Kenya County Government Roles on Community Land

Nyanchama Angela, Legal/Policy Research & Advocacy Officer at RECONCILE

The enactment of the Community Land and repeal of the Trust Land Act and Group Representative Act envisions the enhancement of recognition, protection and registration of Community Land. It has significantly tried to move community land management from the government hands to the registered community more so within the trustee roles of the County Government though the weaknesses and strengths of the provisions are yet to be tested.

To begin with section 6(1) & (7) provides that upon registration of the community land the trusteeship roles of the county government to manage and administer the registered community land ceases to exist. This is a strong hold of the Act though concerns may arise from the speculation on lack of good faith and time bought with the initial/interim actions before registration instigates. The fact that the County Government holds in trust all unregistered community land on behalf of the communities, creates assumptions to the communities that the glitches of corruption may occur.

This may affect the outcome of whether the vast unregistered community land shall actually fall to the hands of the unregistered communities. The Act has tried to secure this by upholding the need of empowerment and capacity building but unfortunately in most instances, the government enacts laws and leaves the empowerment to the civil societies and other credible institutions that uphold community rights. This directs the need to secure the initial/interim actions so that communities can uphold the registration process and County Government understand their roles on community land as trustees.

The Act follows up in upholding the County Government only roles of being trustees under section 6 (8) when it clearly prohibits the County government from selling, disposing, transferring, and converting for private purposes or dispose in any other way unregistered community land. This may seem as a closed ended provision because the Land Act 2012 has defined the listed acts as follows:

  • Disposition means any sale, charge, transfer, grant, partition, exchange, lease, assignment, surrender, or disclaimer and includes the disclaimer or the creation of an easement, a usufructuary right, or other servitude or any other interest in a land or a lease and any other act by the owner of land or under a lease where the owner’s rights over that land or lease are affected or an agreement to undertake any of the dispositions.
  • Instrument means a writing, including an enactment which creates or affects legal or equitable rights and liabilities and includes any covenant or condition expressed in an instrument or implied in a instrument under this Act or any other law relating to land and, except where otherwise provided includes, any variation of an instrument.
  • Transfer means the passing of land, a lease or a charge from one part to another by an act of the parties and not by operation of the law and includes the instrument by which such passing is effected.

Unfortunately, this is not a black and white case as short term leases do not require a transfer to be undertaken. Section 58 of the Land Act provides on short term leases that are made for a term of two years or less without an option for renewal (periodic lease). The short term lease is made orally or in writing and is not registrable interest in land. These features clearly indicate that a short term transaction can be undertaken as no transfer shall be done and no instrument is required indicating a loophole to the provision.

Further, the word ‘transactions’ beats logic, the provision that the County Government is not to dispose of unregistered community land. It may be a defence that the section only allows transactions for purposes of the public: ‘Public purpose’ being defined under the Land Act, 2012, insinuating that it refers to compulsory acquisition but the phrase ‘any transaction’ with lack of a definition marks it as open ended. Awkwardly, this may pave a way for the ‘any transactions’ to take place at their own discretion.

Additional, the issues of monies only refer to compulsory acquisition: Does it mean that monies received under the other phrase ‘any transactions’ mean that they shall not be released to the registered community?