Section 21
21.
(1) The Community land register shall, in addition to the particulars set out under section 8(1) of the Land Registration Act, 2012, contain the particulars of all conversions involving community land.
(2) A registered community shalI, before the conversion of registered community land into any other category of land seek and obtain approval from two thirds of the assembly in a special meeting convened for that purpose.
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Section 22
22.
(1) Community land may be converted to public land by- (a) compulsory acquisition; (b) transfer; or (c) surrender.
(2) Nothing in this Act limits the application of the Land Act, 2012 and any other compulsory acquisition of land.
(3) Reversionary interest of such land shall lie with the community in the first instance upon expiry of such public use interest.
(4) Transfer of community land shall, subject to the approval of the members of the registered community in a community meeting, be done in accordance with the Land Act, 2012 and any other applicable law.
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Section 23
23.
Registered community land may, subject to the approval of the registered community, be converted to private land through-
(a) transfer; or
(b) allocation by the registered community, subject to ratification of the assembly as provided in section 21(2).
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Section 24
24.
(1) Public land may be converted to community land by allocation by the Commission in accordance with the Land Act, 2012
(2) Conversion of public land to community land under subsection ( 1) may be effected on a case by case basis.
(3) The Commission ma), by an order published in the gazette identify other specific parcels to which subsection (2) shall not apply.
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Section 25
25.
Private land may be converted to community land by-
(a) transfer;
(b) surrender;
(c) operation of the law in relation to illegally acquired community land; or
(d) operation of any other written law.
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Section 26
26.
(1) A community may set aside part of the registered community land for public purposes.
(2) Where land is set aside for public purposes under subsection (1), the Commission shall gazette such parcel of land as public land. PART VI - SPECIAL RIGHTS AND ETITLEMENTS IN THE COMMUNITY LAND
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Section 27
27.
(1) A registered community may upon application and with approval of the members of the registered community, allocate part of its registered cortmunity land to a member or a group of members of the corlmunity for exclusive use and occupation for such period as the registered community shall determine.
(2) Despite subsection (1), a separate title shall not be issued for such parcel.
(3) An individual entitlement under subsection (1) shall not be superior to community title in any way.
(4) A member granted exclusive use of a parcel of land under this section- (a) shall pay to the registered community such premium or fees commensurate to the use as may be determined by the community from time to time; (b) may develop the land subject to the provisions of any laws and regulations relating to land use; (c) may not assign or lease the land to a third party who is not a member of the corrmunity; (d) shall put the land into lawful use; (e) shall surrender the land back to the community if the member no longer shall be entitled to quiet enjoyment of the land; and
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Section 28
28.
(1) The customs and practices of pastoral communities relating to land shall be taken into consideration by a registered community as long as they are consistent with the provisions of this Act or other applicable law.
(2) Community land in a pastoral community shall be available for use by members of the community for the grazing of their livestock, subject to- (a) such conditions as the respective registered community may impose, including conditions relating to- (i) the kind and number of livestock that may be grazed; (ii) the section or sections of the land where livestock may be grazed and the grazing in rotation on different sections; and (iii) a grazing plan; (iv) the right of the community to utilize the portion of land in accordance with this Act.
(3) The registered community may upon application by any person who is not a member of the registered cofirmunity, grant grazing rights and upon such grant, that person shall exercise the rights subject to the conditions referred to in subsection (1): Provided that the registered community shall subject to the approval of the members of the registered corrmunity in a meeting convened for that purpose withdraw a grazing right granted under this subsection if, due to drought or any other reasonable cause, the registered community considers such cancellation to be in the interest of the residents of the community concerned.
(4) Notwithstanding subsection (1), a registered community may withdraw the grazing right of any member who- (a) fails to observe in a material respect any condition referred to in this Act; or (b) contravenes any provision of subsection (2).
(5) A person shall not, except with the written authority of the registered community- (a) erect or occupy any building or other structure on the designated grazing land; (b) plough or cultivate any portion of the land; (c) take up abode on or occupy any portion of the grazing land; and (d) obstruct the access to any watering place on the land, prevent or attempt to prevent any person from drawing water from, or watering stock at a watering place, pollute the water at a watering place or interfere with the operation of any windmill, waterpump, water-pipe, dam or storage tank or other appurtenance installed or constructed at such a watering place.
(6) A person who contravenes subsection (5) commits an offence and is liable, oil conviction, to a fine not exceeding one hundred thousand shillings or imprisonment for a period not exceeding six months.
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Section 29
29.
(1) A registered community may reserve special purpose areas including- (a) farming areas; (b) settlement areas; (c) community conservation areas; (d) access and rights of way; (e) cultural and religious sites; (f) urban development; or (g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest.
(2) An area designated for special purposes under subsection (1) shall be used exclusively for the designated purposes.
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Section 30
30.
(1) Every member of the community has the right to equal benefit from community land.
(2) Equality includes full and equal enjoyment of rights of use and access.
(3) Women, men, youth, minority, persons with disabilities and marginalized groups have the right to equal treatment in all dealings in community land.
(4) A registered community shall not directly or indirectly discriminate against any member of the community on any ground including race, gender, marital status, ethnic or social origin, colour, age, disability, religion or culture.
(5) For the avoidance of doubt, every man or woman married to a member of the corrmunity shall gain automatic membership of the community and such membership shall subsist until the spouses legally divorce and the woman remarries or the woman remarries after the death of a spouse.
(6) Subject to Article 159 of the Constitution, the culture of each community shall be recognrzed in accordance with Article 11(1) of the Constitution in the exercise of community land rights.
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Section 31
31.
(1) Subject to such exemptions as may be prescribed, or unless any condition attaching to a community land right or a right of leasehold under this Act provides otherwise, a customary land right may be dealt with only with the approval of the registered community in a meeting convened for such purpose.
(2) For the purposes of this Act, contracts and transfers over community land shall be carried out in a manner similar to transactions over private land as provided in the Land Act, 2012 and registered as provided in the Land Registration Act, 2012.
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Section 32
32.
(1) A lease over community land shall be on the basis of an agreement between the community and the lessee and subject to such implied conditions, restrictions and covenants as may be contained in any other written law.
(2) Despite section 55 (1) of the Land Act, 2012, unless the agreement contemplated under subsection ( 1) otherwise provides, the general provisions on leases contained in Part IV of that Act shall apply to leases over community land.
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Section 33
33.
In addition to such grounds of cancellation as may be set out in a deed of leasehold, a right of leasehold may be cancelled by a registered community, with approval of the members of the registered community, if the leaseholder fails to comply with the requirements or to adhere to any restrictions imposed by or under any law pertaining to the uttlization of the land to which the right relates.
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Section 34
34.
(1) Any person who immediately before the commencement of this Act, held a right to use and occupy any part of community land, whether by virfue of any authority granted under any law or otherwise than under a lease, may continue to use and occupy such land under that right, subject to the same terms and conditions until the lease expires, after which the provisions of sections 28 and 29 shall apply.
(2) Any conversion which commenced before the promulgation of the Constitution shall be deemed to have commenced under this Act, while any conversion commenced after the promulgation of the Constitution shall be null and void. PART VII - ENVIRONMENT AND NATURAL RESOURCES MANAGEMENT
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Section 35
35.
Subject to any other law, natural resources found Natumlrcsourceson in community land shall be used and managed-
(a) sustainably and productively;
(b) for the benefit of the whole community including future generations;
(c) with transparency and accountability; and
(d) on the basis of equitable sharing of accruing benefits.
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Section 36
36.
(1) Subject to any other relevant written law, an agreement relating to investment in community land shall be made after a free, open consultative process and shall contain provisions on the following aspects- (a) an environmental, social, cultural and economic impact assessment; (b) stakeholder consultations and involvement of the community; (c) continuous monitoring and evaluation of the impact of the investment to the community; (d) payment of compensation and royalties; (e) requirement to re-habilitate the land upon completion or abandonment of the project; (f) measures to be put in place to mitigate any negative effects of the investment; (g) capacity building of the community and transfer technology to the community; and (h) any other matters necessary for determining how local communities will benefit from investments in their land.
(2) An agreement relating to investment in community land shall only be made between the investor and the community.
(3) No agreement between an investor and the community shall be valid unless it is approved by two thirds of adult members at a community assembly meeting called to consider the offer and at which a quorum of two thirds of the adult members of that community is represented.
(4) The community may request the guidance and assistance of the county government or any other relevant stakeholders in considering the offer of investment.
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Section 37
37.
Subject to this Act and any other written law, a registered community may make rules or by-laws for regulating the management and administration of their land and such rules or by-laws may provide for-
(a) the regulation of investments on the land;
(b) the determination of terms of any leases granted for purposes of investment;
(c) the conservation and rehabilitation of the land;
(d) land use and physical planning; and
(e) any other relevant matter.
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Section 38
38.
(1) Pursuant to Article 66 of the Constitution, the State shall have the power to regulate the use of any land, or interest in or right over land, in the interest of defence, public safety, public order, public morality, public health or land use planning.
(2) Despite the provisions of Part 1 and pursuant to section 22 of the Fourth Schedule to the Constitution, the management of community land shall be subject to national and county government laws and policies relating to- (a) fishing, hunting and gathering (b) protection of animals and wildlife; (c) water protection, securing sufficient residual water, hydraulic engineering and safety of dams; (d) forestry; (e) environmental laws; (f) energy policy; and (g) exploitation of minerals and natural resources. PART VIII - SETTLEMENT OF DISPUTES RELATING TO COMMUNITY LAND
Legal Area
Requirements to consider climate change in spatial planning
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Section 39
39.
(1) A registered community may use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms where it is appropriate to do so, for purposes of settling disputes and conflicts involving community land.
(2) Any dispute arising between members of a registered community, a registered community and another registered community shall, at tirst instance, be resolved using any of the internal dispute resolution mechanisms set out in the respective community by-laws.
(3) Where a dispute or conflict relating to community land arises, the registered community shall give priority to alternative methods of dispute resolution.
(4) Subject to the provisions of the Constitution and of this Act, a court or any other dispute resolution body shall apply the customary law prevailing in the area of jurisdiction of the parties to a dispute or binding on the parties to a dispute in settlement of community land disputes so far as it is not repugnant to justice and morality and inconsistent with the Constitution.
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Section 40
40.
(1) Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to mediation.
(2) The mediation shall take place in private or in informal setting where the parties participate in the negotiation and design the format of the settlement agreement.
(3) The mediator shall have the power to bring together persons to a dispute and settle the dispute by- (a) convening meetings for the hearing of disputes from parties and keep record of the proceedings; (b) establishing ground rules for the conduct of parties; structuring and managing the negotiation process and helping to clarify the facts and issues; and (c) helping the parties to resolve their dispute.
(4) If an agreement is reached during the mediation process, the agreement shall be reduced into writing and signed by the parties at the conclusion of the mediation.
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Section 41
41.
(1) Where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to arbitration.
(2) Where the parties to an arbitration agreement fail to agree on the appointment of an arbitrator or arbitrators, the provisions of the Arbitration Act relating to the appointment of arbitrators shall apply.
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Section 42
42.
(1) Where all efforts of resolving a dispute under this Act fail, a party to the dispute may refer the matter to court.
(2) The Court may- (a) confirm, set aside, amend or review the decision which is the subject of the appeal; or (b) make any order in connection therewith as it may deem fit. PART IX - GENERAL PROVISIONS
Legal Area
Procedural rights – access to justice and dispute resolution
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Section 43
43.
(1) No person shall occupy or use for any purpose any registered community land other than under a right acquired in accordance with the provisions of this Act.
(2) A person who contravenes this section commits an offence.
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Section 44
44.
A person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.
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Section 45
45.
The following laws are repealed-
(a) the Land (Group Representatives) Act, (Cap 287); and
(b) the Trust Lands Act, (Cap 288).
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Section 46
46.
(1) Unless the contrary is specifically provided in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall be deemed to have been acquired under this Act.
(2) Unless the contrary is specifically provided in this Act or the circumstances are such that the contrary must be presumed, if any step has been taken to create, acquire, assign, transfer, or otherwise execute a disposition in community land, any such transaction shall be continued in accordance with the provisions of this Act.
(3) Any instrument executed before the commencement of this Act whereby any disposition permitted under this Act is completed may be presented for registration in the prescribed register and- (a) the question whether any instrument so presented is to be registered shall be determined by the Registrar by reference to the law in force at the time of its execution; and (b) subject to the provisions of paragraph (a), the provisions of this Act shall apply to that instrument as if it had been executed after the conunencement of this Act.
(4) If a lessor or chargor had initiated any steps to forfeit a lease or to foreclose a char ga, as the case may be, before the commencement of this Act, a court may on the application of the lessee or the chargee issue an injunction to the lessor or, to the chargor to stop the continuation of any such step.
(5) If a court had issued an injunction under subsection (4), the lessor or chargor to whom the injunction has been issued may commence any action under this Act to terminate that lease or bring that charge to an end.
(6) For the avoidance of doubt, the Cabinet Secretary shall develop the adjudication programme and ensure that the new and existing adjudication programme shall, subject to this Act, be governed by the law applicable to it immediately before to the commencement of this Act and shall be concluded within three years of the enactment of this Act.
(7) If at the lapse of the time specified by the Cabinet Secretary under subsection (6) there is any adjudication programme not finalized, the Cabinet Secretary shall gazette new completion dates and frnahze the registration under the provisions of this Act.
(8) The Director of Land Adjudication, an adjudication officer, demarcation officer, survey officer or a recording officer involved in an adjudication programme referred to under subsection (6) shall, for purposes of this section be deemed to be an officer of the national government.
(9) The provisions of this section shall be subject to the provisions of Article 63(4) of the Constitution and the legislation providing for the review of grants and dispositions.
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Section 47
47.
(1) In relation to land held under the Land (Group Representatives) Act, the respective group representatives together with the communities they represent shall be registered as a cofirmunity in accordance with the provisions of this Act.
(2) Upon registration, the respective group representatives shall cease to hold office.
(3) Land held by group representatives referred to under subsection ( 1) shall not be sold, leased or converted to private land before it has been registered under this Act.
(4) Title documents issued to group representatives under the Land (Group Representatives) Act shall continue to be in force until new titles are issued in the names of the respective communities or other institutions in accordance with this Act.
(5) The transitional provisions set out in the Schedule shall apply upon commencement of this Act.
(6) The Cabinet Secretary may prescribe regulations for giving effect to this section.
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Section 48
48.
(1) The Cabinet Secretary, ensuring public participation may make regulations generally for the better carrying into effect of this Act.
(2) Without prejudice to the generality of subsection (1), the Cabinet secretary, ensuring public participation may make Regulations prescribing- (a) the procedures ofrecognition and registration of all parcels of community land rights; (b) procedure for settlement of disputes arising from the community land registration process; (c) the requirements for investor partnershipr; (d) the procedures of registering any other entity holding community land; (e) conversion of other categories of land into community land; (f) the fees payable for any application or the issue of any certificate or other document in terms of this Act; (g) the conditions, in addition to conditions imposed by or under any other law, under which prospecting or mining operations may be carried out on community land; (h) public education and awareness on the rights of communities over community land; (i) the combating and prevention of soil erosion and degradation, the protection of the pastoral resources and the limitation and control of the grazing of stock; (j) payment of royalties to communities from income generated from resources within community lands. (k) the timelines within which the adjudication programme must be gazetted, including guidelines on how to ascertain community or individual claims of interest in or right over community land; (l) the rules and procedure for election of a community land management committee; and (m) the procedures for registration of interest in community land as enshrined in Article 63 of the Constitution. SCHEDULE (S.47(5)) TRANSITIONAL PROVISIONS
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Section 1
1.
(1) In this Schedule- "appointed day" means the day this Act comes into operation; "former institution" means the instifution by whatever name called registered under any of the repealed laws.
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Section 2
2.
(1) All rights, obligations and contracts which, immediately before the coming into operation of this Act, were vested in or imposed on a former institution shall be deemed to be the rights, obligations and contracts of the registered community.
(2) Notwithstanding any provision in this Act to the contrary, all agreements entered into between a community for the use of community land in the interest of defence, public safety, public order, public morality, public health, land use planning or shall continue in force.
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Section 3
3.
On the appointed day-
(a) all funds, assets, and other property, moveable and immovable which, immediately before the appointed day were vested in a former institution, shall, on the appointed duy, vest in the registered community;
(b) every public officer having the power or duty to effect or amend any entry in a register relating to property, or to issue or amend any certificate or other document effecting or evidencing title to properly, shall, without payment of a fee or other charge and upon request made by or on behalf of the registered community, do all such things as are by law necessary to give effect to the transfer of property referred to under paragraph (a); and
(c) all rights, powers, liabilities and duties whether arising under any written law or otherwise howsoever, which immediately before the appointed day were vested in, imposed on or enforceable by or against a former institution shall, by virtue of this paragraph, be tansferred to, vested in, imposed on or enforceable by or against the registered community.
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Section 4
4.
On or after the appointed day, all actions, suits or Legal legal proceedings whatsoiver pending by or against the former institution shall be carried on or prosecuted by or against the registered community, and no such action, suit or legal proceedings shall in any manner abate or be prejudicially affected by the enactment of this Act.
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Section 5
5.
The Cabinet Secretary shall prescribe procedures Pending appeals for the determination of all pending appeals to the Minister brought under any of the repeated laws.
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Section 6
6.
Any reference to a former institution in any written law or in any contract, document or instrument of whatever nature shall, on the commencement of this Act, be read and construed as a reference to the registered community.
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Section 7
7.
All directions, orders and authorizations givetr, or licenses or permits issued, or registrations made by a former institution and subsisting or valid immediately before the appointed duy, shall be deemed to have been given, issued or made by the registered community under this Act.
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Section 8
8.
Nothing in this Schedule shall be construed as giving exemption to the application of the provisions of Article 63(4) of the Constitution.
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