When people were busy arguing on the merits of eating meat and salivating, something went under the radar, or quite literally, chini ya maji. H.E. Uhuru Kenyatta assented to the Community Land Act, 2016 (“the Act”). This is the piece of legislation required under Article 63 of the Constitution of Kenya, 2010 to provide for community land as a distinct class of land. It also repeals the Land (Group Representatives) Act, (Cap 287) and the Trust Lands Act, (Cap 288).
The Act defines “community” as an organized group of users of community land who are citizens of Kenya and share any of the following attributes: common ancestry; similar culture or unique mode of livelihood; socio-economic or other common interest; geographical space; ecological space; or ethnicity. It also provides for the following tenure systems: customary, freehold, leasehold or any other tenure system recognized by law.
The community land management committee
The community shall elect a community land management committee of between 7 and 15 members after extensive civic education and public participation. The committee shall come up with a comprehensive register of communal interest holders and forward the same to the Registrar of community land for registration. This committee also has wide-ranging powers, including exercising control over and regulate dealings in community land, determining the land use, criteria of acquiring community land and allocating land rights, among others. The community itself may designate community land to be held as communal land; as family or clan land; as reserve land; or in any other manner regulated under the Act and may make its own by-laws regulating the management and administration of their land especially where the land is for use or investment e.g. where there are natural resources.
Land use by the community
Community land may be allocated to individual members of the community for their own exclusive use. The community shall grant this land subject to special conditions and the land shall revert to the community upon expiry of the term or death of the individual. However, this does not mean that the individual shall have a separate title.
Contracts and transfers over community land shall be carried out in a manner similar to transactions over private land. The community, as lessor, may cancel the lease if the lessee fails to comply with the requirements or to adhere to any restrictions imposed. Communities may also enter into investment agreements which should be structured in a way to ensure sustainable use and equal sharing of benefits including technology transfer where applicable. Before such an agreement is made, there should be an environmental impact assessment and socio-economic impact assessment of the project, extensive public participation and stakeholder consultations, payment of adequate compensation and royalties as well as a plan to restore or mitigate the harmful effects of the environment. However, the State shall maintain police powers under Article 66 of the Constitution over community land.
Registration of community land
The Registrar of community land designated by the Chief Land Registrar will register the community land after a comprehensive adjudication programme developed and published in the Gazette by the Cabinet Secretary, in consultation with county governments. This programme shall document existing forms of land tenure, map out and ascertain the boundaries of community land and make an inventory of all community land in Kenya. This process shall be guided by the spirit of public participation through extensive consultation and effective communication to all affected members of the community. The Registrar shall also register the list of community members.
Role of county governments in community land
An interesting provision in the Act is the role of county governments in relation to community land, which shall hold unregistered community land in trust until such registration is effected. This role also includes holding monies paid for compulsory acquisition of the unregistered community land, which shall be placed in a special interest earning account and redistributed to the community members once the community land is registered. County governments shall also approve the community’s plan for the development, management and use of the community land; planning and regulation of land use being a function of the county governments under the Fourth Schedule to the Constitution.
Once the land is registered in the name of the community, the community shall be the proprietor of the land and shall have an indefeasible title, not subject to any challenge unless the title has been acquired fraudulently or illegally. The interest shall be subject to leases, charges and other encumbrances and the overriding interests as contained in Section 28 of the Land Registration Act, 2012.
Conversion of community land into public or private land
Community land may be converted to public land through compulsory acquisition (upon fair compensation), transfer; or surrender. The community will have pre-emptive rights of reversion upon expiry of the public interest use. Community land may also be converted into private land by transfer; or allocation by the registered community, subject to ratification of the assembly of community members by a majority of two-thirds of the vote.
Dispute resolution among members of the community relating to community land may use traditional dispute resolution mechanisms whenever appropriate, subject to Article 159 of the Constitution. At first instance, this should be the preferred method of dispute resolution. However, if the dispute still remains, the parties may agree to refer the dispute to mediation in an informal and private setting and the parties will play an active role in negotiating the final settlement, which shall be in writing and signed by the parties.
Offences and penalties
The Act provides for offences and penalties, with regards to unauthorized entry, use and interference of community grazing lands, any person who is found guilty of this offence is liable to a fine not exceeding Kshs 100,000 or imprisonment for a period not exceeding six months. With regards to unauthorized occupation and use of community land other than in a manner authorized by the act, any person who is found guilty of this offence is liable to a fine not exceeding Kshs 500,000, or to imprisonment for a term not exceeding three years, or to both.
Opinion and conclusion
The Act finally institutes a framework to manage the use of community land which had long been ignored in favour of private land holding, yet in the traditional African society, land was held communally. As Dr Collins Odote (incidentally, my former lecturer who taught me Land Use Law) observed in the Business Daily: “The passage of this law is historic and a victory for many communities who have for years not had legal rights over their land.” The adjudication and registration of such lands will enable the communities to finally have legal title to their land, which will open up their areas for investment and economic growth, through the transfer and charging of this property to obtain credit. Further, the Act provides for equality to all persons entitled to community land and discourages discrimination based on gender, disability, minority, culture or marital status. This is especially important for deeply patriarchal societies, as women and children are often marginalized. We hope that its implementation will be true to the Act’s objectives.