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Thursday, 04 May 2017 00:00

Wytwórcą filmującym,

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Friday, 21 April 2017 00:00

Inside Practical Methods Of car

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Friday, 21 April 2017 00:00

Sensible Secrets Of car - An Update

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Tuesday, 02 June 2015 00:00

LAND REFORMS AFTER 5 YEARS OF IMPLEMENTATION

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Source: Land Watch Note Released On 26th May,2015 by the Land Development and Governance Institute.
 
Background
 
Following the promulgation of a new constitution on 27th August 2010, the country embarked on fundamental legal and institutional reforms based on its Chapter Five on Land and Environment. The Fifth Schedule provides guiding timelines for the enactment enabling legislation. Time for each of the pieces of legislation identified in the Schedule began to run on 27th August 2010.Kenya had earlier in December 2009 obtained a national land policy whose principles informed the contents of the chapter on Land and Environment of the new constitution.
While the land policy and the constitution provide broad statements of intent, it is specific legislation that enables implementation of the provisions that speak to specific policy and constitutional intent.Legislation should be well done to accommodate the policy and constitutional aspirations of the people of Kenya. Importantly, in a situation like Kenya’s where there is both a policy and a constitution, in the event that there is conflict between the two, the constitution holds supreme and informs legislation. Each of the land laws enacted so far provides for the development of regulations to clarify some of the actions, procedures and practices prescribed therein. But these have not yet been enacted. Without such regulations, the implementation of these laws remains subjective, making application difficult and haphazard.
Inconsistencies and gaps in legislation usually play out badly during implementation. They can be reason for conflicts, inaction, delays or inappropriate implementation. Kenya is in the process of documenting its implementation experiences and challenges. A major one that continues to play out in public is the dysfunction between the residual Lands Ministry which used to allocate and manage public land and the newly established land commission, now charged with the duty of managing public land on behalf of the national and county governments. Transaction uncertainties and delays are also playing out. These are someof the obvious. A thorough implementation audit would provide more comprehensive information. It is expected that future legislative efforts in the country will address the conflicts and gaps hitherto noted through appropriate amendments of the pertinent laws. It is also expected that Parliament will move with speed to enact the regulations to operate the land laws so far enacted. 
 
I.Progress made on enabling Legislation
 
The key legislation enacted within the last 5 years include:-
 
1.The Environment and Land Court Act, 2011 (provides for resolution of  disputes)
2.The Land Act, 2012 (clarifies rights, obligations and transactions on public and private land)
3.The Land Registration Act, 2012 (provides for registration of titles to land)
4.The National Land Commission Act, 2012 (provides for the functions and of the nationalland commission)
5.The Matrimonial Property Act, 2013 (provides for rights and responsibilities of spouses in relation to matrimonial property)
Legislation governed by constitutional timelines under the Fifth Schedule, but pending enactment, which must be delivered within the next three (3) months lest Parliament will be in breach of the constitution, include:-
1.The Community Land Bill, 2014  (Article 63)
2.Agreements on Natural Resources (Ratification by Parliament) Bill, 2015 (Article 71)
3.The Mining Bill, 2014 (Article 71)
4.The Physical Planning Bill, 2014 (Article 66)
 
Other closely related legislation pending enactment include:-
1.The Energy Bill, 2015
2.The Petroleum (Exploration, Development and Production) Bill, 2015
3.The Natural Resources (Benefit Sharing) Bill, 2014
4.The Evictions and Settlement Bill, 2014
5.The Prevention and Control of Marine Pollution, 2014
It should be noted that the revision of sectoral land use laws, which calls for the alignment of existing legislation with the constitutional land policy principles as provided for in Article 68 (b), is yet to be done. The legal framework to support the resolution of historical land injustices in Kenya, which is supposed to have been completed within two (2) years of the coming into office of the land commission in accordance with Section 15 of the National Land Commission Act, is also yet to be done. This was due by March 2015 since the commission assumed office in late February 2013.
II. Progress made on sectoral programmes
 
Some of the sectoral programmes, though implemented in an adhoc manner within the last five years, are in conformity with the provisions and principles of the land policy and the constitution. These include:-
•Establishment of Environment and Land Courts for the resolution of disputes on environment and land around the country in compliance with Articles 162 (2)(b) and 60 (1)(g) of the constitution.
•Some components of computerization such as digitizing, scanning of land records and the provision of land rates and searches which are part of the principle of providing transparent and cost effective administration of land in accordance with Article 60 (1)(d). The ongoing audit and re-organization of land registries under the Ministry of Lands is also in line with this principle.
•Titling programmes, in accordance with the principle of securing tenure under Article 60 (1)(c), have also been moved in parts of Coast, Eastern and Rift Valley. A Titling center to expedite issuance of title deeds has also been established. 
•The recovery of irregularly/illegally allocated public land by the national land commission in compliance with Articles 67 (2)(a) and 68 (c)(v). This applied to parts of Lamu County and continues to apply to allocations made in various urban centers in Kenya but with Nairobi City County coming under greatest focus.
III.Recommendations
 
The Institute therefore recommends as follows:-
 
1.That Parliament (The National Assembly and The Senate) makes efforts to conclude the pending Community Land Bill, Agreements on Natural Resources (Ratification by Parliament) Bill, the Mining Bill and the Physical Planning Bill which are bound by the five year constitutional timeline which comes to an end on 27th August, 2015, three months from now.
2.That Parliament enacts regulations to the Land Act, the Land Registration Act and the National Land Commission Act, which continue to be applied in the absence of guiding regulations.
3.That Parliament enacts amendments to address the inconsistencies and conflicts noted between the Land Act, the Land Registration Act and the National Land Commission Act and the non-alignment of some clauses in these laws with the constitution.
4.That Parliament obliges the relevant Ministries and the National Land Commission to expedite the development of other related legislation for enactment.
5.That the Lands Ministry and the Land Commission develop an integrated and clear implementation road map/plan of Kenya’s land reforms so that all programmesto be implemented by any of the two are clear and sustainable for use in planning by implementing offices, budgeting offices, stakeholders and Parliament.
Tuesday, 10 February 2015 00:00

Challenges of Land Administration in Kenya

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Monday, 26 January 2015 00:00

PRIVATE LAND

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Private land is land which is owned by and individual be it a person or a corporation. The right to own property is inherent in all Kenyans and there shall be no discrimination pursuant to the Constitution. This is especially important provision since Kenyan communities are mostly patriarchal thereby excluding women from ownership of land. Other persons such as disabled persons.

Prior to the colonialism era there existed no form of private land ownership, to the extent of administration and registration.

Article 64 of The Constitution of Kenya, 2010 defines private land as registered land held by any person under freehold tenure, leasehold tenure or any land declared so by an Act of Parliament. Private land can be held by an individual or a body corporate and the register containing such information shall be regarded as public documents[1].

Private shall be acquired through purchase, transmission, public auction, gift, through a court order or adverse possession.

Purchase is whereby a willing seller transfers his rights in land to a willing seller for a consideration (price) and subsequently acquires title. The title transferred must be clean title meaning that the seller should be rightful owner of the land and that the title deed is genuine. In the event that a buyer obtains title that is not clean by the fault of the seller due to misrepresentation, he/she can receive compensation for such from the fraudulent seller but the title shall revert back to the rightful owner. To avoid such instances, the process of land transfer should be done through a registered advocate whose function is to carry out searches at their respective land registry to ensure that the title is in the name of the seller and that the size of the land being purchased is the same as that which is indicated in the title to avoid cases of land grabbing. Once the transfer processes complete and a new title is issued in the buyers name, the seller ceases to have any rights in the said land and the buyer acquires absolute rights unless the transfer was for a lease of a limited(specified) period of time.

Transmission refers to the mode of land acquisition through succession after the death of a land owner. Title to land can transfer from one person to another after the demise of a person who dies testate or intestate. In transmission a succession cause is lodged in the probate division of the court to provide for administration of a dead persons estate. After the deceased’s estate has been distributed and it is determined what every beneficiary is to get, the process of transferring title from the name of the deceased to that of the beneficiaries is then carried out. Thereafter, the beneficiary acquires the same rights in land as those that the deceased held and has the right to use that land as his/hers.

Acquisition of land by way of gift is contrasted to acquisition by purchase and transmission. In acquisition by gift the person whose rights in land are being transferred is alive and whoever is acquiring the land does not pay any consideration although he/she will pay a stamp duty. This is especially common in the case of spousal gifts of land. It is indicated in the transfer document that the consideration is ‘love and affection’.

Public auctions are another means of acquiring land and are common in instances whereby a person has defaulted in payment of loan. The institution that had lent an individual the land can exercise its power of sale and sell the land at a public auction to recover the money owed.

Adverse possession refers to a situation whereby a person who did not initially have title to a certain piece of land can claim title to it after living on the said piece of land for a period of more than 12 years continuously.

It is compulsory in Kenya that individuals willing to own rights in land ensure that land is registered this are important because:

  • The passing of interests and rights from one party to another.
  • It serves as a documentary manifestation of land as a commodity.
  • It provides information regarding the quantum of rights in land. It also gives us a framework for easy transferability of such.

GOVERNMENT CONTROL OF PRIVATE LAND

The government can exercise control over land owned privately in instances of public interest or for the preservation of the environment. Theacquisition must not be for satisfying private interests and the public purpose test is the basis for acquisition.

Sometimes a leaseholder to use his absolute rights to use and ‘abuse’ land in a manner that contravenes various constitutional provisions or is likely to have a negative effect on the environmental or socio-cultural framework of a particular area. Such an instance would include a scenario whereby a private owner of land adjacent to a national park wishes to construct a development project that will interfere with the species in the park. The government, through the court or institutional bodies such as NEMA can issue an injunction/order to halt the project. This was the case in 2006, where a Kenyan court ruled in favor of the National Environment Management Authority (NEMA), upholding an order preventing a leaseholder from constructing a tourist lodge and camp in an area outside the Maasai Mara Game Reserve.  The order was intended to preserve a nearby cheetah breeding ground and protect local wildlife. [2]

Government can also acquire private land through compulsory acquisition[3] which has been defined as the power of the state to extinguish or acquire any title or other interest in land for a public purpose, subject to prompt payment of compensation. This is a Constitutional power provided for under Article 40(2) .Such acquisition however must be for public purpose and should be done in accordance with the principles of land policy as set out in the National Land Policy.

 


[1] Section 10,Land Registration Act No.3 of 2012

[2] http://www.focusonland.com/countries/government-control-of-private-land-use-in-kenya/a

[3] Section 7(c) Land Act No.3 of 2012

Monday, 26 January 2015 00:00

COMMUNITY LAND MATTERS

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The question of land rights is a pertinent issue in Kenya that has been the source of major conflict in the country. Prior to the year 2010, there was no concise constitutional provisions addressing land conflicts and this provided a loophole through which individuals as well as the state could acquire and transfer land inappropriately.

Various factors have led to the current land conflicts in Kenya and they vary from region to region. The land issue at the coast for example started with the Arab rule of the Coastal strip when communities such as the Giriama were forced to move further into the land. Thereafter land allocations made by the first government, post-independence saw some communities from other provinces being issued with titles for land at the coast. Other land disputes such as those that occur among pastoralist communities are due to conflict regarding grazing lands.

The National Land Policy was adopted in 2009 to address the various land grievances that existed in the country. It provided a guideline that would ensure efficient, sustainable and equitable use of land for prosperity and posterity. The National Land Policy classified land a Public, Private or Community.

Land tenure is the set of rights that a person (including a body corporate) may possess in a piece of land. Such rights include the right to use, transfer, transmit, and subdivide and the right to draw income from the same land.

Land in land tenure, initially referred to the area on the ground, the space above the same area up to the skies and below the earth up to the core of the planet. This has however changed due to modernization. For instance, the construction of high-rise buildings in which a person may rent or buy a specific unit. In such a case the person will not have rights to the “space above up to the skies and below, up to the core of the earth” .Nevertheless, land tenure is an important part of social, political and economic structures and should therefore be well defined in law. The Land Act, under section 5, recognizes the following forms of land tenure:

  1. Freehold/fee simple -absolute rights in land(for an infinite period of time)
  2. Leasehold-(holding an interest in land for a particular period of time eg.99 years)
  3. Partial interest-(this refers to holding rights in an area of land for a specific period of time for a particular project)
  4. Customary land rights consistent with the Constitution-land owned by a community.

The Constitution, under Article 63 provides that community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar interest of the community.

Community land consists of:

  1. Land lawfully registered in the name of group representatives under the provisions of any law.
  2. Land lawfully transferred to a specific community by any process of law.
  3. Land declared so by an Act of Parliament
  4. Land that is:
    1. Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines.
    2. Ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
    3. Lawfully held as trust land by the county governments.
  5. Any unregistered community land shall be held by county governments on behalf of the communities for which it is held.
  6. Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.

COMMUNITY LAND IN KENYA. Case study: Lamu County

Located in Kenya’s Coast Province, Lamu County consists of numerous islands which extend about 100km south of the Kenya-Somali border. Lamu, unlike other Swahili settlements which have been abandoned along the East African coast, Lamu has continuously been inhabited for over 700 years.

Known for its distinct culture and unique Swahili architecture, Lamu has been listed as a World Heritage Site by the UNESCO

The origins of the town date back to the 12th century, but the site was probably inhabited earlier. The present town flourished in the early 13th century among the independent city states on the East African coast. In 1506 it was invaded by the Portuguese, who monopolized shipping and suppressed coastal trade, causing the once prosperous city state to lose its position and gradually decline.

Under Omani protection, the coastal commerce slowly regained its momentum, leading to a further development of Lamu and the construction, by skilled craftsmen and slave labor, of town houses and mosques using coral stone and mangrove timber. In 1890 the entire coastal strip north of Zanzibar was assigned to the Imperial British East Africa Company. The East African Protectorate was established in 1895 and organized into provinces and districts under the new British administration in 1898. In 1963 Lamu became part of the independent state of Kenya.[1]

LAPSSET

Under the Vision 2030 which is Kenya’s development program various projects have been developed among them the (in) famous LAPSSET project which a multinational project whose goal is to open up Northern Kenya and to provide a transport corridor to the Eastern Africa region. Part of the LAPSSET project entails the construction of a free port at Lamu containing 33 berths, a modern oil terminal, an airport and three resort cities.

For all these projects to be realized a lot of land has to be set aside. Given the distinct social and World Heritage status of Lamu, a lot of regard has to be given to the projects carried out in the area in order to ensure that development I sustainable and does not interfere with the environmental, social and cultural dynamic of Lamu.

This was however not the case. From the land acquisition for development, to the mitigation of environmental effects and preservation of the Swahili culture of the Lamu people development has taken the front seat at the expense of these other factors. There has been politicization of the project due to issues of land allocation, environmental harm has been caused without mitigation measures being put in place and even the indigenous communities of Lamu have been displaced and excluded from the project. Such acts go against the national values and principles of governance as stipulated in the Constitution.

Owing to such it is necessary that the case of Lamu is used to serve as an example and propose various amendments in law as well as other areas in order to ensure that social, cultural and environmental rights are protected in the pursuit of development and economic progression.

The Land Development and Governance Institute (LDGI)[2] conducted a workshop meeting in Lamu on 29th May 2014 to seek out the public opinion on the land issue in Lamu and advice the residents of Lamu on their rights. The meeting was attended by stakeholders in the land sector and civil society representatives from Lamu. The objectives of the workshop were to introduce the research questions and objectives:

  • To review the current policy and legislative criteria for acquisition and granting of land for investment purposes in Kenya with regard to the Constitution.
  • To explore and propose mechanisms of implementing social, economic and environmental safeguards for communities during acquisition of land for investment and the inclusion of women.
  • To propose key substantive and procedural elements for responsive laws to promote community involvement.

The findings of the research shed light on the issue of community land. In this instance it was evident that there community land rights are often undermined at the expense of the people. The rights of the community to land are viewed as secondary despite constitutional recognition. Land acquisition for development purposes in this case was done by allocation of public and community land to investors as well as speculative land buyers.

The effect of this was so intense that there arose tribal clashes for a period of one month that led to a Presidential revocation of titles for 500,000 acres of land occurred and closure of various land registries to enable investigation into the issue of land allocation in the area. Public and community land had been acquired illegally by people who were interested in the economic benefits of the LAPSSET project. The communities who were indigenous to the Lamu area felt that their grievances had not been addressed and even as investigations go on, not enough focus is being given to the members of the community whose land has been acquired.

 


Monday, 26 January 2015 00:00

Reforms in the Land Sector

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