Securing Community Ownership and Control of Land Rightsin Kenya: Opportunities and Challenges

Abstract

Ownership, use and management of land are highly emotive issues in Kenya and were one of the key drivers of the push for a new constitution. In fact going back in history, this was the main reason for the fight for independence. The general aim of the research was to show that the Kenyan people in their constituent power have perceived land as more than just property which readily converts to market value with relevant injuries being recompensed conclusively with awards of damages. The Constitution of Kenya 2010 sets out governing principles on land policy. Finite, yet socially, economically and culturally vital, land in Kenya has merited the declaration that it, “shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The findings of this research show that public land, community land and private land are the three categorizations made in the constitution; and community land, a core sphere of this research, refers to land attached, historically, socially and for beneficial use, to a distinct population group: an ethnic community, a cultural community, or some other social interest-group. The Constitution, in its solicitude for social-group welfare, lays a foundation for policy, programming and juristic openings towards practical solution. Moreover this research will also show that a governance question so fundamental in a progressive constitutional order merits legal attention to: community interests and the land question; Kenya‟s experience in relation to community land; and comparative experience drawn from further afield. The research makes a notable contribution by proposing ways of unbundling the property rights attached to land and by signalling lines of interpretation of the Constitution‟s intent in relation to the community‟s welfare.