision which is the subject of the appeal; or
    • make any order in connection therewith as it may deem fit.
  • It is an offence for any person to occupy or use for any purpose any registered community land other than under a right acquired in accordance with the provisions of this Act. (Section 43). This offence is punishable by a fine not exceeding five hundred thousand shillings or by imprisonment for a term not exceeding three years, or to both.
  • This Act repeals: -
    • the Land (Group Representatives) Act, (Cap. 287); and
    • the Trust Lands Act, (Cap. 288).
  • In relation to land held under the Land (Group Representatives) Act (Cap. 287), the respective group representatives together with the communities they represent shall be registered as a community in accordance with the provisions of this Act.
  • Upon registration, the respective group representatives shall cease to hold office.
  • Land held by group representatives shall not be sold, leased or converted to private land before it has been registered under this Act.
  • Title documents issued to group representatives under the Land (Group Representatives) Act (Cap. 287) shall continue to be in force until new titles are issued in the names of the respective communities or other institutions in accordance with this Act.
  • The Cabinet Secretary may prescribe regulations for giving effect to this section.
  • The Cabinet Secretary, ensuring public participation may make regulations generally for the better carrying into effect of this Act and for prescribing (Section 48): -
    • the procedures of recognition and registration of all parcels of community land rights;
    • procedure for settlement of disputes arising from the community land registration process;
    • the requirements for investor partnerships;
    • the procedures of registering any other entity holding community land;
    • conversion of other categories of land into community land;
    • the fees payable for any application or the issue of any certificate or other document in terms of this Act;
    • the conditions, in addition to conditions imposed by or under any other law, under which prospecting or mining operations may be carried out on community land;
    • public education and awareness on the rights of communities over community land;
    • the combating and prevention of soil erosion and degradation, the protection of the pastoral resources and the limitation and control of the grazing of stock;
    • payment of royalties to communities from income generated from resources within community lands;
    • the timelines within which the adjudication programme must be gazetted, including guidelines on how to ascertain community or individual claims of interest in or right over community land;
    • the rules and procedure for election of a community land management committee; and;
    • the procedures for registration of interest in community land as enshrined in Article 63 of the Constitution.

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