All land in Kenya belongs to the people of Kenya collectively as a nation, as communities, and as individuals. Article 61(2) provides that land in Kenya is classified as:
- Public land
Article 62 defines public land to include:
- land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;
- land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
- land transferred to the State by way of sale, reversion or surrender;
- land in respect of which no individual or community ownership can be established by any legal process;
- land in respect of which no heir can be identified by any legal process;
- all minerals and mineral oils as defined by law;
- government forests other than forests to which Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
- all roads and thoroughfares provided for by an Act of Parliament;
- all rivers, lakes and other water bodies as defined by an Act of Parliament;
- the territorial sea, the exclusive economic zone and the sea bed;
- the continental shelf;
- all land between the high and low water marks;
- any land not classified as private or community land under this Constitution; and
- any other land declared to be public land by an Act of Parliament— (i) in force at the effective date; or (ii) enacted after the effective date.
It is also important to note that public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission if it is classified under— (a) clause (1) (a), (c), (d) or (e); and (b) clause (1) (b), other than land held, used or occupied by a national State organ.
Public land classified under clause (1) of Article 62 (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission
Furthermore, public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.
- Community Land
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;
- 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.
Article 64 defines private land to consist of:
- registered land held by any person under any freehold tenure;
- land held by any person under leasehold tenure; and
- any other land declared private land under an Act of Parliament.
Constitution of Kenya 2010