Kenya Non-Lending Technical Assistance (NLTA) on Public Land Management, Involuntary
Resettlement and Metropolitan Governance
In Search of Land: Public Land Management, Compulsory Land
Acquisition and Resettlement in Kenya
Draft Report
October 2016
Abdu Muwonge, Sheila Kamunyori, Narae Choi and Lilian Kahindo
1
Table of Contents
1.
Introduction .......................................................................................................................................... 4
2.
The Legal and Institutional Framework of Land Governance ............................................................... 9
2.1 Historical Context ................................................................................................................................ 9
2.2. The Reform of the Legislative Framework for Land Management .................................................. 13
The 2009 National Land Policy – Laying out the Areas for Reform .................................................... 14
The 2010 Constitution – Devolving Public Land Management to Counties ....................................... 15
The Land Acts – the Backbone of the New Land Management Framework....................................... 17
The Supreme Court Opinion – Clarifying the Institutional Roles ........................................................ 20
The Specific Provisions for Compulsory Land Acquisition and Resettlement..................................... 22
Evaluating the Reforms to Date .......................................................................................................... 27
3.
Public Land Management Practices .................................................................................................... 29
3.1. Practices at the County Level ........................................................................................................... 29
General Land Management in the Devolution Context ...................................................................... 30
Public Land Inventory with Public Engagement.................................................................................. 32
Public Land Restitution and Protection .............................................................................................. 34
Initiatives to Secure Public Land ......................................................................................................... 35
3.2. Practices at the National Level......................................................................................................... 35
Key Takeaways .................................................................................................................................... 38
4.
Land Acquisition and Resettlement Practices..................................................................................... 40
4.1. Assessing the Legal Framework for Land Acquisition and Compensation....................................... 40
4.2. Assessing Involuntary Resettlement Practices ................................................................................ 49
Avoiding or minimizing displacement ................................................................................................. 50
Where population displacement is unavoidable, a Resettlement Action Plan (RAP) should be
conceived, developed, and executed as a sustainable development program.................................. 51
Identifying and scoping socio-economic impacts, demographic, socio-economic and cultural
baseline of affected persons ............................................................................................................... 52
Vulnerability Analysis and Special Measures Required ...................................................................... 53
Stakeholder engagement including good faith consultations and free, prior and informed consent is
vital...................................................................................................................................................... 54
Grievance Redress Mechanisms ......................................................................................................... 54
Restoration of Livelihoods .................................................................................................................. 55
2
Institutional and Management Responsibility .................................................................................... 56
5.
Recommendations .............................................................................................................................. 58
3
1. Introduction
The drive for infrastructure-led economic development comes with a significant demand for
land. The Vision 2030, developed in 2008, is Kenya’s new long-term development blueprint for
delivering a globally competitive Kenya in 22 years’ time that envisages an interconnected
country through a network of roads, railways, ports, airports, waterways, and
telecommunications. The country has embarked on an ambitious infrastructure development
programme with well over 20% of the national budget now going to fund infrastructure projects
such as Lamu Port South Sudan Ethiopia Transport Corridor (LAPSSET), the standard gauge
railway (SGR) and other trunk roads. With increasing investment in infrastructure, demand for
public land is on the increase.
Effective management of public land alleviates the pressure for land. The principle behind
public land is that it is held in trust for the people by the government. Public land is, therefore,
to be used for the benefit of the citizens of the country to serve the public interest. Infrastructure
investments such as roads, railways, schools, sewage and water treatment plants, serve a public
purpose. There should be a ready supply of public land on which to construct these projects,
particularly in urban areas where the need is greatest. With a projected urbanization of 50% by
2030, Kenya’s urban areas must provide key urban services and infrastructure all which require
public land. Effective public land management will enable Kenya to harness the benefits of
urbanization towards growth and poverty alleviation.
In Kenya today, public land is not readily available, mainly due to sub-optimal public land
management in the past. Over the last several decades, public land management practices have
been sub-optimal. After independence Kenya had a significant supply of public land (then known
as government land) vested in the then Commissioner of Lands Office. Poor public land
management practices since then have resulted in a situation in which much of the stock of public
land has been lost to individual uses. The allocation of public land has often been done irregularly
with little oversight and consequently the land has been developed in a fashion that did not
adhere to any required public purpose.
In the absence of available public land, the least controversial path for the government to
acquire land will be to purchase it on the open market. Land purchase, however, can be timeconsuming and expensive. In terms of land purchase, there is no guarantee that the optimal
parcel of land that is required will become available for purchase; if such land does become
available its scarcity value will result in a high, perhaps prohibitively high, land price.
In Nairobi, the city with the most active property market and the biggest need for network
infrastructure, land values are increasing dramatically. Investment in land is providing far higher
returns than either the bond or stock market in the country (Hass Consult, 2013). The lucrative
4
nature of Kenya’s property market has also attracted international investors, with Hass Consult
(2013: 43) stating that the city’s property market has “been one of the best performing globally
over the last 8 years, matched only by Hong Kong.” The average price per acre in Nairobi was a
little over KES 30m in 2007, but is more than KES 170m today, an increase of 535 percent in 7
years1. In such a market the option of purchasing private land to convert to public land may be
very limited.
Figure 1.1: The Escalating Cost of Land in Nairobi 2007-20142
Cost of 1 acre by
neighborhood in
KES (millions)
Average across
Nairobi
Upper Hill
Kilimani
Lang’ata
Westlands
2007
2014
% change
2007-2014
Current cost (as
of Q2 of 2016)
30
170
535%
-
60*
66*
9*
73*
470
370
40
361.7
789%
557%
427%
494%
600
430.3
50.9
398.4
Source: Hass Property Index Quarter 2 2016, Quarter 4 2014
* Author calculation based on HassConsult data
The most common alternative to purchasing land for public use in the open market is
compulsory land acquisition although other alternatives are available. Kenyan law allows the
government to exercise powers of compulsory land acquisition, or eminent domain, which is the
mandatory acquisition of private land in the public interest. Restitution is also supported by
national legislation where both county and national governments in conjunction with the
National Land Commission (NLC) can review past allocations and recoup land that was illegally
allocated; however, it is legally complicated and lengthy. Other options include the donation by
private landowners and reversion of leased land, both of which have been underexplored in the
Kenyan context. However, in general, compulsory acquisition is the most common practice used
by the government to acquire the land required for infrastructure investments.
Land acquisition by government for development projects often leads to population
displacement and involuntary resettlement. Globally, upwards of 15 million people per year are
directly affected by resettlement associated with economic development, often infrastructurerelated projects. Unless assisted to relocate and restore their production systems and livelihoods
such land acquisition, aimed at promoting economic development, may instead put displaced
people at risk of impoverishment, especially those who may already be vulnerable.
1
Hass Property Land Index Q4 2014
Inflation has not been taken into account in this draft report but will be factored into the final report. Initial
numbers, however, indicate that the rise of land prices consistently outstripped inflation during this period.
2
5
Strategies for acquiring and better managing public land and the land acquisition process are
required at all levels of government from the county to the national government. National and
county governments are keen to instigate development within their boundaries supported by the
provision of land for high quality infrastructure and services. However, there is still a long way to
address negative impacts of compulsory land acquisition, particularly in resettlement action
planning where the loss of land and livelihoods and displacement need to be better addressed.
Good land governance should be central to good land acquisition and resettlement policies and
practice.
This report aims to better understand the complex arena of public land management and land
acquisition and resettlement planning in Kenya. The report reviews the legislation that govern
public land management and the land acquisition and resettlement laws and practices in the
country. It also reviews strategies employed at both levels of government for public land
identification, protection and acquisition. By reviewing both the de jure and de facto practices
around public land management and land acquisition and resettlement in Kenya, the report seeks
to identify opportunities available for addressing, in innovative ways, the increasing demand for
land for infrastructure investments.
Specifically, the paper has four main objectives:




To provide a firm understanding of the evolving legal, regulatory and institutional
framework of public land management and land acquisition in the country within the
context of devolution.
To inform ongoing policy dialogues at national and county level on public land
management and land acquisition and resettlement policies to achieve national
development goals.
To document the challenges of land acquisition and resettlement as experienced in
operations of the World Bank within Kenya, particularly for urban projects (e.g.,
infrastructure development) that might entail compulsory acquisition, and examine the
adequacy of Resettlement Action Plans (RAPs) and guidelines for valuation and
compensation.
To provide recommendations for action to address the challenges presented by public
land management, land acquisition and resettlement.
Methodology
Desk analysis examined the legal and institutional framework governing land in Kenya. It traced
the dialogue on public land management and land acquisition by focusing on the main documents
and laws associated with the country’s land reform, beginning with the National Land Policy of
2009, through the 2010 Constitution and the suite of land laws passed in 2012 to implement the
6
Constitution, to the recent Supreme Court decision clarifying responsibilities in public land
management at the national level, and finally the two key pieces legislation passed in 2016 in the
land reform process – the Community Land Act and the Land Laws (Amendment) Act. This desk
analysis was complemented by field research consisting of sites visits to counties and key
informant interviews with national and county officials.
For a preliminary understanding of current public land management practices in counties, a rapid
review was conducted in the selected counties of Nairobi, Kiambu, Kajiado, Kisumu, and
Murang’a3. These counties were selected on a convenience basis, as they are involved in ongoing
and upcoming operations of the World Bank. They are also relevant are they are more urbanized
counties or counties with growing urban areas as compared to the national urbanization rate of
27 percent, with four of these counties being within the Nairobi Metropolitan Region. Although
this review covers only five of the 47 counties in Kenya, it gives a solid platform to understand
how public land is currently being managed and what challenges are emerging at the county
level.
The analysis of the legislation and practices of land acquisition and resettlement was done using
international good practices as benchmarks. These benchmarks provide a framework for
analysing the strength and gaps of the process in Kenya. Five case studies were used to
understand actual practices in resettlement planning and were selected based on the following
factors: (1) one project that the Government of Kenya (Ministry of Lands and the NLC) found a
challenge to implement: Kongoea Market Expansion Project in Mombasa; (2) one project whose
land acquisition the NLC was responsible for implementing: Standard Gauge Railway; (3) one
project whose land acquisition was implemented by an acquiring agency: Kipevu New Container
Terminal Link Road (KNCTLR) which constitutes a section of the Mombasa Southern Bypass
implemented by the Kenya National Highways Authority (KENHA); (4) World Bank-funded
Projects: Kenya Informal Settlement Improvement Project (KISIP) and Kenya Municipal Project
(KMP); and (5) two projects implemented in the same geographical space: the Standard Gauge
Railway and Kipevu New Container Terminal Link Road. All projects were located in the same
county, Mombasa. The analysis was carried out through the review of respective Resettlement
Action Plans (RAPs) of the five case studies for adequacy and adherence to available guidelines,
interviews with respective acquiring agencies for each project, interviews with displaced people
(PAPs), and documentation of emergent concerns/lessons. It evaluates these practices against
international practice and, where relevant, compares with the provisions in the Kenya legislative
framework.
3
Embu County was also visited and findings from the county were included in the analysis, although not included
in the county profile in the Annex.
7
This report is divided into five sections. Section 1 is the introduction and the current section.
Section 2 presents the historical and legal context of public land management in Kenya, focusing
on where the ongoing land reform has an impact on public land management. Section 3 discusses
the actual practice of public land management at county level drawing on specific examples to
show the extent to which counties, sub-national institutions that have existed only since 2013,
have addressed the protection, management and reclaiming of public land under their
jurisdiction. Section 4 examines the context of land acquisition and resettlement, focusing on
comparing the legal and actual practices in Kenya with international practice. Section 5 provides
recommendations based on the findings that should be useful to the Government of Kenya
particularly for land reforms related to public land management and compulsory land acquisition.
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2. The Policy, Legal and Institutional Framework of Land Governance
2.1 Historical Context
This section briefly describe the administrative frameworks and practices concerning public land
from colonial times up to 2010 as they have had a direct bearing on the status of and attitudes
towards public land and its management today.
Crown land was the first iteration of public land in Kenya. Codification of rights in land and legal
documentation of ownership were introduced in Kenya by the colonial regime. Land
administration in colonial times (1900 to 1963) was constructed primarily to provide white
settlers with access to huge tracks of agricultural and plantation land and to deliver land for
modern urban activities in support of this colonial society. Based on the Crown Lands Ordinance
of 1902 and the Government Lands Act Cap 280 of 1915, the British Crown claimed jurisdiction
over great swathes of “waste and unoccupied” land in Kenya in 1901/19024. It declared this land
to be “crown land” that could be granted by the Crown to individuals hence opening the door to
large-scale settlement by British nationals.
Management of crown land was vested in the Commissioner of Lands who allocated this land
to settlers, introducing the institution of private property in Kenya. The authority to allocate
public crown land was vested in the Governor, and under him, the Commissioner of Lands. Under
their prerogative, grants of agricultural leases over very large tracts of land were made to
European settlers (initially for 99, later for 999 years). Commercial plots in townships and
municipalities were allocated through a system of public auction while residential plots were
allocated through public tender or by grants. The principles that decided such allocations
included notions of the public (i.e. settler) interest, as well as the ability of selected grantees to
pay for land and to carry out intended developments within a prescribed time limit. These
procedures were said to have worked relatively well to control the 'mischief of land speculation'5.
Land occupied by Africans could not be declared crown land; instead it was held under customary
rules. Most customary land was located in designated African reserves.
Land rights were conceptualized as a “bundle of rights” the contents of which were determined
by the various legislation for registering land ownership. Land granted by the Crown to
(primarily) white colonists was held under the terms of the Indian Transfer of Property Act (1882).
This Act, however, was considered an “incomplete act” in that it allowed one to hold an interest
in land but registration of ownership had to be done under another Act of Parliament6. Grants of
4
Okoth-Ogendo, 1990
This and the following two paragraphs are based on Roger Southall, ‘The Ndung’u Report: Land and Graft in
Kenya” Review of African Political Economy 32, 103 (2005) pp. 142-151
6
Wanjala, 1990
5
9
land under the Indian Transfer of Property Act (ITPA) were usually registered under the
Registration of Titles Act (RTA, Cap. 281). Enacted in 1920, RTA was intended to replace the
registration procedures in earlier Acts that were only really a registration of deeds system and
therefore considered a weaker system 7 . By contrast, the RTA was intended to give an
‘indefeasible title’ to the owner, guaranteed by the state. Land formerly held under customary
rules could be converted to private property. Such land claims had to be verified and
individualized through a process called adjudication. Once adjudication was completed, the land
would be registered under the Registered Land Act (RLA). Land registered under either the RTA
or the RLA were issued either title deeds or certificates of title, a system of registration of titles
is considered more reliable8.
The various systems of registration – ITPA, GLA, RTA, LTA, and RLA - have endured and is
responsible for the current land administration complexities. It was the intention that RLA
registration—as the most comprehensive system of registration—should replace all the other
systems of land law. However, this conversion largely did not take place. Thus, over its history,
Kenya has used both “registration of deeds and documents” and “registration of titles” (or the
so-called Torrens Title System). This complex set of land registration laws —some of which were
conflicting – resulted in overly complex processes to administer land.
Upon independence in 1963 the considerable apparatus of colonial administration was
preserved. Crown land was redesignated “government land” and as in the colonial period, it was
available for allocation to individuals for private use but on a leasehold basis. Land under
customary tenures/occupation in the former reserves was called “trust land.” Thus, following on
from the colonial period and up until the reforms of 2010, land had been divided into the three
categories: (1) government (public) land, (2) trust (customary and reserve) land and (3) freehold
or leasehold private land.
Government land represented the main repository of land that could be used for public
purposes. Government land was of two sub-categories, un-alienated (land which has not been
leased or allocated) and alienated (land which has been leased to a private individual or corporate
7
A deeds registry system is considered a weaker system—it allows parties to register documents affecting land
(e.g., an easement) but it does not prove ownership to the land. Three laws (Registration of Documents Act, the
Land Titles Act, and the Government Lands Act) were historically associated with the deeds system. The
Registration of Documents Act (1901; Cap. 285) was used in colonial area; it fell off in use over time. The Land
Titles Act (Cap. 282), an act from 1908, despite its name was only really a registration of deeds system. It was
widely applied to the land on Kenya’s coastal strip that was originally under the Sultanate of Oman. The weakness
of the LTA (as a deed system) is one element of the land problem in the counties of Kenya’s former coast province.
The Government Lands Act (1915; at that time the Crown Lands Ordinance) was again a deed system affecting the
grant of crown/government land to individuals.
8
Notably, this system is guaranteed by the government and accordingly a person who is registered as the owner is
considered to be the bone fide owner by the public and courts of law.
10
body, or which has been reserved for the use of a government department or corporation or
institution, or which has been set aside for another public purpose). Trust land was held by rural
County Councils on behalf of local communities (groups, families or individuals) in accordance
with African customary law until it was registered and transformed into private land, usually
under the process of adjudication that started in the 1950s. According to these definitions, it was
only government land that was public land, for trust land belonged to local communities. Under
the purview of the Commissioner of Lands, government land is the land that could/should have
been set aside for roads, parks, schools, hospitals, and other public uses.
The post-independence land administration framework maintained centralization of power
which created opportunities for miss-allocation of government land. The Commissioner of
Lands Office remained but was situated in a broader Ministry of Lands, which also included units
tasked with important post-Independence projects like establishing settlement schemes,
adjudicating land claims in the former reserves, and physical planning of the country’s expanding
urban areas. Under the Government Lands Act (former Cap. 280 in the Laws of Kenya), the
president of Kenya was given the power to allocate un-alienated government lands, although
s/he could delegate limited powers to the Commissioner of Lands. In practice, however,
considerable powers fell upon the Commissioner of Lands and his officials. According to the
Ndung’u Report, released nearly 15 years ago, this centralization of power allowed large amounts
of land reserved for settlers began to be allotted wholesale to elite Kenyans for patronage
purposes to solidify support and build alliances, a phenomenon known as “land grabbing” that
reached its height in the 1990s (Box 1).
Box 1: Findings of the Ndung’u Commission
The Ndung’u Report, released nearly 15 year ago, documented the extent of corruption in the land
sector. Known officially as the Report of the Commission of Inquiry into the Illegal/ Irregular
Allocation of Land in Kenya (2004), the Ndung’u report confirmed that corruption involving public
land was systematic and widespread. The commission found that at least 200,000 illegal titles had
been issued to alienate public land9 between 1962 and 2002. The Ndung’u report also showed how
the constitutional requirement for public land to be administered “in the public interest” had been
consistently perverted by presidents, public officials, and members of the judiciary, well-connected
politicians and private businesses.
Wholesale alienation of public land occurred in both urban and rural areas. The result of the trends
exposed by the Ndung’u Report and others was that by 2010 most public land that had not been (1)
assigned to government authorities (e.g. railways, forest service, parks service, etc.); (2) demarcated
for road, power, and rail Right of Ways (ROWs); (3) assigned for public services; or (4) alienated for
9
Alienation is the transferring of public land into private ownership, at the discretion of the relevant government
agency/agent, and under the aegis of delegating the utilization of the land ‘commons’ for the public good.
11
urban uses within municipal, town, and market areas was simply lost. Much urban land inside
municipal and town boundaries was allocated to citizens under various residential subdivision plans
as leasehold land (99 years). In rural areas large tracts were simply assigned to powerful interests as
freehold or leasehold, and in addition there were numerous smallholder land allotments. Over time,
many of these agricultural allotments located near the main cities and towns fell under urbanization
pressures, and their further subdivision for residential purposes became common.
The main methods of land grabbing described in the Ndung’u report are: letters of allotment treated
as saleable interests in land; illegal/irregular allocations/ appropriations of public land; parastatals
and ministries paying exorbitant prices to acquire land from private individuals; and illegal and/or
irregular excisions of protected forestland to private interests and for unauthorized uses. Illegal
transactions were hugely facilitated by the extensive complicity of professionals (lawyers, surveyors,
valuators, physical planners, engineers, architects, land registrars, estate agents and bankers) in the
land and property market. Most high profile miss-allocations of public land were made to companies
incorporated specifically for that purpose, largely to shield the directors and shareholders of such
entities from easy public view.
From 1963-2010, no systematic or comprehensive inventories of various categories of public
lands were completed for either rural or urban areas. The illegal grabbing of public land reduced
the stock significantly. In 1996, the Central Bureau of Statistics classified Kenya’s 582,646 km 2 of
national territory as being 20.0% “government land,” broken down as follows:
Figure 2.1: Government Land in 1996
Government Land Classification
Forest Reserves
Other GoK Reserves
Township
Alienated
Un-alienated
National Parks
Open Water
Total
Area in Km2
9,116
1,970
2,831
38,546
28,598
24,067
10,960
116,088
Percentage Breakdown
7.9%
1.7%
2.5%
33.2%
24.6%
20.7%
9.4%
100%
Source: Central Bureau of Statistics, 1996, quoted in Violet Matiru, “Forest Cover and Forest Reserves in Kenya:
Policy and Practice,” December 1999, 6.
In 2005, only 2.3% of Nairobi’s total land area was classified as “un-alienated government land”
10 and it was estimated in 2010 that 13 percent of land in urban areas is government owned 11.
10
JICA, Integrated Urban Development Master Plan for the City of Nairobi, Final Report, May 2014, 2-26. (Nippon
Koei Co., Ltd. IDCJ Inc. EJEC Inc.), Table 2.2.1.
11
UN-Habitat, 2010
12
Much of this land is under the purview of public institutions such as government ministries,
parastatals, and institutions of learning and research. A survey done in February 2016 to
determine the status of public land management revealed that documentation to support
landownership by public institutions was difficult to find12. Thus, in practice it is not possible to
determine the extent of public land ownership.
In effect, the state of land tenure in Kenya lacks clarity, with ill-defined categories. Legislation
dealing with land in the pre-devolution period13 represented a highly centralized, complex, and
exceedingly bureaucratic system. A complex set of land laws —some of which were conflicting –
resulted in overly complex processes to administer land. This complex land administration
system has provided great opportunities for petty graft (e.g., a bribe to get copy of title or to find
a “missing” file) as well as irregularities (e.g., multiple allocations of the same piece of poorly
documented government land). Land registries are of poor integrity—they may be marred by
false ownership claims or replete with inaccurate or outdated ownership information. Records
on land ownership have been highly problematic and this has undercut trust in the registries and
has negatively affected the functioning of land markets.
Devolution has added to the lack of clarity regarding the status/available inventory of public
land in the country. The split of legal and administrative powers over public land under the
devolved system, and the required level of cooperation and collaboration required between the
county and the national level should streamline the demarcation, custody, access and
management of public land in a way that it can accommodate future needs. The common
perception is that no public land exists that is unencumbered and available for allocation for
public uses or to encourage investment, especially in locations where it is most needed. Counties
are beginning to undertake inventories of public land, though progress on that activity is uneven
across counties due to different priorities, resource constraints and technical capacity.
2.2. The Reform of the Legislative Framework for Land Management
The poor state of land management led to the clamor for land reform in Kenya, which
culminated in the 2010 Constitution. According to the Supreme Court of Kenya in an advisory
opinion14, apprehensions of social, economic and political mischief associated with Kenyan land
history were a vital factor in the dynamics of land reform that culminated in the extensive
provisions on land contained in Chapter Five of the Constitution of Kenya 2010. Key concerns to
be addressed were the institution of a public entity with a land-resource mandate and
independent of the hand of central government; the decentralization of the land management
12
Land Development and Governance Institute (2016). LDGI Survey on Status of Public Land Management in Kenya
Including the Indian Transfer of Property Act (1882), the Registration of Titles Act, The Land Titles Act, The
Registered Lands Act, The Wayleaves Act, and The Land Acquisition Act.
14
Advisory Opinion No. 2 of 2014
13
13
system; and the establishment of checks-and-balances in that regard. Ultimately, the overriding
theme has been the development of a legislative framework that protects private property rights
while ensuring social parity and the needs for sustainable development. Currently, according to
the Kenyan Constitution, all land in Kenya belongs to the people of Kenya collectively as a nation,
as communities and as individuals15.
The following paragraphs are an examination and mapping of the main documents and laws
associated with the country’s land reform, beginning with the National Land Policy of 2009,
through the 2010 Constitution and the suite of land laws passed in 2012 to implement the
Constitution, to the Supreme Court decision clarifying responsibilities in land management at the
national level, and finally the key land legislation passed in 2016.
The 2009 National Land Policy – Laying out the Areas for Reform
The National Land Policy (NLP), also known as Sessional Paper No. 3 of 2009, is considered a
landmark policy that was the product of a long consultative process spanning many years.
Adopted by the Kenyan Parliament in December 2009, the policy identifies the critical land issues
facing the country, presents a set of proposals for administrative reforms and legislative action
to bring out desired land reforms. As is noted in the policy’s own forward, the policy is striking in
that it appears to represent an unusual degree of consensus amongst leaders, stakeholders, and
citizenry “in tackling, arguably, the most emotive and culturally sensitive issue in Kenya” (NLP,
2009: vii). The policy lays out principles and guiding values related to equitable access, secure
land rights, access to land information, and transparent and good democratic governance of land.
Relative to public land management, the critical issues addressed by the NLP were those
associated with making land a constitutional issue, clarifying land tenure, and decentralizing
institutional framework for land administration. First, the NLP notes that the then current (pre2010) constitution did not recognize the uniqueness of land and instead includes it into other
categories of property. Because of its centrality to livelihoods and material wealth, the NLP
argues that land needs to be anchored in the Constitution and treated as a constitutional issue.
The lack of such a framework is faulted for the myriad problems affecting land in Kenya, including
the lack of accountability resulting in irregular allocation of public land.
The NLP clarifies the complicated land tenure and land administration regimes introduced by
the colonial regime. To clarify land holdings and their concomitant rights, the NLP redefines
categories of land and calls for the repeal of various laws regarding their management and
registration so as to create a more transparent and legible land tenure system. Specific to public
land, it proposes that the Government Lands Act be repealed; this category of land should be
15
Article 61 of the Constitution of Kenya
14
replaced by “public land”. Public land is “all land that is not private land or community land and
any other land declared to be public land by an Act of Parliament.” A new land act to govern
public land is identified as a necessary legislative action. This law should rationalize public land
holding and use, establish mechanisms for repossessing illegally acquired public land, and
establish “participatory and accountable mechanisms” for allocating, developing and disposing
of public land.
Finally, the NLP decentralized the administrative structures around land administration and
management to improve efficiency, reduce opportunities for graft and improve involvement
of the public in decision-making. The NLP removes powers from the Ministry of Lands, the
Commissioner of Lands Office, the Director of Physical Planning, as well as from district
administrations and county councils. Three new institutions are envisioned: the National Land
Commission (NLC); District Land Boards, and Community Land Boards. The NLC is conceived of as
a constitutionally created independent commission that would take on many of the functions
associated with the Ministry of Lands. At each district, the NLC is to form a District Land Board,
accountable to the NLC, to act as their agent, providing land services such as planning,
adjudication, mapping and survey, issuance of title deeds, and land valuation. This DLB is to be
democratically elected and supported by officers of the NLC, to ensure accountability and
transparency in land administration. The final body, the Community Land Board, is to also be
democratically elected and supported by NLC officers; its job is to hold and manage a new
category of land, community land.
The 2010 Constitution – Devolving Public Land Management to Counties
The Constitution of Kenya (2010) simplifies the complex land administration framework. The
Constitution adopted many, but not all, of the recommendations laid out in the 2009 National
Land Policy. To deal with the confusion created by having multiple legal frameworks for land
registration and titling, the constitution simplifies land classifications into three: “public land”,
“private land” and “community land” (Box 3). Public land is vested in either county governments
with the charge of holding the land “in trust for the people resident in the county” or it is vested
in the national government and it also must hold the land “in trust for the people of Kenya.” As
envisioned in the NLP, public land is to be administered by a newly created body called the
National Land Commission.
Box 2: Principles of land management from the 2010 Constitution
Article 60(1) of the Constitution sets out principles of the Land Policy: Land in Kenya shall be held, used
and managed in a manner that is equitable, efficient, productive and sustainable, and accordance with
the following principles—
(a) equitable access to land;
(b) security of land rights;
15
(c)
(d)
(e)
(f)
sustainable and productive management of land resources;
transparent and cost effective administration of land;
sound conservation and protection of ecologically sensitive areas;
elimination of gender discrimination in law, customs and practices related to land and property in
land; and encouragement of communities to settle land disputes through recognised local
community initiatives consistent with the Constitution.
Relative to public land, county governments have responsibility for county planning and
development. The enumerated responsibilities include: statistics, land survey and mapping,
boundaries and fencing, housing and electricity and gas reticulation and energy regulation.
However, many of the county’s other responsibilities (health facilities, cemeteries, county roads
and parking, markets, education, public works like water treatment) touch upon public land
access and management since such facilities are classically located upon public land.
Further, the County Government Act (2012) underscores the centrality of planning to the
functioning of county governments. As the legislation that lays out the functions of county
government and its powers, the County Governments Act of 2012 (CGA), makes county level
planning mandatory and the most important plan, the County Integrated Development Plan
(CIDP), serves as a financial instrument—no funds can be appropriated outside the planning
framework16. CGA states that the content, approach and the general goals should align with the
goals for public land management and land management more generally.
Box 3: Land Tenure Definitions from the 2010 Constitution
Public land is defined under Article 62 as follow:
a) land which at the effective date (being the date the Constitution came into effect) was an
un-alienated government land as defined by an Act of Parliament in force;
b) 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;
c) land transferred to the State by way of sale, reversion or surrender;
d) land in respect of which no individual or community ownership can be established by any
legal process;
16
The CGA enumerates principles for county planning (e.g., protection of marginalized groups, protection of
natural resources, pursuit of equity in resource allocation) and it identifies 10 objectives for county planning from
the broad “facilitate the development a well-balanced system of settlements” to the very specific “tree cover of at
least 10 percent of the land area of Kenya.” Counties must set up technical planning units; the units are required to
produce four distinct types of plans—1) the CIDP (five-year comprehensive plan), 2) sectoral plans (subcomponents of CIDP for sectors such as housing and health), 3) a county spatial plan (a GIS-based 10 year physical
plan identifying desired patterns of land use as well as basic guidelines for a land use management system), and 4)
plans for cities and urban areas. According to the Act, city or municipal plans “shall” be the instrument for
development facilitation and control within the respective city or municipality; they are binding on all public
entities and private citizens.
16
e) land in respect of which no heir can be identified by any legal process;
f) all minerals and mineral oils as defined by law;
g) 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;
h) all roads and thoroughfares provided for by an Act of Parliament;
i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
j) the territorial sea, the exclusive economic zone and the sea bed;
k) the continental shelf;
l) all land between the high and low water marks;
m) any land not classified as private or community land under this Constitution; and
n) any other land declared to be public land by an Act of Parliament—in force at the effective
date; or enacted after the effective date.
Community land is generally defined under Article 63 as land which shall vest in and be held
by communities identified on the basis of ethnicity, culture or similar community of interest.
Community land consists of:
a) 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;
c) any other land declared to be community land by an Act of Parliament; and
d) 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).
Private land is defined in Article 64 to consist of: (a) registered land held by any person
under any freehold; (b) land held by any person under leasehold tenure; and (c) any other
land declared private land under an Act of Parliament.
The Land Acts – the Backbone of the New Land Management Framework
From the 2010 Constitution, four pieces of legislation form the backbone of the current land
management framework. They are the Land Act, the Land Registration Act and the National Land
Commission Act, collectively referred to as the 2012 Land Laws, and the Community Land Act
passed in September 2016. Chapter 5 (Land and the Environment) of the Constitution required
legislation on community land; regulation of land use and property; legislation on land;
agreements relating to natural resources, and matters regarding the environment. The objective
of the four Acts was to put into place these constitutional requirements, and to streamline the
17
complicated legislation on land administration and management derived from the colonial
regime.
Pursuant to the passage of the Constitution, seven extant land acts were repealed and two—
the 2012 Land Act and the 2012 Land Registration Act—were passed in their place17. The Land
Act (2nd May 2012) defines land categories in keeping with Articles 62-64 of the Constitution and
lays out 13 guiding values and principles of land management. It lays out the framework for land
ownership and management of all categories of land in the country. The Land Registration Act
(No date of passage, No. 3 of 2012) aims at cleaning up the overly-complex processes relating to
the registration and titling of land. The Act changed the terminology related to titling to make
tenure clearer: titles are to be called certificates of lease or certificates of title. There is to be only
one certificate of title or certificate of lease issued in respect to each parcel of land. The Act also
states that there should be easy public access to the registry although it is not entirely clear on
where the registrar is located. A primary critique of these two Land Laws is that while they make
reference to principles of land policy laid out in Article 60(1) of the Constitution, there is very
little by way of content that implement these principles18.
The Land Act also brings into law the respective roles of the NLC and the Ministry of Lands. The
Act defines the role of the Ministry as primarily facilitative and oriented toward policy-making.
The roles of the NLC are not defined in any one discrete section of this Act, presumably because
its role is defined in the Constitution. Instead the many roles of the Commission are virtually
continuous throughout the Act.
The National Land Commission Act (2nd May 2012) is the enabling legislation for the NLC as a
new land management body. The Act makes “further provision as to the functions and powers
of the NLC, 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.” The NLC Act transcribes verbatim the powers included in the
Constitution including the power to alienate public land; it also gives it the right to manage
unregistered trust and community lands.
Box 4: Functions of the NLC as per the 2012 NLC Act (Section 5).
(1) Pursuant to Article 67(2) of the Constitution:
(a) to manage public land on behalf of the national and county governments;
(b) to recommend a national land policy to the national government;
17
Repealed: The Indian Transfer of Property Act, 1882; The Government Lands Act, The Registration of Titles Act,
The Land Titles Act, The Registered Lands Act, The Wayleaves Act, and The Land Acquisition Act.
18
The critiques focus on the provisions on private land transactions, not public land, so will not be expounded
upon here.
18
(c) to advise the national government on a comprehensive programme for the
registration of title in land throughout Kenya;
(d) to conduct research related to land and the use of natural resources, and make
recommendations to appropriate authorities;
(e) to initiate investigations, on its own initiative or on a complaint, into present
or historical land injustices, and recommend appropriate redress;
(f) to encourage the application of traditional dispute resolution mechanisms in
land conflicts;
(g) to assess tax on land and premiums on immovable property in any area
designated by law; and
(h) to monitor and have oversight responsibilities over land use planning
throughout the country.
(2) In addition, in accordance with 67(3):
(a) on behalf of, and with the consent of the national and county governments,
alienate public land;
(b) monitor the registration of all rights and interests in land;
(c) ensure that public land and land under the management of designated state
agencies are sustainably managed for their intended purpose and for future
generations;
(d) develop and maintain an effective land information management system at
national and county levels;
(e) manage and administer all unregistered trust land and unregistered
community land on behalf of the county government; and
(f) develop and encourage alternative dispute resolution mechanisms in land
dispute handling and management.
The NLC Act established County Land Management Boards (CLMBs) to act as its agent with the
express purpose of managing public land; a provision subsequently reversed by the Land Laws
(Amendment) Act (2016) passed in September 2016 which abolished these boards. The main
purpose of the CLMBs was to devolve the management of public land from the NLC to the
counties. The NLC initiated the setting up of CLMBs and as of August 2016 had completed the
process in 42 counties. At the county level, the County Governments Act makes no reference to
any entity approximating the County Land Management Boards, as it only mentions those officers
working in the county planning unit as the main implementing actors relative to land. The CGA
does give a limited role to the county assembly relative to land planning—namely the assembly
is to approve county plans, including the integrated development plan, the county spatial plan as
well as city and municipal land use plans. The abolition of the CLMB means that NLC’s capacity to
directly manage public land is severely diminished unless it works with the county governments
and the national government.
19
The purpose of the Community Land Act, passed in September 2016, is to regulate the
management of community land. As a tenure category that came into being only after the
Constitution, community land required legislation that stipulated the parameters of governing
this new category. The Act removed the management and control of registered community land
from the NLC. Instead the Act establishes the Community Land Management Committee for this
purpose. This committee is the main actor for allocating rights, keeping records, resolving land
disputes, and generally safeguarding the interests of the community, including groups often
discriminated against like women. Unregistered community land is to be held and managed by
the county government as a trustee of the community. Thus, this Act has limited the powers of
the NLC in the management of land.
The Community Land Act allows conversion of community land to public land. According to this
Act, community land may converted to public land status by three means—compulsory
acquisition, transfer or surrender. The conversion of community land to public land is not
discussed in the Constitution; the Constitution does say, however, that community land “shall
not 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” (Chapter 5, 63
(4)).
The Supreme Court Opinion – Clarifying the Institutional Roles
Overlaps in mandates drawn from the new legislation has required further clarification from
the Supreme Court. After the passing of the new land legislation, the placement of the powers
for two key mandates - allocating public land and managing the land registry – were not clearly
understood. This non-clarity resulted in tensions between the Ministry of Lands and the NLC.
Figure 2.2 below summarizes the various roles of county and national actors as far as public land
management and highlights in bold areas in which the law is particularly unclear. The Supreme
Court made an interpretation of this non-clarity in a decision rendered in December of 201519.
Although the decision came in the form of advisory opinions, which are generally non-binding
decisions in most court systems, in Kenya, however, an advisory opinion is considered as binding
as a normal (actual controversy) case20.
Figure 2.2: Overlaps in registry mandate: National Government, NLC and County Government*
Ministry in charge of Lands
NLC
County Government
19
The first Supreme Court decision on the matter was written in September 2014, in response to a request by the
NLC. The Court did not provide an opinion on the placement of the two mandates but ordered the two parties to
use a 90-day interlude to “undertake constructive engagement towards reconciliation and a harmonious divide of
responsibility”.
20
Ojienda with Aloo and Okoth, 2016
20
Constitution
NLC Act
Land Act
Land
Registration Act
Does not mention Cabinet
Secretary (CS) with land
portfolio and land registrar;
CS of other mandates are
explicitly mentioned.
CS to present estimates for
NLC to National Assembly;
serve on appointment body
(1st Schedule).
To “manage” public land on
behalf of national and county
government + 7 other
functions as proscribed by
national legislation
6 additional functions including
land info system at national
and county levels
CS to develop policies,
facilitate land policy
implementation, coordinate
national spatial data
infrastructure; regulate
service providers; request
NLC for compulsory
acquisition of land; role in
creation of public right of
way; sets fees; must
commission study on
max/min acreages; shared
power on regulation with
NLC
Identify public land (database),
evaluate land capability, shall
“cause a register to be kept”
on public land converted to
private; make rules for
conversion, prescribe
guidelines for management by
public entities; may (on behalf
of national and county)
allocate land via enumerated
means; make regulations on
public land allocation; reserve
public land; acquire land on
behalf of government
implement settlement
programs; administer Land
Settlement Fund
Constitutes registration units
in consultation; determines
form of registry; depository
for cadastral maps; creates
regulations for dealing with
irregularities in registrar.
Consulted in constitution of
land registration units; “in
establishing land registry,”
CS is guided by devolution
principles; prescribes
conditions for land
disposition/sale (private
too?); entitled to recover
costs related to registrar
irregularities; can make
regulations to better effect
the purposes and provisions
of the Act taking into
account NLC advice
*Overlaps emphasized in bold
Planning and
development control
mandates
Establishes CLMBs,
county land registrars; act
as “linkage” between
NLC, counties and other
institutions; manage land
on behalf of counties;
shall work in consultation
and cooperation with
counties.
Allocated public land
reverts to county if
terms/conditions unmet;
consulted over reserved
public land; submits
request to NLC for
compulsory acquisition
on its behalf; counties
apply for communal right
of way.
Establishes office of
county land registrar;
powers – consulted on
land registration units;
each county to have
registry for “reasonable
access”.
The Supreme Court emphasized collaboration and cooperation between the Ministry of Lands
and the NLC. In reviewing the roles of the two entities prescribed in the Land Act 2012, the Court
stressed that “neither the Ministry nor the NLC is in a position to perform its tasks in isolation.”
Rather than see the different aspects of the law as being contradictory, the Court interpreted the
21
roles as requiring collaboration. While it clearly concluded that the NLC had no powers to register
title documents, a task that extends beyond the remit of public land, it was less clear on the
question of the allocation of public land. It states that “the NLC has a mandate in respect of
various processes leading to the registration of land”. Consequent interpretation of this opinion
has concluded that these processes include the identification of public land for alienation, and
allocation of public land.
The Supreme Court Opinion contributed positively to public land management reform in a
number of ways. The responsibility to manage the registry is clearly awarded to the MLHUD, but
powers over public land that stop short of registration and titling are fully recognized as belonging
to the NLC. The decision also re-emphasised the importance of the mandates of the NLC to
address historic injustices and maintain accessible information on public land to increase
transparency and inhibit further injustices. The opinion was also a first step in the Kenyan
institutional landscape of fostering a cooperative relationship between the two national bodies,
the NLC and the Ministry, so that the important work of enhanced land management (both public
and private) can be effected.
The Specific Provisions for Compulsory Land Acquisition and Resettlement
The 2009 National Land Policy highlighted the problems with the previous land law regime in
Kenya with respect to compulsory acquisition and resettlement. The policy proposed the
following changes related to land acquisition:
 The review of the previous land laws on land acquisition to be aligned with the new land
tenures
 Harmonization of the institutional framework for compulsory acquisition to avoid overlap of
mandates
 Development of compulsory land acquisition processes that are efficient, transparent and
accountable
 Compulsory land acquisition be done through the National Land Commission
 Resettlement be carried out in a transparent and accountable manner(Article 175)
 Establishment of a land bank to implement resettlement
 The government resettles all internally displaced persons (Article 208)
 The government to develop mechanisms to remove squatters from informal settlements for
their resettlement
Progress been made on various aspects of compulsory land acquisition since the NLP. The
demand for land for infrastructure development in line with Vision 2030 has meant that
compulsory land acquisition in Kenya is a major national agenda, progressively influenced diverse
policy and legal debates over time. A key achievement was the adoption of clause 40(4) of the
22
2010 Constitution which provides an avenue for protecting of the rights of non-title holders in
the compulsory land acquisition process where there is compensation for occupants in good
faith.
The 2010 Constitution balances the desire to promote economic growth and investment with
the need to limit harms to those whose property is taken (involuntarily) for a public purpose.
The 2010 Constitution protects the right to private property but also makes certain provisions for
compulsory land acquisition. While it does not define the term “compulsory acquisition” it
provides for instances where the state can deprive a person of private property rights for a public
purpose or in the public interest. This provision acts as the basis upon which the exercise of the
power to compulsorily acquire property is exercised. Chapter 1 (40)(3)(a) of the Constitution
provides constitutional safeguards against the state taking private property arbitrarily; like other
constitutions the compulsory acquisition of land must be for a public purpose and accompanied
by just compensation.
In addition, international treaties influence land acquisition in Kenya. The 2010 Constitution
reiterates that the general rules of international law as well as any treaty or convention ratified
by Kenya shall form part of the law of Kenya under this Constitution. These treaties include the
International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of
Human Rights, the latter of which provides that “everyone has the right to own property alone
as well as in association with others” and that “no one shall be arbitrarily deprived of his
property” (Article 17).
Kenya does not have a single policy or legislative act on compulsory land acquisition and
resettlement. The legal and regulatory framework governing compulsory land acquisition and
resettlement are scattered across different pieces of legislation including: the Constitution of
Kenya (2010), National Land Commission Act (2012), Land Act (2012), Land Registration Act
(2012), Land Control Act (1989/2010), Environment and Land Court Act (2012), Physical Planning
Act (1996), Magistrates Court Act (1989/2007), Urban Areas and Cities Act (2011), Community
Land Act (2016), Energy Act (2015), Environment Management and Coordination Act (2003),
Public Private Partnership Act (2012), repealed Land Acquisition Act (1983/2010), the Public
Funds Management Act (2013/2015) and the Land Laws (Amendments) Act (2016). Bills that
were pending that have now been included in the Land Laws (Amendment) Act (2016) are the
Evictions and Resettlement Procedures Bill (2012) and the Evictions and Resettlement Bill (2014),
which were supposed be the legal anchor to regulate forced evictions and resettlement planning.
In addition, there are several relevant policies including the National Land Policy (2009) and the
National Housing Policy (2008).
The 2012 Land Act is the substantive land law dealing with matters of compulsory acquisition.
The term “compulsory acquisition” is defined in the 2012 Land Act as “the power of the State to
23
deprive or acquire any title or other interest in land for a public purpose subject to prompt
payment of compensation”. It is a power reposed in the State to acquire private property for a
public purpose. Figure 2.3 illustrates the process of land acquisition as laid out in the Land Act,
201221.
While the Land Acquisition Act was repealed by the Land Act its regulations remain in force.
The land regulations necessary to implement the 2012 Land Acts are yet to be gazetted and until
then, the regulations of the repealed Land Acquisition Act remain in force. This means that
despite any new stipulations in land acquisition process laid out in the Land Act that were not in
the Land Acquisition Act cannot be acted upon until regulations are in place.
The NLC has the mandate to carry out compulsory land acquisition. It has the constitutional
authority to develop criteria and guidelines to guide the process of land acquisition and
resettlement in Kenya. When the national government, county governments and acquiring
bodies intends to acquire private land, the Cabinet Secretary of the ministry in charge of lands or
the County Executive Committee member is required to submit a request to the NLC to acquire
land on its behalf.
21
These regulations are used in the absence of a finalized set of regulations for the 2012 Land Acts
24
Figure 2.3: Land Acquisition Process (from 2012 Land Act)
1
2
3
2
4
3
2
5
4
3
2
6
5
4
3
2
7
6
5
4
3
2

Cabinet Secretary or the County Executive Committee member required to
submit request to the National Land Commission to acquire the land on its
behalf.


NLC evaluates request for acquisition
If satisfied that the request meets requirements under guidelines and provisions of
Article 40 (3) of the Constitution, the NLC provides approval.

Land is then geo-referenced and authenticated by the office of survey at relevant
national or county government level.

NLC then publishes a Notice of Intention to acquire land in the relevant Gazette or
the County Gazette.
The NLC submits a copy of the Notice and every other person who appears to be
interested in the land.


Registrar then makes an entry into the register of the intended acquisition.

Within 30 days of publishing the Notice of intention to acquire land, the NLC
appoints date for inquiry to hear propriety and compensation issues from people
interested in the land.
Notice of Inquiry is published in the Gazette or the County Gazette at least fifteen
days before the inquiry and served to every person who appears or claims to be
interested in the land.


Once land has been compulsorily acquired, just compensation is paid promptly and
in full to all persons whose interests in the land have been determined.
25
Both the NLC guidelines for land acquisition and the Environment and Social Impact
Assessment (ESIA) require resettlement action planning. Under its mandate for
compulsory acquisition under Section 107 of the Land Act 2012, the NLC is empowered
to develop criteria and guidelines to which public bodies intending to acquire land
must adhere. The NLC has developed a guiding document outlining the preliminary
information it needs in order to assess a land acquisition request (Annex 2) 22. The
guiding document includes, as one preliminary requirement, the preparation of a
Relocation Action Plan23. In addition, the Environment Management and Coordination
Act 2003 (EMCA) mandates the preparation of an ESIA for any infrastructure project;
any population displacement identified triggers the preparation of a RAP within the
ESIA.
The NLC has also prepared a Terms of Reference to guide the preparation of a RAP
which need to be clarified. In addition to the guidelines for land acquisition (Annex
2), has prepared Terms of Reference to guide the RAP preparation process (Annex 3).
Through these TORs, the NLC has made a positive first step in guiding the preparation
of a RAP. However, the guidelines need to be clearer as they simply state the steps to
be done. Clear guidelines would specify the policy principles and the planning
parameters to be applied for any particular project and should be clearly established
to guide the formulation of the RAP.
Escalating compensation costs are a challenge to acquiring agencies. Increases in
land value after a project is announced have exponentially increased actual
compensation costs which then exceed the amount set aside in budgetary allocations,
sometimes as much as twice the budgeted amount. To address the challenges of
exponential compensation costs, the government is drafting a Bill on capping cash
compensation. The Bill makes multiple proposals aimed at reducing project costs
related to land acquisition. First it proposes the introduction of land-for-land swaps,
swapping the acquired land with alternative land of similar value, as the preferred
means of compensation. This mechanism is expected to reduce land purchase and
speculation that arises in the project area as soon as public infrastructure projects are
announced. Second, the Bill proposes that the project is allowed to continue even in
cases where landowners choose to file legal redress. This proposal would allow
22
The NLC may refuse to acquire land on behalf of the county or national government for noncompliance with the criteria and guidelines.
23
Other requirements: (i) prior approval from their respective Cabinet Secretary before the
Commission commences the acquisition process through a letter; (2) cadastral drawings, (3) list of
parcels numbers, (4) official searches of affected land parcels, (5) Environmental Impact Assessment,
(5) Relocation Action Plan (RAP), (6) acknowledgement on availability of funds to allow prompt
compensation, (7) site tour of the land acquisition and committee sub-committee, (8) a final survey
for vesting of the acquired land
26
projects to continue without being affected by the long delays in the court system,
delays which have cost implications. Finally, it is also proposing a three year freeze on
the cost of land where projects have been planned and subsequently announced.
Evaluating the Reforms to Date
The current suite of legislation represent unprecedented strides in land reform in
Kenya. The reforms have gone beyond what is considered the traditional approach to
land reform as it has restructured the institutional and administrative land framework
that had its origins in the colonial administration24. Rather than tinkering at the edges,
the legislation has reworked core aspects of land management and administration,
particularly the redefinition of the land tenure classifications, the simplification of the
land registration system, and the measures to distribute, rather than centralize, the
administration of public land in the country.
However, the changes cannot be considered transformative. Transformative change
in land law reform can be described as a deliberate radical focus on righting past social
and economic injustices by recreating the land law system25. The National Land Policy
was considered a progressive document setting the path for such radical changes but
consequent legislation has not been redistributive to the degree recommended by the
policy. In this regard, Kenya missed a real opportunity to enshrine in law the radical
principles for land reform found in the 2010 Constitution or the NLP2627.
Critically, the regulations to implement the Land Acts have not been gazetted.
Without the required regulations in place, decisions made based on the Acts are
susceptible to challenge. The regulations have already been prepared by various task
forces, and need to be reviewed, and published in the Kenya Gazette and/or placed
before Parliament and implemented.
Retrogressive acts have also not been repealed to improve accountability in land
management. The Land Control Act, generally considered retrogressive, was not
repealed (it was repealed in Parliament28 in 2012 but the repeal has not published in
the Kenya Gazette to date in spite of a Court Order to the Attorney General to
24
The traditional approach to land reform in East Africa describes an approach that “accepts the
colonial origins of the structure of land law and…the colonial and post-colonial analysis of the
‘problems’ of land tenure” (McAuslan, 2015: 12). It largely maintains the existing framework created
during colonialism.
25
McAuslan, 2015
26
Manji 2015: 1.
27
In her evaluation of Kenya’s land law reforms, Manji notes that the laws were drafted in undue
haste, with drafters citing the tight timelines of the Constitution. The laws, as a result, were
formulated in an opaque process characterized by “a lack of genuine consultation and debate” (Manji,
2015: 2).
28
Hansard Report of 26th April, 2012.
27
complete the process). Section 6 (3) of the Land Control Act, cap 302 Laws of Kenya,
declares any transaction involving a controlled transaction in land to be null and void
if not sanctioned by the relevant land control board. Yet, the majority of the land
control boards have over the years gained notoriety as havens of graft and
bureaucracy. The land reform process has for years required the repeal of this Act for
failing in its stated purpose and becoming an impediment to land transactions
involving land with agricultural user29.
The inclusion of the power of compulsory acquisition in the Land Act has been
critiqued with the argument that the subject deserves its own separate act30. The
overriding principle is a legislative framework that protects private property rights
while ensuring social parity and the needs for sustainable development. The issue of
compulsory acquisition must have regard to these apprehensions and the central
place that land occupies in the Kenyan socio-economic and political fabric.
The Land Laws (Amendment) Act, 2016, passed in September 2016, has effected
changes which appear to take away some of the advances in the public land reform
process. The Act which came into force on September 21, 2016 has introduced
changes to the three key statutes governing land use and management in Kenya;
namely; the Land Registration Act, the Land Act and the National Land Commission
Act. As mentioned earlier in this section, a key change has been the abolition of the
County Land Management Boards (CLMBs) which were envisioned as devolved
entities of the NLC to manage public land at the county level. The role of the NLC to
manage public land is hampered unless it works directly and closely with county and
national governments.
Importantly, the Land Laws (Amendment) Act has presented a contradiction in the
provisions for compulsory land acquisition. The Land Laws (Amendment) Act (2016)
introduces Section 152 (a) into the Land Act that criminalizes the unlawful
occupation of land of public land (and private and community land) which has
implications for occupants in good faith, a constitutional provision that protects
those living on the land without formal ownership.
29
Indeed, following the repeal of this Act in Parliament, the High Court made an Order, which is yet to
be acted upon, for “the Hon. Attorney-General to move with speed and address the non-repeal of the
Land Control Act in spite of Parliament's decision to that effect”29. The Court recommended that the
Attorney General move by way of a Miscellaneous Statute Amendment Bill and present the matter to
Parliament for consideration. Until the repeal is published in the Kenya Gazette, the Act will continue
to be binding and applicable in spite of the repeal.
30
McAuslan, 2012.
28
3. Public Land Management Practices
With ongoing processes of land reform described in the previous section, both
county and national governments have continued to carry out land administration
and management activities and have also taken initiatives to address land problems
and improve the system. Preliminary analyses of land management practices, with a
particular focus on public land, are presented for selected counties and national
government agencies.
3.1. Practices at the County Level
Under devolution, county level actors have become critical for ensuring
transparency and efficiency of general land management including public land
management. County governments are now responsible for a raft of land related
functions such as physical planning, surveying, mapping, development control, land
subdivision and lease extension, as well as housing, environmental protection, and
land based revenue collection. The County Land Management Board (CLMB) as a
devolved function of the NLC was intended to have an important role in public land
management at the county level, particularly by scrutinizing land use and
ownership/use right, relative to physical planning requirements, as well as in linking
County governments with the NLC. Even with the abolition of the CLMBs in the Land
Laws Amendment Act, 2016, land functions have been brought closer to localities and
it is anticipated that the room for public participation in land management may have
been expanded.
Table 3.1: Public Land Management by County31.
Nairobi
Context
Total area
696 km2
Population (2015) 4 million
Population growth 3.8%
rate/year
% of population
100%
urban
General land management
County
Yes, with
administration for physical
planning
31
Kiambu
Kajiado
Kisumu
Murang’a
2543 km2
2 million
2.8%
21900 km2
900,000
5.5%
2010 km2
1.1 million
1.3%
2558 km2
959,000
0.9%
58%
24%
44%
12%
Yes, with
physical
Yes, with
physical
planning,
Yes, with
housing,
physical
Yes, with
housing and
This table is a summary of the detailed information for each county presented in Annex 1.
29
land
management?
Active CLMB32?
planning
and housing
No
Yes
Planned
Planned
Substantial
Almost none
Small
amount
Almost
none
Some parcels
Almost none
Almost none
No
No
No
No
Partial
inventory
underway
None
Complete
inventory
underway
No program
N, Ad hoc
N, Ad hoc
No program
No program
N, No
program
No program
Partial
inventory
well
underway
N, Ad hoc
No program
No program
Not yet
Ward-level
land clinics
No
N, With
universities
Y, With
NGOs,
universities
Public land management
Reserved public
Almost
land for
none
allocation?
County
No
regulations for
public land?
Inventory of
Partial
public lands?
inventory
underway
Restitution of
public lands?
Combatting public
land grabbing?
Cooperation with
non-state actors?
planning and physical
urban
planning
development
Yes
Development
Planned
control initiatives?
Community lands? None
No (in the
process)
Bill
prepared
Almost
none
environment,
wildlife and
natural
resources
Just starting,
not active
None
General Land Management in the Devolution Context
The context of land tenure varies widely across counties, as well as key land
problems, depending on the historical evolution of land tenure and use. For instance,
in Kajiado County, most lands remain classified as community land held in common
(especially in the arid and semi-arid counties where pastoral livelihoods predominate),
although held in the form of group ranches, some of which have been subdivided. In
other counties, what had been communal or trust lands (under the previous land
regime) have largely gone through land adjudication and subdivision. Some have been
registered as smaller parcels under freehold (e.g. in Kisumu County) and in other
counties, large settler farms have either been turned into corporate plantations (e.g.
in Kiambu and Muranga County). In the towns and in peri-urban areas with greater
32
Data collected before the passing of the Land Laws (Amendment) Act, 2016 which abolishes CLMBs
30
urbanization, notably within the Nairobi Metropolitan Region, there is a complex mix
of freehold and leasehold and rapidly rising land values have made it difficult to secure
land for public purposes or protect public land.
Counties are at different stages of putting in place dedicated regulations and
institutions for (public) land management. In all counties visited, land management
functions fall under a department in charge of land, physical planning and housing
(grouped with other related functions in some counties). While land problems as well
as some land management initiatives are mentioned in the five-year County
Integrated Development Plan (CIDP) to a varying degree, none of the counties have
regulations dedicated to land management (cf. Nairobi and Muranga Counties are
preparing development control policy and bill, respectively). As of May 2016, a County
Land Management Board (CLMB) had been established in 44 out of 47 Counties
(except Nairobi and Mombasa, and was pending in Kiambu). Among the Counties
visited, Muranga, and Kisumu Counties demonstrate close working relationships with
the (now defunct) CLMB. County officials also mentioned the Members of the County
Assembly (MCAs) as important actors in land management, some arguing for the need
to raise their awareness of land matters and others recognizing their role in citizen
engagement.
Counties have taken initiatives to strengthen land management systems, although
capacity improvement is needed. Most counties visited are now in the process of
converting to digitized land information, mapping, and surveying systems using GIS
and GPS, with some counties having made substantial investment in this regard (e.g.
Kiambu). They have also engaged professional bodies, academics and civil society
actors in some of these exercises. For instance, student interns or graduates are
recruited in Kiambu and Kisumu to support the digitization of land information; and
partnership are forged with universities and an NGO in Muranga for public land
mapping. The outcome of these initiatives are yet to be seen as they are still work in
progress but continuous support from the county leadership would be critical since
most of these initiatives are driven by the County Government through its technical
staff (often under strong guidance from the Governor) and resources.
The ongoing process of devolution explains the variance in land management
practices at the county level, with some adverse impacts arising from the lack of
clarity in the national-level policies and institutions. Prior to the Land Law
(Amendment) Act, the CLMBs as devolved units of the NLC were established and
operational to varying degrees but were severely underfunded in general and often
lack staff qualified to handle land management. The implication was that CLMBs were
31
sometimes ‘lesser equal partners’ in land management to the County governments
(e.g. some CLMBs were getting financial support from the County governments) and
weaken their capacity to carry out their distinctive mandates. Land administration at
the county level is also complicated by the fact that, although many land management
functions have devolved to counties, those of land registration and titling, and the
maintenance of land records continue to be the remit of the Directorate of Lands in
the Ministry of Land. Extraction of these records, all of which are manually stored and
processed, is difficult and time consuming, as they must be based on parcel-by-parcel
requests and incur costs. As a result, discrepancy between land information held at
the county and the national level is widely recognized, and none of the county
inventories that are currently underway include information on a land parcel’s title
status.
Counties have serious challenges in all aspects of land administration in general, and
this affects how and to what extent they deal with public lands. All Counties visited
stress that their capacity to properly carry out various land management functions
need to be enhanced. This usually involves having more and better-trained
professional staff, better technical guidelines, and more modern equipment,
particularly to convert to digitized forms of land surveying, mapping, and information
processing. For the institutional challenges trickling down from the national to the
county levels, there is a strong demand from Counties that roles and responsibilities
get clarified soon and operational guidelines for land management provided by the
national government. Particularly for public land management, as will be discussed,
the stock of public land has depleted so much that there remains not a great deal to
be managed, which in turn indicates that counties have to work across the whole
spectrum of public land management, including identification, restitution and
protection of public land, as well as efforts to increase the public land stock.
Public Land Inventory with Public Engagement
Clear information on public land is lacking but the general understanding is that
public land is in short supply. Large public land holdings tend to be under the control
of national government authorities – such as forests, game parks, riparian lands,
military establishments, infrastructure rights-of-way, and railway lands. Under the
jurisdiction of counties, it is commonly understood that unalienated and unallocated
public land that has not been “grabbed” (or irregularly allocated) is scarce, particularly
in urban areas. Most public land is set aside for allocation, some with a letter of
allotment; allocated public land is also still in the process of formally registered,
according to the NLC. Pockets of public land known to remain in counties are often in
small parcels (0.25 to 10 acres) scattered in both rural and urban areas, or are in
32
suboptimal locations (e.g. Embu County) to yield meaningful outcomes at scale. The
remaining public land is categorized in two main types:


Lands that have been allocated for functions to be operated by public service
providers, such as schools, health facilities, etc.
Lands that have been earmarked for functions that are county
responsibilities, such as administration, parks, green spaces, playgrounds,
cemeteries, bus parks, markets, works yards, public wells, water points,
grazing grounds, cattle dips, church grounds, etc.
Public land inventories have started but are still in their infancy and need
standardized guidance for cohesion. Most counties visited (except Kajiado) are
preparing public land inventories, based on a circular issued by the NLC in 2014, using
the list passed on by the Transition Authority to facilitate asset transfers, and/or on
local and community knowledge. However, the list of assets including land, which is
based on former local authority records, are incomplete or not comprehensive, and
the Transition Authority could not complete this task before being disbanded. In
attempts to move inventorying forward, each county has constructed its own
template, with entries usually including only basic parcel information such as Land
Registration number, name, sub-county/ward, original allocation purpose, and
current status. Until now there has been no standardized template issued by the NLC,
although one is being prepared by the NLC’s Land Management Information System.
Counties have also involved non-state actors in identifying public land parcels, both
formally and informally. A notable case is an initiative of GROOTS Kenya, whereby
community-led public land mapping has been carried out in one sub-county of Kiambu
and two sub-counties of Muranga (see Box 5). Working with women in local
communities, sensitized and trained by the NGO plus GIS technicians, relatively
complete audits of public land parcels have been prepared. In Muranga, this work has
been in close collaboration with the county executive and results in forming part of
that county’s public land inventory. What these initiatives show is that community
involvement not only contributes to better inventories, but also provides a certain
checks and balances to keep county and local officials from manipulating inventories.
Also, such initiatives play an important role in raising citizen consciousness of the
issue.
Public land inventories are fundamental for identifying illegally/irregularly allocated
parcels and furthermore for recovering and protecting them. Preliminary results of
public land inventories in some counties (e.g. Kisumu, Kiambu and Muranga) provide
information on irregular allocation (or illegal grabbing) of public land. For instance, the
data from Kisumu show that small parcels of public land have either been converted
33
entirely from their original assigned use to private uses or much of the original acreage
of public land has been lost to private uses. For an effective recovery of “lost” public
land, which requires close coordination with and involvement of the NLC, a
comprehensive inventory of public land would eventually be needed. In addition to a
common template for inventorying, operational support from the national
government in terms of access to equipment and software can facilitate the process.
Officials in Kiambu County, where large investment was made in expensive
GIS/scanning equipment and software, acknowledge the common challenge faced by
other counties without such investment, and the difficulty of having to extend the
software licence every year.
Public Land Restitution and Protection
Mechanisms for recovery of public lands are in place but need systematic
coordination and clear direction. Most counties (especially those who had active
CLMBs) have begun identifying individual cases of land grabbing and processing these
for eventual recovery or restitution. Case files are prepared, initial screening takes
place, and reports are submitted to the NLC. The NLC then begins a long and expensive
process of investigation and legal analysis. It seems that this process is not
systematically organized (e.g. with a set timeline or clearly known procedure) and
cases appear to be forwarded in an ad hoc manner. It would be logical that target lists
of parcels needing recovery were first prepared, and that priority for restitution be
given to the larger parcels and those well located in urban areas where their public
utility is highest. County officials interviewed (e.g. Kiambu and Kisumu) also asked for
greater leadership of the national government in recovering public lands, noting
complex local politics which make it difficult for county officials to address the issue
locally.
The protection of public lands is a dire need but remains low priority or a challenge.
Partial inventories show that the most vulnerable of public land parcels are those
called “reserve parcels” or parcels that in the past had been reserved for certain public
functions or simply for future designation, without being assigned to a particular
authority. In some counties and sub-counties more than half of these are now under
private use. Many public land parcels, especially those under threat, need to be fenced
or otherwise protected with signage and through community awareness, in order to
avoid further loss of remaining public land. Counties are aware that such measure
should be undertaken, but budgetary constraints and lack of a specialized unit to take
up this role makes this a continuous challenge. In case a particular parcel has been
allocated to public service providers such as local education or health authorities, it is
deemed their responsibility to protect the land.
34
Initiatives to Secure Public Land
Looking to the future, opportunities for increasing the stock of public land exists
and need to be fully exploited as an important land management function of
counties. In addition to recovery of public land, there are three main methods of
adding to the public land base, each with some obstacles:



Purchase on the open market. Examples from counties (e.g. Embu, Kiambu
and Muranga) show that the purchase of small plots on the market, based on
public tenders, is becoming frequent, as a last resort in the near absence of
unallocated public land. However, it is expensive and becoming more so. This
is also mainly done to acquire land for specific public facilities, and rarely for
development projects. None of the counties reviewed have purchased land
to hold in reserve for future use, although some have expressed the desire to
do so as a form of land banking.
Allocation of public land as part of land subdivision. In process of permitting
subdivision, a part of county development control regulations, public land
can be secured at little or no cost through the required surrender of 10
percent of a developer’s subdivision. This has been used in areas under urban
development. But since much such development is often informal, counties
are missing out on many opportunities (See Kiambu Count profile in Annex I)
Reversion of leased land back to public. When leasehold parcels come up for
renewal, the county becomes the owner if there has been an unsanctioned
use change or if the leasee refuses or cannot pay the new rents (or comply
with regulations). This could become an important source of public land gain,
especially since many of these leases, issued during colonial times, are
coming up for renewal (See the Muranga Profile for one interesting case in
Annex I).
3.2. Practices at the National Level
At the national level, as foreseen in law and clarified through the 2015 Supreme
Court opinion, the NLC and the Ministry of Lands are responsible for public land
management. The 2015 Supreme Court opinion confirmed the NLC as the lead agency
responsible for public land management. Its range of functions include playing the
lead role in public land allocation33, assembling an accessible public land inventory,
and addressing issues of historic injustices and improper/illegal land allocations from
the past. The Ministry has the lead role relative to policy over public land and
33
Public land is allocated through lottery, auction and application to the NLC on leasehold.
35
maintaining the registry, which should ultimately contain rationalized registration of
all the country’s land, that is, private land, public land, and community land, in
accordance with the tenure forms delineated in the Constitution and the Land
Registration Act of 2012.
But, the proper utilization of public land— according to its public purpose—involves
a larger body of governmental entities. Public land is found in a gamut of uses—from
national parks and national research institutes, through regional airports, municipal
parks, water treatment plants, hospitals, and markets, to primary schools,
dispensaries and boreholes. As such, entities as diverse as the various authorities (e.g.,
Kenya Airports Authority and Kenya Railways), line ministries (e.g., Ministry of Public
Works) and national institutes (e.g., Kenya Agricultural Research Institute, KARI)
“own” this land and play an important role in public land management. This means
that counties in search of public land for their development needs must liaise and
cooperate with these other entities to ensure that public land is best utilized and to
investigate public land swaps between governmental entities that might facilitate
joint goals. Embu County is a good example whereby so much KARI land is right in city
boundaries and thus the County government is negotiating the possibility of land swap
to unlock it.
Roles and responsibilities between the two main national bodies also need to be
specified further at the operational level as some confusion remains. A primary
example of the remaining points for clarification, which impacts public land but is not
solely about public land, relates to oversight of spatial planning. The NLC has a
planning directorate which has published guidelines for counties in the preparation of
10-year spatial plans; the MLHUD has a directorate of physical planning and also
produced planning guidelines, assuming the oversight role of county planning.
Duplication of effort appears to arise partly from the presence of similar functions in
both entities, which is confusing for the counties as they contemplate preparing such
plans in the future and needs institutional streamlining.
Operational clarity is greatly needed at the county level and operational guidelines
will help counties to improve their day-to-day land management. As noted in the
previous section, a range of actors are involved in land management, from county
government, to members of county assembly, the NLC, as well as non-state actors.
County officials propose that clear guidance on the roles and responsibilities among
these actors be provided to more effectively organize land administration and
management system at the county level. Currently, counties are coping with the lack
of clarity by experimenting with different arrangements (e.g. an interim technical
committee in Murang’a County oversee land transactions in tandem with the CLMB).
36
Operational guidelines of the new/revised land laws are in great demand at the county
level but are currently largely missing.
Some progress has been made on advancing the land reform agenda, including the
efforts to consolidate land registry. Credible registry is critical for verifying and
preventing multiple allocations, as well as providing a basis for county governments’
rate collection. As noted above, however, registries at the national and at the county
levels are inconsistent, giving rise to a huge challenge of consolidating them. Efforts
have been made by the Ministry on digitizing land registries by scanning land records
such as green cards, white cards and parcel files and managing the indexed scanned
images through an online system.34 As of February 2016, 13 land registries out of 56
in total35 have been digitized of varying degrees between 46 percent and 100 percent,
including Nairobi and Mombasa.36 In FY2015-2016, 10 additional land registries are
being digitized. 37 After the initial verification of data, final verification by land
registrars is yet pending, while capacity and resource constraints are awaiting to be
addressed.
Identification and mapping of public land through the establishment of a National
Land Management Information System (NLIMS) is underway at the NLC. The NLC
reports significant progress in its baseline task of identifying public land by devoting
resources and staff time to the development of the NLIMS. Its work is being done in
conjunction with inputs from the counties as the NLC sent out an advisory to all
counties on the need and basic process for identifying public land for inclusion in the
NLIMS. However, progress on inventorying of public land is uneven across counties
due to different priorities, resource constraints and technical capacity, while its format
may also vary. As noted in Section 3.1, there is an indication that counties are thinking
of creating their own system, as demonstrated by Kiambu County, which has invested
heavily in a land management system. However, it is unclear (thus remains as a
concern) whether and to what extent such county-level systems, which are often
County government initiatives, may be compatible with the NLIMS, which raises a
need for standardizing and harmonizing these efforts.
However, improvement in public land management has been slow with the overall
land reform process stagnating. While public land is an important topic for an
34
Status report on Digitization of Land Registries Programme, Ministry of Land, Housing and Urban
Development, ICT Unit, State Department of Lands (dated February 2, 2016).
35
The Ministry has 56 land registries covering 39 counties, except Tanariver, Samburu, Marsabit,
Mandera, Wajir and Turkana counties.
36
13 registries pertain to headquarters (Nairobi and Central), Kwale, Kilifi, Mombasa, Kajiado, Nakuru,
Eldoret, Machakos, Meru, Kiambu, Thika, Kisumu and Bungoma.
37
These include Kakamega, Kitale, Siaya, Kisii, Migori, Nyeri, Muranga, Embu, Chuka and Lamu land
registries.
37
average Kenyan, progress on the land reform agenda has been hurt by the lack of
clarity in roles between the NLC and the MLHUD as well as by the delays in establishing
a transparent land information system. The public land agenda appears to be a low
priority that some outside observers have asserted that the government is not serious
about land reform. In comparison, the acute need to deal with public land is a high
priority for the counties, but they are hamstrung by reliance on the national bodies
for information and technical assistance.
Resources for addressing the public land management agenda also appear
constrained, despite an expression of great interests in revenue generation from
public land. Both the digitization of land registry and the preparation of NLIMS have
experienced slow progress due to inadequate funding, while they require a set of ICT
equipment as well as skilled staff with sufficient computer literacy. The NLC reports
that it still faces resource constraints that have slowed both the inventory as well as
further work at the county level. At the same time, it is well understood by both
national and county governments that more revenue can be generated from efficient
land management, including that of public land. While this relates to the point of
improving general land administration and management, there seems to be confusion
and potential contestation in terms of who is collecting what, particularly as the
governments across the level have great interests in revenue generation from land.
Key Takeaways on Public Land Management Practices
Despite the significance of the issue there is still a lack of clarity regarding the
status/available inventory of public land in the country, the split of legal and
administrative powers over public land under the devolved system, and the required
level of cooperation and collaboration required between the county and the national
level to obtain and manage public land in a way that it can accommodate future needs.
The common perception is that no public land exists that is unencumbered and
available for allocation for public uses or to encourage investment, especially in
locations where it is most needed.
Public land management approaches will need to be tailored to different and
specific contexts within which land problems have evolved in a given county. At the
same time, clear guidelines that can be applied nation-wide is necessary to identify,
restore, protect and manage public land in a coordinated and comprehensive manner.
In the absence of operational guidelines and support, counties have taken various
initiatives to carry out devolved land functions as well as ongoing land management
activities on the ground, which include, particularly for public land management,
inventorying and securing public land (mainly through purchase on the market), and
addressing cases of illegal land grabbing (mostly on an ad hoc basis). Some of these
38
initiatives are innovative and worthwhile for benchmarking (and potentially scalingup) and actions can be taken both by the national and the county government to
better coordinate and improve these efforts.
Furthermore, public land management cannot be separated from general land
administration. General land administration particularly the efficient and effective
management of the land registry is needed to improve public land management.
Proper utilization and oversight of these powers is critical for addressing issues of graft
and corruption and the issue of the theft of public land. Both are central to addressing
historic injustices and access to land by disenfranchised, vulnerable communities.
Remaining public land has been and continues to be under severe pressures of illegal
and irregular acquisition by special interests.
39
4. Land Acquisition and Resettlement Practices
With intensified development projects and limited availability of public land, land
acquisition will impact an increasing number of persons, increasing the need for
proper legislation and practice. In this section, the legal framework and practices of
compulsory land acquisition and resettlement in Kenya is discussed using
international good practices as benchmarks. These benchmarks highlight the major
considerations that need to be taken into account to ensure that land acquisition
promotes economic development while protecting the welfare of local peoples and
communities.
Section 4.1 discusses the land legal framework in Kenya against key accepted
principles in international practice. Section 4.2 is a similar comparative discussion for
resettlement practices.
4.1. Assessing the Legal Framework for Land Acquisition and Compensation
Factors that should be addressed in legislation or policies dealing with compulsory
land acquisition include the following: (i) a clear definition of what constitutes “public
purpose” or “public interest”; (ii) clear standards for determining property valuation
and compensation; (iii) requirements related to consultation with affected individuals
and groups—including women and vulnerable groups, to promote transparent
processes; (iv) eligibility criteria for recognition of legitimate rights’ holders; and (v)
the right to due process and appeal in an independent forum in cases of dispute. In
this section, Kenya’s legal framework on land acquisition is assessed along these key
principles.
The definition of “public purpose” needs to be clarified in order to improve
accountability
The term public purpose is a key principle behind compulsory land acquisition. A
clear definition of what constitutes “public purpose” or “public interest is needed in
the legislation to identify whether a project meets a public purpose in order to
improve accountability. In many countries, public purpose is not defined clearly in the
legislation, which creates space for acquisition that may not be necessarily for public
purpose in the strictest sense. This point is emphasized in a recent report on West
African land investments which points out: “[T]he use (and abuse) of public purpose
declarations has been an important driver of the sustained contestation about “land
40
grabbing.” 38 Clarifying “public purpose” and “public interest” can, this suggests,
reduce some of the costly conflicts related to land acquisitions.
In Kenya, the term public purpose is defined in the 2012 Land Act. This Act defines
“public purposes” to mean the purposes of: (a) transportation including roads, canals,
highways, railways, bridges, wharves and airports; (b) public buildings including
schools, libraries, hospitals, factories, religious institutions and public housing; (c)
public utilities for water, sewage, electricity, gas, communication, irrigation and
drainage, dams and reservoirs; (d) public parks, playgrounds, gardens, sports facilities
and cemeteries; (e) security and defence installations; (f) settlement of squatters, the
poor and landless, and the internally displaced persons; and (g) any other analogous
public purpose. This last clause “analogous public purpose” is ambiguous and opens
the land acquisition process to misuse.
Standards for “just” and “prompt” compensation/valuation are well-articulated in
the legislation, but livelihoods restoration needs more support
“Just” compensation has been determined in Kenyan courts as compensation that
is be quantified in accordance with the market value of the land being acquired.
Under the principle of equivalence, Kenya courts have held that claimants should be
paid compensation which is no more or no less than the loss resulting from the
compulsory acquisition of their land. Legislation often requires that compensation
amounts be determined in relation to “market value.” The NLC is required, under
section 112 (2) of the Land Act, to formulate regulations governing the calculation of
compensation in the context of compulsory land acquisition. However, since as the
regulations are yet to be effected, the provisions of the schedule to the Land
Acquisition Act continue to apply. The Land Acquisition Act39 defines the term “market
value” of the land to be acquired as “the market value of the land at the date of
publication in the Gazette of the notice of intention to acquire the land” and lays out
the principles to guide the compensation of land using market value40.
38
Cotula, L., Jokubauskaite, G., with Fall, M. Kakraba-Ampke, M., Kenfack, P.E., Ngaido, M., Nguiffo,
S., Nkuintcha, T., and Yeboah, E. (2016). Land Investments, accountability and the law: Lessons from
West Africa, IIED, London.
39
As mentioned in Section 2, the regulations to the repealed Land Acquisition Act continue to remain
in force until the regulations of the newer 2012 Acts are put in place.
40
In addition, in assessing compensation, Courts have defined “market value” as “the price which a
willing seller might be expected to obtain from a willing purchaser, the purchaser may be a speculator,
but a reasonable one…In determining the amount of compensation which ought to be paid the court
should take into account comparable sales and awards on other acquisition of land of similar
character” (Kanini Farm Ltd v Commissioner of Lands (1986) KLR 310 and Petition 613 of 2014 Patrick
Musimba v NLC & 4 Other).
41
Valuation in Kenya is guided by the Valuers Act, 2012 (Cap 532). Agencies acquiring
land engage the services of a registered valuer to determine the types and amount of
compensation triggered by the acquisition process. According to the Valuers Act,
which regulates the valuation profession and practice in Kenya, only a registered
valuer whose name appears in the register can prepare and submit a valuation report
(clause 21 of the Act). A valuation report prepared by a person or firm not registered
under the provision of Clause 21 is invalid and cannot be used for the bases of
compensation. The valuation report is submitted to the NLC who send its own valuers
to countercheck the proposed values. Sometimes the values proposed by private
valuers may be higher than those of the government valuers, and this is one cause of
disputes in land acquisition.
Standards on how to value land and other property differ internationally and some
governments provide compensation for intangible elements. In Kenya two other
principles regulate the compensation payable in compulsory land acquisition. The
principle of injurious affection requires compensation if the remaining property
(moveable or immovable) of the affected person is made less valuable by the land
acquisition. Compensation for disturbance41, also known as solarium, is also required
and is assessed at 15% of the market value of the property and added to the award
for compensation made by the NLC. In addition, courts in Kenya have tended to take
into account the nearness of the land in question to the main town and its nearness
to the road access in assessing the compensation payable42 43.
These standards approximate international norms for “replacement cost”. Under
international norms, “replacement cost” is the appropriate benchmark for valuation
of assets. The focus is on calculating the full cost of replacing the lost asset (s) and
international practice determines that the replacement cost value is the market value
plus any transaction costs. In comparison, compensation costs under Kenyan
regulations constitute not only compensation of the land and the developments on
41
Costs incurred by the affected persons that are not directly related to the land lost but are incurred
due to the acquisition. Typical disturbance costs include relocation costs, legal costs and valuation
fees incurred in connection with the acquisition, stamp duty paid when purchasing land for
relocation, etc.
42
Limo v Commissioner of Lands KLR (E&L) 175
43
In determining the compensation payable, the following matters are not considered in Kenya: the
urgency necessitating the acquisition; reluctance of the owner of the land to part with the land;
damage sustained by the person interested which, if caused by a private person, would not be a good
cause of action; damage likely to be caused to the land after publication of the notice of intention to
acquire the land or in consequence of the use to which the land will be put; increase in the actual
value of the land likely to accrue from the use to which the land will be put when acquired; any outlay
on additions or improvements to the land, incurred after the date of publication in the Gazette of the
notice of intention to acquire the land, unless the additions or improvements were necessary for the
maintenance of any building in a proper state of repair.
42
the land, but also adds 15% disturbance allowance and provides for compensation for
any loss in the value of the remaining land due to the acquisition. Thus, Kenya’s
valuation of compensation approximates international practice of determining the
replaceement cost value.
Affected parties are also entitled to prompt payment according to the Constitution
(Article 40 (3)). International practice determines prompt payment as that which is
made without undue delay and it should be in the form of currency, land, or other
goods/services that the recipient can readily make use of and that serve to put the
recipient in at least as good a position as he or she was in prior to the expropriation.
The Constitution of Kenya (Article 40 (3)) requires prompt payment in full to the
affected party once land has been compulsorily acquired. No further definitions of
prompt payment are made in the legislation44.
Restoration of livelihoods is an important aspect of “fair” compensation but has
been neglected in the Kenyan legislation. The overarching objective of livelihood
restoration is to enhance, or at least restore, the livelihoods of all displaced people in
real terms relative to pre-project levels and to improve the standards of living of the
displaced poor and other vulnerable groups. A recent World Bank study notes that
only a few countries have legal frameworks and procedures aimed at ensuring that
land acquisition and involuntary resettlement go beyond compensating for lost assets,
requiring that affected livelihoods be restored or even improved45.
Restoration of livelihoods needs legislation support. Restoration of livelihoods is
established through resettlement action planning which is required should any
population displacement be anticipated in the land acquisition. As mentioned in
Section 2, both the NLC process for submitting a land acquisition request and the ESIA
preparation require RAP preparation. However, the resettlement planning process
should be guided by legislation, similar to the preparation of the ESIA that is regulated
by the EMCA (2003) and the consequent Environment (Impact Assessment and Audit)
Regulations, 2003.
Explicitly providing for benefits to the local community, or local content provision,
in legislation related to land acquisition is a livelihood restoration strategy not
widely used in Kenya. Where land is acquired to implement development projects for
public purposes, it is necessary to include local content requirements to ensure
44
The Commission is tasked with the development of the rules for the assessment of just
compensation.
45
Roquet, V., L. Bornholdt, K. Sirker and J. Lukic, “Urban Land Acquisition and Involuntary
Resettlement: Linking Innovation and Local Benefits” (2015) World Bank: Washington, DC, March, p.
5.
43
acceptability of the project by the affected persons and the process of compulsory
acquisition of private property generally. In the energy sector, the Energy Bill 2015
proposes that investors are required to comply with the local content requirements
by submitting an annual and long term local content plan. The plan should provide for
among other things preference on utilization of locally manufactured products, locally
available services and grant of employment of locals in the undertaking of the energy
projects 46 . No other sector has these provisions. The Natural Resource (Benefits
Sharing) Act, 2014, however, provides for local content across all natural resources in
Kenya and could be used in instances of land acquisition as land is a natural resource.
Requirements for Consultation are Supported by the Constitution and Multiple
Court Rulings
A participatory consultative process is extremely important in cases of involuntary
land acquisition. Land owners need to be identified; their extent of their rights
clarified; as well as their understanding of the value of their property. OP 4.12 (Para.
13) requires resettlement plans or policy frameworks to ensure that those who are
displaced are informed of their options and their legal rights and that they are
consulted regarding feasible alternatives to the proposed resettlement
Public participation is provided in the Constitution and supported by a Supreme
Court Opinion. The Supreme Court in its binding Advisory Opinion (Number 2 of
2014), and using cases touching on the environment and natural resources,
reiterated the duty placed upon State organs to consult the people, and to engage
communities and stakeholders, before making decisions affecting the environment.
The cases used were decided before and after the 2010 Constitution was
promulgated, and the Courts have held that state organs that made or make
decisions without consulting or engaging the people, the community or other
interested stakeholders, acted or act outside their powers and such actions stand to
be quashed47. The EMCA also mandates consultations in the process of land
acquisition during the process of developing ESIAs.
Identifying the Legitimate Rights’ Holders of the Land is a Persistent Challenge
In Kenya, as in many countries, people who have lived on and used land for long
periods of time will not have any formal documentation of their rights. This is
46
Section 233 of the Energy Bill 2015
(see Meza Galana and 3 Others v. AG and 2 Others HCCC No. 341 of 1993; [2007] eKLR, Hassan
and 4 Others v. KWS [1996] 1 KLR (E&L) 214; Mada Holdings Ltd t/a Fig Tree Camp v. County Council
of Narok High Court Judicial Review No. 122 of 2011; [2012] eKLR; and Republic v. Minister of
Forestry and Wildlife and 2 Others ex parte Charles Oduor Okello and 5 Others HC Miscellaneous
Application No. 55 of 2010)
47
44
especially the case for people who hold secondary and tertiary rights – including
women (who often control but do not own parcels for food production); those (men
and women) who own trees, but not land; those (men and women) who have rights
to use water sources or pastures but only at certain times of the year; those (men
and women) who may collect forest products, etc. According to international
statutes, these users of the land are considered legitimate rights’ holders due for
compensation. In some countries, their legitimate customary rights are recognized
under the formal law; in other cases they are not recognized.
These legitimate rights’ holders are recognized in the Kenya legislation but can be
difficult to conclusively determine who is eligible and their compensation dues.
The Constitution of Kenya 2010 provides for compensation for occupants in good
faith who may not hold title to land that is subsequently compulsorily acquired.
Based on this provision, compensation in Kenya is not linked to ownership of
registered interests in land and squatters and other occupiers in good faith are
entitled to some form of compensation. For this reason, agencies acquiring land
must perform the due diligence required to identify these occupants, a process
which lacks guidelines. Further, the repealed Land Acquisition Act allows
compensation to title-holders only which, as long as regulations for the 2012 Land
Laws have not been gazetted, will remain a stipulation contradictory to the
Constitution.
In addition, poor land records management system have made it difficult to find
even the formal rights’ holders of the land. Confusing laws and procedures for land
registration have resulted in registries of poor integrity, which may be marred by false
ownership claims or replete with inaccurate or outdated ownership information. This
has undercut trust in the registries and in this case, contributed to an incomplete
compensation process. A common issue with compensating formal title-holders is
when succession takes place without transfer of the formal rights. The titles are
therefore often still in the name of the deceased.
The Land Laws (Amendment) Act 2016 presents another hurdle to identifying
legitimate rights’ holders. In an apparent contradiction to the constitutional provision
for compensation of occupants in good faith, the Land Laws (Amendment) Act
prohibits unlawful occupation of public and private land. The Constitution allows
forced evictions to take place under certain conditions but mandates the passing of
legislation to guide the procedures guiding forced evictions. The procedure to be
followed during eviction have been included in the Land Laws (Amendment) Act
45
(2016) 48 and stipulates that certain measures are to be taken into account during
evictions but does not explicitly mention compensation as one such measure.
Provisions for Due Process Standards and Judicial Review are Clear but Resolutions
Take Long
Courts in Kenya have stressed strict adherence to due process49 and fair procedure.
Using the specific provisions for land acquisition in Article 40 of the Constitution and
Sections 107 and 133 of the Land Act, courts have often stressed the need to follow
the stipulated procedure on compulsory acquisition by acquiring bodies. Even where
title to the land has been acquired by unlawful means, due process must be followed
to invalidate and acquire the land50.
Multiple provisions are made in Kenya to allow aggrieved parties to practice their
right to due process and right to appeal in case of disputes. The Constitution states
that the process of inquiry is to be fair, equitable, transparent and accountable. Two
avenues for grievance redress are provided namely (a) the public inquiry and (b)
provision for recourse to courts of law. The 2012 Land Act (section 112) mandates the
NLC to hold an inquiry where anyone with interest in the land and who feels aggrieved
by the acquisition process can lodge a complaint (see Figure 2.3).
The public inquiry stage is critical as it provides for an open grievance redress
mechanism. The notice of the Inquiry must be advertised in the Gazette 15 days
48
The eviction procedures that must be followed are:
prior identification of all person participating in the eviction
prior presentation of formal authorization for the action
where groups of people are being evicted, government officials or their representatives be
present during the eviction
 be carried out in a manner that respects the dignity, right to life and security of those affected
 include special measures to ensure effective protection of the rights of vulnerable groups
 include measures to ensure that there is no arbitrary deprivation of property or possession as a
result of the eviction
 include mechanisms to protect property and possessions left behind involuntarily from
destruction
 respect the principles of necessity and proportional use of force give affected person first priority
to demolish and salvage property
49
Mutungi J. in Virenda Ramji Gudka and 3 Other v Attorney General [2014] eKLR
50
Other principles regulating due process are: that due process should be defined in law with
specified time limits so that people can understand and meet important deadlines; procedures should
be transparent and flexible, and undertaken in good faith; notice should be clear in written and oral
form, translated into appropriate languages, with procedures clearly explained and advice about
where to get help; assistance should be provided so owners and occupants can participate effectively
in negotiations on valuation and compensation; the process should be supervised and monitored to
ensure that the acquiring agency is accountable for its actions and personal discretion is limited; and
the government should take possession of the land after owners and occupants have been paid at
least partial compensation, accompanied by clearly defined compensation guarantees.



46
before the date. In addition, the NLC must proactively seek out any persons of interest
in the land and hand them this Notice of Inquiry. Any disputes brought forward must
be resolved within the period of the Inquiry. Accessibility of these inquiries to the
most vulnerable is provided for as the hearings are held on site.
In addition, the Constitution of Kenya 2010 provides for aggrieved parties access to
a court of law. Aggrieved parties may file a court case in addition to, or instead of,
using the Inquiry set up by the NLC. The Environment and Land Court was established
to focus on disputes arising from land or the environment has exclusive jurisdiction to
hear and determine disputes, actions and proceedings concerning land under the Land
Act, 2012.
Land dispute cases in Kenyan courts take time to be resolved. The time cost of land
disputes filed in court is significant and this severely affects project implementation.
A case audit carried out in 2013 revealed that 66% percent (5,782) of the cases filed
in the Environment and Land Court (ELC) had been ongoing for more than a year, and
of those nearly half had been going on for over 60 months. While these cases may
include issues of land disputes outside public investment and projects, at best, there
would only a 33% chance of any dispute of this kind filed in the ELC will be concluded
within 12 months. This is shown in Figure 4.1 below.
Figure 4.1: Civil Backlog Cases by Type (High Court –June 2013)51
Civil Backlog Cases: Land and Environment cases June 2013
(%)
40
35
30
25
20
15
34
24
10
27
16
5
Below 12 months
12-23 months
24-59 months
Over 60 months
51
By the time of 2013 case audit, three ELC large registries (Eldoret, Kerugoya and Nyeri) were
omitted from the data collection, and after 2013, the industrial court matters relating to land are now
included as part of land and environment cases. For these two reasons figures relating to land and
environment cases are therefore likely to have increased significantly and will be confirmed once the
2016 audit is published.
47
Source: Judicial Case Audit and Institutional Capacity Survey, June 2013
Any lodging of an appeal results in suspension of project works. The Environment
Management and Co-ordination Act provides for automatic stay of implementation of
development projects upon lodging of an appeal. This provision is intended to ensure
that due process is carried out. Given the backlog of cases in the Land and
Environment Court, however, the automatic stay can result in project delays and cost
overruns.
This analysis shows that the legal framework in Kenya related to land acquisition
has strengths but contains important gaps when compared against international
practice. An unambiguous definition of “public purpose” is needed, restoration of
livelihoods need to be considered as an element of compensation, the RAP process
while guided through existing processes needs legislative support, and the emerging
contradiction brought on by the Land Laws (Amendment) Act 2016 as far as eligibility
for legitimate rights’ holders needs clarification. The legislation is, however, strong on
laying out clear standards for determining property valuation and compensation,
supporting requirements related to stakeholder engagement and consultation with
affected individuals and groups, and providing the right to due process and appeal in
an independent forum in cases of dispute.
48
4.2. Assessing Involuntary Resettlement Practices
This section reviews the actual practices of involuntary resettlement in five
infrastructure projects in Kenya (Box 6). The analysis was carried out through the
review of respective Resettlement Action Plans (RAPs) of the five case studies for
adequacy and adherence to available guidelines, interviews with respective acquiring
agencies for each project, interviews with displaced people (PAPs), and
documentation of emergent concerns/lessons.
To identify gaps and opportunities for strengthening involuntary resettlement in
Kenya, the practices in the five case studies were evaluated against international
practice and with the provisions in the Kenya legislative framework. A summary of the
findings is in Figure 4.2.
Figure 4.2: Summary of comparative analysis on resettlement practices
International practice
Kenyan legislation
Avoiding or minimizing
displacement
Article 10(2) of Constitution
stipulates that land rights to be
acquired should be kept to a
minimum
Developing a RAP
Section 107 of Land Act
empowers NLC to develop
guidelines for land acquisition
process; the developed
guidelines require a RAP
Preparing socioeconomic baseline
NLC guidelines and EMCA
require socio-economic
profiling of affected persons
NLC guidelines require
description of PAPs to include
gender. Matrimonial Act
provides for spouse to be
included in title
Constitution provides for public
participation. Supreme Court
ruling reiterates requirement to
consult the public and engage
communities
Assessing vulnerability
or special measures
required for PAPs
Providing stakeholder
engagement
Practice (from 5 case
studies)
Efforts to minimize
displacement were seen
more clearly in WB-financed
projects; no evidence to
establish whether similar
mitigation was taken in the
GOK-financed projects
National level institutions
prepared RAPs but the
project implemented by the
county did not. RAPs
prepared were not
consistent in content or
scope.
Where a RAP was prepared,
socio-economic profiles
were prepared.
Little consideration was
given to vulnerable groups
during the resettlement
process.
While not wholly achieved,
the importance of
stakeholder engagement
was widely acknowledged
across the projects.
49
Establishing grievance
redress mechanisms
Providing livelihoods
restoration
Environment and Land Court
has exclusive jurisdiction to
hear and determine all cases
concerning land. Section 112 of
the Land Act stipulates that NLC
must set up an inquiry as part
of the land acquisition process
Does not recognize livelihood
restoration
Adequacy of
compensation
Land Act stipulates
compensation must include
market value of assets lost +
15% disturbance + any loss in
value due to acquisition
(injurious affection)
Compensating
squatters
Article 40(4) provides for
compensation of occupants in
good faith. The Land Laws
(Amendments) Act, 2016
appears to contradict this
constitutional stipulation.
The NLC has the mandate to
lead the land acquisition
process. Management of public
land has been devolved to
counties
Institutional and
Management
Responsibility
All projects established
avenues for grievance
redress.
Only one project (KISIP)
provided for livelihood
restoration.
Compensation paid out was
based on market value plus
other relevant costs.
Insufficient evidence to
establish whether
compensation was
adequate.
The process to compensate
squatters was inconsistent.
National agencies were
more aware of the provision
to compensate squatters
than county government.
Coordination between
national and county
governments varied across
the projects.
Avoiding or minimizing displacement
The first directive of OP 4.12 and the first practical lesson learned from international
experience is to avoid or minimize physical or economic displacement of people to the
extent possible (see the World Bank Operational Policy (OP) 4.12 on Involuntary
Resettlement, Para. 2a). Avoidance or minimization is achieved by analysis of design
alternatives that will optimize project benefits while simultaneously minimizing land
acquisition requirements, and bringing total project costs down by avoiding or
reducing the need for involuntary resettlement.
One aspect of due process stipulated in Kenya’s land acquisition framework is that the
land and land rights to be acquired should be kept to a minimum. The Kenya
Constitution indicate that land rights to be acquired should be kept to a minimum. For
example, if the creation of an easement or servitude can serve the purpose of the
project, there is no need to acquire ownership of the land parcel. This is provided for
in Article 10(2) of the Constitution. The Environmental Management and Coordination
50
Act (2003) also provides for analysis for design alternatives that minimize
environmental and social impacts that include land take.
Practice: Efforts to minimize displacement were seen more clearly in WB-financed
projects; no evidence that there was similar mitigation in the GOK-financed projects
except in one of project (Kongoea Market Expansion) where a design change was made
to take into account a structure of religious and cultural importance.
Where population displacement is unavoidable, a Resettlement Action Plan (RAP)
should be conceived, developed, and executed as a sustainable development
program.
The legal framework for land acquisition should have clear guidelines for involuntary
resettlement and compensation which specifies the policy principles and the planning
parameters to be applied for any particular project should be clearly established to
guide the formulation of the RAP, so as to provide sufficient investment resources to
enable the persons displaced by the project to “share in project benefits” (see OP 4.12,
Para. 2b, Para 6). Where country legal systems provide clear guidance regarding
involuntary resettlement this can be a relatively straight forward exercise. In the
majority of countries, however, legal frameworks for land acquisition are entirely
silent on resettlement and re-establishment of people displaced by expropriation of
properties upon which they depend52.
As mentioned in Section 2, both the NLC process for submitting a land acquisition
request and the ESIA preparation require RAP preparation. The NLC has developed a
guiding document outlining the preliminary information it needs in order to assess a
land acquisition request (Annex 2). The guiding document includes, as one preliminary
requirement, the preparation of a Relocation Action Plan 53 . In addition, the
Environment Management and Coordination Act (EMCA) mandates the preparation
of an ESIA for any infrastructure project; any population displacement triggers the
preparation of a RAP within the ESIA.
52
Shihata, I. F. I. (2000). “Involuntary Resettlement,” in The World Bank in a Changing World:
Selected Essays by I.F.I. Shihata, Vice President and General Counsel,The World Bank.
Dordrecht/Boston/London: Martinus Nijhoff Publishers.
53
Other requirements: (i) prior approval from their respective Cabinet Secretary before the
Commission commences the acquisition process through a letter; (2) cadastral drawings, (3) list of
parcels numbers, (4) official searches of affected land parcels, (5) Environmental Impact Assessment,
(5) Relocation Action Plan (RAP), (6) acknowledgement on availability of funds to allow prompt
compensation, (7) site tour of the land acquisition and committee sub-committee, (8) a final survey
for vesting of the acquired land.
51
Practice: There is a difference between national and county governments in this area.
National level institutions had a better understanding of the requirements of the RAP
process and projects implemented at the national level adhered to the requirement of
a RAP. However, projects implemented by the county government did not meet this
requirement. The county government had no awareness of the RAP requirements. The
content of the three RAPs prepared were not standard.
Identifying and scoping socio-economic impacts, demographic, socio-economic and
cultural baseline of affected persons
The second directive of OP 4.12 is where population displacement is unavoidable to
identify the nature and extent of the socio-economic impacts of a project which will
require involuntary resettlement, such as the taking of land, shelter, assets and/or
other means of livelihood (see OP 4.12, Para. 3). Such impacts may affect persons with
formal legal rights to land and other assets, persons with no such rights but whose
claims to land and other assets are recognized in other ways under national laws, and
persons who have no recognizable legal right or claim to the land or other assets upon
which they depend (see OP 4.12, Para 15). The first two categories of displaced
persons are to be provided compensation for their losses and other assistance to
resettle and re-establish their livelihoods under the terms of the RAP. The third type
of displaced persons is provided assistance to resettle and re-establish their
livelihoods under the terms of the RAP in lieu of compensation for the land and assets
they occupy (see OP 4.12, Para 16). International good practice calls for resettlement
assistance for those who lack formally recognized land rights because, in many cases,
these people have had no viable, legal avenue to assert formal land claims, for
example those living in areas where long-standing communal or customary tenure
regimes operate but where the state has failed to formalize their rights.
A Social Impact Analysis in the context of involuntary resettlement encompasses (1)
identification of stakeholders and interests, (2) baseline demographic data collection
including the census of population and properties affected, and (3) identification of
socioeconomic incomes levels and cultural production and distribution systems that
generate such incomes. Vulnerable groups among the PAPs, such as those below the
poverty line, the landless, the elderly, female-headed households, indigenous peoples,
ethnic minorities, or other displaced persons who may not be protected through
national land acquisition and compensation legislation, require special measures to
ensure their condition is not worsened.
52
The NLC-prepared TORs for RAP preparation and the EMCA regulations include the
requirement to undertake a socio-economic baseline survey of the persons affected
by the project.
Practice: Where a RAP was prepared, socio-economic baseline profiles were also
prepared which helped to identify the nature and extent of the impacts of the project
on the affected persons. Guidelines issued by the NLC need to clearly define PAP
categories, entitlements and valuation. In the absence of such clarity, it is difficult to
define the entitlements of affected people in a consistent manner. Unclear guidelines
results in different standards being applied across similar contexts opening the door
for contestation of compensation, which in some cases leads to delays in project
implementation.
Vulnerability Analysis and Special Measures Required
Vulnerable groups among the PAPs, such as those below the poverty line, the landless,
the elderly, women, indigenous peoples, ethnic minorities, or other displaced persons
who may not be protected through national land acquisition and compensation
legislation, require special measures to ensure their condition is not worsened. The
principal lesson from international experience is that the vulnerable among the PAPs
need special, targeted attention designed to improve their livelihoods and living
standards (see OP 4.12, paragraph 8).
The Guiding Principles place a particularly strong emphasis on the need to protect
women’s rights to land and women’s livelihoods. They call on member states to
“ensure that women and girls’ equal tenure rights and access to land, fisheries and
forests are clearly protected in national laws independent of the individual’s civil and
marital status” (Principle 11). Short of such formal legal protections, women will
“almost invariably” be marginalized. Even when formal legal protections exist, social
norms often create high barriers for women to exercise their legal rights.
The NLC requires that, as part of the RAP preparation, a description of categories of
people to be affected partially or wholly, taking into account gender, vulnerability and
other diversity concerns. While the Land Laws provide for the compensation of the
title owner only, the Matrimonial Act provides for equal property rights which can be
used as a basis to protect the more vulnerable PAPs.
Practice: Though the NLC requires that vulnerable groups are identified, there was little
consideration given to vulnerable groups during the resettlement process. While it is
53
possible under national law for women’s names to be listed jointly with husbands on
land titles, in Kenya this practice is not as widespread as it could be.
Stakeholder engagement including good faith consultations and free, prior and
informed consent is vital
OP 4.12 (Para 2 b., 6 (i), (ii)) requires that displaced persons should be meaningfully
consulted and should have opportunities to participate in planning and implementing
resettlement programs. OP 4.12 (Para. 22) requires formal disclosure to the project
stakeholders and the displaced people of draft resettlement plans, final resettlement
plans, and revised resettlement plans “in a form, manner and language that are
understandable to them.” It is usually important to disseminate simplified and easy to
understand summaries of resettlement plans to the displaced and host populations in
their own language(s) and at site(s) that are accessible to them.
The Constitution provides for stakeholder engagement through its stipulation for
public participation. Moreover, many counties have developed county-level
legislation on public participation which are at various stages of approval.
Practice: Stakeholder engagement, which is both a constitutional and statutory
requirement in Kenya, was applied in some instances to positively influence project
outcome. While not wholly achieved in all the projects, there was good understanding
in all the projects on the importance of robust stakeholder engagement.
Grievance Redress Mechanisms
A grievance redress mechanism provides a process for receiving and addressing
project-related complaints from affected people (OP 4.12, Para. 13(a)). The grievance
redress mechanism should be in place early in the resettlement planning process, the
scope, form, and level of complexity of which should be proportionate to the impacts
on the displaced and host populations. In the case of large projects with potentially
complex and significant impacts, the mechanism should be formally established and
easily accessible at the design stage and maintained in place for several months after
the end of project construction. Accessibility is based on physical location close to
displaced people, access to communication and transportation, and language, literacy,
and education levels. In smaller projects with relatively straightforward issues, the
client should consider designating a point of contact, such as a community liaison
officer, to whom project-related views and concerns of the displaced people can be
addressed.
54
In Kenya, two avenues for grievance redress are provided namely (a) the public inquiry
and (b) provision for recourse to courts of law. The 2012 Land Act (section 112)
mandates the NLC to hold an inquiry where anyone with interest in the land and who
feels aggrieved by the acquisition process can lodge a complaint. The Environment
and Land Court has the jurisdiction for all matters relating to land.
Practice: All the projects had avenues for grievance redress. Both national agencies
and the county government were aware of the importance of providing these
mechanisms.
Restoration of Livelihoods
The overarching objective of involuntary resettlement is to enhance, or at least
restore, the livelihoods of all displaced people in real terms relative to pre-project
levels and to improve the standards of living of the displaced poor and other
vulnerable groups. OP 4.12 (Para 2 c.) requires that displaced person should be
assisted in their efforts to improve their livelihoods and standards of living or at least
to restore them, in real terms, to pre-displacement levels or to levels prevailing prior
to the beginning of project implementation, whichever is higher. To allocate income
restoration measures among the displaced people in proportion to their losses and in
relation to their needs, it is helpful to breakdown kinds of displaced persons and their
eligibility for livelihood restoration measures, assistance, and benefits. Special
attention should be given to the vulnerable and transition period support and
assistance to the most vulnerable displaced people is required (see OP 4.12, para.
6(c)(i)).
Practice: There was no provision of livelihood restoration in all the projects except KISIP.
In the absence of livelihood restoration measures cash compensation was paid.
7a. Adequacy of compensation: OP 4.12 requires the payment of compensation at
full replacement cost (a method of valuation of assets that help determine the amount
sufficient to replace lost assets and cover transaction costs). Preference should be
given to land-based resettlement strategies for displaced person whose livelihoods
are land-based.
As discussed in Section 4.1., the Kenya legislation has provisions to standardize
compensation using a specified definition of market value and disturbance allowance,
as well as the use of the principles of equivalence and of injurious affection.
55
Practice: Compensation was based on market value of the assets, with a 15%
disturbance allowance also provided. Though the Kenyan Constitution allows for land
for land, only cash compensation was provided. The replacement cost of makeshift
structures does not provide for adequate cash compensation to provide better housing,
often leaving PAPs worse off. In such cases, land for land should considered as an
option to be provided plus housing. In addition, the adequacy of cash compensation is
often questioned with claims that persons affected by the project have been left worse
off.
7b. Squatters: OP 4.12 states that affected persons with no recognizable legal rights
or claim to the land they occupy have rights to resettlement assistance in lieu of
compensation for land they occupy and other additional assistance.
The 2010 constitutional provision for compensation in good faith (Article 40(4))
includes the compensation of squatters. The practice has been to compensate
squatters but, as discussed earlier in the report, the recent Land Laws (Amendment)
Act may reverse this action that is considered international best practice
Practice: There were inconsistencies in the way squatters were handled. Where
squatters protested, such as in the SGR, they were provided with compensation.
Differences between national and county government awareness was also evident
here where national level agencies were more aware about providing compensation
to squatters while the county government were not.
Institutional and Management Responsibility
A major challenge in many involuntary resettlement operations is that highly
centralized governmental institutions that execute development projects requiring
land acquisition often have little experience with planning and implementing
involuntary resettlement operations. Where responsibility for resettlement is
delegated to lower level local and regional institutions the challenge may be even
greater. Therefore, it is almost always necessary to consider whether existing
institutional capacity and human resources available are adequate and, if not, to
design programs for strengthening that capacity.
Successful resettlement requires good coordination among the entities involved in
implementation. County, state, and municipal agencies, along with public sector
companies and private consulting firms can be involved in the implementation of a
resettlement program. Depending on the project’s complexity, different public
entities may coordinate the various tasks—such as land and assets’ expropriation and
titling; preparation of socioeconomic studies; relocation, monitoring, and evaluation
56
of the program; and the provision of technical assistance or social support to affected
families.
Practice: Capacity for and awareness of resettlement planning implementation is
embedded in national agencies but not yet in county governments. Coordination
between national and county governments. Routine monitoring of resettlement
impact has not been institutionalized to verify that the resettlement objectives were
achieved while simultaneously taking stock of any emergent challenges previously not
anticipated.
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5. Recommendations
The following recommendations are based on the discussion in the preceding
sections. The timeline of their implementation is indicative: short term (over the
next year), medium term (in 2-5 years) and long term (over 5 years).
Strengthen the legislative and regulatory framework to govern public land and land
acquisition
Short term

Operationalize the existing land statutes (2012 Land Laws and Community Land Act)
by publishing their regulations in the Kenya Gazette

Repeal the Land Control Act as recommended by Parliament in 2012
Medium term

Clarify and implement any outstanding confusion on the separation of duties between
the Ministry in charge of lands and the NLC on the administration and management of
public land

Ensure linkage between management of public land and broader asset management
and revenue generation
Long term


Develop policies, mechanisms or incentives of acquiring land through means
other than compulsory acquisition, for example, developing a management plan
for leases about to expire or policy incentives to encourage land donation.
Consider separate legislation on land acquisition and removing the provisions
from the Land Act
Strengthen administrative systems to safeguard public land
Short term


Adopt clear guidelines to rapidly process cases of irregular possession of public land
for restitution.
Encourage the protection of public land parcels with fences and signs or obligate the
designated users to do so.

Ensure ongoing development of the National Land Management Information System
(NLIMS) is completed and clearly includes all categories of land
Medium term


Prepare/complete a comprehensive, and periodically updated, public land inventory
by each county (county task) according to an agreed format and agreed definitions
(NLC task), and ensure that incidents of irregular/illegal use of public land parcels are
clearly earmarked. Priority in populating this public land inventory should go to larger
and more valuable parcels.
Register and title all public land parcels in the inventory in the name of the county or
the appropriate national authority.
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
Prepare operational guidelines on management of public land and disseminate to the
public and to national and county governments and agencies
Long term
 More broadly, develop a uniform and integrated land registry in electronic form,
easily accessible by all and sortable by administrative area and category.
 Prepare operational guidelines on land registration and titling
Encourage participation of non-state, land sector actors in land management
Short term
 Create public awareness of the various land-related legal rights
Medium term
 In the preparation of public land inventories the engagement of community
groups, local officials, students and other non-state actors should be positively
encouraged, and ground checks will be essential54.
 Provide training to county and national government officials on methods of
community engagement across diverse social groups
Strengthen the policy and legislation framework and capacity to do resettlement
planning
Short term

Add detail and clarity to existing Terms of Reference for preparing a RAP done by
NLC
Medium term
 Develop a policy on involuntary resettlement, with supporting legislation, which
reflects the principles of international good practice. The policy will build on Section
40 of the National Constitution, international policies and good practices. Areas that
will require improvement include: design alternatives towards minimizing compulsory
land acquisition; definition of PAP categories; uniform standards of asset valuation;
special consideration to vulnerable PAPs; guidance on stakeholder engagement and
grievance redress mechanisms.
 Regulate the practitioners of resettlement planning by developing and gazetting
detailed standards for all aspects of resettlement planning including accreditation and
licensing for resettlement planners, stakeholder participation, criteria for approval
and filing of RAP reports.
 Increase capacity of county and national government to implement resettlement
planning by provide training
54
In line with the provisions of the Fair Administrative Actions Act
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Ensure that regulations and guidelines on valuation and compensation are clear,
comprehensive and just
Short term

Identify and design alternatives to cash compensation such as land for land
compensation, local content provision, etc.
 Clarify procedures for valuation (e.g. whether to use future, current, past value)
through regulations of the new Land Laws
 Ensure that the asset inventory conducted during the RAP are finalized at detailed
design stage rather than preliminary design stage as design changes can affect the
content of the RAP.
Medium term

Develop a policy position on acquisition of disputed property to eliminate obstacles to
prompt payment of just compensation
 Develop an inclusive framework for compensation (e.g. those without legal land
rights, vulnerable groups like orphans, mentally challenged)55
 Broaden the scope of compensation taking into account socio-cultural aspects (e.g.
access to migratory corridors and ecological functions) and compensation in kind (e.g.
land to land)
 Establish an escrow account at the National Treasury for financing land acquisition
and resettlement to ensure immediate availability of funds for compensation when
needed
 Review the criteria for valuing land to eliminate speculative acquisitions
Long term
 Identify alternative mechanisms to raise funds for compensation, e.g. Kenya Railways
Corporation has the railway levy fund that finances resettlement
 Through incentives and penalties discourage the holding of vacant parcels in urban
and peri-urban areas
55
There is some precedence: In the case of John Kariuki Macharia v Commissioner Of Lands [2014]
eKLR, the court held that consideration of the appellant’s interest (being a disabled person) was a
mandatory requirement for compensation to be just and fair.
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