Assignment on Legal and Institutional Frameworks in Kenya

By
John Mugiya Njoroge
ESSQ/ 02664/2019
B.ENG (Geospatial)

Presented to
George Konguka

October, 2023
 INTRODUCTION
A framework is a set of rules, ideas or beliefs which one uses in order to deal with problems or
decide on what to do. In this paper, we discuss the legal and institutional frameworks pertaining
land administration in Kenya. Also, we analyze the achievements and challenges in the
implementation of land administration principles contained in the 2010 constitution.

a) Legal framework
Land reforms in Kenya were mainly run under systems set up by colonialists from as early as
1885. Through the years land laws have evolved; they included laws such as Land Titles Act,
Registration of Titles Act, Registration of Land Act, the Government Land Act, and the Indian
transfer of Property Act.
The promulgation of the constitution of Kenya in 2010 resulted in the enhancement of previous
land reforms efforts by establishing a legal framework for the administration, use and
management of land in Kenya. New land laws were enacted by the parliament and include:
i. The Land Act 2012
ii. The Land Registration Act 2012
iii. The National Land Commission Act 2012
iv. Community Land Act 2016
These new land laws have constitutional backing unlike in the previous regimes’ which provided
no framework on land legislation and were land laws were enacted not as a constitutional
requirement but out of necessity.
In the following sub-sections, the 2010 constitution of Kenya together with the Acts enacted by
the parliament on land administration will be discussed.

i. The Constitution of Kenya, 2010.

The Kenyan constitution classifies land as:
1. Public land – reserved for public use or environmental protection and is administered and
managed by the National Land Commission.
2. Community land – held by communities on basis of ethnicity, culture or similar
community interests and which is administered under the Community Land Act no. 27of
2016. Any unregistered land that is community land is held in trust by the county
government for the community.
3. Private land – Held by natural or legal persons. The ministry of land is tasked with the
registration of any interests in private land.
It is classified into the following land tenure system;
 Freehold land tenure system which gives the owner absolute ownership of land
for life.
  Leasehold land tenure system which is the interest for a specific period subject
payment of land rent to the government annually before the end of January and
land rates to the county government. A non-citizen can only hold land on the basis
of leasehold tenure system and the lease shall not exceed 99 years.
Article 68 of the constitution required the parliament to revise, consolidate and rationalize the
existing land laws and to revise sectoral land use laws in accordance with the principles set out in
article 60.

ii. Land Act 2012

This Act was enacted by the parliament to give effect to Article 68 of the constitution; to revise,
consolidate and rationalize land laws in order to provide for sustainable administration and
management of land and land-based resources, and for connected purposes.
Article 6 of this act requires the cabinet secretary to formulate policies on land, facilitate the
implementation of the land policies and reforms; coordinate the management of the National
Spatial Data Infrastructure; coordinate the formulation of standards of services in the land sector;
regulate service providers and professionals such as surveyors to ensure quality control and
monitor and evaluate land sector performance.
Land title can be acquired through allocation, land adjudication process, compulsory acquisition,
prescription, settlement programs, transmissions, transfers, long term leases exceeding 21 years
created out of private land or any other manner prescribed in an act of parliament
The act also provides detailed policies on management of public land through identifying and
keeping a database of all public land; administration of public land through granting of leases,
licenses and agreements for public land.
Administration and management of private land was facilitated through provisions of contracts,
transfers and transmissions.

iii. Land Registration Act 2012

This Act was enacted by the parliament to revise, consolidate and rationalize the registration of
titles of land to give effect to the principles and objects of devolved government in land
registration, described in the 2010 constitution.
The National Land Commission in consultancy with the National and county government may
by order in the Gazette, constitute an area of land or areas of land to be a registration unit and
may at any time vary the limits of such units. The land registration units shall be established at
county level and at such other levels to ensure reasonable access to land administration and
registration services. A community land register shall be maintained in each registration unit.
The act defines the powers of a chief registrar, Land Registrar, county land registrar or any other
land registrars, provides for surveys and mapping of land. It defines the effects of registration of
land; provides for certificates of titles; declares the dispositions that regard lease, charge or
interest in land between landlords and tenants; provides for the protection of persons receiving
land; makes special provisions for the registration of leases charges; places certain restrictions on
disposition of interests in land; provides with respect to registration of rights regarding co-
tenancy and partition; provides restrictions with respect to easements; defines the jurisdiction for
purposes of this act of the Environment and Land Court and defines the offences. This Act also
repeats the Indian Transfer of property Act 1882.

iv. The National Land Commission Act, 2012

This is an Act of the parliament that makes further provisions as to the functions and powers of
the National Land Commission, qualifications and procedures to appointment to the commission;
to give effect to objects and principles of the devolved government in land administration and
management, and for connected purposes.
It provides with respect to the administration, structure, operations, powers, responsibilities and
functions of the National Land Commission and for certain aspects of management and
administration of land according to principles of land policy found in article 60 of the
constitution and the national land policy. The functions of the commission will be discussed later
in this paper with respect to article 67(2) of the constitution. The primary subjects of this act are
land and soil.

v. Community Land Act, 2016

This Act of the Parliament gives effect to article 63(5) of the constitution that is to provide for
the recognition, protection and registration of community land rights; management and
administration of community land; to provide for the role of county governments in relation to
unregistered land and for any other connected purposes.
In the performance of the functions and exercise of powers under this Act, every person dealing
with community land shall be guided by principles and values set out in the constitution. These
principles will be discussed later in this paper.
Community land includes the following:
a. Land declared as such under article 63(2) of the constitution;
b. Land converted into community land under any law.

Community land in Kenya shall be bestowed to the community and may be held under any of the
following tenure system: a. Customary b. leasehold, freehold and any other tenure system
recognized under this act or any other written law. County government shall hold in trust all
unregistered community land on behalf of the communities for which it is held. Community land
may be compulsorily acquired by the state only in accordance with the law and for a public
purpose.
A community having interest in a community land shall be registered by the community land
registrar. For every registration unit, there shall be a community land register in accordance with
Land registration Act 2012. A registered community shall reserve special purpose areas
including agricultural areas, settlement, community conservation, cultural and heritage sites or
even urban development.

b) Institutional Frameworks
In this section, we discuss the Institutions that are responsible in Land Administration and
management in Kenya. They include;
i. The National Land Commission (NLC)
ii. Ministry of Lands and Physical planning
iii. County government (County land management boards and land control boards)
iv. Environmental and Land Courts
v. Magistrate courts
vi. Other institutions that help in land governance such as:
 Institution of land surveyors in Kenya (ISK)
 Kenya Land Alliance (KLA)
 Kenya land development and Governance Institute (KDGI)
These organizations were formed after the promulgation of the 2010 Constitution. Below are the
functions and powers of each institution.

i. National Land Commission

The function of the national land commission, as stated by the national land commission Act,
includes;

 Research land use and natural resources and give appropriate recommendations to the
concerned departments.
 Manage national and county public land
 Give recommendations on national land policy
 Investigate on its own or upon complains on historical land injustices and recommend the
best ways to redress.
 Encourage traditional land dispute resolutions
 Evaluate land tax and premiums of immovable property
 Oversee land use planning throughout the country
 ii. Ministry of Lands and Physical planning
It offers the following services:

1. Registration of services such as

 Registration of documents like transfers, successions, discharge, etc.
 Issuance of land titles
 Release of land title searches
 Conversion of titles from one statute to another

2. Land administration services such as;

 Issuance of lease
 Change of user
 Release of consent
 Advise the public on land matters

3. Land valuation services such as:

 Valuation of stamp duty
 Rent assessment for government lease
 Valuation of land rates
 Estimation of government properties for foreign missions
 Settling of rental disputes

4. . Survey services such as the following:

 General boundaries surveys
 Resolve boundary disputes
 Sale of land maps and national atlas
 Preparation of title deeds

iii. County Government (Land Control Boards)

Land control board is formed under the Land Control Act in Kenya Law to control agricultural
land transactions. The following services are offered to the public:
 Control of land transactions such as sales, transfers, leases mortgages, exchanges,
etc.
 Approve or deny transactions such as sales, mortgages of shares in private
companies, etc.
 Responsible for issuance of a letter of consent if it is convinced that the
transaction is valid.
 iv. Environmental and Land Court

This was established under the land Act of 2011 to hear and determine environmentally related
disputes. Its primary roles are;
 To settle disputes related to environmental planning and protection, title deeds
boundary, land use, climate issues, etc.
 Deal with issues related to compulsory acquisition of land
 Offer solutions to disputes involving the administration and management of
private, public and community land and any other conflicts involving
environment and land.
 To hear and determine the application for redress of denial
 To hear and determine appeals from subordinate courts and local tribunals as long
as the matter fall under its jurisdiction.
 Make orders and grant relief as it sees fit and just, including compensation,
restitution, award of damage, etc.
 To settle disputes related to rates, rent, valuation, mining, and other natural
resources.

v. Magistrate court
These are courts subordinate to higher courts such as the environmental and land court. They are
mandated to hear and determine disputes related to land held under the customary tenure system
which involves the following:
 Marriages
 Divorces
 Dowry
 Status of widows
Dissatisfied individuals can appeal to the environmental and land court.

vi. Other Institutions

a. Institution of land surveyors in Kenya
This is a professional organization that consist licensed land and building surveyors, valuers,
geomatics engineers, registered real estate agents, property managers and other qualified land
professionals.
It is formed to ensure professional, ethical performance by government bodies involved in land
administration and management. It offers a diploma in land management surveyors that equip
learners with skills and knowledge required in the land administration process.

b. Kenya land development and governance institute

a)
 Promoting advocacy for policy and legislative reforms
 Participate in national debates on land reforms
 Provide safe and equitable access to land and natural resources
  Allow the people to develop sustainable livelihoods
 Contribute to constitutional review by ensuring principles and provisions on land, environment,
and natural resources are included in the constitution.

c) Land Administration Principles

Article 60(1) of the constitution states that land in Kenya shall be held, used and managed in a
manner that is equitable, efficient, productive and sustainable, and in accordance with the
following principles—
(a) equitable access to land;
(b) security of land rights;
(c) sustainable and productive management of land resources;
(d) transparent and cost effective administration of land;
(e) sound conservation and protection of ecologically sensitive areas;
(f) elimination of gender discrimination in law, customs and practices related to land and
property in land; and
(g) encouragement of communities to settle land disputes through recognised local community
initiatives consistent with this Constitution.

b)
c)
d)