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Chapter Five – Land And Environment – Kenya Law

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Part 1. Land – Kenya Law

60. Principles Of Land Policy – Kenya Law

(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles–

(a) equitable access to land;
(b) security of land rights;
(c) sustainable and productive management of land resources;
(d) transparent and cost effective administration of land;
(e) sound conservation and protection of ecologically sensitive areas;
(f) elimination of gender discrimination in law, customs and practices related to land and property in land; and
(g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

(2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

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61. Classification Of Land – Kenya Law

(1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.
(2) Land in Kenya is classified as public, community or private.

62. Public Land – Kenya Law

(1) Public land is–

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(a) land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;
(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
(c) land transferred to the State by way of sale, reversion or surrender;
(d) land in respect of which no individual or community ownership can be established by any legal process;
(e) land in respect of which no heir can be identified by any legal process;
(f) all minerals and mineral oils as defined by law;
(g) government forests other than forests to which Article 63(2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
(h) all roads and thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the high and low water marks;
(m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament–

(i) in force at the effective date; or
(ii) enacted after the effective date.

(2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under–

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(a) clause (1) (a), (c), (d) or (e); and
(b) clause (1) (b), other than land held, used or occupied by a national State organ.

(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
(4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.

63. Community Land – Kenya Law

(1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.
(2) Community land consists of–

(a) land lawfully registered in the name of group representatives under the provisions of any law;
(b) land lawfully transferred to a specific community by any process of law;
(c) any other land declared to be community land by an Act of Parliament; and
(d) land that is–

(i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities;
(iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).

(3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.
(4) 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.
(5) Parliament shall enact legislation to give effect to this Article.

64. Private Land – Kenya Law

Private land consists of —

(a) registered land held by any person under any freehold tenure;
(b) land held by any person under leasehold tenure; and
(c) any other land declared private land under an Act of Parliament.

65. Landholding By Non-Citizens – Kenya Law

(1) A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.
(2) If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.
(3) For purposes of this Article —

(a) a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and
(b) property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.

(4) Parliament may enact legislation to make further provision for the operation of this Article.

66. Regulation Of Land Use And Property – Kenya Law

(1) The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning.

(2) Parliament shall enact legislation ensuring that investments in property benefit local communities and their economies.

67. National Land Commission – Kenya Law

(1) There is established the National Land Commission.
(2) The functions of the National Land Commission are–

(a) to manage public land on behalf of the national and county governments;
(b) to recommend a national land policy to the national government;
(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;
(g) to assess tax on land and premiums on immovable property in any area designated by law; and
(h) to monitor and have oversight responsibilities over land use planning throughout the country.

(3) The National Land Commission may perform any other functions prescribed by national legislation.

68. Legislation On Land – Kenya Law

Parliament shall–

(a) revise, consolidate and rationalise existing land laws;
(b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and
(c) enact legislation–

i) to prescribe minimum and maximum land holding acreages in respect of private land;
(ii) to regulate the manner in which any land may be converted from one category to another;
(iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;
(iv) to protect, conserve and provide access to all public land;
(v) to enable the review of all grants or dispositions of public land to establish their propriety or legality;
(vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and
(vii) to provide for any other matter necessary to give effect to the provisions of this Chapter.

Part 2. Environment And Natural Resources – Kenya Law

69. Obligations In Respect Of The Environment – Kenya Law

(1) The State shall–

(a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
(b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
(c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
(d) encourage public participation in the management, protection and conservation of the environment;
(e) protect genetic resources and biological diversity;
(f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
(g) eliminate processes and activities that are likely to endanger the environment; and
(h) utilise the environment and natural resources for the benefit of the people of Kenya.

(2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.

70. Enforcement Of Environmental Rights – Kenya

(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate–

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

71. Agreements Relating To Natural Resources – Kenya Law

(1) A transaction is subject to ratification by Parliament if it–

(a) involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya; and
(b) is entered into on or after the effective date.

(2) Parliament shall enact legislation providing for the classes of transactions subject to ratification under clause (1).

72. Legislation Relating To The Environment – Kenya Law

Parliament shall enact legislation to give full effect to the provisions of this Part.

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