Frequently Asked Questions On Matters Community Land
Community land consists of the land lawfully registered in the name of group representatives under the repealed land (Group Representatives) Act Cap 287; land that has been transferred to a specific community; land declared to be community land by an Act of Parliament;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 traditionally occupied by hunter-gatherer communities, or land lawfully held as trust land by the county governments.
- There will be a register of all community lands in Kenya.
- Communities will be registered as corporate bodies and a register maintained.
- Registrations will be done in the name of the community.
- Community assemblies will be held annually in which every member of the community shall be entitled to attend and participate.
- Community Land Management Committees (CLMCs) will be formed during the Community assembly to manage every parcel of community land.
- Community Land Boards present in each sub-county will work with the CLMCs.
Section 40 of the Constitution of Kenya stipulates that every person has the right to own land of any description in any part of Kenya. The National Land Policy 1.5.1 (7), (c), (d) put more emphasis on gender equity and land rights.
No, it cannot be passed to a third party without members’ informed consent.
A registered community can allocate part of its registered land to an individual or group of individuals for exclusive use and occupation for a defined period; such a decision has to be approved by the Community Assembly.
A member granted exclusive use of a parcel of land under this section;
- Shall pay to the registered community any fees from the use as determined by the Community Assembly
- May use or develop the land based on the agreement with the community.
- May not allocate or lease the land to a third party who is not a member of the community.
- Give the land back to the community at the end of the agreement period or if the Community Assembly decides to reverse the agreement based on breach or emergencies.
The Community Land Act provides that all natural resources within the community should be managed sustainably, with accountability and transparency, and should benefit the whole community on the basis of equitable sharing. Any investment relating to the exploitation of natural resources shall be agreed between the investor and the community according to Article 71 of the Constitution, provided that at least at 30% of such investment income shall be allocated to the community.
Yes, this may be done through compulsory acquisition, transfer, surrender or allocation by the Community Land Management Committee (CLMC) provided that approval of both the Community Assembly and the County Assembly is obtained.
Yes. The composition of the CLMC is required to be compliant with the constitutional requirements of ensuring that at least a third of its membership is made up of persons of the opposite gender. This requirement shall be enforced by the Registrar and the County Executive in charge of land matters in the area where the land is located.
- Women have a right to acquire and own land whether individually or as a group.
- Daughters have the right to inherit their parents’ land and property.
- Women have a right to be elected and or appointed into land governance institutions.
- Married women have the right to joint ownership of land and property acquired during marriage.
- Married women have the right to transact on land in consultation with their husbands and vice versa.
- Widows have the right to inherit their deceased husband’s land and property.
The spouse will not only share benefit but liabilities on the matrimonial property.
Can a community land be registered if the Community assembly are in conflict and unable to agree to the registration?
Alternative dispute resolution mechanisms of mediation and arbitration shall be applied to resolve the dispute. If no consensus is obtained then the issue shall be presented to a vote at the Community assembly and the registration process will go on if 2/3 of the members give CLMC the approval to proceed with the registration process.
Do members who are opposed to the registration process of the community land have any legal alternative once they lose the vote at the Community assembly?
Yes, they can petition the Environment and Land Court to stop the registration or any other ongoing process.
The government has appointed and gazetted over 100 community land registrars and published gazette notices for the appointment of the community land adjudication officers for 24 counties where community land ownership is prevalent.
Yes, it is required to provide budgetary support to help in the registration process, civic education, facilitating the publication of any gazette notices, facilitate and support the appointment of CLMC, coordinate the convention of the community assembly, mediate on dispute resolution process, protect community land pending the registration process and approving any legislations that could help support this registration process.
Yes, and the benefits of the resources exploited from the land shall be negotiated pursuant to Article 71 of the Constitution, provided that at least 30% of such investment income shall be allocated to the community.
How will National Land Commission (NLC) ensure that the community land legislation secures grazing patterns of the pastoralists and access to land?
To secure access to land and land-based resources for vulnerable groups, the commission shall:
- Develop mechanisms for identifying, monitoring, and assessing vulnerable groups;
- Establish mechanisms for redistribution of land and resettlement;
- Facilitate their participation in decision-making over land and land-based resources; and
- Protect their land rights from unjust and illegal expropriation.
How will National Land Commission (NLC) ensure security of pastoralists' livelihoods and tenure to land?
To secure pastoralists’ livelihoods and tenure to land, the commission shall:
- Recognize pastoralism as a legitimate land use and production system;
- Review the Land (Group Representatives) Act and provide for pastoralism in the “Land Act”;
- Establish suitable methods for defining and registering land rights in pastoral areas while allowing pastoralists to maintain their unique land systems and livelihoods;
- Establish a legislative framework to regulate transactions in land in pastoral areas;
- Ensure that the rights of women in pastoral areas are recognized and protected;
- Provide flexible and negotiated cross-boundary access to protected areas, water, pastures, and salt licks among different stakeholders for mutual benefit; and
- Ensure that all land uses and practices under pastoral tenure conform to the principles of sustainable resource management.
No. Family disputes are best resolved through alternative dispute mechanisms such as at the family level, through elders, religious leaders, or through the chiefs’ offices. Alternative dispute resolution is inexpensive and less time-consuming.
The Small Claims Courts is the first option to consider if the value of your case is below Ksh 1,000,000. However, if the case exceeds the monetary limit of Ksh 1,000,000 or if it is a complex case, you can file your case in the Environmental and Land Court.
Youth living in customary and community lands can actively participate in the governance of registered community land through the Community Land Management Committee by vying for elective positions in the committee.
The constitution of Kenya defines an ‘adult’ as an individual who has attained the age of eighteen years. For the purpose of determining rights accruing to the youth, there is need to appreciate that the constitution regards youths as adults and thus;
- Each youth has the right to ownership, access and control of land and property.
- Though the right to inherit from their parents is discretionary, in the event of inheritance by the siblings, both daughters and sons have equal rights.
A will can be oral or written; if it is oral then it is valid for three months. A will assists in clarifying the wishes of a deceased person and assists in the distribution of land and other assets thereby reducing any conflicts.
A written will must have the following characteristics:
- It must be signed by the maker.
- Incase its signed by somebody other than the maker, then this should be done in the presence of the maker and under his/her directions.
- It must me witnessed by two or more witnesses and these witnesses MUST NOT be beneficiaries in the will otherwise there shall be need for an additional two witnesses.
- If the maker of the will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will.
- An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will.
- If the dependent or dependents feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court.
- The Court may order a specific share of the property to be given to the dependent (s) or periodical payments or lump sum payments.
An oral will is only valid if;
- Made before 2 or more competent witnesses;
- The maker dies within 3 months of making it;
- An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will;
- If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness.
Orphans have the right to access and use their parents land and property whether or not it is held in trust by an appointed and responsible adult member of the immediate family. Upon reaching the age of 18, they have the right to be registered as the rightful owners of land and the properties previously held by their deceased parents.
A ‘child” means an individual who has not attained the age of eighteen years in Kenya. Generally, children cannot own land or property in their own right as children. However, land and property can be held in trust for their benefit and use.