Community Land Act

The Community Land Act was assented to law by the president on 3lst August, 2016 and it commenced operation on 21st September, 2016. The Act came into force to give effect to Article 63 (5) of the Constitution that provides on community land. The Act specifically provides for;

• The recognition, protection and registration of community land rights;
• Management and administration of community land;
• The role of county governments in relation to unregistered community land.

The Act repeals the Land (Group Representatives) Act, (Cap 287) and the Trust Lands Act, (Cap 288) which formerly provided for community land. Some of the key issues in the Act are as follows:

Ownership
Community land has been defined as a consciously distinct and organized group of users of community land who are citizens of Kenya and share attributes such as; Common ancestry; Similar culture or unique mode of livelihood; Socio-economic or other similar common interest; Geographical space; Ecological space; or Ethnicity.

Ownership of community land can be held as communal land, family or clan land, reserve land or in any other category of land recognized under the Act or other written law. In addition, Community land can be held in land tenure systems such as customary, freehold, leasehold or any other tenure system recognized by law.

Role of the County Government
Any parcel of community land registered in accordance with the Act, shall remain unregistered community land and subject to this Act, be held in trust by the County Governments on behalf of the communities. Upon registration of community land, the trusteeship of the county government to manage and administer the community land ceases to exit. The County is prohibited from selling, transferring, disposing unregistered community land or even converting it into private land.

Registration
A community claiming an interest in or right over community land may register their land by application to the community land registrar who shall maintain a community land register for each registration unit. Upon receipt of such interest, the registrar is required to issue a public notice to inform the public on the same.

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. In the case of leasehold tenures, the registration of a community or a person as the proprietor of a lease shall vest in that community or person the leasehold interest described in the lease, together with all implied and express rights and privileges belonging or appurtenant thereto and subject to all implied or express agreements, liabilities or incidents of the lease.

A Certificate of reservation may be issued in the interim by the Registrar pending the registration of community land and acquisition of the certificate of title. After final registration, Communities shall be issued with Certificate of Title, which will be prima facie evidence that the person or community named as proprietor of the land is the absolute and indefeasible owner.

Community Assembly and Community Land Management Committee
A registered community shall have a community assembly which shall consist of all adult members of the community. The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community land management committee. The community shall be expected to elect between seven and fifteen members from among themselves to be the members of the community land management committee. The community land management committee shall come up with the name of the community and shall submit the name, register of members, minutes of the meeting and the rules and regulations of the committee to the Registrar for registration.

Conversion of Community Land
The Act recognizes and permits for the following conversion systems of community land:

• Conversion of Community land Into private land by; Transfer; Allocation by the registered community, but this has to be ratified by the community assembly.
• Conversion of public land into community land by, allocation by the commission as stipulated in the Land Act.
• Conversion of Private land to community land by; Transfer; Surrender; Operation of law in relation to illegally acquired community land; and Operation of any other written law.
• Conversions to public land by either by; Compulsory acquisition; Transfer; or Surrender

Rights and Entitlement in the Community Land
A registered community can with the approval of the members allocate part of the registered community land to a member or a group of members in the community at a fee for use and occupation for a period determined by the community. A separate title will not be issued to the individual and the rights of the community supersede that of the individual allocated land. The condition for use of the land allocated are; the land is required to be used lawfully, the land cannot be assigned or leased to a third party; and the land must be surrendered back to the community if the individual is no longer entitled to use the land.

The law also places obligations to the registered Communities in the pastoral areas to ensure;

• They avail land to their members for the purpose of grazing;
• Reserve special areas for farming areas, settlement areas, community conservation areas, access and rights of way, cultural and religious sites, urban development, or any other purpose as may be determined by the community, county government or national government for the promotion of public interest.
• Ensure every member of the community has the right to equal benefit from community land, full and equal enjoyment of right of use and access with no discrimination based on gender, minority, and disability or marginalized groups.

Alternative Dispute Resolution
The Act encourages alternative dispute resolution (ADR). Any disputes that may arise between two registered communities should be resolved by any internal dispute resolution mechanism of the community’s by-laws.

The Act further encourages the use of mediation and arbitration in resolving disputes relating to community land. In the event that ADR fails, the law provides for parties to the dispute to refer the matter to court.