The Citizen Handbook

The Constitution of Kenya, 2010: The People’s Power

The Constitution of Kenya, 2010: My Constitution, My Future

LandUse & Management

This section outlines the land provisions captured in the Constitution. It highlights the different categories of the land tenure system.Land ownership has been a controversial issue ever since the struggle for independence. 

“All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.” - Article 61(1), The Constitution of Kenya, 2010

  One major reason that land ownership has historically been an issue is because of poor land laws in the past, which allowed for the seizure of land from its rightful owners by corrupt individuals, including landowners’ own community peers, and government officials.

Principles on Land Management

Our country has experienced land related clashes since independence because of competition for land ownership and corruption. The clashes have persistently threatened the national cohesion of our country. In an effort to resolve this historical problem, the constitution includes general principles for the management of land matters. some of the key provisions on land management in the constitution are:
 ·         ensuring equitable access to land;
 ·         encouraging efficient, productive and sustainable usage of land;
 ·         enforcing transparent and cost effective administration of land;
 ·         requiring the conservation and protection of ecologically sensitive areas;
 ·         eliminating gender discrimination in laws, customs and practices related to land and property in land; and
 ·         encouraging communities to settle land disputes through recognized local community initiatives consistent with the law.

Types of Land

The Constitution classifies land into three categories: (1) public land, (2) community land, and (3) private land. Below is an explanation of each:

  • Public Land
Public land includes un-alienated land, land set aside for public use, land used or occupied by a state organ, national parks, sanctuaries and game reserves. It also includes all main roads and access roads, rivers and lakes and territorial sea and any other land not classified as private or community land under the Constitution. The specific type of public land determines whether people in a county entrust that land to their county government or the people of Kenya entrust it to the national government.
 Article 62 (1)
  •  Community Land
 Community land shall vest in and be held by communities identified based on ethnicity, culture or similar community of interest. Community land includes:
 ·      Land lawfully registered in the name of group representatives or transferred to a specific community;
 ·      Ancestral lands as well as lands occupied traditionally by hunter gatherer communities;
 ·      Land managed or used by specific communities as community forests, grazing areas or shrines;
 ·      Land held as trust land by the county governments (excluding any public land held in trust); and
·      Land declared to be community land by Parliament
 Article 63 (1)
  •  Private Land
Private land includes registered land held by any person under any freehold tenure or leasehold tenure and any other land declared private land under an Act of Parliament.
 Article 64

Land Tenure

Reforms in land ownership are one of the key features of the 2010 Constitution. Specific types of land ownership outlined in the Constitution are below:
 ·         Freehold tenure is the ownership of land with the right to pass it on through inheritance. The landowner may have acquired the land through purchase or inheritance.
 ·         Leasehold tenure is the temporary ownership of land through the payment of land rent. This is similar to renting a house and paying the property owner rent at an agreed amount without actually owning the house.
 ·         Partial interest tenure is land that has many different interests or stakeholders on a specific parcel of land. This can include easements where one landholder has rights to certain parts of another landholder’s land. Examples of partial interest tenureinclude government regulation, zoning or even by negotiation among private and/or public parties.
 ·         Customary tenure is land ownership granted through traditions. The Constitution does not recognize customary tenure when it conflicts with the principles or provisions of the Constitution on issues such as disinheritance because of gender.

The maximum leasehold is now 99 years, which is a major shift from the previous system that allowed citizens to lease land for up to 999 years. A person who is not a citizen may hold land based on leasehold tenure only, which is different from the old system allowing for the most valuable land to be owned by foreigners. The new land provisions in the Constitution will, therefore, make land more accessible to many citizens and help to reduce poverty in the country.

Role of the State in Regulating Land Use

“The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning.” Article 66 (1), The Constitution of Kenya, 2010

Laws on Landholding

Parliament has already passed three laws that support the various land provisions in the Constitution. They are:
 ·         The National Land Commission Act, 2012
 ·         The Land Act, 2012
 ·         The Land Registration Act, 2012

Some additional complementary laws are still required for aspects of land provisions in the Constitution. At a minimum, this includes laws to regulate community land, address historical injustices related to land ownership, and address the rights of informal settlers like protection from arbitrary eviction.

Establishment of the National Land Commission

Article 67 of the Constitution and provisions in the National Land Commission Act, 2012 establish the National Land Commission. Some of the Commission's primary functions are to:
 ·         manage public land on behalf of the national and county governments;
 ·         develop a national land policy;
 ·         advise the national government on matters related to land titles and monitoring;
 ·         oversee land use throughout the country;
 ·         investigate present or historical land injustices and recommend the appropriate redress; and
 ·         encourage the use of traditional dispute resolution mechanisms in land conflicts.

In accordance with Article 6(3) of the Constitution, the headquarters of the National Land Commission is in Nairobi, but it is required to provide access to citizens in all parts of the country. The Commission is required to produce an annual report, which includes the following information:financial statements, progress report on work conducted so far, and any recommendations or challenges. The Commission should publish their report for public viewing as soon as it is practical after each financial year.

Application & Implication

The Constitution contains a full chapter dedicated to land management and environmental issues. This chapter is critical given the country’s unique history of land disputes dating back to pre-colonial years. Historically, land ownership has been the root of many disputes.The establishment of the National Land Commission, and the implementation of constitutional provisions on land use and management, will increase accountability and transparency as well as reduce the possibility of illegal land seizure. New land laws passed by Parliament require the review of all grants or dispositions of public land and illegal land ownership. The constitutional provisions on land will also prevent the elite from occupying vast tracts of land. Finally, the Constitution requires efficient and effective land use.

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