ISSUES PAPER

NO. 4/2005

THE NATIONAL LAND POLICY IN

KENYA

Addressing Customary/Communal
Land Issues

© Kenya Land Alliance

2005
 PREFACE

The customary land rights Issues Paper seeks to present the various customary land tenure concerns,
issues and perspectives and consequently proffers policy statements for their redress. In this Issues
Paper, we affirm our conviction as Kenya Land Alliance (KLA) that customary land tenure, which is
practiced through communal land access and usage exists in large parts of the country. Hence, the
continued characterization of customary land tenure systems as ‘backward’ and the continuous introduction
of measures that attempt to privatize and convert communal land access systems into individual ownership
are bound to fail. KLA has integrated information, issues and perspectives in relation to what was
presented to the Constitution of Kenya Review Commission (CKRC), the Presidential Commission of
Inquiry into the Land Law Systems of Kenya, the Civil Society National Conference on Land Reform
and the National Constitutional Conference debate at the Bomas of Kenya on the customary tenure
regime.

Customary land tenure issues have been seen in different parts of the country where the rules and
practices of communal tenure discriminate against women in access to land and in terms of their effective
participation in decision-making structures; where tribal authorities function undemocratically in ways
which undermine the constitutionally entrenched basic human rights of members under customary/communal
system; where the government has failed to execute its obligation to ensure that group-based land holding
systems do not conflict with the basic human rights of members of such systems, or of other residents
living in communal areas. The major challenge to managing these manifestations is finding ways in which
the procedures governing the enjoyment of group-based rights ensure that all rights holders participate
effectively in decisions regarding their joint land asset, and that the rules of customary land tenure/
customary system are consistent with the principles of equality and equity. We, therefore, hope that this
Issues Paper will be able to further a well-informed discourse and public debate on the need for policy
statement(s) on customary land tenure particularly in relation to the quest for pastoralists’ land rights.
Further still, we hope that this initiative will strengthen the campaign for a fair and just National Land
Policy supported by various Civil Society Organizations and Pastoralist Peoples’ Movement championing
for social and economic change.

Information on Customary Land Tenure and communal land access systems from various sources has
been used to enhance this topic. It is our hope that through this Issues Paper we will all be challenged to
take up the responsibility of building a people-centred advocacy for advancing the communal and group
land rights of the marginalized section of our society.

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 KLA appreciates the efforts of our partners and members for their contributions to this Issues Paper.
We are greatly indebted to Dr. Smokin Wanjala, Dr. Patricia Kameri-Mbote, communities from North,
South and Central rangelands, Resources Conflict Institute (RECONCILE), WOMAN-KIND and
Mainyotto Pastoralists Integrated Development Organization (MPIDO) for their contribution to this
Issues Paper. Finally, we are grateful to the Department for International Development (DFID), the
Development Co-operation Ireland (DCI), the Danish International Development Agency (DANIDA)/
Danish Association for International Cooperation-Kenya (MS-Kenya, OXFAM GB and Friedrich Ebert
Stiftung (FES) for their continued contribution to the sustenance of KLA land reform efforts.

Odenda Lumumba
National Co-ordinator, KLA

INTRODUCTION

Apart from introducing conceptual, legal and sociological confusion in the traditional land tenure system,
colonialism also imposed alien land tenure relations in Kenya. One area, which has suffered far-reaching
disruption in this regard, is the African customary land tenure system and laws. In traditional African
societies land belonged to community groups like clans and ethnic groups instead of an individual. The
rights of access to community land by the individual member of the group were assured and protected
through a respected political authority.

To colonial policy makers, customary land tenure systems were detrimental to agricultural development.
Thus, in 1956 the process of individualization of tenure in the African Reserves started and there was a
deliberate aim to completely transform African communal tenure relations into individualized land holdings.
The Registered Land Act was enacted to provide a legal framework for individual/private land tenure. This
Act provided the basis for the extinction of claims to land based on African customary land law. The Trust
Land Act and the Land (Group Representatives) Act were also enacted to provide a framework for the
transition from customary tenure to individual tenure in areas where immediate individualization of land
holdings could not be undertaken.

While land registration was supposed to obliterate the traditional concepts of land ownership, neither
colonialism nor the independent state decimated the traditional land holding system as it did not suit their

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political interests to do so. Thus, the traditional system remained deeply rooted in land governance, as it
existed in the hearts and minds of many Kenyans.

THE PROBLEM

The problem therefore is that the Kenyan customary concept of ownership of land still prevails despite
efforts to obliterate it through registration. Since customarily no individual in a community owns land, land
is owned by all collectively for the benefit of each and every member of the community. The result is that
land relations in many parts of Kenya are still actualised on the basis of customary law. For instance, claims
to land are still being made on the basis of customary law even where such land is registered under the
Registered Land Act. Moreover, in practice, before Land Control Boards sanction any land transaction,
they work with community elders to determine the different rights of the members of that community. This
problem is further complicated by the fact that customary lands are managed and controlled by the County
Councils, which hold them in trust for communities. This is a patronising position which implies that individual
Kenyans can enjoy legal title to their individual pieces of land without government assistance, while customary
land holders need someone else to hold it for them in case they misuse it. This state of affairs has no place
in a democratic Kenya and as such communities enjoying customary land tenure should rightfully and as a
matter of urgency be given legal title to their land.

The legal position notwithstanding members of communal settlements who regard themselves as the owners
of customary lands would like this constitutional dispensation to be endorsed in the envisaged National
Land Policy and in the relevant legislative statute to be promulgated. This is urgently required because the
High Court of Kenya has at times ruled that registration extinguished customary rights to land and vested in
the registered proprietor absolute and indefeasible title. The same court has at other times ruled that
registration of title was never meant to disinherit people who would otherwise be entitled to their land. Of
course, these differing approaches represent the distinct schools of thought, which characterize different
individual judges’ perception of the Law, its meaning and functions in society. Similarly, the Court of
Appeal has not come up with a clear and final statement of the law either, which has resulted in continued
uncertainty and rage on of disputes.

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Considering then that communal land tenure systems and customary land law are still part of the social and
economic fabric of ethnic societies in the country, that the English/Common law has failed to socially
achieve an irreversible movement from communal tenure to individual tenure and that the jurisprudence
developed by the Courts of Law has also not succeeded in eliminating customary land rights, the envisaged
National Land Policy should comprehensively address the persistent question on the position of customary
land rights within Kenya’s legal system. This is in taking into account the fact that customary land laws have
been discriminated upon within the legal system and have suffered theoretical, normative and institutional
underdevelopment since what really constitutes customary land tenure is little understood by many. In
addition, since the question regarding the nature of customary rights to land has also not been conclusively
resolved, the envisaged National Land Policy must address the practical aspects of the nature and position
of customary land rights as opposed to purely theoretical or academic perspectives.

1. Customary/ Community Land Tenure

Issue
The customary land tenure, which is land holding according to African traditional norms, standards
and rules of ethnic groups, is based on the pre-colonial indigenous property right arrangements. It mainly
applies to trust lands and group ranches where adjudication has not been done. This tenure system mainly
found in the pastoralist areas, reflects the pastoralists’ community rules of land holding and ownership of
property. The customary land tenure system based on the communal land access system provides the
poorest of the poor with secure tenure if protected by statute. There are three attributes of this tenure
system: land is equally accessed by all members of the community, land is not seen as a commodity
in economic sense and relations to land are chiefly governed by customs and taboos. This state of
affairs requires innovative ways to provide security of tenure to the poor and to facilitate investment in the
rural areas where customary tenure applies.

It is important to note that customary land tenure and community land tenure however similar should not be
confused. Community land tenure is the land holding of a group of people effectively constituted that
have come together to assert a common interest and identify themselves through institutional and
legal structures that effectively bind them in an enabling interaction with the outside world. The

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community’s function in the customary tenure regime is the control it imposes over the use of land and other
resources on persons recognized as having rights of use, but this does not make it community tenure.

The issues raised here should receive sufficient analytical treatment at the policy and conceptual levels. It is
imperative that the National Land Policy captures the salient points to clarify the issues highlighted. The
bottom line is that customary tenure provides for communal access and user rights but not exclusive
ownership rights.

Policy Statement

The National Land Policy should state that:

The Government will ensure that the position of customary tenure and the land rights deriving
there from within Kenya’s legal system are clearly stated in the new constitution. In addition, the
Government will ensure that appropriate legislative amendments are made to clarify and legally
recognize the:

„ Nature of customary tenure and the land rights deriving therefrom.

„ Applicability of customary land law vis a vis inherited/English land law.
„ Suitability of customary tenure as an institutional framework for community land relations.

2. Existing Statutory Framework for Customary Land Rights

Issue
Because the land adjudication and registration process to transform African land relations from communal
to individual tenure was not completed by independence, the Trust Land Act was enacted. This was to
facilitate the completion of the individualization of tenure in the African Reserves. The Trust Land Act was,
therefore, a transitional law. The responsibilities that previously were vested in the Native Lands Trust
Board were transferred to the County Councils of the independence era. Under the Constitution and the
Trust Land Act, County Councils were supposed to hold Trust Land on trust for residents in a county who
owned the land according to the customary law applicable in that area. County Councils and the Central
Government, however, have facilitated the alienation of Trust Land in favour of some affluent and powerful

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individuals thus totally disregarding the rights of local residents. The courts have also habitually ruled in
favour of the registered proprietors instead of local residents.

Most Trust Lands are still considered ‘communal’ or ‘traditional’ land and land use practices prevailing in
these areas are based on customary law. The authority of customary law and the viability of customary
tenure have, however, been undermined through political patronage, corruption and the English/ Common
law on land ownership.

Policy Statement

The National Land Policy should state that:

„ The Government will repeal all legal provisions in the current Constitution and the Trust
Land Act, which vest the radical title to Trust Land in the County Councils. This is to stop
the abuse of the rights of people residing in Trust Lands, and others held communally.
„ The radical title to all Trust Land in the Country will be vested in a National Land
Commission, with the day-to-day management of Trust Lands vested on specially
established Community Trusts, which shall comprise of locally elected representatives,
designated county councillors, representatives from the Council of Elders where applicable,
local religious leaders, women representatives, Ministry of Lands officials, and officials
from District and Provincial Environment Committees. The relationship between the
National Land Commission and the Community Trusts shall be clearly defined.
Representatives from Government Ministries, Environmental Committees and Local
Authorities will participate in Community Trusts in their advisory capacity only.
„ All questions regarding the rights of the community, clan, family or individual shall be
determined by the existing customary laws and practices of the Community Trusts.
„ Wholesale individualization of tenure in Trust Land areas shall be discouraged.

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3. Group Ranches and communal land rights

Issue
The Group Ranch system preserved the communal tenure and practices of local residents who owned land
through group registration. Under this system, a community would be registered as a landowner through a
group of ten representatives who would be the nominal titleholders. The intention of Parliament when the
Land (Group Representatives) Act was enacted was that land could be held communally and in accordance
with the applicable customary laws and practices.

The Government, however, later on converted the group ranches into individual titles. The replacement of
group registration with individual titles has had far-reaching tenurial and environmental implications on the
social and economic lives of the communities especially where communal customary tenure is the only
viable form of tenure. It has also led to the sub-division of land into units and parcels that cannot sustain the
prevalent land uses in those areas. It is, therefore, important that the National Land Policy clearly states the
Government Policy regarding the group ranch system.

Policy Statement

The National Land Policy should state that:

The Government will review the Group Ranch System where it still applies and where
individualization has not taken place to:

„ Determine the extent to which the system remains viable and sustainable.
„ End the subdivision and individualization of land in those areas.
„ Reform the group representatives system to prevent fraudulent individualization of land by
the group representatives.
„ Introduce a tenure system where individual tenurial regimes can co-exist with communal
tenure as determined by ecological and economic conditions within the Group Ranches.

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4. Community Tenure and the Rights of Communities

Issue
There is a prevailing misconception among policy makers, politicians and advocacy groups that community
tenure is only useful or applicable to pastoralists. Pastoralism is just one form of land use that is dependent
on community tenurial arrangements. Besides being a way of life, pastoralism is an economic activity
practised by a number of Kenyan communities such as Maasai, Samburu, Boran, Somali and some Kalenjin.

Other forms of land use that are also dependent on community tenure regimes include rural agriculture,
hunting, gathering and bee keeping. These forms of land use are usually based on the culture of communities
and may not always coexist peacefully with pastoralism. As a result, there have been conflicts between
pastoralists, and with other communities. To prevent this, land use should be comprehensively addressed
at policy level.

Policy Statement

The National Land Policy should state that:

„ The Government will identify and recognize land use practices that are dependent on
communal or customary tenure. Forms of land use that are an economic and cultural base
will be determined and protected.
„ Mechanisms for protecting the rights of communities ensuring harmonious and non-
conflicting land uses resources shall be devised urgently. The potential for conflict between
pastoralists and among communal groups will be addressed in an inclusive and participatory
manner. Traditional dispute resolution mechanisms will be recognized in resolving conflicts.

5. Customary Tenure and the Land Market

Issue
There are assumptions that customary tenure does not have enforceable land transfer mechanisms, which
would ensure financial institutions invest in land held under customary law. This misconception stems from
the untested assumption that under customary tenure, no one ‘owns’ land. Studies and analyses of land

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relations under customary tenure, however, have proven that there is a land market system under such
tenure, which has enabled individuals to transfer to others user and access rights over land for a fee. Land
markets within customary or community tenure arrangement should therefore be supported as a means to
economic development.

Policy Statement

The National Land Policy should state that:

„ The Government will enact laws to facilitate the growth of a vibrant land market within
community tenure.
„ Financial institutions will be encouraged to lend on the security of land held under customary
tenure. Appropriate credit forms and institutions shall be developed.
„ The laws enacted will facilitate the transfer of user and access rights as opposed to the
transfer of the land itself. Appropriate registration and recording of land transactions under
customary tenure shall be devised and given legal recognition.

6. Customary Tenure and the Phenomenon of Discrimination

Issue
There are certain norms, practices and usages inherent in customary tenure that discriminate against
vulnerable groups such as women, children, the poor and the disabled. Such practices have disempowered
them in matters of inheritance, access to and ability to transfer land and are inconsistent with the modern
constitutional democracy. They should, therefore, be outlawed.

Policy Statement

The National Land Policy should state that:

„ While recognizing the applicability of customary land rights and tenure within Kenya’s
legal system, the Government will outlaw all norms, practices and usages within customary
tenure that discriminate against women, children, the poor and disabled.

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 „ Deliberate efforts shall be made to strengthen the marriage institution and legally protect
the rights of its members.

7. Customary Land Rights and the Environment

Issue
There has been debate on the ability of customary/ community tenure to ensure the sustainable use of
natural resources.

Many areas where community tenure is practised are in fragile ecological zones and can be degraded by
large populations. It has been argued that communal systems do not promote efficiency in the use and
management of land. Research has shown that communal land tenure systems do, in fact, promote sustainable
use of resources in fragile ecosystems. Individualizing tenure in arid and semi-arid areas is not viable
because land in these areas is held and used communally. Besides this, hosting of international refugees in
communal lands without consultation with the residents has reinforced the misunderstanding that customary
land is “no one’s” land.

Policy Statement

The National Land Policy should state that:

„ The Government will ensure that all land uses and practices under customary/communal
tenure conform to the principles of environmental protection and sustainable development.
This will include measures to strengthen traditional institutions responsible for environmental
conservation in these areas.
„ The Government shall provide a legislative framework to ensure communities living on
land with valuable natural resources will share in the economic returns accruing from the
use and exploitation of such resources.
„ Adequate consultations will be carried out when setting up refugee camps on customary
or communal land. Measures will be devised and implemented to address any adverse
environmental impacts that may arise.
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Published by

THE KENYA LAND ALLIANCE

C.K Patel Building, 6th Floor, Kenyatta Avenue, Nakuru.
P.O Box 2177–20100, Nakuru, Kenya.
Tel: 254–51–2210398,
Telefax: 254–51–2215982
Email: klal@africaonline.co.ke
Info@kenyalandalliance.or.ke
Website: www.kenyalandalliance.or.ke