Community Land Act

This Act may be cited as the Community Land Act.

Interpretation: Section common ancestry;

Guiding principles: the principles of land policy are those set out in Article 60 of the Constitution.

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.

Community land must be registered under this Act and the Land Registration Act (Cap. 300); upon adjudication the Registrar must issue the title in the prescribed form.

Declares a class of community land and refers to communal land.

A registered community may, by a resolution of the majority of its members in a general meeting, reserve part of community land for communal purposes.

Customary rights of occupancy that existed before this Act commence are recognised as rights upon commencement (subject to Article 40(6)); members of a community may apply to the registered community for customary right of occupancy; upon approval the registered community must issue a certificate of customary right of use and occupancy in the prescribed form.

Community land in Kenya belongs to the Community; the State may regulate its use; recognised tenure systems include customary, freehold, leasehold and other systems under this Act or written law.

Community land rights are protected: the State may not compulsorily acquire interests in community land except under law, for a public purpose, and with prompt payment of just compensation; persons with subsisting customary rights before commencement continue to hold those rights.

County governments must hold unregistered community land in trust for communities and manage any compensation monies, depositing interest-bearing accounts and transferring funds to communities; they must not dispose of such land held in trust; upon registration the registered community assumes management and the county's trustee role ends.

Sets procedures for registering a community: the Registrar must invite community members to elect a community land management committee by public notice; the community must elect 7–15 committee members; the committee must prepare and submit required documents to the Registrar; the Registrar may use electronic media.

The Cabinet Secretary must develop and publish a comprehensive adjudication programme (in consultation with county governments) for registering community land and must ensure the inventory process is transparent, cost‑effective and participatory; the county governments may access the inventory; the Cabinet Secretary must issue a public notice with specified contents and a period of sixty days.

The Chief Land Registrar must designate a qualified registrar as the Community Land Registrar to register community land.

Defines the community assembly and composition and sets quorum, election size for the community land management committee, lists the committee's functions, and sets voting thresholds for land disposal decisions.

When a community is registered as the proprietor of land, that community is vested with absolute ownership of the land and all rights and privileges appurtenant to it.

A community as proprietor is entitled to the leases, charges and other encumbrances shown in the register and is subject to overriding interests declared by section 28 of the Land Registration Act; and this section does not relieve a registered community from duties or obligations of a proprietor.

A certificate of title is evidence of proprietorship, but it may be set aside on grounds of fraud or misrepresentation or if acquired illegally or through a corrupt scheme; a certified copy of any registered instrument signed and sealed by the Registrar is received in evidence like the original.

Section 19 allows a registered community to submit a development, management and use plan for its community land and requires approved plans to be followed; it also imposes duties on county governments regarding consideration, approval and record-keeping.

Registered communities must abide by relevant laws, policies and standards on natural resources and must put in place measures to conserve resources in community land.

Persons must not occupy or use registered community land except under a right acquired in accordance with the Act; contravention is an offence.

If a person is convicted of an offence under this Act and no other penalty is provided, they may be fined up to five hundred thousand shillings, imprisoned for up to three years, or both.

Section 46 contains saving and transitional rules, including deeming older rights to be under this Act, continuation of transactions begun before commencement, Registrar determinations for registration, court powers to grant injunctions against forfeiture or foreclosure begun before commencement, Cabinet Secretary duties to develop and conclude adjudication programmes within three years, and deeming certain adjudication officers to be national government officers.

Group representatives and their communities must be registered as communities; upon registration the group representatives must cease to hold office; the Cabinet Secretary may make regulations to implement this section.

The Cabinet Secretary may, ensuring public participation, make regulations to carry this Act into effect and may make regulations on a list of specified topics concerning community land.

The Community land register must record particulars of all conversions involving community land; a registered community must obtain approval of two thirds of the assembly in a special meeting before converting registered community land to another land category.

Section 22 addresses conversion of community land to public land and lists compulsory acquisition, transfer, or surrender; it notes that other laws including the Land Act apply; states reversionary interest lies with the community upon expiry of public use; and conditions transfer on approval by members of the registered community in a community meeting and compliance with the Land Act and other law.

Conversion of community land to private land

Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act; the Commission may identify parcels exempt from case-by-case conversion by order in the gazette.

Section 25 concerns conversion of private land to community land.

A community may set aside part of its registered community land for public purposes; when that happens, the National Land Commission must gazette the parcel as public land.

A registered community may, on application and with members' approval, allocate part of its registered community land to one or more members for exclusive use and occupation for a period it determines.

Section 28 governs grazing rights: registered communities must consider pastoral customs consistent with the Act; they may grant grazing rights to outsiders upon application subject to conditions; they may withdraw granted rights (with member approval) for drought or reasonable cause; various activities on grazing land are prohibited; contravening those prohibitions is an offence punishable by a fine up to 100,000 shillings or up to six months imprisonment.

Section 29 lists types of special purposes that community land may be designated for and states that land designated under subsection (1) must be used exclusively for those designated purposes.

Community members have equal rights to benefit from and access community land; registered communities must not discriminate; spouses of members automatically gain membership until specified events.

Customary land rights may be transferred only with the approval of the registered community; contracts and transfers over community land must follow procedures like those for private land under the Land Act and be registered under the Land Registration Act.

Leases over community land must be based on an agreement between the community and the lessee and are subject to implied conditions from other written law; generally, the Land Act Part IV lease provisions apply to such leases unless the community-lessee agreement says otherwise.

A registered community may cancel a leasehold right if, with members' approval, the leaseholder fails to comply with legal requirements or restrictions on land use.

People who, immediately before this Act began, held a right to use and occupy any part of community land may continue to use and occupy that land under that right until the lease expires; after the lease expires sections 28 and 29 apply.

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

Sets rules for how communities should benefit from investments in their land and conditions for valid agreements with investors, including required community approval and ability to seek county guidance.

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

The State has the power to regulate the use of land or rights over land for reasons including defence, public safety, public order, public morality, public health and land use planning.

Registered communities may use alternative dispute resolution and must give priority to such methods for community land disputes; courts and other dispute bodies must apply prevailing customary law subject to the Constitution and this Act.

Parties to a community-land dispute may agree to refer the dispute to mediation; if they reach an agreement in mediation it must be written and signed by the parties.

Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to arbitration.

If all efforts to resolve a dispute under the Act fail, a party to the dispute may refer the matter to court.