Chapter 5 of the Constitution deals with the classification of land in Kenya. Article 60 of the Kenyan Constitution deals with the principles of land policy.
Land in Kenya should be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles-
- equitable access to land;
- security of land rights;
- 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 this Constitution.
These principles should be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.
Classification of land in Kenya
Article 61 of the Constitution says that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.
Therefore, the classification of land in Kenya is either public land, community land or private land.
Public land in Kenya
Article 62 of the Constitution defines public land in Kenya. Public land is-
- the land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;
- 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;
- land transferred to the State by way of sale, reversion or surrender
- land in respect of which no individual or community ownership can be established by any legal process;
- land in respect of which no heir can be identified by any legal process;
- all minerals and mineral oils as defined by law;
- government forests other than forests to which Article 63(2) (d)(i) applies (see point 4 below under community land), government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
- all roads and thoroughfares provided for by an Act of Parliament;
- all rivers, lakes and other water bodies as defined by an Act of Parliament;
- the territorial sea, the exclusive economic zone and the sea bed;
- the continental shelf;
- all land between the high and low watermarks;
- any land not classified as private or community land under the Constitution; and
- 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.
Article 62(2) of the Constitution states that public land should vest in and be held by a county government in trust for the people resident in the county, and should be administered on their behalf by the National Land Commission if it is classified under-
- points 1, 3, 4 and 5 above; and
- point 2, other than land held, used or occupied by a national State organ.
Public land classified under points 6 to 13 above should vest in and be held by the national government in trust for the people of Kenya and should be administered on their behalf by the National Land Commission.
Public land should not be disposed of or otherwise used except in terms of an Act of Parliament (Lands Act) specifying the nature and terms of that disposal or use.
“Effective date” means the date the Constitution either came into force on its promulgation by the President or on the expiry of a period of fourteen days from the date of the publication in the Gazette of the final result of the referendum ratifying the Constitution, whichever was the earlier.
Article 263 of the Kenyan Constitution
Community Land in Kenya
Article 63 of the Constitution speaks about community land as the second classification of land in Kenya. Community land should vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.
Community land in Kenya consists of-
- land lawfully registered in the name of group representatives under the provisions of any law;
- land lawfully transferred to a specific community by any process of law;
- any other land declared to be community land by an Act of Parliament; and
- 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) of the Constitution.
Any unregistered community land should be held in trust by county governments on behalf of the communities for which it is held.
Community land should 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.
Parliament should enact legislation to give effect to Article 63 (hence the Community Land Act).
Private Land in Kenya
Article 64 of the Constitution defines private land in Kenya. Private land consists of-
- registered land held by any person under any freehold tenure;
- land held by any person under leasehold tenure; and
- any other land declared private land under an Act of Parliament.
For more about the classification of land in Kenya and lands in general, see the Lands Act and Chapter 5 of the Kenyan Constitution.
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