Community Land Act

Section 1. Short title Section This Act may be cited as the Community Land Act.

Section 2. Interpretation Section common ancestry;

Section 3. Guiding principles Section the principles of land policy set out in Article 60 of the Constitution; and

Section 4. Ownership and tenure system Section 4(1) Community land in Kenya shall vest in the Community. Section 4(2) Subject to the provisions of this Act or any other written law, the State may regulate the use of community land in accordance with Article 66 of the Constitution. Section 4(3)(a) customary; Section 4(3)(b) freehold; Section 4(3)(c) leasehold; and Section 4(3)(d) such other tenure system recognized under this Act or other written law.

Section 5. Protection of community land rights Section 5(1)(a) of any description; and Section 5(1)(b) in any part of Kenya. Section 5(2) Customary land rights shall be recognized, adjudicated for and documented for purposes of registration in accordance with this Act and any other written Iaw. Section 5(3) Customary land rights, including those held in common shall have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer. Section 5(4) Subject to Article 40(3) of the Constitution and the Land Act (Cap. 280), no interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law, for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement. Section 5(5) Subject to the provisions of section 46 of this Act, any person who immediately before the commencement of this Act had a subsisting customary right to hold or occupy land shall upon commencement of this Act continue to hold such right.

Section 6. Role of county governments Section 6(1) County governments shall hold in trust all unregistered community land on behalf of the communities for which it is held. Section 6(2) The respective county government shall hold in trust for a community any monies payable as compensation for compulsory acquisition of any unregistered community land. Section 6(3) Upon registration of community land, the respective county government shall promptly release to the community all such monies payable for compulsory acquisition. Section 6(4) Any such monies shall be deposited in a special interest earning account by the county government. Section 6(5) The respective county government shall transfer the amount and the interests earned to the communities as may be prescribed. Section 6(6) Any transaction in relation to unregistered community land within the county shall be in accordance with the provisions of this Act and any other applicable law. Section 6(7) Upon the registration of any unregistered community land in accordance with this Act, the respective registered community shall, assume the management and administrative functions provided in this Act and the trustee role of the respe...

Section 7. Procedure for registration of communities Section 7(1) A community claiming an interest in or right over community land shall be registered in accordance with the provisions of this section. Section 7(2) The community land registrar shall by notice in at least one newspaper of nationwide circulation and a radio station of nationwide coverage, invite all members of the community with some communal interest to a public meeting for the purpose of electing the members of the community land management committee. Section 7(3) The notice shall also be given to the national county administrators and county government administrators in the area where the community land is located. Section 7(4) The community land registrar may use all available means of communication including electronic media to reach the community members. Section 7(5) The community shall elect between seven and fifteen members from among themselves to be the members of the community land management committee as provided in section 15 , who shall come up with a comprehensive register of communal interest holders. Section 7(6) The community land management committee shall come up with the name of the community an...

Section 8. Procedure for recognition and adjudication of community land Section 8(1) Subject to this Act and any law relating to adjudication of titles to land, the Cabinet Secretary shall, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme for purposes of registration of community land. Section 8(2) The Cabinet Secretary shall, in consultation with the county governments ensure that the process of documenting, mapping and developing of the inventory of community land shall be transparent, cost effective and participatory. Section 8(3) The inventory of community land referred to in subsection (2) may be accessed by the county governments for ease of access by members of the community. Section 8(4) The Cabinet Secretary shall issue a public notice of intention to survey, demarcate and register community land. Section 8(5)(a) contain the name of the community; Section 8(5)(b) state which land is to be adjudicated; Section 8(5)(c) invite all interested persons with overriding interests or any other claim on the land, to lodge their claims; Section 8(5)(d) specify an area or areas of land to be a community l...

Section 9. Community Land Registar Section The Chief Land Registrar shall designate a qualified registrar to be the Community Land Registrar responsible for registration of community land.

Section 10. Register of community land Section 10(1)(a) a cadastral map showing the extent of the community land and identified areas of common interest; Section 10(1)(b) the name of the registered community; Section 10(1)(c) a register of members of the registered community which shall be updated annually; Section 10(1)(d) the user of the land; Section 10(1)(e) such particulars of members of the registered community as the Registrar may determine; and Section 10(1)(f) any other requirement under this Act. Section 10(2) The Registrar shall not register any instrument purporting to dispose of rights or interest in community land except in accordance with this Act or any other written law. Section 10(3) For the avoidance of doubt, until any parcel of community land has been registered in accordance with this Act, such land shall remain unregistered community land and shall, subject to this Act, be held in trust by the county governments on behalf of the communities for which it is held pursuant to Article 63(3) of the Constitution.

Section 11. Registration of community land Section 11(1) Community land shall be registered in accordance with the provisions of this Act and the Land Registration Act (Cap. 300). Section 11(2)(a) facilitate in consultation with the respective county governments the adjudication of the community land including the recording of community land claims, demarcation of community land and delineation of boundaries; and Section 11(2)(b) perform any other function conferred by this Act. Section 11(3) Upon adjudication, the title relating to community land shall be issued by the Registrar in the prescribed form.

Section 12. Classes of holding community land Section as communal land;

Section 13. Community and reserve land Section 13(1) A registered community may by a resolution of the majority members of that community in a general meeting, reserve a portion of the community land for communal purposes. Section 13(2) Any land which has been used communally, for public purpose, before the commencement of this Act shall upon commencement of this Act be deemed to be public land vested in the national or county government, according to the use it was put for. Section 13(3)(a) farming; Section 13(3)(b) settlement; Section 13(3)(c) community conservation; Section 13(3)(d) cultural and heritage sites; Section 13(3)(e) urban development; or Section 13(3)(f) any other purposes as may be determined by the community, respective county government or national government for the promotion or upgrading of public interest. Section 13(4) An area reserved for special purposes under subsection (3) shall be used exclusively for the intended purpose.

Section 14. Confirmation of validity of existing customary rights of occupancy Section 14(1)(a) capable of being allocated by the community to an individual person, family, group of persons, clan, an association, partnership or body corporate wholly owned by citizens of Kenya; Section 14(1)(b) capable of being of indefinite duration; and Section 14(1)(c) governed by customary law in respect of any dealings. Section 14(2) A customary right of occupancy on any community land subsisting before the commencement of this Act shall upon the commencement of this Act be a recognisable right of occupancy in the respective community land subject to Article 40(6) of the Constitution. Section 14(3) A person, a family unit, a group of persons recognized as such under any customary law or who have formed or organized themselves as an association, a cooperative society or any other body recognized by any written law, who are members of a community may apply to the registered community for customary right of occupancy. Section 14(4)(a) proposals made by the adjudication team or any sub-committee of the registered community set up for that purpose; and Section 14(4)(b) equal treatment of application...

Section 15. Functions and powers of the community land management committee Section 15(1) A registered community shall have a community assembly which shall consist of all adult members of the community. Section 15(2) The quorum for decision making by the community shall not be less than two thirds of the community assembly. Section 15(3) The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community land management committee. Section 15(4)(a) have responsibility over the running of the day to day functions of the community; Section 15(4)(b) manage and administer registered community land on behalf of the respective community; Section 15(4)(c) coordinate the development of community land use plans in collaboration with the relevant authorities; Section 15(4)(d) promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land; and Section 15(4)(e) prescribe rules and regulations, to be ratified by the community assembly, to govern the operations of the community. Section 15(5) Any decision of a registered community to dispose of or otherwise al...

Section 16. Interest conferred by registration Section the registration of a community as the proprietor of land shall vest in that community the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

Section 17. Rights of a community as proprietor Section 17(1)(a) the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and Section 17(1)(b) such overriding interests as may affect the land and are declared by section 28 of the Land Registration Act (Cap. 300). Section 17(2) Nothing in this section shall be taken to relieve a registered community from any duty or obligation to which the registered community is subject to as a proprietor.

Section 18. Certificate of title to be evidence of proprietorship Section 18(1)(a) on grounds of fraud or misrepresentation to which the person is proved to be a party; or Section 18(1)(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. Section 18(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the seal of the Registrar, shall be received in evidence in the same manner as the original.

Section 19. Land use and development planning of community land Section 19(1) A registered community may, on its own motion or at the request of the county government, submit to the county government a plan for the development, management and use of the community land administered by the registered community for approval. Section 19(2)(a) consider any conservation, environmental or heritage issues relevant to the development, management or use of the land; Section 19(2)(b) incorporate in the plan a statement that it has considered those issues in paragraph (a) when drawing up the plan; Section 19(2)(c) consider any environmental impact plan pursuant to existing laws on environment; Section 19(2)(d) comply with the values and principles of the Constitution; Section 19(2)(e) seek ratification from the members of the registered community; and Section 19(2)(f) be bound by any approved relevant physical development plan. Section 19(3) If a registered community submits a plan to the county government under subsection (1) and the government approves and notifies the registered community of that fact, the registered community shall develop, manage and use the land concerned in accordance w...

Section 20. Conservation and management of resources in community land Section 20(1) For purposes of the sustainable conservation of land based natural resources within community land across counties, every respective registered community shall abide by the relevant applicable laws, policies and standards on natural resources. Section 20(2)(a) measures to protect critical ecosystems and habitats; Section 20(2)(b) incentives for communities and individuals to invest in income generating natural resource conservation programmes ; Section 20(2)(c) measures to facilitate the access, use and comanagement of forests, water and other resources by communities who have customary rights to these resources; Section 20(2)(d) procedures for the registration of natural resources in an appropriate register; and Section 20(2)(e) procedures for the involvement of communities and other stakeholders in the management and utilization of land-based natural resources. Section 20(3) A registered community shall put in place measures necessary to conserve resources in community land.

Section 43. Unlawful occupation of community land Section 43(1) No person shall occupy or use for any purpose any registered community land other than under a right acquired in accordance with the provisions of this Act. Section 43(2) A person who contravenes this section commits an offence.

Section 44. General penalty Section A person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.

Section 46. Saving and transitional provisions Section 46(1) Unless the contrary is specifically provided in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall be deemed to have been acquired under this Act. Section 46(2) Unless the contrary is specifically provided in this Act or the circumstances are such that the contrary must be presumed, if any step has been taken to create, acquire, assign, transfer, or otherwise execute a disposition in community land, any such transaction shall be continued in accordance with the provisions of this Act. Section 46(3)(a) the question whether any instrument so presented is to be registered shall be determined by the Registrar by reference to the law in force at the time of its execution; and Section 46(3)(b) subject to the provisions of paragraph (a), the provisions of this Act shall apply to that instrument as if it had been executed after the commencement of this Act. Section 46(4) If a lessor or chargor had initiated any steps to forfeit a lease or to foreclose a charge, as the case may be, before the commencement of this Act,...

Section 47. Group representatives Section 47(1) In relation to land held under the Land (Group Representatives) Act (Repealed), the respective group representatives together with the communities they represent shall be registered as a community in accordance with the provisions of this Act. Section 47(2) Upon registration, the respective group representatives shall cease to hold office. Section 47(3) Land held by group representatives referred to under subsection (1) shall not be sold, leased or converted to private land before it has been registered under this Act. Section 47(4) Title documents issued to group representatives under the Land (Group Representatives) Act (Repealed) shall continue to be in force until new titles are issued in the names of the respective communities or other institutions in accordance with this Act. Section 47(5) The transitional provisions set out in the Schedule shall apply upon commencement of this Act. Section 47(6) The Cabinet Secretary may prescribe regulations for giving effect to this section.

Section 48. Regulations Section 48(1) The Cabinet Secretary, ensuring public participation may make regulations generally for the better carrying into effect of this Act. Section 48(2)(a) the procedures of recognition and registration of all parcels of community land rights; Section 48(2)(b) procedure for settlement of disputes arising from the community land registration process; Section 48(2)(c) the requirements for investor partnerships; Section 48(2)(d) the procedures of registering any other entity holding community land; Section 48(2)(e) conversion of other categories of land into community land; Section 48(2)(f) the fees payable for any application or the issue of any certificate or other document in terms of this Act; Section 48(2)(g) the conditions, in addition to conditions imposed by or under any other law, under which prospecting or mining operations may be carried out on community land; Section 48(2)(h) public education and awareness on the rights of communities over community land; Section 48(2)(i) the combating and prevention of soil erosion and degradation, the protection of the pastoral resources and the limitation and control of the grazing of stock; Section 48(2)...

Section 21. Conversion of community land Section 21(1) The Community land register shall, in addition to the particulars set out under section 8(1) of the Land Registration Act (Cap. 300) contain the particulars of all conversions involving community land. Section 21(2) A registered community shall, before the conversion of registered community land into any other category of land seek and obtain approval from two thirds of the assembly in a special meeting convened for that purpose.

Section 22. Conversion of community land to public land Section 22(1)(a) compulsory acquisition; Section 22(1)(b) transfer; or Section 22(1)(c) surrender. Section 22(2) Nothing in this Act limits the application of the Land Act (Cap. 280) and any other law in relation to compulsory acquisition of land. Section 22(3) Reversionary interest of such land shall lie with the community in the first instance upon expiry of such public use interest. Section 22(4) Transfer of community land shall, subject to the approval of the members of the registered community in a community meeting, be done in accordance with the Land Act (Cap. 280) and any other applicable law.

Section 23. Conversion of community land to private land Section transfer; or

Section 24. Conversion of public land to community land Section 24(1) Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act (Cap. 280). Section 24(2) Conversion of public land to community land under subsection (1) may be effected on a case by case basis. Section 24(3) The National Land Commission may, by an order published in the gazette identify other specific parcels to which subsection (2) shall not apply.

Section 25. Conversion of private land to community land Section transfer; or

Section 26. Setting aside community land for public purposes Section 26(1) A community may set aside part of the registered community land for public purposes. Section 26(2) Where land is set aside for public purposes under subsection (1), the National Land Commission shall gazette such parcel of land as public land.

Section 27. Individual rights on community land Section 27(1) A registered community may upon application and with approval of the members of the registered community, allocate part of its registered community land to a member or a group of members of the community for exclusive use and occupation for such period as the registered community shall determine. Section 27(2) Despite subsection (1), a separate title shall not be issued for such parcel. Section 27(3) An individual entitlement under subsection (1) shall not be superior to community title in any way. Section 27(4)(a) shall pay to the registered community such premium or fees commensurate to the use as may be determined by the community from time to time; Section 27(4)(b) may develop the land subject to the provisions of any laws and regulations relating to land use; Section 27(4)(c) may not assign or lease the land to a third party who is not a member of the community; Section 27(4)(d) shall put the land into lawful use; Section 27(4)(e) shall surrender the land back to the community if the member no longer shall be entitled to quiet enjoyment of the land, requires the land; and

Section 28. Grazing rights Section 28(1) The customs and practices of pastoral communities relating to land shall be taken into consideration by a registered community as long as they are consistent with the provisions of this Act or other applicable law. Section 28(2)(a) the kind and number of livestock that may be grazed; Section 28(2)(b) the section or sections of the land where livestock may be grazed and the grazing in rotation on different sections; and Section 28(2)(c) a grazing plan; Section 28(2)(d) the right of the community to utilize the portion of land in accordance with this Act. Section 28(3) The registered community may upon application by any person who is not a member of the registered community, grant grazing rights and upon such grant, that person shall exercise the rights subject to the conditions referred to in subsection (1): Provided that the registered community shall subject to the approval of the members of the registered community in a meeting convened for that purpose withdraw a grazing right granted under this subsection if, due to drought or any other reasonable cause, the registered community considers such cancellation to be in the interest of the r...

Section 29. Designation of other land use rights in community land Section 29(1)(a) farming areas; Section 29(1)(b) settlement areas; Section 29(1)(c) community conservation areas; Section 29(1)(d) access and rights of way; Section 29(1)(e) cultural and religious sites; Section 29(1)(f) urban development; or Section 29(1)(g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest. Section 29(2) An area designated for special purposes under subsection ( 1) shall be used exclusively for the designated purposes.

Section 30. Non-discrimination Section 30(1) Every member of the community has the right to equal benefit from community land. Section 30(2) Equality includes full and equal enjoyment of rights of use and access. Section 30(3) Women, men, youth, minority, persons with disabilities and marginalized groups have the right to equal treatment in all dealings in community land. Section 30(4) A registered community shall not directly or indirectly discriminate against any member of the community on any ground including race, gender, marital status, ethnic or social origin, colour, age, disability, religion or culture. Section 30(5) For the avoidance of doubt, every man or woman married to a member of the community shall gain automatic membership of the community and such membership shall subsist until the spouses legally divorce and the woman remarries or the woman remarries after the death of a spouse. Section 30(6) Subject to Article 159 of the Constitution, the culture of each community shall be recognized in accordance with Article 11(1) of the Constitution in the exercise of community land rights.

Section 31. Transactions in community land Section 31(1) Subject to such exemptions as may be prescribed, or unless any condition attaching to a community land right or a right of leasehold under this Act provides otherwise, a customary land right may be dealt with only with the approval of the registered community in a meeting convened for such purpose. Section 31(2) For the purposes of this Act, contracts and transfers over community land shall be carried out in a manner similar to transactions over private land as provided in the Land Act (Cap. 280) and registered as provided in the Land Registration Act (Cap. 300).

Section 32. Leases over community land Section 32(1) A lease over community land shall be on the basis of an agreement between the community and the lessee and subject to such implied conditions, restrictions and covenants as may be contained in any other written law. Section 32(2) Despite section 55(1) of the Land Act (Cap. 280) unless the agreement contemplated under subsection (1) otherwise provides, the general provisions on leases contained in Part IV of that Act shall apply to leases over community land.

Section 33. Cancellation of rights of leasehold Section In addition to such grounds of cancellation as may be set out in a deed of leasehold, a right of leasehold may be cancelled by a registered community, with approval of the members of the registered community, if the leaseholder fails to comply with the requirements or to adhere to any restrictions imposed by or under any law pertaining to the utilization of the land to which the right relates.

Section 34. Existing rights to use and occupy community land Section 34(1) Any person who immediately before the commencement of this Act, held a right to use and occupy any part of community land, whether by virtue of any authority granted under any law or otherwise than under a lease, may continue to use and occupy such land under that right, subject to the same terms and conditions until the lease expires, after which the provisions of sections 28 and 29 shall apply. Section 34(2) Any conversion which commenced before the promulgation of the Constitution shall be deemed to have commenced under this Act, while any conversion commenced after the promulgation of the Constitution shall be null and void.

Section 35. Natural resources on community land Section sustainably and productively;

Section 36. Benefit sharing Section 36(1)(a) an environmental, social, cultural and economic impact assessment; Section 36(1)(b) stakeholder consultations and involvement of the community; Section 36(1)(c) continuous monitoring and evaluation of the impact of the investment to the community; Section 36(1)(d) payment of compensation and royalties; Section 36(1)(e) requirement to re-habilitate the land upon completion or abandonment of the project; Section 36(1)(f) measures to be put in place to mitigate any negative effects of the investment; Section 36(1)(g) capacity building of the community and transfer technology to the community; and Section 36(1)(h) any other matters necessary for determining how local communities will benefit from investments in their land. Section 36(2) An agreement relating to investment in community land shall only be made between the investor and the community. Section 36(3) No agreement between an investor and the community shall be valid unless it is approved by two thirds of adult members at a community assembly meeting called to consider the offer and at which a quorum of two thirds of the adult members of that community is represented. Section 36(4)...

Section 37. Rules and by-laws Section the regulation of investments on the land;

Section 38. Regulation of community land use planning Section 38(1) Pursuant to Article 66 of the Constitution, the State shall have the power to regulate the use of any land, or interest in or right over land, in the interest of defence, public safety, public order, public morality, public health or land use planning. Section 38(2)(a) fishing, hunting and gathering; Section 38(2)(b) protection of animals and wildlife; Section 38(2)(c) water protection, securing sufficient residual water, hydraulic engineering and safety of dams; Section 38(2)(d) forestry; Section 38(2)(e) environmental laws; Section 38(2)(f) energy policy; and Section 38(2)(g) exploitation of minerals and natural resources.

Section 39. Dispute resolution mechanisms Section 39(1) A registered community may use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms where it is appropriate to do so, for purposes of settling disputes and conflicts involving community land. Section 39(2) Any dispute arising between members of a registered community, a registered community and another registered community shall, at first instance, be resolved using any of the internal dispute resolution mechanisms set out in the respective community by-laws. Section 39(3) Where a dispute or conflict relating to community land arises, the registered community shall give priority to alternative methods of dispute resolution. Section 39(4) Subject to the provisions of the Constitution and of this Act, a court or any other dispute resolution body shall apply the customary law prevailing in the area of jurisdiction of the parties to a dispute or binding on the parties to a dispute in settlement of community land disputes so far as it is not repugnant to justice and morality and inconsistent with the Constitution.

Section 40. Mediation Section 40(1) Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to mediation. Section 40(2) The mediation shall take place in private or in informal setting where the parties participate in the negotiation and design the format of the settlement agreement. Section 40(3)(a) convening meetings for the hearing of disputes from parties and keep record of the proceedings; Section 40(3)(b) establishing ground rules for the conduct of parties; structuring and managing the negotiation process and helping to clarify the facts and issues; and Section 40(3)(c) helping the parties to resolve their dispute. Section 40(4) If an agreement is reached during the mediation process, the agreement shall be reduced into writing and signed by the parties at the conclusion of the mediation.

Section 41. Arbitration Section 41(1) Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to arbitration. Section 41(2) Where the parties to an arbitration agreement fail to agree on the appointment of an arbitrator or arbitrators, the provisions of the Arbitration Act (Cap. 49) relating to the appointment of arbitrators shall apply.

Section 42. Judicial proceedings Section 42(1) Where all efforts of resolving a dispute under this Act fail, a party to the dispute may refer the matter to court. Section 42(2)(a) confirm, set aside, amend or review the decision which is the subject of the appeal; or Section 42(2)(b) make any order in connection therewith as it may deem fit.