Introduction
Article 61 (2) of the
Constitution of Kenya, 2010 classifies land into 3 categories:-
1.
Public land
2.
Private land
3.
Community land
What is Public
Land?
Generally, public land is
land owned and managed by the government for the benefit of the public. The
land may be managed for multiple uses such as recreation, mineral extraction,
national forests, national parks, and other protected areas.
Article 62 (1) CoK defines
public land as
(a) land which at the
effective date was unalienated government land
(b) land lawfully held, used
or occupied by any State organ, except any such land that is occupied by the
State organ as lessee under a private lease;
(c) land transferred to the
State by way of sale, reversion or surrender;
(d) land in respect of which
no individual or community ownership can be established by any legal process;
(e) land in respect of which
no heir can be identified by any legal process;
(f) all minerals and mineral
oils as defined by law;
(g) government forests other
than forests to which Article 63(2)(d)(i) applies, government game reserves,
water catchment areas, national parks, government animal sanctuaries, and
specially protected areas;
(h) all roads and
thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and
other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the
exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the
high and low water marks;
(m) any land not classified
as private or community land under this Constitution; and
(n) any other land declared
to be public land by an Act of Parliament—
(i) in force at the
effective date; or
(ii) enacted after the
effective date.
Where Public
Land vests
Pursuant to Article 62 (2),
Public land shall vest in and be held by a county government in trust for the
people resident in the county, and shall be administered on their behalf by the
National Land Commission, if it is classified under—
(a) clause (1)(a), (c), (d)
or (e); and
(b) clause (1)(b), other
than land held, used or occupied by a national State organ
Under Article 62 (3), Public
land classified under clause (1)(f) to (m) shall vest in and be held by the
national government in trust for the people of Kenya and shall be administered
on their behalf by the National Land Commission.
Use and disposal
of public land
Pursuant to Article 62 (4),
Public land shall not be disposed of or otherwise used except in terms of an
Act of Parliament specifying the nature and terms of that disposal or use.
What is Private
Land?
Article 64 defines Private
land to consists of —
(a) registered land held by
any person under any freehold tenure;
(b) land held by any person
under leasehold tenure; and
(c) any other land declared
private land under an Act of Parliament.
Conversion of
Public Land to Private Land
Conversion means converting land from one category to another.
Public Land is converted to
private land through allocation. Allocation is one of the ways in which
title to land may be acquired under Section 7 of the Land Act.
Under Section 9 (3) of the
Land Act, any substantial transaction involving the conversion of public land
to private land shall require approval by the National Assembly or county
assembly as the case may be.
Allocation of
public land
1.
Step 1: -
Identification of Land to be converted
Under Regulation 3 (1) of
The Land (Conversion of Land) Rules 2017, the national or county government
may, on its own motion or upon a request, identify the land and notify the
Commission, in Form LA 1 set out in the Schedule, of its intention to convert
the land from one category to another.
The notification in
paragraph (1) shall be accompanied with a base map showing the location of the
land. (See Regulation 3 (2)).
The request for allocation
is made by the Cabinet Secretary or the County Executive Committee Member
responsible for mattress relating to land to the National Land Commission -
(Section 12 of the Land Act).
2.
Step 2 -
Consideration of the Notification
Upon receipt of the
notification under regulation 3 to convert public land to private land, the
Commission consider the notification and shall satisfy itself that—
(a) the land is, at the time
of the intended conversion, public land;
(b) the purposes for which
it is intended to be used are compatible with land use planning for the
respective area;
(c) the land is not part of
an ecologically sensitive area;
(d) the conversion complies
with any other provisions of the Act or any other law; and
(e) the land is not
controlled land as defined in section 12A (1) of the Act
N/B:-
Under Section 12 A (1):-
"controlled land"
means land in Kenya which is- \
(a) within a zone of
twenty-five kilometres from the inland national boundary of Kenya;
(b) within the first and
second row from high water mark of the Indian Ocean;
(c) any other land as may be
declared controlled land under any law or statute.
3.
Step 3 -
Submission to the County or National Assembly for Approval/Invitation of public
consultation
Pursuant to Regulation 4
(2), Where the Commission is satisfied that the land meets the criteria set,
the Commission shall—
(a) in the case of a
substantial transaction refer the matter to the National Assembly or County
Assembly for approval as the case may be;
(b) in all other cases,
invite public consultations.
Meaning of a substantial
transaction - (Sec 2 of the Land Act)
"Substantial
transaction" means a transaction that involves the transfer, leasing or
licensing of land to a local or foreign investor either alone or in a joint
venture to carry out developments in agriculture and other approved ventures
with direct developmental benefits for Kenya through-
(a) a commitment for
improving food security for Kenya through technology transfer leading to
innovation, productivity increase and the requirement for a certain minimum
percentage of the crops produced to be sold on local markets;
(b) infrastructural
developments from which the public can benefit;
(c) demonstrable strong
backward and forward linkages to other industries in Kenya;'
(d) generation of
substantial foreign exchange through import substitution and exports;
(e) sustainable agricultural
practices and sustainable forest management which can contribute to addressing
climate change concerns;
(f) emphasis is on reference
to Kenya and the application of Kenyan law without waiver of any rights of
Kenya.
4.
Step 4 -
Invitation of public consultation
Pursuant to Regulation 5,
the Commission shall invite comments on or objections on the intended
conversion of public land into private land by—
(a) placing a notice in Form
LA 2 set out in the Schedule, in at least two daily newspapers of nation-wide
circulation and one newspaper of county-wide circulation;
(b) affixing a notice at the
County and Sub-County headquarters, wards and other strategic places within the
vicinity of the land;
(c) announcing the notice in
both official and local languages in a radio with nationwide coverage; and
(d) announcing in public
barazas and places of worship.
The notice shall—
(a) contain a description of
the land in issue;
(b) provide the nature of
conversion including particulars of the person or persons to whom the land is
intended to be converted;
(c) specify the date, venue
and time of the public consultations; and
(d) allow for
representations to be received within fifteen days.
N/B:-
The Commission may receive
verbal and written representations.
5.
Decision
making
Upon receipt of the
representations from the public on the intended conversion, the Commission
shall—
(a) analyze the
representations and ascertain the general opinion of the public;
(b) consider all other
matters required under this Act or any other law; and
(c) determine, based on the
considerations received, whether the conversion ought to be approved
Upon receipt of approval
from the National Assembly or County Assembly, the Commission shall allocate
the land and enter the particulars in the register.
Pursuant to Regulation 6,
The Commission shall require the national or county government to plan, survey,
georeference and service the land before commencement of the conversion.
Methods of land
allocation
Provided for under Sec 12
(1) of the Land Act, and Rule 3 (1) of The Land (Allocation of Public Land
Public Land) Regulations 2017. :-
(a) public auction to
the highest bidder at prevailing market value subject to and not less than the
reserved price;
In cases where the
allocation is done through a public auction, the Commission will follow certain
procedures. First, they will:
(i) give notice in
accordance with section 14 of the Land Act and appoint a licensed auctioneer as
their agent for each available parcel of land.
(ii) The Commission will
then publish a notice in newspapers and affix it at various government offices,
providing details such as the auction date (at least one month from the notice
publication), land description, reserve price (stand premium), auction date,
time, and venue, and the terms and conditions of the allocation.
(iii) During the auction,
the appointed auctioneer will conduct the proceedings in the presence of an
authorized Commission officer.
(iv) If a bid surpasses the
reserve price, the auctioneer will declare the highest bidder as the winner.
(v) The winning bidder must
immediately pay the full amount or a specified percentage, as stated in the
notice, to the Commission. This payment, known as the amount to be paid at the
fall of the hammer, should be at least twenty-five percent of the stand
premium.
(vi) Subsequently, the
auctioneer will issue a certificate of sale (Form LA 4) to both the winner and
the Commission as evidence of the transaction.
(vii) The winner of the bid
is required to present the issued certificate to the Commission to obtain the letter
of allotment (Form LA 5) and settle the outstanding balance within ninety
days.
(viii) If none of the
bidders meet the reserve price, the auction agent will declare this and repeat
the auction on subsequent occasions until a successful bidder is found.
N/B:-
It’s important to note that
the Commission must ensure compliance with the Public Procurement and Asset
Disposal Act, 2015 (No. 33 of 2015) during the entire process.
(b) Application
Confined to a Targeted Group Of Persons Or Groups In Order To Ameliorate Their
Disadvantaged Position;
(i) When the national or
county government determines the need to allocate land to a specific
disadvantaged group in accordance with section 12(1)(b) of the Land Act, first,
the government must provide notice in accordance with section 14 of the Land
Act.
(ii) Subsequently, they will
evaluate and assess the nature of the disadvantaged position of the targeted
group. To determine the disadvantaged position of the group, the national or
county government will take various factors into account, including gender and
equity considerations, individuals with disabilities within the group, social
imbalances and injustices faced by the group, historical injustices against the
group, as well as economic and cultural marginalization experienced by the
group.
(iii) Based on the findings,
the national or county government will prepare a report outlining the
disadvantaged nature of the group and recommend the allocation of identified
land to mitigate their disadvantaged position.
(iv) The Commission will
review the report and, if satisfied, will reserve the recommended land for
implementation under section 134 of the Land Act (on establishment of
settlement scheme).
(C) Public
Notice of Tenders as It May Prescribe;
Regulation 10: Commission to
invite Bids.
Commission after giving
notice according to sec 14 of the land Act, invite bids for tenders by
publishing a notice in form LA 6 at the county, sub-county and ward offices and
in two daily newspapers of nationwide circulation and one local newspaper at
least 2 months before the date of opening of bids.
Regulation 11sets out the
details of the notice inviting bids.
The sale number
Bidding information
including:
•
The particulars of the parcel or parcels on offer.
•
Date and time for submission of the bid registration form.
•
The bid submission closing date and time.
•
The bid opening time.
•
The reserve price.
•
A schedule of the list of properties with the item number for bidder reference.
•
Place and time to inspect land.
•
Bidder registration requirement as well as contact person(s) or place(s) and
times at which bidders can register and obtain bid forms.
•
Any other specific terms and conditions for sale.
Regulation 12 states that
every bid shall be submitted in a sealed envelope.
The sealed envelope
containing the bid shall be placed in a closed and sealed box provided for that
purpose.
Upon closing of bids, the
bids shall be opened in the presence of the bidders.
The commission shall meet
within two official working days of the date of the opening of the bids to
select the winning bid.
Regulation 16: Notification
of the successful bidder.
Within seven days of the
meeting of the commission, the secretary shall notify the successful bidder of
their success and shall also notify every unsuccessful bidder of the rejection
of their bids and details of the successful bid.
The commission shall issue a
letter of allotment in Form LA 5 to the successful bidder.
Regulation 17: Payment of
the purchase price.
The successful bidder shall
pay to the commission in the stand premium within (90) days of receipt of the
commission’s letter of notification under regulation 16(1).
d)Public drawing
of lots as may be prescribed.
Regulation 22: the
commission shall after giving notice in accordance with section 14, and send
notices inviting applications for allocation by public drawing of lots.
Regulation 23: on receipt of
applications, the commission shall review the applications and short list the
applicants based on:
In cases of industrial and
commercial parcels, evidence of capacity to develop the parcel i.e.,
Citizenship, Proof or prior of possession of land where applicable and in case
of residential parcels, preference will be given to residents of the particular
urban area who have no other residential property and Any other criteria by the
commission.
Regulation 24(2) provides
that the lots to be used in the draw shall be in form LA 7 and shall
state:
Parcel number of the subject
land for the affirmative lots, or the words “not successful” for negative lots.
Blank spaces to fill in Name, ID number or passport number of successful
applicants. Name and signature of the presiding officer.
Upon completion of the
allocation process the commission shall issue letters of allotment to
successful applicants in form LA 5 and publish a notice in two
newspapers of nationwide circulation, one locally circulating newspaper where
applicable setting out:
·
List of the beneficiaries
·
A requirement of the beneficiaries to physically collect their letters of
allotment from the commission’s county offices.
·
The date and place where the allocation was done.
Regulation 26 letters of
allotment.
The letters of allotment
shall contain the details of the offer including
·
The name, identification number and details of the allotee.
·
Particulars of the parcel of land on offer including the parcel number, size,
location and term of lease.
·
The stand premium and any other fees payable
·
The time within which to pay the stand premium and the fees.
·
Applicable special conditions.
(e) public request
for proposals as may be prescribed; or
According to regulation 33:
upon a request from national or county government, where private land is
required for public purpose. The commission shall negotiate and enter into
agreement with the registered owner of the land for the purpose of exchanging
the private land with another public land of equal value. The commission shall
execute a deed of exchange or transfer on behalf of the national or county
government, on one part and the registered proprietor on the other part.
Upon execution of the deed
of exchange, the commission shall forward it to the land Registrar. The
commission shall facilitate the issuance of the respective titles and the
conveyance fees shall be borne by the benefitting institution.
The proprietor shall
surrender the original title in exchange of the title of the parcel of land
received in exchange.
The national or county
government shall not take possession of the exchanged land until the title has
been issued to the proprietor.
N/B:-
The Commission has the power
to allocate the whole or part of a specific public land requested. (See
Regulation 3 (1)).
In determining the method of
allocation the Commission shall, in consultation with the national government
or respective county Government as the case may be, take into consideration all
prevailing circumstances including the purpose for the allocation. (See
Regulation 3 (2)).
Pursuant to Section 12 (2),
The Commission shall ensure that any public land that has been identified for
allocation does not fall within any of the following categories—
(a) public land that is
subject to erosion, floods, earth slips or water logging;
(b) public land that falls
within forest and wildlife reserves, mangroves, and wetlands or fall within the
buffer zones of such reserves or within environmentally sensitive areas;
(c) public land that is
along watersheds, river and stream catchments, public water reservoirs, lakes,
beaches, fish landing areas riparian and the territorial sea as may be
prescribed;
(d) public land that has
been reserved for security, education, research and other strategic public uses
as may be prescribed; and
(e) natural, cultural, and
historical features of exceptional national value falling within public lands;
(f) reserved land; or
(g) any other land
categorized as such, by the Commission, by an order published in the Gazette.
In an allocation of public
land, the Commission may impose any terms, covenants, stipulations and
reservations that the Commission considers advisable, including—
(a) that the applicant shall
personally occupy and reside on the land for a period set by the Commission;
(b) the applicant shall do
such work and spend such money for permanent improvement of the public land
within the period specified by the Commission; or
(c) the consideration that
must be paid for a disposition of public land.
Reversion
Pursuant to Section 12 (6)
at the expiry, termination or extinction of a lease granted to a non-citizen,
reversion of interests or rights in and over the land shall vest in the
national or county government as the case may be.
Principles
guiding allocation of public land
1.
Public land
shall not be allocated unless it has been planned, surveyed and serviced and
guidelines for its development prepared in accordance with section 17 of this
Act - Sec 12 (7).
2.
Public land
allocated under this section shall not be sold, disposed off, subleased, or
subdivided unless it is developed for the purpose for which it was allocated -
Sec 12 (8).
3.
Where the land
allocated under subsection (8) is not developed in accordance with the terms
and conditions stipulated in the lease, that land shall automatically revert
back to the national or county government, as the case may be and the
Commission shall include in its annual report the status of implementation of
this subsection - Sec 12 (9).
The Commission may impose
certain terms and covenants upon allocation of public land. They may include: -
i. that the applicant shall
personally occupy and reside on the land for a period set by the Commission
ii. the applicant shall do
such work and spend such money for permanent improvement of the public land
within the period specified by the Commission; or
iii. the consideration that
must be paid for a disposition of public land.
4.
Allocation is
also a form of compensation after a person’s land has been compulsorily
acquired. Section 111 (B) of the Land Act in relevant part states that: -
Compensation for
compulsorily acquired land may take any one or more of the following forms—
(a) allocation of
alternative parcel of land of equivalent value and comparable geographical
location and land use to the land compulsorily acquired;
Prerequisites
for Allocation of Public Land
(1) When the national
or county government is satisfied that it is necessary to allocate whole or
part of specific land, the cabinet secretary or county executive committee
member responsible for matters of land, as the case may be shall submit a
request to the commission for necessary action.
(2) The Commission, if
satisfied that the land in question is indeed public land and that it does not
fall in ecologically sensitive areas and that it is not controlled land
outlined in section 12(A), it shall request the national or county government
to undertake essential activities such as land planning, surveying,
dereferencing, and ensuring the necessary services are provided to the land.
(3) It shall
then publish or send a notice of action, to the public and interested parties,
at least thirty days before, offering public land for allocation. The
notice shall include
the terms, covenants,
conditions and reservations which are to be included in the conveyance document
and the method of allocation.
(4) The notice above
shall provide a period of fifteen days from the date of its issuance,
within which the public and interested parties may comment.
(5) At least thirty
days prior to the allocation of public land, the Commission shall send a notice
to the governor in whose county the public land proposed for allocation is
located and to the head of the governing body of any administrative subdivision
having development control or other land use regulatory responsibility in the
geographic area within which the public lands are located and to the head of
any administrative subdivision having administrative or public services
responsibility in the geographic area within which the lands are located.
This notice shall be
published in the Gazette and at least once a week for a period of three weeks
and thereafter shall be published in a newspaper of general circulation in the
general vicinity of the public land being proposed for allocation.
A notice under this section
above shall specify
⮚ the place, date, and time of
allocation,
⮚ the appraised value of the
land,
⮚ describe with particularity
each parcel of land to be allocated
⮚ specify that the terms of
allocation shall be available in the Commission’s offices in Nairobi and the
Commission office nearest the land being proposed for allocation.
(6) This notice should
also be sent to other known interested parties including, but not limited to,
⮚ adjoining landowners,
⮚ persons in actual occupation
of the land including
⮚ marginalised communities and
groups living in the general vicinity of the public lands being proposed for
allocation; and
⮚ boards of cities and
municipalities and town administrators, in the geographic vicinity within which
the public lands proposed for allocation are located.
(7) Failure to
provide notice of proposed allocations as required shall serve as grounds for
the Commission to—
(i)
require that the notification procedures outlined in this subsection be
repeated
(ii)
void the allocation on grounds that the notification requirements of this Act
were not properly conducted.
The first proprietor noted
in the register of any parcel or first registration of interest in land
pursuant to an allocation process shall be the registered proprietor and the
Registrar shall note in the land register such restrictions or conditions as may
be necessary.
