Community Land in Kenya: The Community Land Act 2016 Explained

For decades, land held by communities in Kenya was managed through trust arrangements that gave members little control. The Community Land Act, 2016 changed that by vesting community land in the community itself and creating a process for registering communities and their land. This guide explains community land in Kenya: how the Act treats unregistered land, how a community registers, how decisions are made, and what investors must do.

Ownership and Tenure

Section 4 of the Act provides that community land vests in the community. The State may regulate its use under Article 66 of the Constitution. Community land may be held under customary, freehold, leasehold or other recognised tenure systems. Under section 12 it may be held as communal land, as family or clan land, as reserve land, or in another recognised category. Registration of a community as proprietor vests absolute ownership of the land in that community (section 16).

Unregistered Community Land and County Governments

Until land is registered, county governments hold all unregistered community land in trust for the communities concerned (section 6(1)). They also hold in trust any compensation payable for compulsory acquisition of that land, depositing it in a special interest-earning account and transferring it with interest to the community once the land is registered (section 6(2) to (5)).

The trustee role is limited. Under section 6(8), a county government may not sell, dispose of, transfer or convert for private purposes any unregistered community land it holds in trust. When the community is registered, it assumes the management functions and the county government’s trustee role ceases (section 6(7)).

Registering a Community

Registration begins with the community land registrar, who must invite all community members with a communal interest to a public meeting to elect the community land management committee (section 7). The registrar gives notice in at least one newspaper of nationwide circulation and on a radio station of nationwide coverage, and also notifies national and county administrators for the area. The community elects between seven and fifteen members to the committee.

The committee then drafts a comprehensive register of communal interest holders and submits to the registrar the name of the community, the register of members, the minutes of the meeting and the rules and regulations of the committee (section 7(6)).

Adjudication and Titles

Registration of the land itself follows an adjudication programme. Under section 8, the Cabinet Secretary, in consultation with the county governments, publishes a comprehensive adjudication programme in the Gazette and issues a public notice of intention to survey, demarcate and register community land. The notice names the community, states the land, invites persons with overriding interests or other claims to lodge them, specifies a community land registration unit, and runs for sixty days. The survey excludes parcels already in use for public purposes and adjudicated private land, and a cadastral map is then presented to the registrar.

Section 11 requires registration in accordance with the Community Land Act and the Land Registration Act. The Cabinet Secretary appoints an adjudication officer for each community registration unit by Gazette notice, who facilitates the recording of claims, demarcation and delineation of boundaries. After adjudication, the registrar issues the title in the prescribed form. The community land register for each unit contains a cadastral map, the community’s name, a register of members updated annually, the user of the land and other prescribed particulars (section 10).

The Community Assembly and Land Management Committee

A registered community has a community assembly made up of all adult members, and the quorum for decision making must be at least two thirds of the assembly (section 15(1) and (2)). The assembly elects the community land management committee. The committee runs the community’s day-to-day functions, manages and administers registered community land on its behalf, coordinates land use plans, promotes participation, and prescribes rules and regulations to be ratified by the assembly (section 15(4)).

Voting Thresholds

Under section 15(5), a decision of a registered community to dispose of or otherwise alienate community land is binding only if supported by at least two thirds of the registered adult members of the community. All other decisions are made by a simple majority of the members present at a meeting.

Reserving land is different. Section 13(1) allows a registered community to reserve a portion of its land for communal purposes by a resolution of the majority of its members in a general meeting. Special purpose areas may include farming, settlement, community conservation, cultural and heritage sites and urban development (section 13(3)). Some summaries state that a two-thirds vote is needed to reserve land. The Act requires a majority for that purpose, and two thirds for disposal.

Land Already in Public Use

Under section 13(2), land that was used communally for a public purpose before the Act commenced is deemed to be public land, vested in the national or county government according to its use. Schools, infrastructure and similar facilities on community land therefore need to be checked against this provision.

Individual and Family Rights

Section 14 gives a customary right of occupancy the same status and effect as a right of occupancy in any other category of land. It may be allocated by the community to an individual, family, group, clan, association, partnership or body corporate wholly owned by Kenyan citizens. It may be of indefinite duration, and customary law governs dealings in it. A right subsisting before the Act commenced is recognised as a right of occupancy in the relevant community land. Upon approval by the registered community, it issues a certificate of customary right of use and occupancy in the prescribed form.

Because these rights are allocated by the community and governed by customary law, a buyer or lender dealing with an allocated parcel should confirm what the community has approved and whether the registrar’s records support it. Section 10(2) bars the registrar from registering any instrument disposing of rights in community land except in accordance with the Act or other written law.

Investment Agreements

Section 36 requires any agreement relating to investment in community land to be made after a free, open and consultative process. It must contain provisions on:

• an environmental, social, cultural and economic impact assessment;
• stakeholder consultation and involvement of the community;
• continuous monitoring and evaluation of the impact on the community;
• payment of compensation and royalties;
• rehabilitation of the land on completion or abandonment of the project;
• measures to mitigate negative effects; and
• capacity building of the community and transfer of technology.

Because a disposal needs the support of two thirds of registered adult members, an investor who deals only with the committee risks a challenge to the transaction. Confirm that the community assembly has authorised the agreement, and keep a record of that approval.