Presentation given by Kevin M. Doyle at a Seminar at the Institute for Poverty, Land and Agrarian Studies, University of the Western Cape, Bellville, South Africa, July 30, 2013

1. Presentation by
Kevin M. Doyle
PLAAS Student and Land Tenure/Land Use Practitioner
The Promise and Feasibility of
Community Land Rights in Kenya
Institute for Poverty, Land and Agrarian Studies Seminar
University of the Western Cape
Bellville, South Africa
30 July 2013

2. I. Brief Historical Overview of Customary
Rights in Kenya
II. The Promise of the National Land Policy,
Constitution and new Land Laws
III. The Current Realities of Community Land in
Kenya
IV. Back to the Future?
V. A Model for Recognizing Community Lands

3. “What greater grief than the loss of one's native land?”
~ Euripides

4. System of communal land tenure was
based mostly on clan solidarity and other
lineal heritages
Concept of land fell under the „commons‟ –
i.e. private interests could not usurp a
community‟s needs

5.  Conquest of the territory by the British in the
late 1880s and subsequent declaration of the
British East Africa Protectorate in 1895
 Crown Lands Ordinance of 1902 (revised in 1915)
• Preponderance of powers conferred to colonial gov‟t to
administer and allocate the area of the colony
declared as Crown Land
• Some indigenous Kenyans, referred to as „natives‟,
were declared tenants at the Will of the Crown, while
others were displaced from their land entirely and
placed in areas termed „native reserves‟

6.  1939: Abandonment of land auctions in favor of
allocation by direct grant or tender
 1951: Policies were formalized and resulted in a
system based on a Letter of Allotment
 Although mostly applied to white settlers, helped
further discourage the „natives‟ and other non-white
communities from participating in the land market
 These policies reverberated in practice through
Kenya‟s post-independence period creating “one of the
greatest ironies in the history of land allocation in
Kenya…by later facilitat(ing) the massive illegal and
irregular allocation of public land by the Government
after independence”

7. 1952: The Mau Mau militant group
violently opposed the colonial government
and white settlers in an effort to regain
some of the richest arable lands in Kenya
located in the Central Rift Valley in the
environs of Mt. Kenya, referred to as the
„white highlands‟.
“We are fighting for all land stolen from us
by the Crown…”

8.  Envisioned the allocation of approx. 10 acres per family for 600,000
African families
 Creation of family holdings that would be large enough for self-
sufficiency, the premise being that more advanced farmers would be
able to access credit while providing land tenure security which
would propagate investment and rural development
 Recommended that all high-quality native land be surveyed and
enclosed; that the policy of maintaining 'traditional' or tribal
systems of land tenure be reversed; and all the thousands of
fragmented holdings be consolidated and enclosed
 Faulted the customary and prevalent African land tenure systems not
only for aggravating problems of land fragmentation, but also for
hampering the adoption, development, and diffusion of sound and
intensified farming procedures

9.  1960: Mau Mau rebellion ends, coinciding with Britain‟s
agreement to eventually grant independence to its colony
 In Lancaster House discussions between Kenyan leaders and
Britain, a proposed Bill of Rights to the proposed Constitution
guaranteeing property rights proved among the most
controversial provisions of the negotiated transition
 The British insisted on a „willing buyer, willing seller‟ approach
to redistributing white settler farms, and even provided credit
to Kenyans to facilitate the buy-outs
 Many opposed this, arguing that there was no rationalization
to buy the very land which had been unjustly taken from them

10.  Independence: December 1963
 „Million Acre Scheme‟
• Market-based settlement scheme designed to make land
available to landless households
• Purchase and redistribution of white settler farms to
landless Kenyans
• Customary landowners lacked the capital or outright
refused to purchase land which they saw as their „own‟
property
• Mostly only those with financial means benefited
• By1977, about 95% of the former „white highlands‟ had
been transferred to black African ownership, principally
Kikuyu

11. 11

12.  After Independence, a majority of the Crown Land
was re-categorized as Government Land
 Native Reserves - which included customary
community land holdings - became Trust Land*
 Trust Land was held by County Councils and the
Commissioner of Lands rather than directly by
indigenous occupants or communities
 Individual private ownership rights now derived
from the President instead of the Crown
 Customary tenure continued to be extinguished
through adjudication of rights and registration of
title, however…
*Trust Land Act (Cap 288)

13.  A number of customary communities registered as
Group Ranches thus somewhat preserving an
essence of their customary arrangements
 BUT, other interest groups i.e. business interests
could also register themselves as Group Ranches
 Not surprisingly, County Councils, as trustees of all
Trust Land, systematically disposed of trust land
irregularly and illegally at the expense of customary
communities
 AND, in the case of many pastoral communities who
were registered as Group Ranches, the group
representatives entrusted with the administration of
that land often disposed of group land without
consulting the members of their groups

14. “Nothing is more destructive of respect for the
government and the law of the land than passing laws
which cannot be enforced.” ~ Albert Einstein

15. 15
Arcane, contradictory,
superfluous land laws (67!)
Complex and easily corruptible land
management and administration
system
Overburdened land administration system; wide
disparities in land ownership; individual freehold
became the only semi- secure form of tenure
Environmental, social, economic and
political problems
Deterioration in land quality, squatting and landlessness,
disinheritance of some groups and individuals, urban squalor,
under-utilization and abandonment of agricultural land, tenure
insecurity, political manipulation,conflict and violence, poverty,
inequality

16. OLD SYSTEM NEW SYSTEM
Private Land
Government Land
Trust Land
Private Land
Public Land
Community Land

17. 17

18.  Community land refers to land lawfully held,
managed and used by a given community as
shall be defined in the “Land Act"
 To secure community land, the Gov‟t shall:
• Document and map existing forms of communal tenure,
whether customary or contemporary, rural or urban, in
consultation with the affected groups, and incorporate them
into broad principles that will facilitate the orderly evolution
of community land law
18

19. 19
What is Community Land?
• Land lawfully registered in the name of group representatives
(e.g. group ranches);
• Land that was lawfully transferred to a specific community;
• Any land declared to be community land by an act of
Parliament;
• Land 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;
• Land lawfully held as trust land by county governments (but
not including certain public land held in trust by County Gov’t)

20. 20
Who holds Community Land?
• Community land shall vest in and be held by communities
identified on the basis of ethnicity, culture, or similar community
of interest.
• Unregistered community land shall be held in trust by county
governments on behalf of communities.
How Can Community Land be Disposed of or Used?
• Community land shall not be disposed of or otherwise used except
in terms of legislation specifying the nature and extent of rights of
members of each community individually and collectively.

21. 21
• All have right to equal protection and
benefit of the law
• Women and men have right to equal
treatment
• Freedom from discrimination
Equality and
freedom from
discrimination
(Art. 27)
• Every person has right to acquire and own
property
• Parliament shall not enact a law that
permits the State or any person to
arbitrarily deprive a person of property, limit
or restrict enjoyment of any property right
Protection of right
to property (Art.
40)

22. 22
• Every person has right to clean and healthy
environment
• State obligation to ensure sustainable use and
management, and ensure equitable sharing of
benefits
• Person may seek redress to prevent stop actions
harmful to the environment
Environment
(Arts. 42, 69, 70)
• State shall put in place programs ensuring
participation in governance, educational
opportunities, access to employment,
development of cultural values and
practices, and reasonable access to water.
Minorities and
marginalised
groups (Art. 56)

23. 23

24. 24
Land Act (2012) – Key Provisions
Mostly defers governance of community lands to future legislation (Art. 37)
Guarantees equal protection of CL as one of three categories of land
Declares that Land Act is applicable to all land declared as CL
Defines term customary land rights* and recognizes it as a form of tenure
Defers legislation on conversion of community land to other categories of land to
future legislation
* Rights conferred by or derived from Kenyan customary law, whether formally recognized by legislation or not.

25. 25
Land Registration Act (2012) – Key Provisions
Establishes a community lands register to be kept in each land registration
unit, but no registration of community lands transactions before new Act
Identifies specific items that must be included in CL register.
Requires Registrar to issue certificate of title or lease for registered CL.
Prohibits Registrar from registering any instrument that disposes of community
land except in accordance with CL law.

26. 26
National Land Commission Act (2012)
- Key Provisions
Relevant functions of the NLC related to CL include:
• Manage and administer unregistered trust land and unregistered
community land (Land Act gives this function to County Gov‟t)
• Develop and encourage ADR and traditional dispute resolution over
land conflicts
• Ensure that all unregistered land is registered within 10 years
• Investigate historical land injustices and review grants of public land
(Secs. 14 and 15)

27. “This land is your land and this land is my land,
sure, but the world is run by those that never listen
to music anyway.” ~ Bob Dylan

28. 0
10
20
30
40
50
60
Millions
Source: "Populstat" website: http://www.populstat.info/populhome.html
KENYA‟S POPULATION

29. 29
Group
Ranches
Customary
Communities
On Trust/Community
Land
On Gov‟t/Public Land

30. 30
Group
Ranches
Registered But
No Title
Registered & Titled
Incorporated, Undergoi
ng Adjudication
Process
Customary
Communities
With Some Letter of
Support from Gov‟t
With No Formal
Recognition from Gov‟t
On Trust/Community
Land
On Gov‟t/Public Land

31. COMMUNITY
Common
Purpose/
Goals Preservation
of Way of
Life &
Culture
Access
Rights
Right of
Development
Degree of
Self
Governance
Right of
Possessio
n/
Dispossession
Right of
Exclusion
Resource
Rights
Property
Rights

34.  Competition over control and access to the
diminishing natural resources, e.g. pasture and water
 Erosion of the traditional governance of natural
resource use
 Depletion of natural resource base
 Weak natural resource management institutions
 Commercialisation of cattle rustling
 Culture of glorifying conflict/revenge acts
 Mistrust among the different ethnic groups
 Inadequate policing and state security arrangements
 Political incitements
34

36. Public Land (formerly Government Land)

37. Human Settlement

38. Human Settlement
Public Land / Protected Area

39. Human Settlement
Individual/Family Shambas
under Customary
Arrangement &
Governance
Public Land / Protected Area

40. Human Settlement
Public Land / Protected Area
Public Land
Public Land
Individual/Family Shambas
under Customary
Arrangement &
Governance

41. Human Settlement
Public Land / Protected Area
Public Land
Communal Land
Communal Beach
Landing Site Public Land
Individual/Family Shambas
under Customary
Arrangement &
Governance

42. Squatters
Plots For Sale Illegally!
Illegal Logging & Poaching
Unsustainable
Mangrove Harvesting
Individual/Family Shambas
if you are lucky!
Some titled, other
customarily held. Largest
plots for the Elites!
Unplanned Development
REALITY!

43. “Never, never and never again shall it be that this
beautiful land will again experience the
oppression of one by another.” ~ Nelson Mandela

44. “For too long the land debate has been about a
small fraction of the land while the fact that two
thirds of our country is untitled and has remained
unnoticed and never part of the debate. The new
Constitution recognizes that there is a problem but
it does not provide a solution. It is community land
but those communities who live on it have no real
rights.”
44

45. “People living on community land…cannot
unlock commercial value of that land, public
bodies are hampered from providing
services as it is effectively no-man‟s
land, individuals cannot invest and develop
the land as they do not know whether one
day they may be moved on. This insecurity
means they can‟t invest, even on their own
housing. “

46. “Above all they can‟t raise capital or seek
investment from others. We have turned
them into squatters on their own land – they
are condemned to poverty – living in a kind of
economic limbo, while those who have
private titles are able to get credit, invest in
their land and consequently enjoy the
phenomenal rise in value that we continue to
witness.”

47. “My Government will be
committed to giving
people the title to their
own land – 60 years
after
Swynnerton, Kenyans
deserve to have that
process completed.”

48. 48

49. “The small landholders are the most precious part
of a state.” ~ Thomas Jefferson

51.  A tenure assessment tool designed to capture and record all
the layers of customary and local practices of land rights and
land relations in a participatory process.
 The Model sequences specific actions to be undertaken for
the recognition of community land rights
 Model is designed to respond to Article 68.c (ii) of the
Constitution, which requires that legislation be enacted to
regulate the manner in which land may be converted from one
category to another. CLLR is not that legislation but will
contribute towards development of that legislation.
 The CLRR Model itemizes required activities in six stages, a
combination of which may be undertaken concurrently.

52. 52
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process

53. 53
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process
Stage B
Community Engagement
The community is engaged in the process of taking
inventory of their land and resource rights.

54. 54
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process
Stage B
Community Engagement
The community is engaged in the process of taking
inventory of their land and resource rights.
Stage C
Recording of Community
land claims & governance rules
The community‟s land claims and land governance rules
are recorded, debated by the community, vetted for
legality, and formally adopted.

55. 55
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process
Stage B
Community Engagement
The community is engaged in the process of taking
inventory of their land and resource rights.
Stage C
Recording of Community
land claims & governance rules
The community‟s land claims and land governance rules
are recorded, debated by the community, vetted for
legality, and formally adopted.
Stage D
Demarcation
Actual physical demarcation of community boundaries is
undertaken with the participation of the community

56. 56
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process
Stage B
Community Engagement
The community is engaged in the process of taking
inventory of their land and resource rights.
Stage C
Recording of Community
land claims & governance rules
The community‟s land claims and land governance rules
are recorded, debated by the community, vetted for
legality, and formally adopted.
Stage D
Demarcation
Actual physical demarcation of community boundaries is
undertaken with the participation of the community
Stage E
Validation & Finalization
All documents and maps are reviewed and agreed upon
by the community and relevant government agencies.

57. 57
Stage A
Demand for community land
rights recognition
The public is informed of the opportunity to secure
community land and resource rights via the CLRR
process
Stage B
Community Engagement
The community is engaged in the process of taking
inventory of their land and resource rights.
Stage C
Recording of Community
land claims & governance rules
The community‟s land claims and land governance rules
are recorded, debated by the community, vetted for
legality, and formally adopted.
Stage D
Demarcation
Actual physical demarcation of community boundaries is
undertaken with the participation of the community
Stage E
Validation & Finalization
All documents and maps are reviewed and agreed upon
by the community and relevant government agencies.
Stage F
Issuance of Title
A Certificate of Title of Community Land Ownership is
conferred to the community land-holding entity.

58. 58

59. i. Provides for the establishment of community land
holding and governance entities early in the
process; these entities can take various legal forms
which communities must be assisted to clearly
identify
ii. Acknowledges that customary land rights may
incorporate overlapping claims of land rights that
may be enjoyed sequentially and/or
concurrently, sometimes by different entities
iii. Ensures that all layers of overlapping claims are
captured, while at the same time serving to provide
evidence for any conflicting land claims that require
special attention to be resolved

60. iv. Recognizes the need and provides steps to
divest targeted lands from their previous tenure
category to community land as stipulated in the
Constitution
v. Envisages the need for a speedy, cost-
effective, dispute resolution mechanism to help
resolve boundary and other land related disputes
among community members as well as with
outsiders.
vi. “Customary tenure represents an intact system
of economic and social rights “under our feet,”
where the policy task is less to create rights that
don‟t exist, but to protect and deepen rights that
already do.” (S. Lawry, 2013)

61. 61

62.  Ensures that community land rights are equal in weight and
stature to conventional statutory land rights. Second Class
is not acceptable! Prima facie evidence is necessary for
defending their otherwise legally recognized land claim. (See
Mozambique!)
 Allodial (or „ultimate‟) rights to the land need to be truly
vested in the community, not some gov‟t agency (See
Tanzania!)
 Recognizes existing community land institutions‟ right and
authority to govern community lands. Existing Wildlife
Conservancies prove that it can work. (See Kenya!)
 The CLRR fosters the resolution of boundary disputes and
could even compel new access/use agreements between
neighbors

63.  More formal individualization of property rights within
communities is achievable if necessary (see UNHABITAT‟s Social
Tenure Domain Model)
 Communities should be free to enter into agreements,
transactions or negotiations in respect to their land. This is
tantamount to participation in the land market and economic
development
 Can set the stage for community co-management, as land
tenure security is a motivation and perhaps a pre-condition
 Regulatory frameworks still needed, i.e. Comm. Land Act,
topographical survey procedures, institutional admin…
 Communities can use the process to prepare their claims even
while legislation and regulations are pending

64. 64
Thank you!
Thank you!
kdoyle1
bbossoxx Land Tenure Professionals
blockisle@hotmail.com

65. Participatory Resource Use Mapping

66. 66

67. 67

68. Hotspot Analysis
Hotspot Analysis of
Resource Uses
Distances Travelled
for Resource Uses