The Constitution classifies land in Kenya into three categories: public, community and private land.
Public land: According to Article 62 of the Constitution , this is land which was unalienated government land as the constitution came into effect or land used or occupied by any state organ. It also includes all minerals and mineral oils, government forests, roads, rivers and lakes and the territorial sea among others. Under the Land Act, public land can be converted to private or community. Public land can also be leased. Leaseholders who are Kenya citizens enjoy pre-emptive rights on expiry of the lease. The National Land Commission manages public land on behalf of the National and County Governments. It has the discretion to issue guidelines on the various aspects of managing public land.
Community land: Community land is vested in and held by communities identified on the basis of ethnicity, culture or similar community of interest . Details of specific categories are in Article 63 of the Constitution. The recognition, protection and registration of community land rights and their management and administration will be done under the Community Land Act, 2016 once regulations are enacted. Customary land rights shall be recognized, adjudicated and documented for purposes of registration in accordance with this Act and any other written law.
Kenya is one of only 10-15 African states that have attempted to come to terms with the reality that customary tenure is alive and well and can readily translate into modern devolved community-based land tenure. Customary land governance is used in three quarters of Kenya, and ,through such governance, significant tenure security could be achieved with creative application and the long-standing land grievances can be resolved. The implementation of the Community Land Act (2016) might face some implementation challenges, including difficulties in convening community assemblies for community pastoralists who keep moving with their animals and delineating boundaries for pastoral land. Designating fixed boundaries might be a challenge for the pastoral community. Also, there is likely a general lack of understanding among the community members about different legal requirement due to poor public awareness and understanding. There is limited resources for the community institutions to be formed under the Community Land Act. Implementers should keep this in mind and see how best to navigate through these challenges.
Private land: Article 64 of the Constitution provides that this is land held under freehold or leasehold tenure by any person . Article 40 provides that private land cannot be compulsorily acquired without due and prompt compensation. Freehold tenure confers unlimited right to use and dispose of land in perpetuity. It does not attract ground rent from the government. However, rates are paid to the counties for the services delivered. Under leasehold tenure; the government leases the land to the holder for a specific renewable period, with a maximum of 99 years. Ground rent is payable to the government, rates and levies to County Governments. In addition there is restriction of the type of development and use of the land. The rights and obligations of holders of private land rights are provided under the Land Act, 2012.
It should be noted that title to land in Kenya, or legal rights, may only be acquired through :
- Allocation by the government (for Public Land)
- The land adjudication process as provided in the Community Land Act ( for customary land)
- Compulsory acquisition
- Settlement programs by government
- Long term leases created out of private land
However, culture and traditions discriminate against women and the youth from equitable access to land and inheritance of land. The new Constitution and the Land Laws have however have attemped to address these injustices by including equal protection (non-discrimination) provisions (see Art. 29 of Tanzania Constitution). It has been well-established that a poor understanding of the Constitution and Land laws undermine the capacity of some communities from accessing land rights or protecting them where there is encroachment and compulsory acquisition. This gap is a challenge the State and Civil Society Organizations should take up.
It should be noted that the informal urban tenure in Kenya is currently being regularized  as a result of the Kenya informal settlement improvement project (KISIP) under the Ministry of Lands and Physical Planning. The project has so far begun in slums within the major towns in Kenya. This project aims at enhancing tenure security by scaling up and supporting settlement, planning and tenure security.