Land in Kenya as is the case in many developing countries around the world is more than a factor of production.
It encompasses politics, social life and economics, with the terms and conditions of land rights, acquisition, use and disposal remaining a thorny issue in the country more than six decades after independence.
Under the law, land in Kenya collectively belongs to the people - as a nation - communities and individuals or private entities.
Article 62 defines public land to include unalienated government land; land that is occupied, held or used by a county organ except on leasehold; land transferred to the State and land in which the ownership cannot be ascertained.
In such cases, these categories of public land vest in and are held by a county government in trust for the people who reside in a given county.
The National Land Commission (NLC) administers and manages public land on behalf of the county governments. NLC is, in this regard, required to identify and keep a database for public land and may issue conditions as to the use of the land.
Article 63, on the other hand, expounds on what constitutes community land. Unregistered community land is held in trust by county governments on behalf of the community.
Private land is defined under Article 64 of the Constitution to consist of registered land held by a person under freehold or leasehold tenure, and any other land declared private land by an Act of Parliament.
Where the State has alienated private land to an individual or entity for a consideration being the upfront payment of a stand premium made upon the allocation of such land to the private party, and where the tenure is a leasehold, there must be continued payment of annual land rent to the State. The land interest so alienated could be freehold or leasehold as the case may be.
Private land ownership is protected under the law. The State and county governments by extension cannot deprive ownership unless it is done through a compulsory acquisition process in accordance with the law. Therefore, the fundamental right to own land is protected at all times. Consequently, the developer’s land, having been allocated to them is private land whose ownership is guaranteed and protected in the manner stipulated in Article 40 of the Constitution.
As rightfully pointed out by the 2018 Report on the Audit of National and County Policy and Legislation in the Land Physical Planning Sector, the National Government has immense control over land registration, regulation, and definition and enforcement of property rights and contracts.
Counties too, the report pointed out, have roles in these functions, but they need to define those roles and ensure that the constitutional imperatives of devolution, sustainable development, stakeholder engagement and public participation are followed. Unfortunately, most counties have narrowly defined the land question, leaving pertinent land governance issues that the devolved units need to address.
It is also worrying that some devolved units have been overstepping their mandate by making unreasonable demands on individuals and private entities that go against the spirit of the Constitution.
A case in point is the Kiambu County Government, which developers say has been harassing them to “cede” a portion of the land to construct residences for the governor and deputy governor. The justification for this misplaced demand is that the same amounts to public-purpose housing. By definition, public-purpose housing, according to the Land Act No. 6 of 2012, is land designated for use by the public for among other purposes, transportation, including roads, canals, highways, railways, bridges and airports. It could also be to develop public buildings, such as schools, libraries, hospitals, factories, religious institutions, or public housing.
Public-purpose housing, therefore, refers to housing developments undertaken by public institutions or the government for the public or civil servants.
Official residences for civil servants may be constructed as a matter of public policy to align with the housing benefits of the holders of the relevant offices. As such, given that governors are public servants, their residences qualify as public-purpose housing. This notwithstanding, the subject matter is whether public-purpose land is public land owned by the government.
The simple answer is that it is not. The Land Act provides that if the government requires land for a public purpose, then the compulsory acquisition process must follow, meaning that the land must first be acquired through an elaborate process of just and equitable compensation to the landowner.
Public-purpose land becomes public land after acquisition by either the State or the county government as the case may be. Therefore, land that is designated as public-purpose within a private development, unless legally acquired, is still private.
Why is this clarification important? In the modern urban planning space, comprehensive developments have become the new tool for the development of regulated urban space.
They are controlled, modern upscaled developments that seek to protect the investments of the property owners as well as address the legacy issues of unreliable infrastructure and uncontrolled developments.
Comprehensive developments encompass some or all the land uses as stipulated in the Physical and Land Use Planning Act and Physical Planning Handbook, 2007. This ranges from residential, commercial, industrial, recreational, public purpose, public utilities, and other uses. A key ingredient of master planned developments is the aspect of public purpose and public utilities.
Based on the analysis of public land versus public-purpose land, it is clear that public-purpose land becomes public land if it is acquired by the State or by the county government for a public purpose.
- The writer is a mechanical engineer
