Community Lands Bill, 2014 1

MINISTRY OF LAND, HOUSING AND URBAN DEVELOPMENT

TASKFORCE ON FORMULATION OF COMMUNITY LANDS AND EVICTIONS AND RESETTLEMENT BILLS

THE COMMUNITY LAND BILL, 2014

“DRAFT”

FEBRUARY, 2014

Ardhi House P. O. Box 30450-00100 Ngong Road Tel: +254(0)20271850Nairobi Fax:+254(0)202724470

COMMUNITY LANDS BILL, 2014

ARRANGEMENT OF SECTIONS

PART I—PRELIMINARY

1—Short title

2—Interpretation

3—Objects and purposes of the Act

4—Guiding principles

PART II—RECOGNITION, PROTECTION AND REGISTRATION OF COMMUNITY LAND RIGHTS

5—Ownership and tenure system

6— Protection of community land rights

7—Identification of community land

8—Procedure for recognition and adjudication of community land

9—Community land Registrar

10—Registration of community land

11—Classes of holding community land

12—Communal and reserve land

13—Confirmation of validity of existing customary rights of occupancy

14—Register of community land

PART III—ADMINISTRATION AND MANAGEMENT OF COMMUNITY LAND

15—Legal personalityof communities

Community assemblies

16—Community assemblies

17—Functions of community assemblies

Community land management committees

18—Establishment of Community land management committees

19—Basic requirements of a Committee

20—Composition of Community land management committees

21—Guidelines for election of members of the Committee

22—Functions and powers

23—Removal of members

24—Vacation of office

25—Filling of vacancy

26— Meetings of the Committee

27—Terms of office

Community Land Boards

28—Establishment of Community Land Boards

29—Functions of the Boards

30— Powers of the Boards

31—Operation of the Boards

32—Role of county governments

PART IV—NATURE OF COMMUNITY LAND TITLE

Effect of Registration of Community Land

33—Interest conferred by registration

34—Rights of a community as proprietors

35— Certificate of title to be evidence of proprietorship

36—Land use and development planning of community lands

37—Conservation and management of resources in community land

PART V—CONVERSION OF LAND

38—Conversion of community land generally

39—Conversion of community land to public land

40—Conversion of community land to private land

41—Conversion of public land to community land

42—Conversion of private land to community land

43—Setting aside community land for public purposes

PART VI—SPECIAL RIGHTS AND ENTITLEMENTS IN THE COMMUNITY LAND

44—Individual rights on community land

45—Grazing rights

46—Designation of other land use rights in community land

47—Non-discrimination

48—Transactions in community land

49—Leases over community land

50—Cancellation of rights of leasehold

51—Existing rights to use and occupy community land

PART VII— ENVIRONMENT AND NATURAL RESOURCES MANAGEMENT

Management of Natural Resources Land Use Planning and Investments in community land

52—Natural resources on community land

53—Exploitation of natural resources on community land

54—Benefit sharing

55—Bye-laws

56—Community land use planning

PART VIII— SETTLEMENT OF DISPUTES RELATING TO COMMUNITY LAND

57—Dispute resolution mechanisms

58—Mediation

59—Arbitration

60—Awards and appeals

PART IX—GENERAL PROVISIONS

61—Unlawful occupation of community land

62—Illegally acquired community land

63—General penalty

64—Repeals

65—Saving and transitional provisions

66—Group representatives, land-buying companies etc

67—Regulations

SCHEDULES

First ScheduleConduct of business and affairs of the Community assemblies

Second ScheduleMatters to be provided for in the Constitution of every committee

Third Schedule: Conduct of business and affairs of the committees

Fourth Schedule: Conduct of business and affairs of the Boards

Fifth Schedule: Parcels of land converted from public to community land

Sixth Schedule: Transitional Provisions

AN ACT of Parliament to give effect to Article 63 (5) of the Constitution; to provide for the recognition, protection and registration of community land rights; management and administration of community land; to establish and define the powers of community land boards and management committees; to provide for the roleof county governments in relation to unregistered community land and for connected matters.
ENACTED by the Parliament of Kenya, as follows—
PART I—PRELIMINARY
Short title. /
  1. This Act may be cited as the Community Land Act, 2014.

Interpretation. /
  1. In this Act, unless the context otherwise requires—
“Board” means a Community Land Board established under section27;
“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to land;
“cadastral map” has the meaning assigned to it under the the Land Registration Act;
“committee” means a community land management committee established under Section 15;
“community” means a consciously distinct and organized group of users of community land who share any of the following attributes—
(a)common ancestry;
(b)similar culture or unique mode of livelihood;
(c)ethnic language;
(d)socio-economic or other commoninterest;
(e)geographical space; or
(f)ecological space.
“community assembly” meansa gathering of adult members of the community constituted to deliberate on matters relating to the community land in accordance with this Act;
“communal use of land” means holding or using land in undivided shares;
“community land” means land referred to in Article 63 (2) of the Constitution and includes—
(a)all land used as community settlement area, farming area, grazing area, rangelands, fish landing sites, common resource area including watering points, salt licks, wildlife habitats, wildlife corridors, livestock passage routes and cattle dips;
(b)all land traditionally or historically used for communal purposes including sacred or religious sites, kaya forests; and
(c)land converted into community land under any law.
“communityland register” means the community land register established under section 8 of the Land Registration Act;
“community land registration unit” means an area declared as such under section 11;
“community of interests” means the possession or enjoyment of common rights, privileges or interests in land and living in the same geographical areaor having some apparent association;
“community reserve land” means any land which may be made available for communal or individual occupation and use through allocation by the committee.
“Commission” means the National Land Commission established by Article 67 of the Constitution;
“Court” means the Environment and Land Court established under the Environment and Land Court Act, No 19 of 2011;
“customary land rights” refer to rights conferred by or derived from African customary law, customs or practicesprovided that such rightsarenot inconsistent with the Constitution or any written law and customary land has the corresponding meaning.
“fragile ecosystem”means anecosystem hosting threatened biodiversity;
“natural resources” has the meaning assigned to it under the Article260 of the Constitution;
“Principal Secretary” means the Principal Secretary for the time being responsible for matters relating to Land;
“Registrar” means the Registrar of community land appointed in accordance with section 12;
“spouse” means husband or wife married under any law in Kenya.
Objects and purposes of the Act. /
  1. The objects and purposes of this Act are to establish a legal framework and procedures for—
(a)recognition, protection and registration of community land rights;
(b)documentation and mapping of the existing forms of communal land tenure;
(c)vesting of community land in the communities identified on the basis of ethnicity, culture or similar community of interests;
(d)management and administration of registered community land;
(e)conversion of community land to other categories of land;
(f)resolving the problem of illegally acquired community land and resolving community land disputes;
(g)setting apart community land for publicpurposes; and
(h)holding of unregistered community land in trust by county governments.
Guiding principles /
  1. In the performance of the functions and exercise of powers under this Act, every person dealing with community land shall be guided by the following principles—
(a)the principles of land policy set out under Article 60 of the Constitution;
(b)national values and principles of governance set out under Article 10 of the Constitution;
(c)principles of land policy set out under Article 60 of the Constitution;
(d)encouraging the application of alternativeand traditional dispute resolution mechanisms in land conflicts;
(e)vesting community land in the communities;
(f)affording equal status and recognition of title to community land with any other title;
(g)empowering members of the community to determine the management and administration of their land;
(h)affording equal rights to all members of the community; and
(i)elimination of all forms of discrimination.
PART II—RECOGNITION, PROTECTION AND REGISTRATION OF COMMUNITY LAND RIGHTS
Ownership and tenure system. /
  1. (1) Community land in Kenya shall be owned by the communities and its usage shall be regulated in accordance with Article 66 of the Constitution, this Act and any other relevant law.
(2) Community shall vest in the community and land may be held under any of the following tenure systems—
(a)customary;
(b)freehold;
(c)leasehold; and
(d)suchother tenure system recognized under this Act or other law.
Protection of community land rights. /
  1. (1) Pursuant to Article 40 of the Constitution, every person shall have the right, either individually or in association with others, to acquire and own property—
(a)of any description; and
(b)in any part of Kenya.
(2) Subject to Article 40 (3) of the Constitution, no right on community land may be expropriated or confiscated save by law for public purpose and upon prompt payment in full, of just compensation to the person or persons.
(3) Any person or group of persons holding a pre-existingcustomary land right before the commencement of this Act shall continue holding such right subject to the provisions section 51.
(4) Customary land shall be recognized, demarcated and registered in accordance with this Act or any other law.
(5) Customary land rights including those held in common shall have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transaction.
Identification of community land for purposes of registration. /
  1. (1) Every community with an interest in community land shall, within such time as the Commission may, from time to time, determine—
(a)constitute itself into a registered legal entityin accordance with this Act and present the certificate of registration to the land adjudicationofficer for adjudication and subsequent registration; and
(b)create a Community Land Management Committee for purposes of adjudication, registration,management and administration of the landin accordance with this Act.
(2) Where a community claiming or occupying land—
(a)identifies the extent and the boundaries of its land to the satisfaction of the Commission; and
(b)no dispute is raised over such boundaries by any personor other community whose land borders or is contiguous to the land so identified,
the Registrar may issue an interim certificate of reservationto the community.
(3) Acertificate of reservation shall serve as —
(a)may be varied by the Registrar for reasons to be recorded;
(b)shall lapse upon issuance of certificate of title to the community; and
(c)has the effect and operate as a certificate of title until the Registrar registers the land.
(4) Any dispute arising from the process contemplated in subsection (1) shall be recorded and dispensed with in a manner to be prescribed by the Commission.
Procedure for recognition and adjudication of community land. /
  1. (1) Pursuant to Article 67 (2) (c) of the Constitution and subject to section 13, and any other provision of this Act, the Commission shall develop and gazettea comprehensive adjudication programme for the registration of community land throughout Kenya
(2) The programme referred to under subsection (1) shall provide for measures to document existing forms of communal tenure and map the boundaries of such lands, whether customary or contemporary, rural or urban and shall include the development ofan inventory of all community land in Kenya.
(3)The Commissionshall ensure that the process of documenting, mapping anddeveloping of theinventory of community landshall be transparent, equitable, cost effective and participatory and shall involve the following steps—
(a)a public notice of not less than thirty days shall be broadcast in a radio station broadcasting in the area and posted in a conspicuous place on the land which is to be adjudicated and shall—
(i)declarean area or areas of land to be a community land registration unit;
(ii)statewhich land is to be adjudicated;
(iii)request all persons with an interest in the land to attend a specified meeting; and
(iv)inviteall persons with claims on the land to mark and indicate their boundaries prior to the meeting;
(b)actual involvement and engagement of the community by creating awareness on the community land rights recognition and adjudication process and taking an inventory of their land and resource rights;
(c)recording of the community land claims and governance rules;
(d)actual physical demarcation of the land and delineation of boundaries involving the people;
(e)review of all relevant documents and agreement between the community and the relevant government agencies;
(f)validation and adoption of rules and regulations to regulate the governance of community land and natural resources as set out in this Act;
(g)formation of the relevant community organs; and
(h)conferment of certificate of title to the community.
(4) The documentation, mapping and registration process contemplated in this section shall be—
(a)undertaken through the registration units constituted under the Land Registration Act; and
(b)concluded within such time as the Commissionmay determine.
(5)A community may apply to the Commissionto have the whole or part of its land registered in accordance with this section.
(6) The Commission in consultation with Cabinet Secretary may set generalrules for the actual conduct of the adjudication exercise in the counties including—
(a)the manner of ascertaining, verifying, determining and marking of boundaries;
(b)involving adjacent land owners and calling of witnesses and certifying the boundaries;
(c)preparing of cadastral mapsfor the land;
(d)reconciling parties in case of conflicts;
(e)preparation of provisional adjudication records;
(f)disposing of appeals;
(g)preparation of final adjudication records;
(h)approval of records; and
(i)registration.
Community land Registrar. /
  1. The Chief Land Registrar shall designate a qualified registrar to be the community land Registrar responsible for registration of community land.

Registration of community land. /
  1. (1) Community land shall be registered in accordance with the provisions of this Act and the Land RegistrationAct.
(2) The Commission, shall by a notice in the gazette, appoint an adjudication officer in respect of every community registration unit who shall be responsible for—
(a)facilitating the adjudication of the land including the recording of community land claims, demarcation of the land and delineation of boundaries; and
(b)performing any other function in accordance with this Act.
(3) Upon adjudication, the title relating to community land shall be issuedby the Registrar in the prescribed form.
(4) Community land may be registered in the name of—
(a)a community;
(b)a clan or family in accordance with the customary practices applicable; or
(c)a community association in accordance with the document constituting the association.
(5) Where a community land is registered in the name of a clan, family or a community association, the registered body shall not deal with the land without ratification of its decisions by the community assembly.
Classes of holding community land. /
  1. Community land may be held in any of the following classes—
(a)communal land;
(b)family or clan land;
(c)reserve land; or
(d)any other category of land recognized under this Act or other law.
Communal and reserve land. /
  1. (1) Any land which has been habitually used as communal land for public purpose before the commencement of this Act shall upon commencement of this Act be deemed to be communal land and shall be recorded by the committee accordingly.
(2) For purposes of this section, communal land shall comprise land occupied and used or available for occupation and use on a community or public basis by all the community and any other persons who are, with the agreement of the Committee, living and working in the community whether those persons are using community land under a derivative right or not and such land shall not be made available for individual occupation or use.
(3)Reserve land shall comprise any land which may be made available for communal or individual occupation and use through allocation by the Committee subject to the approval of the community assembly.
(4) The Community Land Management Committee may recommend to the community assembly portions of community land to be set aside as communal or reserve land and for what purposes.
(5) The recommendations of the committee may include —
(a)consultative land use plan for the community land or part of it;
(b)specific recommendations on specific portions of communal or reserve land;
(c)community land proposed to be set aside for public purposes;
(d)community land proposed to be set aside for urban development;
(e)community land for individual occupation; or
(f)any other proposal that the committee may determine.
(6) Upon receipt of the recommendations of the committee, the community assembly shall—
(a)approve;
(b)amend and approve;
(c)refer back for further consideration; or
(d)reject the proposals.
(7) Where the community assembly rejects the proposals, the committee may within three months lay before the assembly alternative proposals for consideration.
Confirmation of validity of existing customary rights of occupancy. /
  1. (1) A customary right of occupancy in community land is in every respect equal in status and effect to a granted right of occupancy in any other category of land and shall, subject to this Act, be—
(a)capable of being allocated by the community to an individual person, family, group of persons, clan, an association, partnership or body corporate wholly owned by citizens;
(b) in communal or reserve land;
(c)capable of being of indefinite duration;
(d)governed by customary law in respect of any dealings;
(e)inheritable and transmissible by will; and
(f)liable to prompt payment in full, of just compensation upon acquisition by the State for public purposes.
(2) A customary right of occupancy on any community land subsisting before the commencement of this Act shall be a recognisable right upon commencement of this Act.
(3) A person, a family unit, a group of persons recognized as such under any customary law or who have formed themselves together as an association, co-operative society or any other body recognized by any law, who are members of a community may apply to the community through the Committee for customary right of occupancy.
(4) The Committee shall, in considering the application have regard to—
(a)proposalsmade by the adjudication team or any subcommittee set up for that purpose.
(b)guidance of the Board;
(c) equality of all persons including—