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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.
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. 
Government can also acquire private land through compulsory acquisition 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.
 Section 10,Land Registration Act No.3 of 2012
 Section 7(c) Land Act No.3 of 2012
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:
- Freehold/fee simple -absolute rights in land(for an infinite period of time)
- Leasehold-(holding an interest in land for a particular period of time eg.99 years)
- Partial interest-(this refers to holding rights in an area of land for a specific period of time for a particular project)
- 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:
- Land lawfully registered in the name of group representatives under the provisions of any law.
- Land lawfully transferred to a specific community by any process of law.
- Land declared so by an Act of Parliament
- Land that is:
- Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines.
- Ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
- Lawfully held as trust land by the county governments.
- Any unregistered community land shall be held by county governments on behalf of the communities for which it is held.
- 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.
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) 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.
The government has sovereign powers to seize land for public use. The rationale for this is in the principle that the government has sovereign power over all land in the country. There are limitations to this right and various factors must be considered before the power of ‘eminent domain’ is exercised to ensure that the government does not override its powers at the expense of the people.
In Kenya, eminent domain related doctrine enshrined in CoK 2010 which gives power and the right of a government or its agent to expropriate private property for public use, with payment of compensation.
Article 40(2) empowers the Parliament to enact laws allows the government or any other agency or person to deprive an individual his interest in a property.
Under clause 3 provides for conditions which the state or the agency must fulfil in order exercise the power of eminent domain. One condition is that it must an acquisition of an interest in Land, acquisition of land or and in accordance with Chapter Five of the Constitution.
The acquisition must also be for public purpose or in public interest and carried out in accordance with the spirit of the Constitution. The acquisition should also comply with the relevant Acts of parliament which is the Land Act. The protects the person by providing for Prompt compensation which must be just and further accords the person aggrieved the right to challenge such an acquisition in the court of Law.
To avoid a situation where a person would suffer due to lack of a title to land, clause 4 provides that occupants in good faith shall be accorded compensation of land in accordance with clause 3 even if they do not hold title to that land.
1. The other provisions on eminent domain are located in the Land Act whereby under section 7(c) compulsory acquisition is provided as a way of acquiring interest in Land.
2. Under section 9(c) private land may be converted to public land way of compulsory acquisition.
3. Under section 9(4) (b), the Land Commission is mandated to keep register of private land which have been converted into public land by way of compulsory acquisition.
4. Part VIII which officially gives life to compulsory Acquisition. This part essentially deals with the procedures that must be followed. Section 110 deals with the notice to acquire Land. Here it must be shown that it is needed for public purpose which can include road construction, military activities schools etc. It is thus clear that when a piece of land is compulsory acquired and the public purpose fails, then the land should revert back to the original owner. This is referred to pre-emptive rights. The person would then be required to return the compensation that was advanced. This means that the person is given the first priority to purchase his land back.
Section 111 gives life to the Compensation provisions in that compensation need to be in full and to be paid promptly. It also provides that the Land Commission should take an active role in making rules. In interpretation, the state must pay in order to acquire interest in Land if not the action will not transfer the interest in Land.
An aggrieved person is also required to be heard by the Commission during. This is under inquiry whereby the commissioner can make inquiry into the ownership of a piece of land through giving evidence and testifying of the persons claiming interest in Land.
After the ownership has been established, then the commissioner makes an award to everyone who has an interest in Land even if the person does not have title according to the constitution.
A person can also be granted land in lieu of compensation or both land and compensation as long as the total value of there is equal to the determined compensation.
We find that the Law tries to protect the people who lose their land as result of eminent domain. For instance there is a well-established guideline for awarding compensation and computing quantum. These include factors such as:
- Market value of the land
- Damage which is sustained or is likely to be sustained by an individual interested at the time of the Commissioner taking possession of the land
- Damage which is sustained or is likely to be sustained by persons interested when the Commissioner takes possession of the land. This includes injuries to property, whether movable or immovable or in any other manner or his actual earnings.
- A person compelled to change residence or place of business, as a result of acquisition. The reasonable expenses incidental to the change
- Damage which genuinely results from the diminution of the profit of the land between the date of publication notice of the intention to compulsory acquire the land and the date the
- Commissioner takes possession of the land.
It is clear would appear that by interpretation of the constitution and the Land Act a lot of emphasis is placed on compensation and public use. Thus if the Land acquired is the only Land in which an individual relies on for livelihood and to feed his family. Then such a person should not only be compensated since his livelihood is being taken away from him. It would thus be humane for the Commission to employ the provisions of section 117 and grant him a better land for agriculture. Or give compensation that would cover the loss of livelihood.
The power of eminent domain can however not be exercised in protected areas such as national parks and wetlands. However the question arises on whether the government acts within its powers with regard to this rule. What are the avenues for redress in instances where the government acts outside of its powers in such situations? Who has the right to challenge such an action and how successful have the courts and other judicial bodies succeeded in ensuring that the government complies with the law on eminent domain principles?
 Section 117, Land Act