Land Legislative Regimes in Kenya

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An Analysis of the Legislative Regimes before and after the Constitution of Kenya 2010

Introduction

The Constitution of Kenya 2010 at Chapter Five is dedicated to land and environment. For many Kenyans the ownership, use and management of land are an emotive issue and was one of the key issues that drove the need for a new Constitution. The Agenda 4’s main commitment was among other issues bring about comprehensive land reform.
This essay looks development of the legislation on land in Kenya, the challenges arising vis-à-vis the Constitution of 2010 and the subsequent legislation.

Pre-colonial Regime

Pre-colonial communities governed land through customary laws. No individual owned the land. It belonged to the whole community with individuals having the right to use it in a manner acceptable to the community. Land access rights were open to every member of the social group and land was equitably distributed on the basis of individual needs.

As such, the natives did not have the concept of individual title to land. This changed with the onset of colonialism.

Colonial Regime

1895: Protectorate Status

Kenya was declared part of the British East African Protectorate.

The East Africa Order-in-Council, 1889 stated that jurisdiction should, ‘so far as circumstances permitted to be exercised upon the principles of and in conformity with the substance of law for the time being in force in England’. However, a protectorate status did not make East Africa part of Britain and it could therefore not be annexed. This posed an obstacle to accessing property rights over this territory. This was in the contents of the famous legal opinion over the Ionian Islands.

The Ionian Islands legal opinion basically said that the English Crown could not exercise any power within such territory (a protectorate) as that would be interference while the two were sovereign authorities. The Crown had no competence to deal with land under a protectorate as it would be meddling with the internal affairs the territory.

However, the idea of settlement of the British people in Kenya was expected to be the same as that in Britain. The British settlers demanded a similarly well-established property system, and especially in terms of security of tenure. Britain did not have authority to confer titles to land.

Subsequently, Ionian Islands opinion was revised for such convenient purposes. The revised legal opinion required that the protectorate must demonstrate a settled form of government for the legal position to be valid. Such a settled form of government did not exist in Kenya. In their argument, land was occupied with a nomadic community hence they did not have property over the land they occupied.

1901: East Africa Lands Order in Council

This ordinance described “Crown Land” as ‘all public lands within the East African Protectorate which for the time being are subject to control of His Majesty by virtue of any treaty…and all lands which have been or May hereafter are acquired by His Majesty.’

This was borrowed from the Foreign Jurisdiction Act, 1890 which gave Her Majesty a power to control and disposition over „waste and unoccupied land in protectorates where there was no settled form of government‟

1915: the enactment of the Crown Lands Ordinance effected the complete alienation and disinheritance of indigenous people and the complete conversion of all community land into Crown Land. This ordinance redefined Crown Land to include all land in actual occupation of native tribes and land reserved by the Governor. Customary rules developed by ethnic groups in Kenya continued to apply but now they were subordinated to the British law through the ‘repugnancy clause’. All existing land rights were at the mercy of the colonial power and customary landholders were often regarded as tenants of the Crown[1]. The Crown Lands Ordinance gave natives occupancy rights only.

These two pieces of Legislation empowered the Commissioner to sell freehold title to land to any one not exceeding 1000 acres as well as the power to issue grants of leasehold title of periods not exceeding 999 years.

The overall effect is that the settlers were granted the security of tenure they demanded as well as the formal introduction of the English system of Property Law in Kenya.

The introduction of this system had some of the following effects:

It marked the beginning of individualisation of land ownership in Kenya,
The beginning of settler incursion and settler agriculture, the emancipation of the role of community in planning and defining expansion and settlement.

[1] H.W.O Okoth Ogendo, Tenants of the Crown,: The evolution of the Agrarian Law and Institutions in Kenya, Nairobi, 1995

1901: Registration of Documents Act, cap 285

The idea behind the enactment of this legislation was borrowed from the experience in Zanzibar. It was based on the registration of deeds system where any document is registrable. However, the Act made it compulsory at Section 4 to register all documents conferring or purporting to confer, declare, limit or extinguish any right, title, or interest in land.

This piece of legislation was seriously defective in that it described land by reference to trees, valleys, rivers and springs.

1908: Land Titles Act, cap 282

This was essentially enacted to ‘make provision for the removal of doubts that have arisen in regard to titles to land and to establish a Land Registration Court.’ It was also based on the registration of deeds system. However, it was more advanced than Cap 285.

Cap 282 had specific provision for the 10-mile coastal strip. It provided for the ascertainment and endorsement of the rights already existent; this was done after adjudication by the Land registration Court. Subsequently, certificates of title would be awarded.

Under S. 21 of the Act, a Certificate of Title was conclusive evidence against all persons (including the government) of all particulars on it.

The failure of this Act is associated with the massive landlessness in the coastal region.

[1] See the Njonjo Commission Report

1915: Government Lands Act, cap 280

This Act replaced the Crown Lands Ordinance (1902). Its object was to make further and better provision for regulating the leasing and other disposal of Government lands, and for other purposes which can be broken down as follows:

To provide deed plans and achieve better administration and registration of government plans in land;
To offer remedy to all instances of defects patent on earlier registration especially in cap 285; and
To introduce a fairly advanced system of registration of deed plans

The GLA further provided that all future grants of Government land and transactions relating thereto would be registered in the manner prescribed by the Act, and that all past documents relating to government land that had been registered under RDA had to be registered afresh under the GLA.

The GLA was meant to apply to the hinterland-the highlands and other white settlement areas in the interior.

Basically, Government Lands Act ushered in the English-type of conveyancing.

This Act also established the Kibera Settlement Area at around the area currently occupied by Kibera slums.

The President was given immense powers under S.3 which included making grants and disposition of any estate, interests and rights in un-alienated land. He would, with the consent of the owner, vary, remit or extend the terms of an agreement in relation to land. He also had the power to accept any surrender of any instrument conferred to a person in relation to land.

Section 9 provided that the Commissioner of Lands may cause any portion of a township plot which is not required for public purposes to be divided into plots suitable for the erection of buildings for business or residential purposes.

Section 12 provided that such plots could be sold by auction unless the president ordered otherwise.

This was an opportunity for the President and successive Commissioners of Lands to illegally and irregularly allocate land.

These wide discretionary powers were subject to abuse and have indeed been abused.

1920: Registration of Titles Act, cap 281

This was an ‘Act of Parliament to provide for the transfer of land by registration of titles’. It brought the Torrens principles of land registration into Kenya. Unlike the previous statutes, it granted a conclusive and indefeasible title that is state guaranteed.

The Act further required all future grants of government land and certificates of ownership of land to be registered under it.

This was the first attempt to consolidate land registration under one title.

At around this time a landmark ruling was made in Wainaina v Murito[1]. The Chief Justice held that the native tribes could not lawfully alienate land but were mere tenants of the Crown of the land they occup[ied]. This in effect meant that all the rights natives purported to have over the said land disappeared with immediate effect. With this pronunciation, the settlers had delivered the coup de grace, and the idea of native rights was laid to rest, at the time.

[1] (1923) 2 KLR 102

1920: Registration of Titles Act, cap 281

This amendment gave effect to the dual policy of European “White Highlands” (or high potential areas) and “African Native Reserves” (or marginal lands). In areas outside the native reserves African claims to land were extinguished. African Customary law was to apply to the “natives’ areas” and the Native Lands Trust Board was to protect “Native Interests”. By 1940’s the reserves had grown overcrowded and insecure and massive landlessness had become an enormous problem.^[1]

In 1955, the East African Royal Commission recommended that the government policy in the region would move towards advocating individualised freehold tenure.^[2] At around this time, there was also a form of balkanization where the natives were moved to Native Reserves administered by the Native Trust Land Board. The effect of this was widespread landlessness, deterioration of the quality of land due to fragmentation, overstocking, soil erosion and the disintegration of social and cultural institutions in the reserves.

[1] The demand for the restoration of the “stolen lands” become commonplace, even before the Mau Mau revolt leading to the State of Emergency in 1952. Anne Munyiva Kyalo- Ngugi, The Status of Women and Land in Kenya, p. 3 in: Eastern Africa Sub- Regional Initiative for the Advancement of Women (EASSI) draft study report, August 2001.
[2] East African Royal Commission, 1951-1955 Report, as quoted by Tim O.A Mweseli, in: Wanjala (2000), supra note 333, p.20.

1938: The Crown Lands (Amendment) Ordinance

[1] The demand for the restoration of the “stolen lands” become commonplace, even before the Mau Mau revolt leading to the State of Emergency in 1952. Anne Munyiva Kyalo- Ngugi, The Status of Women and Land in Kenya, p. 3 in: Eastern Africa Sub- Regional Initiative for the Advancement of Women (EASSI) draft study report, August 2001.
[2] East African Royal Commission, 1951-1955 Report, as quoted by Tim O.A Mweseli, in: Wanjala (2000), supra note 333, p.20.

1939: Trust Land Act, Cap 288

Cap 288 vested in the local authority within which the land falls authority to acquire land to hold it in the public trust for the community where the land falls. Though the Act was explicit that the corporation was a trustee and not the owner, state corporations still acquired land and turned into the business of buying and selling land.

The allocation of trust land can only be made to the local people of the area. The area must be declared an Adjudication area. The local people had to be given ample notice and opportunity to make claims of ownership to the land in accordance with their customary law. This was blatantly ignored in many of the allocations.

Several state corporations engaged in this activity, the most prominent of which was the National Social Security Fund (NSSF). Others include the Kenya Meat Commission, Kenya Railways among other parastatals.

1939: Trust Land Act, Cap 288

1954: The Swynnerton Plan

The famously called “Swynnerton Plan“[1] was adopted to reform the whole tenure arrangement. One of its main objectives was also to intensify agricultural development in the reserves by encouraging individualisation of tenure and to provide security throng an indefeasible title.

The implementation of the Swynnerton Plan involved 3 stages:

Adjudication: this would have the effect of making customary land law obsolete as well as ascertaining individual or group rights amounting to ownership.
Consolidation: to stop excessive fragmentation.
Registration: this would mark the entry of established rights onto the land register and issuing a title deed. Effectively, land could be converted into a marketable commodity.

One expected outcome of the Swynnerton Plan that was meant to be achieved with the commercialisation of land was to make it possible for people to sell land as they went into the city and buy it back if they decided to go back to the village. Basically, people were expected to grow out of the cultural attachment to land.

The effects of the Swynnerton Plan:

It brought out some individualism in land ownership
It failed to change the farmers’ perceptions of the mature of land rights and the power derived from it especially the power of disposition.

In 1960, with negotiations for the independence of Kenya ongoing and pressures from the settler community rising, the Land Order-in-Council of 1960 was adopted. It provided for the conversion of (native) leaseholds into freeholds and for the acquisition of land in the Highlands by Africans through purchase on a “willing buyer, willing seller” schemes or through purchase by the post-colonial state for resettlement and redistribution. Since most Africans were too poor to buy land, the majority of people who were actually settled were not the dispossessed people; instead a social category of people with vested interests in the continuity of colonial property and political processes had emerged while millions of Kenyans become landless squatters in their own land. This resulted in an influx of a large number of people migrating to urban areas in search of jobs.^[2]

The titles did not improve the farmers’ access to credit and inputs as anticipated. Public and private credit agencies shied away from small-scale farmers.

This reform process altered land distribution pattern especially in the peasants sector to the detriment of the bottom quartile in the rural society.

Traditional rights of access and inheritance continued to determine the farmers’ freedom of disposition. Many were unwilling to exchange or release land in the process of reform; most poor people were forced to sell their land to their well-to-do neighbours. In effect, this accelerated landlessness and accumulation of land by a few members of rural society.

Up to this point many of the land related laws were actually aimed at political and imperialists goals; achieving political control and securing sources of raw materials and guaranteed markets.

[1] Swynnerton, R.J.M. (1954) A Plan to Intensify the Development of African Agriculture in Kenya
[2] Tim O.A. Mweseli, The Centrality of Land In Kenya: Historical Background and Legal Perspective, in: Wanjala (2000) supra note 333, pp. 21-22; and Kituo Cha Sheria, The Kenyan Perspective on Housing Rights, Nairobi, 2000, p.2.

Post-independence

1959: (ITPA) Indian Transfer of Property Act (1882)

ITPA was introduced in Kenya to consolidate the settlers’ grip on the acquired land. The Act governed property with regard to leases, transfers, mortgages, covenants, e.t.c

To address the issue of landlessness the government embarked on an ambitious programme of purchasing land and availing the same to the landless, these holdings were called settlement schemes. African farmers were settled on these holdings of some 200 acres each. The most elaborate of them all was “the million Acres Settlement Schemes”. Through these schemes over one million people were settled on holdings ranging from 25 acres to 40 acres from 1962. Another scheme was the “Squatter Settlement Scheme” which was meant to settle squatters on abandoned and mismanaged European farms. They consisted of small holdings of 10 acres each. The land in the settlement schemes was vested in the Settlement Fund Trust which then offered it in lots to prospective settlers at a price.

1963: Registered Land Act, Cap 300

It was enacted to make further and better provision for the registration of title to land, and for the regulation of dealings in land so registered, and for connected purposes.

This was enacted to govern land formerly under customary law to encourage individualisation of tenure in line with the agroconomic arguments in the Swynnerton Plan.

Basically, RLA came to deal with the African Land question which had somewhat been rejected by the previous legislative regimes.

Its objectives were:

To provide registration in native areas;
To provide a conversion process; the titles issued under the previous registration regimes would be re-issued under RLA;
To achieve individualization of title to customary land

Native lands were registered and title was vested in local authorities, through ‘adjudicative regions ‘prove their claims. Land consolidated and adjudicated would then be registered to individuals and absolute ownership would then be created.

Section 143 provided for the protection of first registration. It made first registration privileged as it could not be challenged even if the land was wrongfully obtained.

The Act further introduced indexing of property, and the title deeds granted under this Act have been proof of absolute ownership.

1968: Land Adjudication Act, cap 284

It was enacted to provide for the ascertainment and recording of rights and interests in Trust land. Cap 284 was modified to cater for group rights particularly in pastoral and nomadic areas where individualisation had little success. Group rights were to be registered under Land (Group Representatives) Act, cap 287, to maintain status quo in semi-arid areas where the way of life was pastoral and nomadic.

Commentary

The effects of the legal regime in Kenya resulted in a number of challenges, among them;

The existence of a dual tenure system –customary land law rights v individual title. While the English tenure system encourages dismantling of customary tenure system and its replacement, customary law prevails even in areas where land adjudication has been done, hence a somewhat dual tenure system.

The regime was unable to detach customary law from land ownership. As the Njonjo Commission[1] puts it:

For indigenous Kenyans land also had an important spiritual value, for land is not merely a factor for production; it is first and foremost, the medium which defines and binds together social and spiritual relations within and across the generations. As a Nigerian chief put it, ‘…land belongs to a vast family of which many are dead, few are living, and countless members are still unborn’.

A legal system inclined towards individualisation or privatisation of land
Multiplicity of formal land laws hence a duplication of agenda among institution.

The following institutions had a part to play in land registration:

a) Land control
b) Land planning
c) Land adjudication and consolidation
d) Land surveying
e) Agricultural and extension services

Excessive powers in the hands of the executive
Multiplicity of registers that was uncoordinated and expensive to implement.
There lacked a clear-cut criteria for the requirements of the personnel to be appointed in a land administrative capacity.
The functions to be carried out in some statutes were not clearly defined.
The appointment process was prone to manipulation resulting in corruption.
There was an overlap of duties and there was no clear demarcation of what constituted the duties of an office. A case in point is under the RTA, there was a principal registrar of titles charged with the duty to ‘carry out’ the Act while under the same Act was to be appointed the Commissioner of Land who was to be in control of the land, land survey, land registration and the Recorder Of Titles Department.

[1] Report of the Commission of Inquiry into the Land Law System of Kenya, 2002

2002: The Njonjo Commission and Ndung’u’ Report (2006)

In 2002, the Njonjo Commission tendered a report on its inquiry into the land law system in Kenya. A highlight of the report was the issue of ‘land grabbing;

Its recommendations include:

Introduction of a National Land Policy
Anchoring of the National Land Policy in the Constitution
Categorization of land in Kenya: private, public, and commons
Abolishment of the absolute estate and replace it with the freehold interest Provinces
Leases to citizens should be of a maximum of 99 years; land-holding by non-citizens restricted to a 50 year lease
Consolidation of land laws that deal with the registration of land
Reduction of technicalities and processes in the registration of land
Enactment of a law that would enable claims made under customary law concerning land be heard in established courts
Discontinuance of using common law, doctrines of equity and statutes of general application to interpret property law in Kenya
Establishment of a special division in the High Court to deal specifically with land and property matters
Planning authorities to regulate the use of land for the public interest
Investigation of historical injustices dealing with the issue of land in the Coast and Rift Valley

2009: National Land Policy

In August 2009, the Ministry of Lands published the draft National Land Policy[1].

It was created to address the policy mentioned in the Njonjo Commission and Ndung’u Commission Report and any other problems not identified by them.

[1] Sessional Paper No. 3 of 2009 on National Land Policy

Findings

The Commission identified the following issues:

Constitutional Issues:

Land was bundled together with other categories of property and thus lacked a proper framework for dealing with land matters. This led to the following:

Centralisation of state responsibility over land matters, with the effect that governmental decisions have not been responsive to the citizenry, especially at the local level.
Lack of governmental accountability in land governance leading to irregular allocations of public land.
Constitutional protection of private property rights even where they are acquired in an illegitimate manner.
Mass disinheritance of communities and individuals of their land.
Inequitable access to land, particularly for women, children, minority groups and persons with disabilities.
Ineffective regulation of private property rights, as a result of which unplanned settlements and environmental degradation have become commonplace.

Land Use Management

Problems of rapid urbanization, inadequate land use planning, unsustainable production, poor environmental management, inappropriate ecosystem protection and management.

Land Administration

The report indicates the land administration system in Kenya had not been performing the principal functions of land administration adequately.

It is bureaucratic, expensive, undemocratic and prone to abuse, resulting in inordinate delays and injustice in the administration of land. The result has been issues of double titling, delays in registration and massive corruption at the lands office.

Closely connected to this were land tenure issues such as the 999 year leases.

Recommendations

The most important recommendation made by these commissions that serves as an umbrella for all other recommendations was the imperative need for a National Land policy which eventually came into existence under The drafted sessional paper of 2009 under the same name. The policy was aimed at containing values which would be held to create institutions and establish a coherent land system which resolves the complex and often clashing statutory requirements as pertaining Land Law.
National Land Policy be entrenched and enshrined in Constitution.
Another recommendation was to have land categorized as: Private, Public and Communal land. This was affirmed in the sessional paper on National Land Policy under Article 57 which designates all land in Kenya under the same three categories.

In order to establish an efficient land rights delivery system, the Government under the National Land Policy is expected to (as per Article 147{b}): “Consolidate , harmonize, and streamline all land registration statutes to ensure clarity and reduce bureaucratic bottlenecks”

Furthermore, the commission saw the need to reduce the previously encountered technicalities brought about by the numerous statutes on land law relating to the land registration process. Article 149 of the sessional paper acknowledged that there were too many statutes dealing with the registration of Land rights and proposed that there existed a need to harmonize the registration statutes to enhance the efficiency, transparency and accountability of the aforementioned process.

The Government shall:

(a) Enact a “Land Registration Act” which shall;

(i) Recognize and protect all legitimate rights and interests in land held under the categories of land set out in Section 3.3.1of the Policy

(ii) Harmonize the statutes dealing with the registration of land rights

(b) Repeal the Land Adjudication Act and Land Consolidation Act 8

(c) Repeal the land registration provisions of the Registration of Titles Act (RTA) (Cap 281), the Land Titles Act (LTA) (Cap 282) and the Registered Land Act (RLA) (Cap 300).

The Constitution of Kenya 2010

The provisions on Land in the Constitutional have been informed by the Njonjo Commission, the Ndung’u Report, and the Draft National Land Policy to great extent.

Article 40

The Bill of rights provided for the sanctity of property rights. It outlines an inherent right in Kenyans to acquire and own property of any description and in any part of Kenya. If further provides a duty of the state to enact legislation to guarantee protection of the same.

Chapter Five

Chapter 5 of the Constitution of Kenya 2010 is dedicated to land and Environment. Within its provisions are almost all the recommendations of the Njonjo commission, Ndung’u report and the Sessional Paper No. 3 on National Land Policy.

Article 60 outlines the principles of land policy.

(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles—

(a) equitable access to land;

(b) security of land rights;

(c) sustainable and productive management of land resources;

(d) transparent and cost effective administration of land;

(e) sound conservation and protection of ecologically sensitive areas;

(f) elimination of gender discrimination in law, customs and practices related to land and property in land; and

(g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

(2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

Article 61 classifies land as Public, Private or Community. Formerly, land in Kenya was classified as Government land, Trust land, or Private Land.

In subsequent Articles, the Constitution provides for the regulation of land use in Kenya, it modifies the lease periods in Kenya in accordance with recommendations from the various commissions, establishes a National Land Commission at Article 67, and directs Parliament revise, consolidate and rationalise existing land laws.

Subsequent Legislation

Parliament passed three new pieces of legislation in April 2012 pursuant to Article 68:

The Land Act (No. 6 of 2012)
The National land Commission Act (No. 5 of 2012)
The Land Registration Act (No. 3 of 2012)

These statutes have repealed the following statutes:

The Land Act, 2012

The Way Leaves Act, Cap 292
The Land Acquisition Act, Cap 295

The Land Registration Act, 2012

The Indian Transfer of Property Act 1882
The Government Lands Act, Cap 280
The Registration of Titles Act, Cap 281
The Land Titles Act, Cap 282
The Registered Land Act, Cap 300
The following Acts have not been repealed (as at February 2024, original date of publication of this Article):
The Land Control Act;
The Landlord and Tenant (Hotels, Shops and Catering Establishments) Act;
The Sectional Properties Act; (repealed by Sectional Properties Act of 2019) and
The Distress for Rent Act

The Land Act, 2012

This Act is meant to give effect to Article 68 of the Constitution, to revise, consolidate and rationalize land laws; to provide for the sustainable administration and management of land and land based resources, and for connected purposes.

It has repealed the Land Acquisition Act, Cap 295 and the Way leaves Act, Cap 292 and all other land laws must be construed in a manner that shall give effect to the Land Act 2012. This act shall apply to all lands that are declared public (Art.62), private (Art 64) and community land (Art 63) of the Constitution.

The Act expounds on land to give it a more encompassing meaning (see Art 260 of the constitution). The repealed acts had different confusing definitions.

The act provides that title to land can be acquired through

Allocation
Settlement programmes
Land adjudication process
Transmission
Compulsory acquisition
Transfers
Long term leases exceeding 21 years created out of private land or other manner prescribed by an Act

The fact that parliamentary consent is required to convert public land to private land in effect prevents irregular and illegal conversion of public utility land for the benefit of a few individuals to the detriment of the public.

The Land Registration Act, 2012

The object of the Act is to revise, consolidate and rationalize the legislations relating to registration of title to land to give effect to the principles and objects of devolved government in land registration.

Section 104 of the Act provides that a register maintained under any of the repealed statutes shall be deemed to be the land register for the corresponding registration unit established under the Act.

The Act has simplified the whole process of land adjudication in that the laws providing for demarcation and registration of land are now provided in the one Act. This is a response to the critique against the multiple registration systems in the country.

The National Land Commission Act, 2012

Its object is to make further provision as to the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission; to give effect to the objects and principles of devolved government in land management and administration, and for connected purposes.

Commentary

The laws have not given very clear guidelines about transition. Previously title deeds were issued under RLA, RTA, LTA or GLA. While title issued under RLA and RTA continue to be valid, titles issued under LTA and GLA have to be examined and registered afresh under the new laws, as soon as conveniently possible. The new laws are silent about the transactions carried out before the title deeds are examined and registered afresh.

It is safe to conclude that this is the best Kenya has done so far to ensure land reforms. Chapter Five of the Constitution and the subsequent legislation encompass almost all the recommendations that have been made over the years to bring about a more consistent and proper land legislative regime in Kenya.

Land Legislative Regimes in Kenya