Article 63 makes provisions for community land, more specifically it provides for the vesting of community land to be held by communities identified on the basis of ethnicity, culture, or similar community of interest.
Community land consists of—
- land lawfully registered in the name of group representatives under the provisions of any law; (b) land lawfully transferred to a specific community by any process of law;
- any other land declared to be community land by an Act of Parliament; and
- land that is—
- lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
- ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
- lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).
Any unregistered community land is to be held in trust by county governments on behalf of the communities for which it is held.
It is also important to note that community land cannot be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.
Ownership and Tenure System
Community land in Kenya shall vest in the Community. The state may regulate the use of community land in accordance with Article 66subject to the Community Land Act.
Community land shall vest in the community and may be held under any of the following tenure systems:
- Leasehold; and
- such other tenure system recognized under the Community Land Act or other written law.
Protection of Community Land Rights
Every person has a right, either individually or in association with others, to acquire and own property, in accordance with Article 40 of the Constitution of any description; and in any part of Kenya. Customary land rights are to be recognized, adjudicated for, and documented for purposes of registration in accordance with the Community Land Act and any other written law.
It is important to note that customary land rights, including those held in common, shall have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration, or transfer.
No interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law and Subject to Article 40 (3) of the Constitution and the Land Act for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.
The Role of County Governments in relation to Community Land
The role of the county governments in relation to community land are:
- To hold in trust all unregistered community land on behalf of the for which it is held.
- To hold in trust for a community any monies payable as compensation for compulsory acquisition of any unregistered community land.
- To promptly release to the community all such monies payable for compulsory acquisition upon registration of community land.
The Procedure for Registration of Communities claiming an Interest in or right over Community Land
The procedure for the registration of communities claiming an interest in or right over community land is to be in accordance with Section 7 of the Community Land Act.
The procedure is as follows:
- The community land registrar shall by notice in at least one newspaper of nationwide circulation and a radio station of nationwide coverage, invite all members of the community with some communal interest to a public meeting for the purpose of electing the members of the community land management committee.
- The notice shall also be given to the national county administrators and county government administrators in the area where the community land is located.
- The community land registrar may use all available means of communication including electronic media to reach the community members.
- The community shall elect between seven and fifteen members from among themselves to be the members of the community land management committee as provided in section 15, who shall come up with a comprehensive register of communal interest holders.
- The community land management committee shall come up with the name of the community and shall submit the name, register of members, minutes of the meeting and the rules and regulations of the committee to the Registrar for registration.
The Procedure for Recognition and Adjudication of Community Land
The procedure for recognition and adjudication of community land is provided for in the Community Land Act, 2016. This procedure is outlined as follows
- The Cabinet Secretary shall, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme for purposes of registration of community land subject to the Community Land Act, 2016 and any law relating to adjudication of titles to land.
- The Cabinet Secretary shall issue a public notice of intention to survey, demarcate and register community land. The notice shall-
- Contain the name of the community;
- State which land is to be adjudicated;
- Invite all interested persons interests or any other claim on their claims;
- Specify an area or areas of land registration unit; and with overriding the land, to lodge to be a community
- Be for a period of sixty days.
- The Cabinet Secretary shall cause the land to be adequately surveyed but such survey shall exclude all parcels already in use for public purposes and adjudicated private land.
- A cadastral map of the land shall then be produced and presented to the Registrar for registration.
The Registration of Community Land
Community land is to be registered in accordance with the provisions of this Community Land Act and the Land Registration Act, 2012.
The procedure to be followed for the registration of community land is as follows:
- The Cabinet Secretary shall by a notice in the gazette, appoint an adjudication officer in respect of every community registration unit who shall-
- facilitate in consultation with the respective county governments the adjudication of the community land including the recording of community land claims, demarcation of community land and delineation of boundaries; and
- perform any other function conferred by this Act.
- Upon adjudication, the title relating to community land shall be issued by the Registrar in the prescribed form.
The Classes of holding Community Land
Community land maybe held
- as communal land;
- as family or clan land;
- as reserve land
Communal and Reserve Land
A registered community may by a resolution of the majority members of that community in a general meeting, reserve a portion of the community land for communal purposes.
A registered community may reserve special-purpose areas including areas for-
- Community conservation;
- Cultural and heritage sites;
- Urban development; or any other purposes as may be determined by the community, respective county government or national government for the promotion or upgrading of public interest.
Administration and Management of Community Land
Functions and Powers of the Community Land Management Committee
The community land management committee is made up of between seven and fifteen members of a community assembly. A registered community shall have a community assembly which shall consist of all adult members of the community. The quorum for decision making by the community shall not be less than two thirds of the community assembly.
The functions of the community land management committee shall be to-
- To have responsibility over the running of the day to day functions of the community.
- To manage and administer registered community land on behalf of the respective community.
- To coordinate the development of community land use plans in collaboration with the relevant authorities.
- To promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land; and
- To prescribe rules and regulations, to be ratified by the community assembly, to govern the operations of the community.
It is important to note that any decision of a registered community to dispose of or otherwise alienate community land is binding if it is supported by at least two-thirds of the registered adult members of the community, while all other decisions of the registered community shall be by a simple majority of the members present in a meeting.
Interest Conferred by Registration
The registration of a community as the proprietor of land shall vest in that community the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.
The registration of a community or a person as the proprietor of a lease shall vest in that community or person the leasehold interest described in the lease, together with all implied and express rights and privileges belonging or appurtenant thereto and subject to all implied or express agreements, liabilities or incidents of the lease.
Rights of a Community as Proprietor
The rights of a registered community as proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, are not liable to be defeated except as provided for under the Community Land Act or any other written law.
The land is to be held on behalf of the community, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to the leases, charges, and other encumbrances and to the conditions and restrictions, shown in the register; and such overriding interests as may affect the land and are declared by section 28 of the Land Registration Act, 2012.
Certificate of Title to be Evidence of Proprietorship
The certificate of title issued by the Registrar upon registration, or to a purchaser of community land upon a transfer or transmission by the proprietor community shall be considered by courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions, and conditions contained or endorsed in the certificate.
Such certificate can only be challenged on the following grounds:
- Fraud or misrepresentation to which the person is proved to be a party;
- Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
Land Use and Development Planning of Community Land
A registered community may, on its own motion or at the request of the county government, submit to the county government a plan for the development, management and use of the community land administered by the registered community for approval.
Prior to submitting a plan to the county government a registered community shall-
- Consider any conservation, environmental or heritage issues relevant to the development, management or use of the land;
- Incorporate in the plan a statement that it has considered those issues in paragraph (a) when drawing up the plan;
- Consider any environmental impact plan pursuant to existing laws on environment;
- Comply with the values and principles of the Constitution;
- Seek ratification from the members of the registered community; and
- Be bound by any approved relevant physical development plan.
Where a registered community submits a plan to the county government for the development, management and use of the community land administered by the registered community for approval and the government approves and notifies the registered community of that fact, the registered community shall develop, manage and use the land concerned in accordance with the plan as approved or subsequently varied as the case may be.
It is important to note that the county government shall, in considering a plan submitted to it under this section comply with the relevant law relating to development planning.
Conversion of Community Land
A registered community is to first seek and obtain approval from two-thirds of the assembly in a special meeting convened for that purpose before the conversion of any registered community land into any other category of land.
Conversion of Community Land to Public Land
Community land may be converted to public land by-
- Compulsory acquisition;
It is important to note that the reversionary interest of such land shall lie with the community in the first instance upon expiry of such public use interest.
Conversion of Community Land to Private Land
Registered community land may subject to the approval of the registered community, be converted to private land through-
- Transfer; or
- Allocation by the registered community, subject to ratification of the assembly
Conversion of Public Land to Community Land
Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act, 2012.
Conversion of Private Land to Community Land
Private land may be converted to community land by-
- Operation of the law in relation to illegally acquired community land; or
- Operation of any other written law.
Setting aside Community Land for Public Purposes
A community may set aside part of the registered community land for public purposes and where land is set aside for public purposes, the Commission shall gazette such parcel of land as public land.
Settlement of Disputes Relating to Community Land
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.
It is also important to note that 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.
Dispute Resolution Mechanisms
Mediation in Disputes Relating to Community Land
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 a private or in an 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.
Where 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.
Arbitration in Disputes Relating to Community Land
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 relating to the appointment of arbitrators shall apply.
Litigation of Disputes Relating to Community Land
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.
Regulation of Community Land Use Planning
Pursuant to Article 66 of the Constitution, the State shall have the power to regulate the use of any land, or interest in or right over land, in the interest of defence, public safety, public order, public morality, public health or land use planning.
The management of community land shall be subject to 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; (d) forestry;
- Environmental laws;
- Energy policy; and
- Exploitation of minerals and natural resources.
Designation of other Land Use Rights in Community Land
A registered community may reserve special-purpose areas including –
- farming areas;
- settlement areas;
- community conservation areas;
- access and rights of way;
- cultural and religious sites;
- urban development; or
- any other purpose as may be determined by the community, county government or national government for the promotion of public interest.
Leases over Community Land
A lease over community land shall be on the basis of an agreement between the community and the lessee and subject to such implied conditions, restrictions and covenants as may be contained in any other written law.
Cancellation of Rights of Leasehold
A right of leasehold may be cancelled by a registered community, with approval of the members of the registered community, if the leaseholder fails to comply with the requirements or to adhere to any restrictions imposed by or under any law pertaining to the utilization of the land to which the right relates.
Constitution of Kenya, 2010
Community Land Act, 2016 Kenya Gazette Supplement No. 148 (Acts No. 27)