Experts, leaders query proposed law seeking to limit size of private land

Farmers pick tea in Nandi County. A new bill proposes that individuals in agricultural-rich areas own a maximum of 10 hectares (24.7 acres) and a minimum of one hectare (2.5 acres). [PHOTO: FILE/STANDARD]

A proposed law seeking to limit the size of private land ownership has sparked controversy, with questions as to how the ceilings were arrived at and warnings that this could be a “recipe for chaos” if implemented.

MPs and land experts were apprehensive about the provisions on land redistribution detailed in the Minimum and Maximum Land Holding Acreage Bill 2015, which has been forwarded to Parliament by acting Lands Cabinet Secretary Fred Matiang’i.

The bill, which is undergoing public review, proposes that individuals in rich agricultural highlands own a maximum of 24.7 acres and a minimum of 2.5 acres.

Among institutions to be affected are schools, universities and colleges that could lose huge chunks of land as the new proposal caps maximum ownership for universities at 100 acres, schools (12.5 acres) and colleges will not be allowed to own more than 25 acres.

Concerns have also been raised that if the bill becomes law, owners of huge farms like ranches, wheat farms, tea estates and mechanised agriculture facilities will suffer and this may affect the economy and food security.

Critics question whether compensation will be provided during redistribution for those who acquired the land legally.

The country is dotted with huge multinationally-owned farms with thousands of acres under tea and coffee in the counties of Kericho, Nandi, Kiambu, Murang'a and Nyeri among others. Thousands more are under maize and wheat in Uasin Gishu, Trans Nzoia, Narok and Laikipia.

And it means owners of small land units that are under the proposed legal limit will not be able to register them. In the proposed bill, owners of arable land in counties like Uasin Gishu, Kiambu, Nandi, Elgeyo Marakwet, Trans Nzoia, Nyeri, Siaya, Vihiga, Taita Taveta, Kisii, Nyamira, Nyandarua, Meru and Tharaka Nithi will be allowed to own a minimum of 2.5 acres and a maximum of 25 acres.

Other counties in the same category are Narok, Nakuru, Murang'a, Migori, Machakos, Makueni, Laikipia, Kwale, Kitui, Kisumu, Kirinyaga, Kericho, Bomet, Kajiado, Homa Bay, Bungoma and Busia and parts of Baringo and West Pokot.

reduce inequality

The exceptions are Marsabit and Mandera, where the size is capped at between 250 to 2,500 acres of land.

The objective of the law, if passed, is to determine minimum and maximum land holding in respect of private land so as to reduce inequality and promote equitable distribution of land. It also seeks to regulate the subdivision of land to ensure that it is parceled out in economically viable units.

Yesterday, it emerged that the National Land Commission (NLC) only received the bill last week and was asked to give its views.

A land lobby also claims the bill has been irregularly presented, a view supported by Siaya Senator James Orengo who is the immediate former Lands minister.

Orengo and Land Development and Governance Institute Chairman Ibrahim Mwathane argued there were sufficient existing laws to address the size of land ownership and all Matiang'i was expected to do was draft regulations.

Section 159 of the Land Act 2012, they argued, provides for the Cabinet Secretary to commission a scientific study to determine the economic viability of minimum and maximum acreages in respect of private land for various land zones in the country.

"The thinking was a scientific study done in one area so that it is the basis for the regulations. You don't need a new law and the existing laws just needed improvement following a study through either make up amendments based on that research or making regulations thereof," Orengo said.

Mwathane said: "There exists sufficient instruments to regulate land use and minimum parcel sizes. Organs charged with the responsibility need to be either strengthened, or supervised to perform. Smart taxation could be applied to free 'excess' idle land or one held for speculation without resorting to any extra legislation."

He added: "The decree on land under the bill will ignite unnecessary animosity because it basically denies Kenyans who currently own small parcels from registering them."

MPs warned that as much as the proposals were welcome, they should be handled with caution since land issues are "very emotive" and could plunge the country into chaos.

Orengo warned the bill, if passed, will provide an avenue for learning institutions to lose huge chunks of land, which in the end may affect the growth of such institutions.

He recalled that as minister, there was pressure to allow allocation of land belonging to institutions like Lenana School but he resisted.

"I was really under pressure from some people who wanted land from schools but I refused. Schools should have land looking into the future," Orengo added.

"The bill does not address how the huge land was acquired, whether it was acquired illegally or through market forces of demand and supply. It should provide for proper compensation for those who bought the land as this is a free economy," said National Assembly Minority Leader Francis Nyenze.

Kajiado North MP Moses ole Sakuda, who is the vice chairman of the Lands Committee, explained although his team had not taken a position on the matter, some proposals appear offensive.

"It's not possible to cap the maximum at 25 acres for agricultural land. I will be pushing for the maximum to be raised as the proposed caps may affect food security," he said.

Suna East MP Junet Mohamed added: "We must first do a scientific study and also have public participation. The bill should have also examined mechanisms to address those who have land below 2.5 acres in agricultural areas like Kisii."

Mwea MP Peter Gitau said: "Because land has already been demarcated in most parts of the country and owners issued with title deeds, it is impossible to cap the number of acres an individual can own. I don't see this working in areas where massive sub-division has taken place."

clause chaotic

Raphael Otaalo (Lurambi MP) and Reginalda Wanyonyi (Bungoma Special MP) also termed the bill unrealistic, citing the proposal to cap the minimum and maximum acreage at 2.5 and 25 acres respectively in Kakamega and Bungoma counties.

"That's not okay because what will you do to a person practising large scale farming who particularly engages in the farming pegged on the economies of scale?" Otaalo asked.

"This will favour places like Rift Valley, but will have no benefit to places in Western where a father has a two-acre piece and five children ready to inherit the land," added Otaalo. "Section 22 of the bill empowers national (and) even county governments to take any surplus land and re-distribute it to landless persons capable of putting it into economic use. Such a clause is chaotic given that no one can allow his prime land to go just like that."

According to Wanyonyi "if we put the maximum ownership at 25 acres then you end up with scattered homesteads which will pull down agriculture in the country where our farming is carried out by large scale farmers."

Odenda Lumumba, the Kenya Land Alliance chairman, said the architecture of the bill was flawed given it did not address the concerns that provoked its conception. "The bill was to act as a redress to past injustices but now, it has nothing to that effect. How did they arrive at what is minimum and maximum acreage. Why has the Lands Cabinet secretary been given sweeping powers?" Lumumba asked.

But, there are those who have backed the proposed legislation."This is a welcome move since subdivision of land to uneconomic quantities has been a problem especially in Central Kenya. This has gone unchecked for years and agriculture is adversely affected," said Maragwa MP Kamande Mwangi.

"I will support the bill because it is progressive. It is looking at the future of consolidating the agricultural land and ensuring that it is not interfered with. This is not looking at what has already happened but what the future holds," said Ndia MP Stephen Ngari.

Attempts by former Lands Minister Amos Kimunya to implement a similar policy of limiting land ownership  to a minimum of 2.5 acres sparked public uproar and the Government was forced to shelve the proposal. The bill encourages communal land ownership through co-operatives.

Additional reporting by Francis Ngige and Robert Amalemba