By Anne Hennings, reviewed by Denis Kioko, Partnership & Localisation Advisor at Trocaire, Kenya
2 December 2021
Land and political power have always been closely intertwined in Kenya’s historical trajectory. After independence from the British in 1968, the legacy of a dual system of land laws and administration continued. Repeatedly, tenure insecurity, forced evictions, inequality, and grievances related to inequality and corruption in the land sector have contributed to violence, such as during the 2007 election1. In 2009, the National Land Policy was approved mandating land restitution for those who have been dispossessed and aiming to strengthen customary land tenure vis-à-vis individual ownership. The implementation of the policy and the constitution of 2010 is ongoing and has resulted in a number of progressive laws that recognize community land for the first time.
For the first time, the Constitution of 2010 recognizes customary land law if it is consistent with other applicable law. The Community Land Act (2016) protects community land rights and is responsible for the development of community land registers as well as the setup of Community Land Management Committees.
Drought in Kenya's Ewaso Ngiro river basin, 2020. Photo: Climate Center/Water Alternatives Photos/Flickr (CC BY-NC 2.0)
Despite progress in implementing decentralization as well as provisions for transparency and accountability, historical injustices have not been addressed sufficiently. Until September 2021, Kenyans could file complaints about historical land injustices to the National Land Commission. However, not only have long-standing grievances undermined trust in the State but only few awareness campaigns brought this opportunity to the attention of the people.
Other major land-related issues include continuing corruption, high levels of inequality and gender discrimination, land degradation and fragmentation, deforestation, chronic water scarcity, as well as increasing droughts and floods as a result of climate change. The amount of pastoral land is dwindling due to expanding agricultural areas and (oil) exploitation projects.
Land legislation and regulations
Replacing a patchwork of laws from colonial times, Kenya’s National Land Policy was enacted in 2009 and its key principles anchored in the constitution promulgated in 2010. The implementation of the National Land Policy and the constitution is ongoing and has resulted in a number of new laws, including the Land Act (2012), the Land Registration Act (2012), or the National Land Commission Act (2012). The Land Act provides for equitable access to land, security of land rights, and promotes local community initiatives as well as the creation of a Land Settlement Fund. In addition, the Land Laws (Amendment) Act (2016) aims to settle initial disputes between the Ministry of Lands, Housing and Physical Planning and the National Land Commission. The act also lays out how claims of historical injustices - that go back to Arab and British colonization - may be submitted and investigated.
The Ministry of Lands and Physical Planning is responsible for the overall administration of land, and surveying and mapping, and provides leadership to land reforms in Kenya. The National Land Commission (NLC) is mandated to manage public land on behalf of the National and County governments, to advise the national government concerning land registration, and to investigate historical land injustices, and recommend appropriate redress2. County governments and County Land Management Boards administer land use planning and property rating, and are entrusted with the management of unregistered community land. Despite visible progress, the decentralization of land administration and management faces various challenges, including limited budgets, weak administrative capacities.
Land tenure classifications
According to the Constitution there are three types of land – public land, private land, and community land - which are all governed by the Land Act according to the principles of non-discrimination and the aim of the sustainable and productive management of land resources3. The Land Act also offers protection for marginalized groups, squatters, and internally displaced persons due to natural causes, conflict, development, or conservation projects4. Public land includes land that was unalienated government land before 2010, land used or occupied by the State as well as all minerals, government forests, public institutions, roads, rivers, and lakes. It is managed by the National Land Commission and can be leased or converted to private or community land. Community land is vested in communities on the basis of ethnicity, culture, or similar interest. Private land is land held under freehold and leasehold tenure. Freehold tenure allows for unlimited rights to land use.
The registration of and certification to land and its decentralization is done under the Land Registration Act. In June 2021, the Ministry of Lands, Housing and Physical Planning announced the shutdown of the Central Lands Registry to curb corruption and facilitate decentralization. All files will be moved to respective county branches. Nairobi is in the process of fully digitizing its land records to promote more efficient services. Furthermore, in consultation with the National Land Commission the Ministry of Lands, Housing and Physical Planning launched the National Land Information Management System in April 2021.
Smallholder tenure rights are quite secure in areas with adjudicated and registered land rights. However, particularly pastoralists or smallholders practicing shifting cultivation face tenure insecurity due to a lack of records and set boundaries. High costs are the main reason in urban and rural areas for tenure insecurity5. There is also a lack of awareness about the complex legal processes and rules related to property protection. In addition, land ownership is challenged by land speculation, corruption, and multiple plot registration. Particularly frequent in the Rift Valley, the northern and coastal areas, disputes relating to the environment and land titles may be referred to the Environment and Land Courts or alternative land dispute resolution mechanisms6. In addition, the recently launched Alternative Justice System will provide support to resolving land conflicts.
Men in the drought-hit region of Turkana in northern Kenya, photo by DFID (CC BY-NC-ND 2.0)
Community land rights issues
Customary tenure is practiced in three quarters of Kenya. The impact of climate change has severely affected pastoral livelihoods and led to increasing conflict. In addition, historically conditioned misconceptions of communal tenure and state policies have weakened pastoral practices, such as seasonal migration that is based on primary and secondary rights to water and pastures negotiated among different groups7. Until the late 1990s, land governance in pastoral areas was driven by modernization and the promotion of parceling trust land into group ranches with freehold titles. Some ranches have become not-for-profit community conservancies under the National Rangeland Trust that was founded in 2004.
For the first time, the Constitution of 2010 recognizes customary land law if it is consistent with other applicable law. The Community Land Act (2016) protects community land rights and is responsible for the development of community land registers as well as the setup of Community Land Management Committees. The Bill also provides guidance on communal land titles and dispute resolution. The Community Land Act allows leases and conversions from community to private or public land and vice versa. However, its implementation faces various challenges, such as limited resources or the establishment of community assemblies for non-sedentary groups. Furthermore, while the Bill’s regulations were passed in 2017, several court cases have delayed its implementation.
Land use trends
In Kenya, only 28% of the population lives in urban areas. Agriculture accounts for 35.2% of the GDP and provides livelihoods for 69% of the adult population8. The livestock sector contributes 47% to the agricultural GDP. Of its total land area 48.5 percent is agricultural land mostly concentrated in the fertile highlands which are suitable for rain-fed agriculture9. Pastures and meadows are situated in the arid and semi-arid lands, which cover 80% of the country’s land.
The main crops are legumes, sugar cane, maize, and wheat, and diary production plays an important role. Kenya is leading the export market for coffee, tea, and horticulture. Moreover, the country exports petroleum, cement, and soda ash. The expansion of settlements and farmland has had negative effects on wildlife numbers and the country’s forests, wetlands, and grasslands10. Despite efforts of reforestation, Kenya lost 11% of its tree cover between 2001 and 2020.
The distribution of land is highly unequal which was exacerbated by elite capture in 1980s and 1990s when political leaders and their families appropriated large holdings in the fertile highlands. 13% of the population is landless and two thirds are smallholders living on 0.53 ha11. Only 27% of the population lives in cities12.
New irrigation scheme in Isiolo, Kenya, photo by EU Civil Protection Humanitarian Aid (CC BY-ND 2.0)
Land acquisitions
In customary tenure, usufruct rights to land are acquired through membership in a community which is defined by kinship ties or common descent. According to statutory law that also includes communal land, land may be acquired through transfers, long term leases of private land exceeding 21 years, transmission, prescription, allocation, settlement programs, or land adjudication for community land13. The government may lease land to nationals and foreigners for up to 99 years. The ground rent is paid to the government and rates and other levies to the County Governments. There may be certain restrictions to the development or use of the leased land.
Land can be compulsorily acquired by the government for public purposes subject to due and prompt compensation. The government may expropriate for the exploration and exploitation of minerals or the development of public infrastructure, i.e. the port at Lamu, the corridor from Lamu to Southern Sudan and Ethiopia, or the Lokichar-Lamu Oil Pipeline, also known as the Kenya Crude Oil Pipeline14. The Prevention, Protection, and Assistance to Internally Displaced Persons and Affected Communities Act (2012) offers support to populations displaced by development projects. Amended by the Land Value Index Laws (Amendment) Bill of 2019, compensation will be given in form of alternative land, or, if not available, as a lumpsum payment or payment in installments for 3 years. However, the land value index only considers registered land. This is problematic as much of the community land is still unregistered.
Land investments
In pre-reform years, investors could directly approach local authorities in order to lease communal land. With the establishment of the Kenya Investment Authority in 2004 national and foreign investors approach national and county governments respectively. In 2021, the Investment Promotion (Amendment) Bill was adopted seeking to enhance the participation of county governments in implementing policies and strategies from the Investment Authority to attract national and foreign investors.
Since 2007, almost 500,000 ha of land were leased or turned into concessions particularly in the Tana River Delta and Yala wetlands. However, only 14 out of 24 projects covering 270,000 ha started operating, most of which fall in the 1,000 to 10,000 ha category. The Land Matrix summarized that private companies primarily from the UK, Saudi Arabia, France, India, and Mauritius invested in food crops, tree cropping, and livestock production. Most projects produce sugar cane, or tea15. In the context of large-scale agribusinesses and mining operations, conflicts and violence occur frequently adding to existing tensions.
Women’s land rights
In Kenya’s patriarchal society, women remain largely marginalized and often fear dispossession. Whereas 36.1% of the households are female-headed, women only hold 1% of land titles in addition to 5% jointly hold with men16. Although constitutional reforms and the enactment of progressive property, marriage and succession legislation including the National Land Commission Act, the Land Act, and the Land Registration Act prohibit gender-based discrimination, only 2% of title deeds were issued to women between 2013 and 2018.
Cultural norms, lack of awareness, continuing discrimination, fear of reprisal, and exclusion from decision-making, e.g. in land adjudication committees and control boards, largely impede women in acquiring and inheriting land. Even in cases where women acquire land independently male family members usually act as intermediaries or banks require their husband’s consent before lending to women17. Furthermore, the individualization and privatization of customary land has led to an increase of land sales by men without consultation of their families and thus weakened women’s tenure security.
According to statutory law, daughters and sons have the same inheritance rights and widows receive a life interest in the estate (until remarriage) rather than full ownership18. In practice, however, wives and daughters rarely inherit family property, partly due to exemptions for customary law19. Despite differences between ethnic and religious groups, property is usually equally distributed among the sons. That said, customary marriages tend to be unregistered which is why widows are likely to lose their property to their spouse’s family. Under Islam law, women receive half the share of male relatives.
Urban tenure issues
Approximately 47% of the urban population lives in informal settlements with little or no access to basic services. Most are rent paying tenants with low levels of tenure security20. In response to a severe lack of formal housing, sprawling slums, and an outdated regulatory framework, Kenya launched both a National Spatial Plan and the National Urban Development Policy in 201621. In line with Kenya’s Vision 2030, policies and strategies have been put in place aiming to reduce environmental degradation and to promote sustainable urbanization through good governance22. The Urban Areas and Cities Act of 2011 provides for the classification, governance, and management of urban areas and cities.
Nairobi informal settlements, photo by Ben Cappellacci (CC BY 2.0)
Voluntary Guidelines on Responsible Tenure (VGGT)
Kenya has endorsed the VGGTs. The enacted Community Land Act incorporated the VGGT principles, particularly in providing equal land rights for women and men.
Timeline – milestones in land governance
2008 Establishment of the Truth, Justice and Reconciliation Commission of Kenya
As a response to large-scale electoral violence in 2007, the Truth, Justice and Reconciliation Commission was established in 2008. It investigated gross human rights violations, illegal acquisitions of public land, marginalization of communities, economic crimes, and ethnic violence in the period between 1963 and 2008 which were published in its 2013 report.
2009 Adoption of the National Land Policy
As a result of a reform process that started in the 1990s, the National Land Policy was adopted in 2009. Its key principles are anchored in the Constitution of 2010.
2012 Adoption of the Land Act, the Land Registration Act, and the National Land Commission Act.
These laws are key legal instruments providing for equitable access to land, security of land rights, and addressing historical injustices.
2016 Adoption of the Land Laws (Amendment) Act
The Bill aims to settle initial disputes between the Ministry of Lands, Housing and Physical Planning and the National Land Commission. It also lays out how claims of historical injustices may be submitted and investigated.
2016 Adoption of the Community Land Act
The Bill recognizes and protects community land rights. The Community Land Act guides communal land titling, and the setup of community land registers as well as community land management committees.
2021 Shutdown of the Central Lands Registry
In June, the Ministry of Lands announced the shutdown of the Central Lands Registry to curb corruption and enhance decentralization. All files were moved to respective county branches.
2021 Submission deadline for land-related historical injustice claims
Until September, all Kenyans could file complaints to the National Land Commission.
Where to go next
The author's suggestion for further reading
Ellen Basset provides intriguing insights into the role of urban planners in Kenya and the limits of land reform to change behavior in a sector that is as profitable as the land sector.
In an original piece, Kathleen Klaus examines the nexus of electoral stability, the likelihood of election violence, and questions of political trust based on data from coastal Kenya.
This case study allows highly interesting reflections on how sustained historical misconceptions about communal tenure have been reproduced in independent Kenya and caused the slow implementation of the Community Land Law.
For an assessment about the state of land information in Kenya - how open and accessible land information is - please check the SOLI report for this country published by the Land Portal.
References
[1] On land reform and electoral stability see Klaus, Kathleen. 20202. Raising the stakes: Land titling and electoral stability in Kenya. Journal of Peace Research 57: 1.
[2] Government of Kenya. 2012. National Land Commission Act. Section 15. and Government of Kenya. 2016. Land Laws (Amendment) Act. Section 38.
[3] Government of Kenya. 2010. Constitution. Section 61(2).
[4] Government of Kenya. 2012. Land Act. Section 134.
[5] Prindex. 2021. Kenya. URL: https://www.prindex.net/data/kenya/
[6] Government of Kenya. 2011 Environment and Land Court Act. Section 4. URL: https://landportal.org/library/resources/lex-faoc112134/environment-and-land-court-act-2011-cap-12a
[7] Gabbert et al. 2021. Lands of the Future Anthropological Perspectives on Pastoralism, Land Deals and Tropes of Modernity in Eastern Africa. Berghahn: Oxford, New York. Achiba et al. 2020. Devolution and the politics of communal tenure reform in Kenya. African Affairs 119: 476 URL: https://landportal.org/library/resources/devolution-and-politics-communal-tenure-reform-kenya
[8] World Bank. 2020. Statistics. Kenya. URL: https://data.worldbank.org/indicator/NV.AGR.TOTL.ZS?locations=KE
[9] World Bank. 2018. Statistics. Kenya. URL: https://data.worldbank.org/indicator/AG.LND.AGRI.ZS?end=2018&locations=KE&start=1961
[10] Nyamasyo, Stephen K. and Bonface O. Kihima. 2014. Changing Land Use Patterns and Their Impacts on Wild Ungulates in Kimana Wetland Ecosystem, Kenya. International Journal of Biodiversity. URL: https://landportal.org/library/resources/changing-land-use-patterns-and-their-impacts-wild-ungulates-kimana-wetland
[11] FAO. 2005. Family Farming Knowledge Platform. URL: http://www.fao.org/family-farming/data-sources/dataportrait/farm-size/en/
[12] FAO. 2018. Statistics. URL: http://www.fao.org/faostat/en/#country/114
[13] Government of Kenya. 2012. Land Act. Section 7.
[14] Government of Kenya. 2012. Land Act. Section 110. Government of Kenya. 2010. Constitution. Article 40 3(b).
[15] Land Matrix. 2020. Large Scale Land Acquisitions in Kenya. A Country Perspective. URL: https://landportal.org/library/resources/large-scale-land-acquisitions-kenya
[16] World Bank. 2015. Statistics. Kenya. URL: https://data.worldbank.org/indicator/SP.HOU.FEMA.ZS?locations=KE
[17] Government of Kenya. 2016. Draft National Land Use Policy. URL: https://landportal.org/library/resources/national-land-use-policy-0
[18] Government of Kenya. 1972. The Law of Succession Act, revised in 1981, amended in 1990. Chapter 160, Section 39. and Government of Kenya. 2013. Matrimonial Property Act.
[19] Government of Kenya. 1972. The Law of Succession Act, Section 32 and 33.
[20] World Bank. 2018. Statistics. Kenya. URL: https://data.worldbank.org/indicator/EN.POP.SLUM.UR.ZS?locations=KE
[21]World Bank. 2016. Republic of Kenya Urbanization Review. Report No: AUS8099. Washington. URL: https://landportal.org/library/resources/kenya-urbanization-review
[22] On the role of urban planners see Bassett, Ellen. 2020. Reform and resistance: The political economy of land and planning reform in Kenya. Urban Studies 57: 6.
Authored on
26 november 2021
