Articles

Community Land in Kenya

Community land in Kenya constitutes a significant portion of the country’s landmass, estimated to cover approximately 67% of Kenya’s territory, and is vital for the livelihoods, culture, and identity of millions of Kenyans, particularly indigenous and pastoralist communities. The Community Land Act, 2016, enacted to give effect to Article 63 of the Constitution of Kenya, provides a legal framework for the recognition, protection, and registration of community land rights. This article explores the process of purchasing communal land under this Act, the pivotal role of Community Land Management Committees (CLMCs), and the challenges associated with such transactions.

Community land, as defined under Article 63 of the Constitution and the Community Land Act, 2016, includes land lawfully registered in the name of group representatives, transferred to a specific community, or held, managed, or used by communities as forests, grazing areas, or shrines. It also encompasses ancestral lands, lands traditionally occupied by hunter-gatherer communities, or trust land held by county governments. Community land is vested in communities identified by ethnicity, culture, or similar interests and can be held communally, as family or clan land, reserve land, or other recognized categories.

The Community Land Act, 2016, repealed the Land (Group Representatives) Act and the Trust Lands Act, introducing a modern framework that elevates customary land tenure to equal status with freehold and leasehold systems. This shift acknowledges the resilience of communal tenure systems and aims to secure land rights for approximately 6 to 10 million Kenyans, primarily from marginalized rural communities.

Legal Requirements for Purchasing Community Land

1. Registration of Community Land

Before community land can be transacted, it must be formally registered to establish clear ownership. The registration process, as outlined in Section 7 of the Community Land Act, involves the following steps:

  • Notification: A community intending to register its land must notify the Community Land Registrar using Form CLA 1, as specified in the Community Land Regulations.

  • Public Meeting: The registrar publicizes the intention to register through a newspaper and radio station with nationwide coverage, inviting community members to a public meeting to elect the Community Land Management Committee (CLMC).

  • Election of CLMC: The community assembly, comprising all adult members of the community, elects between seven and fifteen members to form the CLMC. The election process is overseen by the registrar or an appointed public officer and follows the rules in the First Schedule of the Community Land Regulations.

  • Submission of Documents: The CLMC submits the community’s name, register of members, minutes of the meeting, and proposed rules and regulations to the Registrar for registration. A certificate of registration is issued upon approval.

  • Adjudication and Mapping: The Cabinet Secretary, in consultation with county governments, develops a transparent and participatory adjudication program to document, map, and survey community land. This process ensures a cadastral map is created, and a certificate of title is issued to the registered community.

Upon registration, the community assumes full management and administrative functions, and the trustee role of the county government ceases. Unregistered community land remains under the trusteeship of county governments, which are prohibited from selling, transferring, or converting it for private purposes.

2. Process for Purchasing Community Land

Purchasing community land involves engaging with the registered community through its CLMC and adhering to strict legal procedures to ensure transparency and community consent. The process includes:

  • Application for Allocation: An individual, family, group, or corporate entity (wholly owned by Kenyan citizens) may apply to the registered community for a customary right of occupancy or other land use rights.

  • Review by CLMC: The CLMC evaluates the application, considering proposals from an adjudication team or a designated subcommittee. The committee ensures the proposed use aligns with the community’s land use plans and benefits the community.

  • Community Assembly Approval: Any allocation or transfer of community land must be ratified by the community assembly to ensure collective consent. This step is critical to prevent unilateral decisions by the CLMC and to safeguard community interests.

  • Conversion to Private Land: Community land can be converted to private land through allocation or transfer, but this requires community assembly approval. The process must comply with the Community Land Act and other relevant laws, such as those governing land adjudication.

  • Legal Documentation: Upon approval, the transaction is formalized through legal agreements, and the land is surveyed and registered under the Land Registration Act. A title deed may be issued to the purchaser, subject to the terms agreed upon with the community.

  • Compliance with Environmental and Land Use Regulations: The CLMC ensures that any land use or development aligns with environmental sustainability and the community’s land use plans, as mandated by the Act.

3. Role of County Governments

County governments act as trustees for unregistered community land, holding it on behalf of the communities until registration is complete. They are prohibited from disposing of or converting unregistered land for private purposes. Once the land is registered, the county government’s trustee role ceases, and the community assumes full control. County governments also collaborate with the Cabinet Secretary to facilitate adjudication and registration processes.

Role of Community Land Management Committees (CLMCs)

The CLMC is the cornerstone of community land administration under the Community Land Act, 2016. Elected by the community assembly, the CLMC is responsible for:

  • Day-to-Day Management: The CLMC manages the community’s land and natural resources, coordinating land use planning and ensuring sustainable development.

  • Facilitating Registration: The committee compiles a comprehensive register of communal interest holders, drafts rules and regulations, and submits necessary documentation to the Registrar for registration.

  • Decision-Making on Land Use: The CLMC evaluates applications for land allocation or partnerships, ensuring decisions benefit the community and align with its goals. It consults the community assembly for major decisions, such as land transfers.

  • Dispute Resolution: The CLMC facilitates traditional dispute resolution mechanisms to address conflicts over land boundaries or use, promoting harmony within the community.

  • Promoting Community Participation: The committee ensures inclusive decision-making, incorporating the voices of women, youth, and marginalized groups, as mandated by community bylaws.

  • Environmental Stewardship: The CLMC encourages sustainable land use practices, adhering to environmental regulations and community bylaws that prioritize climate resilience and resource conservation.

The CLMC operates under rules and regulations adopted by the community assembly, which must meet the Registrar’s standards as outlined in the Second and Third Schedules of the Community Land Regulations.

Challenges in Purchasing Community Land

Despite the progressive framework of the Community Land Act, several challenges complicate the purchase of community land:

  • Complex Registration Process: The registration process is intricate and resource-intensive, requiring communities to navigate bureaucratic procedures, including public notices, elections, and adjudication. Limited government support and personnel exacerbate delays.

  • Lack of Awareness: Many communities are unaware of the provisions of the Community Land Act, hindering their ability to register land and engage in transactions. This is compounded by inadequate publicity and training.

  • Legal Loopholes: Ambiguities in the Act, such as the potential for CLMCs to be mistaken as owners rather than managers, pose risks of mismanagement or unauthorized transactions.

  • Community Disputes: Conflicts over boundaries, membership, or land use can delay registration and transactions. Traditional dispute resolution mechanisms may be insufficient for complex disputes.

  • Resistance to Privatization: Some communities, particularly pastoralists, resist converting communal land to private ownership, viewing it as counterproductive to their collective livelihoods.

  • County Government Non-Compliance: Some county governments have attempted to convert unregistered community land for private or public purposes, violating the Act’s safeguards. This undermines community trust and delays registration.

  • Marginalization of Vulnerable Groups: Despite efforts to include women and youth in CLMCs, entrenched cultural norms may limit their participation in decision-making, affecting equitable land allocation.

  • Resource Constraints: The lack of funding and technical expertise for mapping, surveying, and adjudication hinders the registration process, leaving much of Kenya’s community land unregistered.

Practical Steps for Stakeholders

To navigate the complexities of purchasing community land, stakeholders should:

  • Understand the Legal Framework: Familiarize themselves with the Community Land Act, Constitution, and related regulations to ensure compliance.

  • Engage Communities: Build trust with community members and leaders to align transactions with community needs and gain approval.

  • Seek Legal Advice: Consult legal professionals to navigate registration, transaction, and dispute resolution processes.

  • Monitor Legal Developments: Stay updated on amendments to land laws and policies that may impact community land transactions.

  • Support Community Empowerment: Collaborate with organizations like Namati to train communities on their rights and the registration process, enhancing their capacity to manage land effectively.

Conclusion

The Community Land Act, 2016, represents a significant step toward securing community land rights in Kenya, empowering communities to own and manage their land collectively. The process of purchasing community land requires careful adherence to legal requirements, including registration, CLMC approval, and community assembly ratification. The CLMC plays a critical role in managing land, facilitating transactions, and ensuring community participation. However, challenges such as complex procedures, lack of awareness, and legal loopholes pose significant hurdles. By understanding the legal framework, engaging communities, and addressing these challenges, stakeholders can contribute to equitable and sustainable land transactions that respect the rights and aspirations of Kenya’s communities.