When land subdivision goes too far
By Peter Theuri | May 13th 2021
A rapid population increase comes with the pressure to occupy more land. Each day there is a new land owner, or someone breaking their backs to become one.
Since land is a finite resource, the result is encroachment into land owned by other parties, including public land, or intense fragmentation.
In a recent academic paper on subdivision of land, Tina Hlimi notes that the Law of Succession Act of 2008 heightened fragmentation as it made it obligatory to grant land to both sons and daughters.
More land owners, more subdivision, smaller individual units.
“In Embu culture, land would only go to sons while daughters would receive usufructuary rights (the right to use the land),” writes Ms Hlimi.
The net effect is agricultural land that can no longer support the purpose for which it was intended.
With the rising population, there is the threat of every land use zone shrinking to sizes that might not be economically viable.
And yet Kenya lacks a law to dictate how land fragmentation can be slowed down.
To a large extent, the decision is dependent on physical development plans, which are not always followed.
“It is left to planners to set out these in the development policies while preparing plans,” says Nyeri County Director for Physical Planning Beatrice Koech.
“Once the plans have been prepared and approved, the zoning becomes the guide for approving subdivisions and other developments.”
The Physical and Land Use Planning Act, 2019 provides for the preparation of various plans including the County Physical and Land Use Plans and Local Physical and Land Use Plans, which should give guidance on the minimum allowable land sizes in each zone.
“The zoning function of the plans is aimed at providing development guidelines which include the land uses, sizes and density of use,” says Ms Koech.
“Section 55 (b) of the Act under objectives of development control gives the county the mandate to ensure optimal use of land, and Section 56 (b) indicates that county governments have the powers to control or prohibit the subdivision of land.”
Samuel Mburu, an urban planner, explains the process of making physical development plans.
“Governments are mandated to prepare urban and regional development plans, but they often lack the capacity within their task force to undertake this,” he says. “They thus seek consultancy from private sectors.”
The government has already, by this time, delineated the area for which it intends to make plans, Mr Mburu says.
Private planners swing into action, first seeking to get stakeholder participation. This involves interacting with residents of the area where the planners seek to understand their needs.
This helps the planners balance that against the wishes of the government to achieve a plan that is acceptable and to both parties.
“Sometimes, this can take up to a year. There is constant engagement with the government and the people,” says Mburu.
A professional plan is then prepared. Once it is accepted, the planners will come up with the land use regulations.
The regulations prescribe development for even up to 20 years. Every other development that may occur within those years is guided by the plan which, among other things, dictates the extents to which land may be subdivided.
“Subdivision and fragmentation are just a small element of the land regulations. There is much more in the regulations pertaining to planning,” Mburu says.
While often the least allowable size for any use is an eighth of an acre (0.125 acres), it is not a universal rule.
“The government may allow even more subdivisions if that will help maximise utility of the land for the people, for certain uses,” he says. “And yet in some areas, such as low-density areas, the limits may be up to half an acre, or even an acre.”
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