KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME (ATP)

ACADEMIC YEAR 2024/2025

ASSIGNMENT

ATP 107

CONVEYANCING

COURSE INSTRUCTOR: MR. KIBET SANG

CLASS B FIRM 5

DATE OF SUBMISSION: 12TH FEBRUARY 2024

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LIST OF MEMBERS

NO NAME ADM NO

1. RODNEY MOINDI AMENYA 20240282

2. FLORENCE OJEE 20240642

3. LOICE APIYO ABUNGU 20240618

4. ANDREW MWANGI MAINA 20240658

5. KARAM AMIN SAID 20240608

6. WAMBUA KIOKO 20240784

7. SIRMAH HEATHER JEMUTAI 20240460

8. NYAKAWA BILLIE ONDARI 20240675

9. NELSON OMBASO ONYANCHA 20240690

10. BERNARD KAMAU NDUNGU 20241437

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TABLE OF CONTENTS

LIST OF MEMBERS................................................................................................................ 2
TABLE OF CONTENTS...........................................................................................................3
CATEGORIES OF LAND UNDER THE CONSTITUTION.......................................................4
PUBLIC LAND....................................................................................................................4
COMMUNITY LAND...........................................................................................................4
PRIVATE LAND.................................................................................................................. 5
CONVERTING LAND FROM ONE CATEGORY TO ANOTHER............................................ 5
COMMUNITY LAND INTO PRIVATE LAND.......................................................................5
PRIVATE LAND TO COMMUNITY LAND.......................................................................... 6
PUBLIC LAND TO COMMUNITY LAND........................................................................... 7
COMMUNITY LAND TO PUBLIC LAND( REGISTERED)................................................. 7
UNREGISTERED COMMUNITY LAND TO PUBLIC LAND.............................................. 8
PUBLIC LAND TO PRIVATE LAND................................................................................... 8
PRIVATE LAND TO PUBLIC LAND.................................................................................. 9
CONCLUSION....................................................................................................................... 10
LIST OF ABBREVIATIONS................................................................................................... 11
LIST OF STATUTES.............................................................................................................. 11
LIST OF CASES.................................................................................................................... 11

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THE CATEGORIES OF LAND UNDER THE CONSTITUTION AND PROCEDURES
OF CONVERSION OF THE SAME FROM ONE CATEGORY TO ANOTHER.

CATEGORIES OF LAND UNDER THE CONSTITUTION

INTRODUCTION

Article 61 of the Constitution of Kenya stipulates that all the land in Kenya belongs to the people of
Kenya collectively as a nation, as communities and as individuals.1 The act further classifies land as
public, private or community. In light of the foregoing, we shall discuss the various types of lands as
follows:

PUBLIC LAND

Public land has been defined by the Constitution under Article 62 to include unalienated government
land, land that is occupied and lawfully held by any state organ, any land that has been transferred to
the state ( by means of sale, surrender or reversion), land to which there is no heir, all the minerals
and mineral oils, forests, government game reserves, national parks, water catchment areas,
government animal sanctuaries, roads, rivers, lakes, all land between the high and low water marks,
the continental shelf and any other land that is not classified as private or community.2

The National Land Commission has been tasked with the mandate of administering public land on
behalf of the people of Kenya.

COMMUNITY LAND

A community, according to the Community Land Act, 2016, is defined as;

A consciously distinct and organised group of users of community land who are citizens of
Kenya and share any of the following attributes; common ancestry, similar culture or unique
mode of livelihood, socio-economic or other similar common interest, geographical space,
ecological space or ethnicity;3

The Constitution entrusts County Governments to hold unregistered community land on behalf of the
respective communities, limiting them from any disposal of such unregistered land. The state is
however permitted under Article 66 of the Constitution to regulate the use of these lands.

Community land may be held under customary tenure, leasehold tenure, freehold tenure or any other
as by law provided.4

1
Constitution of Kenya 2010, Article 61
2
Constitution of Kenya 2010, Article 62
3
The Community Land Act 2016,Section 2
4
The Community Land Act 2016 s.4(3).

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 PRIVATE LAND

The Constitution under Article 64 further defines the third category of land in Kenya as private land
which includes land held by any person under freehold tenure,5 land held by any person under
leasehold tenure,6 or any other designation specified by legislation as private property.7

CONVERTING LAND FROM ONE CATEGORY TO ANOTHER

COMMUNITY LAND INTO PRIVATE LAND

Section 23 of the Community Land Act 2016 provides that there are two ways in which community
land may be converted into private land;
“(a) Transfer; or
(b) Allocation by the registered community”
Both methods require the approval of the community assembly in the method prescribed under
Section 21(2), being that, before converting registered community land into any other category, a
registered community must seek and obtain approval from two-thirds of the assembly in a special
meeting convened for that purpose.

TRANSFER
Section 31(2) of the CLA provides that transfers over community land shall be carried out in a manner
similar to transactions over private land as provided in the Land Act, 2012 and registered as provided
in the Land Registration Act, 2012. Since the conversion from community land to private land
through transfer is effected by the community transferring the whole of their interest in either a part or
a whole of their land to another party, this process is very similar to a transfer of interest private land,
save for the approval requirements.

Further, in Regulation 16(2) of the CLR, the transfer instrument is prepared and executed by the
Chairman and the Secretary of the community land management committee as representatives of the
community before presentation to the Registrar for registration in accordance with the Land
Registration Act.

TRANSFER PROCESS

1. Identification of the community land intended for conversion.

2. Conducting the prerequisite searches and preliminary investigations.
3. Letter of Offer and Sale Agreement prepared.
4. Notice of community assembly meeting with the agenda of voting on
conversion of land sent out
5. Approval by Registered Community with a two-third majority.
6. Preparation of transfer through Form LRA 33 and completion documents.
7. Completion of the transfer (with the requisite documents executed by the

5
Constitution of Kenya 2010, Article 64(a).
6
Constitution of Kenya 2010, Article 64(b).
7
Constitution of Kenya 2010, Article 64(c).

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 Chairman and Secretary of the Land Management Committee of the
Community)
8. Payment of Stamp Duty.
9. Transfer Duly Registered.
10. Certificate of title issued to new proprietor.

ALLOCATION
Under Section 27(1) of the Community Land Act 2016, upon application and with the approval of the
members, a registered community may allocate part of its registered community land to a member or
group of members for exclusive use and occupation, as determined by the registered community.

ALLOCATION PROCESS

1. A member or group of members submits an application to the land management committee

for the allocation of land for a particular use
2. The committee circulates the application to the members of the community for their views
within a specified time
3. The members of the community give their feedback and comments to the committee
4. The committee presents and prepares a report to the community assembly for them to
consider and approve
5. 14 days after the community assembly meeting, the committee will communicate the
assembly’s decision to the applicant/s
6. If the allocation is approved, the committee shall demarcate the extent of the rights as
approved by the community assembly and issue a certificate of customary use and occupancy
to the member in Form CLA 10 and forward the certificate to the registrar for noting in the
register.

PRIVATE LAND TO COMMUNITY LAND

Section 25 of the Community Land Act 2016 provides that private land can be converted to
community land under the following ways:

a) Transfer –
a person can transfer whole or part of his or her land to benefit the community where the land is
located. This can be done by transferring the title of the land to the county government which holds
the land in trust for the community.

b) Surrender -
a citizen can willingly surrender his land in part or in full to the county government to hold in trust
for a certain community. The community benefits from the given either as whole or it can be
subdivided to the members.

c)Operation of the law in relation to illegally acquired community land –

In the ELC case NO. 16 of 2018, County Government of Tana River vs Dakane Shake and
Others. The defendant in this matter sold a piece of land measuring 700m by 4500m located at Saka
location , Tana River county in 2017 to the other defendants. The land in question was unregistered.

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The court made a declaration that the land in question which was held by the defendants was
unregistered community land and should be reverted back to the county government to hold it in trust
for the community.

d)Operation of any other written law

PUBLIC LAND TO COMMUNITY LAND

Conversion of public land to community land is done through allocation by the National Land
Commission in accordance with the Land Act 2012.
This conversation is done for the following reasons
● Due to public safety
● Public order
● Public health
● Land use planning
Procedure for land conversion.
The procedure for conversion of land is spelled out in the legal Notice 277 of 2017
NB: This procedure is sequential.
1. Preparation of cadastral Map together with a conversation list.
2. Publication of the cadastral map together with the conversation list
3. Lodgment and consideration of complaints within 90 days
4. Closure of old register and commencement of transactions in the new register
5. Application of replacement of the title documents for the old register

COMMUNITY LAND TO PUBLIC LAND( REGISTERED)

Section 21 of the Community Land Act 2016 stipulates that a registered community shall, before the
conversion, seek and obtain approval from two thirds of the assembly in a special meeting convened
for that purpose.

There are three ways in which community land can be converted to public land
● Compulsory acquisition
Process of conversion
Part VIII Section 107 to 133 of the Land Act 2012 gives the detailed process for conversion through
compulsory acquisition ;
1. Formal request is made to the NLC indicating the purpose for which land is to be acquired .
2. Consideration by the NLC and approval,
3. Publication of notice of intention to acquire land ; to the kenya gazette and 2 local newspapers
as emphasised in Mohammed Hussein Yakub v County Government of Mandera & 5 others,
4. Ground inspection and valuation
5. Publication of notice of inquiry in Kenya Gazette, service of notice and holding of inquiry,
6. Issuance of compensation,
7. Issuance of notice of taking possession
8. Final survey and vesting of acquired land.

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 ● Transfer
Transfer of community land is subject to the approval of the members of the registered community in
a community meeting, in accordance with the Land Act and any other applicable law.8

Process of conversion
1. Identify the community land
2. Notification to the affected community by the NLC,
3. Community consultation by public participation,
4. Publication of notice
5. Public hearing by NLC if necessary in instances of disputes
6. Compensation to the community and a public land title is issued
7. Registration as a public land title.

● Surrender
The case of NLC v Affrison Export Ltd & 10 others outlined the process of conversion through
surrender.
1. Approval by at least ⅔ of the assembly .
2. A surrender instrument is prepared.
3. The instrument is endorsed and executed by the community Land Management Committee.
4. Land registrar cancels registration of the land as community land .
5. Filling of surrender instruments.
The process for conversion of community land to public land is the same for transfer and surrender ,
the main difference in surrender however is that there is no consideration.

UNREGISTERED COMMUNITY LAND TO PUBLIC LAND

The Constitution of Kenya 2010 provides that any unregistered community land shall be held in
trust by the County government on behalf of the respective communities.9 This is reiterated in section
6(1) of the community land act, 2012.

This requires the County Government to hold in trust money received from compulsory acquisition.10

PUBLIC LAND TO PRIVATE LAND

The Land Act 2012 (the “Act”) provides that Public land can be converted to private land by
allocation11 which is the legal process of granting rights to land.12 Substantial transactions involving
the conversion require approval by the National or County Assembly as the case may be.13 The
National Land Commission (the “Commission”) on behalf of National or County governments

8
The Community Land Act 2016, S.21(4)
9
Article 63(3) Constitution of Kenya 2010.
10
The Community Land Act 2018 S.6(2)
11
Land Act 2012 Section 9(2)
12
Land Act 2012 s.2
13
Land Act 2012 s.9(3)

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allocates public land.14 Land may be allocated to foreign governments by the commission on a
reciprocal basis in accordance with the Vienna Convention on Diplomatic Relations after consultation
with the national and county governments subject to the Constitution and relevant laws.15

The Land (Conversion of Land) Rules, 2017 details the process of conversion of public land to private
land as follows: The National or County government may, on its own motion or upon a request,
identify the land and notify the Commission of its intention whereby the Commission considers the
notification and satisfies itself that the criteria has been met.16If met in substantial transactions, it
refers the matter to the National or County Assembly for approval in line with Section 9(3) of the
Act. Upon receipt of approval the Commission allocates the land and enters the particulars in the
register.17 For transactions that are not substantial, it carries out public consultation.18 The
Commission then analyses the representations to ascertain the public's general opinion, considers all
other matters required under the Act or any other law to determine whether the conversion ought to be
approved.19 If the Commission approves intended conversion of the land it shall allocate the land and
enter the particulars in the register.20

PRIVATE LAND TO PUBLIC LAND

Private land consists of registered land held by any person under any freehold tenure, leasehold tenure
and any other land declared private through Acts of parliament.21Private land can be converted to
public to fulfil the public needs in the interest of defence, public safety, public order, public morality,
public health and land use planning. It may be converted through; compulsory acquisition, transfers,
surrender or reversal of leasehold interest to the government after expiry of a lease.22

Compulsory acquisition is the power of the state to acquire any title or any other interest in land for a
public purpose subject to prompt payment of compensation.23 The process is limited by guidelines
prescribed by the commission24 and the condition that the acquisition is for public purposes according
to the constitution and any Act of Parliament.25

Transfer implies the passing of land, lease or charge from one party to another through an instrument
in a prescribed form with or without consideration.26 It is completed through filing the instrument and
subsequent registration of the transferee as proprietor in the land, lease or charge27 and takes effect
immediately devoid of the happening of any event or fulfilment of any condition at any particular time

14
, Land Act 2012 s.12(1)
15
Land Act 2012. s.12(5)
16
The Land (Conversion of Land) Rules (2017).Rule 4(1)
17
The Land (Conversion of Land) Rules 2017 Rule 4(3)
18
The Land (Conversion of Land) Rules 2017 Rule 5(1)
19
The Land (Conversion of Land) Rules 2017 Rule 5(4)
20
The Land (Conversion of Land) Rules 2017 .Rule 5(5)
21
Constitution of Kenya 2010 Article 6(4)
22
Land Act 2012 s.9(2)
23
ibid
24
Land Act 2012 s.107
25
Constitution of Kenya 2010 Article 40(3)
26
Land Registration Act 2012 s.37(1)
27
Land Registration Act 2012 s.37(2)

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in future.28Surrender of private land to public land is similar to the transfer of land however there is no
provision for consideration under surrender.

A lease is a grant by the land proprietor with or without consideration, to exclusive possession of their
land and includes the right so granted, the granting instrument and a sublease but not an agreement for
lease.29 Private landowners have the power to lease land or part of it for a definite period or for the
life of the lessor or for a period that may be terminated by either party.30 Leasehold tenure for
non-citizens is limited to a maximum of 99 years.31 Leases could be; periodic leases,32short-term
leases,33 terminated on the occurrence of a future event34 or future leases.35

CONCLUSION
In conclusion, the categorization of land under the Kenyan Constitution encompasses public, private,
and community land. The procedures for converting land from one category to another involve careful
considerations and legal processes, ensuring community participation and adherence to constitutional
provisions. Whether it’s the transformation of community land into private land, private land to
community land, or conversions involving public land, the outlined processes emphasize transparency,
community approval, and compliance with relevant laws. The comprehensive overview underscores
the importance of a structured legal framework in managing and regulating land use, transitions, and
ownership in Kenya.

28
Land Registration Act 2012 s.40
29
Land Act 2012 s.2
30
Land Act 2012 s.55
31
Constitution of Kenya 2010 Article 65(1)
32
Land Act 2012 s.57
33
Land Act 2012 s.58
34
Land Act 2012 s.59
35
Land Act 2012 s.61

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LIST OF ABBREVIATIONS

COK Constitution of Kenya

NLC National Land Commission

CLA Community Land Act

LIST OF STATUTES

Constitution of Kenya 2010

The Land Act

The Community Land Act 2016

The Land (Conversion of Land) Rules 2017

LIST OF CASES.

County Government of Tana River v Dakane Shake Bocha & 10 others [2021] eKLR

Mohammed Hussein Yakub & 5 others v County Government of Mandera & 5 others [2020] eKLR

National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR

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