CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW

NAME: DICKSON CHUMA

REG NO. 1027529

UNIT TITLE: LAND LAW II

LECTURER: RUTH MUIGA

Discuss the practical challenges faced in the implementation of the Community Land Act.

The Community Land Act was assented to on the 30th of August, 2016 and it commenced
operation on the 21st September, 2016. This particular Act (the Community Land Act, 2016)
came into force to give effect to Article 63(5) of the Constitution of the Constitution of
Kenya 2010 which enshrines provisions relating to community land. Among other thing, the
Act provides for the protection, registration of community land rights, recognition,
management and administration of community land and the role of the County Governments
as far as unregistered land is concerned.

The Community Land Act is a key development towards securing community land rights,
gazetting of facilitative regulations to the Act, efficient and coordinated registration systems
among other things. Despite bringing about all these important things, the Community Land
Act faces quite a number of practical challenges in its implementation.

One of the challenges being faced in the implementation of the Community Land Act is the
lack of clarity or uncertainty by both the constitution of Kenya (2010) and the Community
Land Act with regards to what land is community land and the issues of overlaps with public
land. Many county governments still think that unfarmed pastoral or forest lands as public
land and not as part of the community land.

The community Land Act also failed to clarify what constitutes registrable community lands.
For example forest-hunter and gatherers have been contesting or bringing claims against the
government that their ancestral lands which are community lands are being held as public
lands by virtue of being National Forests.

Kenya lacks strong governance institutions. The low quorums required for decision making
in the assemblies could be abused by elites, with the more marginalised section of the
community losing out. With regard to this, the law does not give sufficient guidance to
pastoralists on how unpack and fairly order their customary rights, which often overlap with
other communities. This overlapping is also giving rise to conflicts in the delineation of
community land boundaries.
Another challenge is with regard to confusing provisions concerning registered community
land being reserved for promotion or upgrading of public interests as decided by the
community or national or county government under section 13(3)(f) of the community land
Act. Under section 26(2), it is however not clear as to how much chance the community has
about this and also not clear as to whether the reserved land then becomes public

The interference by the central government is also a challenge in the implementation of the
Community Land Act. The central government usually uses the excuse of environmental
value to claim significant amounts of land as public lands. One good example is the eviction
of the Ogiek people in Mount Elgon.

The fact that unregistered community land is vested in the county government is posing a risk
of losing land to the communities as their land is exposed to the risk of being taken by the
government in the name of compulsory acquisition and becomes public land. Corruption
cartels are taking that advantage and use such land for their personal interests.

Other challenges being faced in the implementation of Community Land Act includes the
transition from the group ranch legal regime to community land act interpreted by
communities as duplication without benefits, the multiple requirement for registration of
community land may encourage communities that had initiated sub-division process before
commencement of the Act to finalize privatisation and high cost of registering community
land.

In conclusion, although there are a few drawbacks in the implementation of the Community
Land Act, brought about significant aspects in the protection of community land owners
rights, hence it can be argued that it is a great development as far as laws relating to land in
Kenya are concerned.