Community land rights are essential for the livelihoods and identities of many Kenyans.
In 2016, the Kenyan government enacted the Community Land Act to give legal recognition to community land and empower local communities to manage their land.
The Constitution of Kenya (2010) significantly reformed the legal framework around land, including community ownership.
Article 61 of the constitution classified land into three categories: public, private, and community.
Community land is land registered to a community by any legal process. It is also land registered in the name of a group of representatives or declared by an act of parliament as community land.
This includes land that communities traditionally used for grazing, shrines, ancestral sites, and forests or that are held in trust for a community.
Legal Recognition of Community Land
The Community Land Act of 2016 was a significant step forward in recognizing community land rights in Kenya. The Act defines community land as land held by people with common ancestry, culture, or interests.
This includes various types of land, such as communal, family, or clan land. The Community Land Act repealed previous laws that governed community land, providing a clearer framework for ownership and management.
Under the Community Land Act, communities can legally register their land with the National Land Commission (NLC). This registration is crucial because it protects communities from losing their land to external pressures.
The law states that unregistered community land is held in trust by county governments on behalf of the communities. However, once registered, the county government’s role in managing that land ceases.
The Act also allows communities to allocate parts of their registered land to individuals or groups for specific uses.
However, these allocations do not grant individual ownership; the community’s rights always precede individual claims.
This means that any allocated land must be used lawfully and returned to the community if no longer needed by the individual.
Role of Community Land Management Committees
The Community Land Management Committees (CLMCs) are established during assemblies to manage community land effectively.
These committees consist of elected members from the community who oversee the management and administration of community lands. Key functions of CLMCs include:
Land Management: They ensure that community land is used according to agreed-upon rules and regulations.
Decision-Making: CLMCs facilitate decision-making processes within the community, ensuring that all voices are heard.
Dispute Resolution: They handle land use and ownership conflicts within the community.
Each registered community must hold annual assemblies in which all members can participate. This ensures transparency and inclusivity when managing community resources.
Challenges Facing Community Land Rights
Despite the progressive nature of the Community Land Act, several challenges hinder its effective implementation:
Awareness and Understanding: Many communities are still unaware of their rights under the Community Land Act. This lack of knowledge can lead to exploitation and loss of land.
Implementation Delays: Although the Community Land Act was passed in 2016, significant delays have occurred in developing the regulations necessary for its full implementation. As a result, no community has yet successfully registered its land under this law.
Socio-Economic Pressures: Communities often face external pressures from investors or government projects that threaten their lands. Encroachment on communal lands continues to be a significant issue.
Political Challenges: There is often insufficient support from government institutions for enforcing community land rights. Political interests can complicate efforts to secure these rights.
Historical Grievances: Ethnic tensions and historical injustices related to land ownership can lead to conflicts within communities, making it difficult to manage communal lands effectively.
What is the Process of Registering a Community Land in Kenya?
Registering community land in Kenya is guided by the Community Land Act of 2016 and the accompanying Community Land Regulations. Here’s a detailed overview of the steps involved in registering community land:
1. Formation of Community Land Management Committee (CLMC)
The first step involves the community forming a Community Land Management Committee (CLMC). The community members elect this committee during an assembly of seven and fifteen members.
The community must document its formation, including the community’s name, a register of members, minutes of the meeting, and the rules and regulations governing the committee.
2. Application for Registration
Once the CLMC is established, it must apply to the community land registrar for registration. This application includes all necessary documentation that proves the existence and structure of the community, as well as its claim to the land.
Upon receiving an application, the registrar must issue a public notice to inform other stakeholders about the registration application. This notice allows interested parties to raise any objections or claims.
3. Adjudication Process
An adjudication team, which may include land adjudication officers, surveyors, and planners, will be appointed to ascertain rights and interests in the unregistered community land. This involves physically marking boundaries and surveying the land.
The adjudication process helps identify customary rights and ensures that all claims are fairly considered.
4. Registration of Community Land
After successful adjudication, the registrar will register the community as the proprietor of the land. A Certificate of Title will be issued, which serves as prima facie evidence that the registered community owns that land.
The registrar maintains a community land register for each unit, documenting all registered communities and their respective lands.
5. Post-Registration Obligations
After registration, the community assembly plays a crucial role in managing and making decisions regarding community land. They can allocate parts of registered land to individual members for specific uses while ensuring that such allocations comply with community rules.
The registered community has rights over their land, including protection from unauthorised use or occupation by outsiders.
What are the Penalties for Violating the Community Land Act?
The Community Land Act in Kenya establishes various penalties for violations related to community land rights.
1. General Penalties
The Act specifies that any unlawful occupation of community land is subject to penalties. This includes actions such as trespassing or unauthorised use of community land.
The penalties can include fines or other legal repercussions determined by the relevant authorities.
2. Fines for Breaches
According to the Community Land Regulations, individuals or entities that breach the rules or lawful instructions issued by the Community Land Management Committees (CLMCs) or community assemblies may face fines.
The specific amount of these fines can vary based on the severity of the violation and is intended to enforce compliance with community land management practices.
3. Restitution of Illegally Acquired Land
If community land is illegally acquired, the Community Land Act provides for restitution. This means that any person who has unlawfully taken possession of community land may be required to return it to the rightful community. Failure to comply can lead to further legal action or penalties.
4. Removal from Office
Community Land Management Committee members can be removed for violations of the community’s constitution or rules, gross misconduct, or neglect of duty. This is a deterrent against improper management and ensures accountability among committee members.
5. Legal Action
In cases where violations occur, affected communities can seek legal redress through the courts.
This could involve filing lawsuits against individuals or entities violating community land rights, leading to potential court-imposed penalties such as fines or restraining orders.
What are the differences between communal and private land ownership under the Act?
The Community Land Act of 2016 in Kenya distinguishes communal and private land ownership, each with its characteristics, rights, and management structures. Here are the key differences:
Difference in Definition
Communal Land:
Communal land is owned collectively by a community identified based on ethnicity, culture, or shared interests. It includes land lawfully registered in the name of group representatives or land a community has traditionally occupied.
The Act defines communal land as land held, managed, or used by specific communities for grazing, farming, or cultural practices. This type of land cannot be sold or disposed of without the consent of the community members.
Private Land:
Individuals or corporate entities own private land and can be freely bought, sold, or transferred. Ownership is typically registered and recognised under individual names.
Private land can be held under various tenure systems, such as freehold or leasehold, allowing for more flexible use than communal land.
Registration and Management
Communal Land:
Communal land must be registered with the National Land Commission (NLC) to secure legal status. Until registration occurs, county governments hold unregistered community land in trust on behalf of the communities.
Community Land Management Committees (CLMCs) are established to oversee the management of communal lands. These committees are responsible for land use decision-making and resolving community disputes.
Private Land:
Private land ownership requires individual registration with the NLC, which grants the owner absolute rights over the property. Owners can manage their land as they see fit, including leasing or selling it.
No specific management committees are required for private land; individual owners are responsible for their land management.
Rights and Usage
Communal Land:
Rights to communal land are collective. Members of a community may have access to use portions of the communal land (e.g., for farming or grazing), but these rights do not equate to individual ownership.
Any land allocation within a community must adhere to community rules and cannot be transferred to outsiders.
The Act emphasises that communal land use must benefit the entire community and align with their customs and regulations.
Private Land:
Private landowners have full control over their property, including the right to develop, lease, or sell it without needing approval from a broader community.
The rights associated with private ownership are protected by law, allowing owners to enforce their rights through legal channels if necessary.
Conclusion
Community land rights are vital for protecting the livelihoods and identities of many Kenyans. The Community Land Act provides a framework for legally recognising these rights, but implementation needs to be improved.
To secure these rights effectively, it is essential for stakeholders—including government bodies and civil society organizations—to work together to raise awareness, enforce laws, and support communities in managing their lands sustainably.
At Chepchieng and company advocates, we can help you with any legal issues related to land ownership, including the intricacies of community land rights. Contact us today for expert legal support and ensure that your community’s land rights are protected and upheld.
