SPECIAL ISSUE

Kenya Gazette Supplement lt{o. 148 (Acts No. 27)

REPUBLIC OF KENYA

KENYA GAZETTE SU PPLEM ENT

ACTS,201 6

NAIROBI, 7th September, 2016

CONTENT

Act-PAGE

The Community Land Act,20l6 ........525

TATIOI{AL COUI.{CIL FOR LAIT REPORTIIIG

REC EIVE

P. O. Box 10443 - 00100NAIROBI, KENYA

TEL: 2z t ?231 FAX: 2712694

PRINTED AND PUBUSHED BY TIIE GOVERNMENT PRINTER, NAIROBI

525

THE COMMUNITY LAND ACT

No. 27 of 2016

Date of Assent: 3lst August,2016

Date of Commencement : 2 I st September, 201 6

ARRANGEMENT OF SECTIONS

Section

PART I-PRELIMINARYl-Short title.

2-lnterpretation.

3-Guiding principles.

PART II-RECOGNITION, PROTECTION AND REGISTRATIONOF COMMUNITY LAND RIGHTS

4-Ownership and tenure system.

5- Protection of community land rights.

6-Role of county governments.

7-Application for registration.

8-Procedure for recognition and adjudication of community land.

9-Community land Registrar.

l0-Register of community land.

I 1

-Registration of community land.

l2-Classes of holding community land.

l3-{ommunal and reserve land.

l4-Confirmation of validity of existing customary rights ofoccupancy.

PART III-ADMINISTRATION AND MANAGEMENT OFCOMMUNITY LAND

1 5-Functions and powers.

PART IV-NATURE OF COMMT]NITY LAND TITLEl6- Interest conferred by registration.

17- Rights of a community as proprietors.

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18- Certificate of title to be evidence of proprietorship.

19- Land use and development planning of community land.

2G- Conservation and management of resources in community land.

PART V-CONVERSION OF LAND

21- Conversion of community land generally.

22- Conversion of community land to public land.

23- Conversion of community land to private land.

24- Conversion of public land to community land.

25- Conversion of private land to community land.

26- Setting aside community land for public purposes.

PART VI-SPECIAL RIGHTS AI\[D ENTITLEMENTS IN THECOMMI]NITY LAND

27-Individual rights on community land.

28- Grazing rights.

29-Designation of other land use rights in community land.

3 0-Non-discrimination.

3 l-Transactions in community land.

32-Leases over community land.

33-Cancellation of rights of leasehold.

34- Existing rights to use and occupy community land.

PART YII- ENYIRONMENT AND NATURAL RESOURCESMANAGEMENT

35-Natural resources on community land.

36-Benefit sharing.

37-Rules and bye-laws

38-Regulation of community land use planning.

PART VIII- SETTLEMENT OF DISPUTES RELATING TOCOMMT]NITY LAND

3 9-Dispute resolution mechanisms.

4G-Mediation.

4l-Arbitration.

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Community Land

PART IX-GENERAL PROVISIONS

43-lJnlawful occupation of community land.

44 General penalty.

45-Repeals.

46-Saving and transitional provisions.

47 -Group

representatives, land-buying companies etc.

48-Regulations.

SCHEDULE

SCHEDULE: Transitional Provisions

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No. 27

THE COMMUNITY

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Community Land

LAND ACT, 2016

AN ACT of Parliament to give effect to Article 63 (5) ofthe Constitution; to provide for the recognition,protection and registration of community landrights; management and administration ofcommunity land; to provide for the role of countygovernments in relation to unregistered communityland and for connected purposes

ENACTED by the Parliament of Kenyl, as follows-PART I-PRELIMINARY

1. This Act may be cited as the Community Land Act,2016.

2.ln this Act, unless the context otherwise requir

"adjudication officer" means an officer appointed bythe Cabinet Secretary under section l0(2);

"Cabinet Secretary" means the Cabinet Secretary forthe time being responsible for matters relating to land;

"eadastral map" has the meaning assigned to it underthe Land Registration Act, 2012;

"certificate of reservation" means a certifi cate issuedin the interim by the Registrar pending the registration ofcommunity land and acquisition of the certificate of title;

"community" means a consciously distinct andorgantzed group of users of community land who arecitizens of Kenya and share any of the followingattributes-

(a) common ancestry;

(b) similar culture or unique mode of livelihood;

(c) socio-economic or other similar commoninterest;

(d) geographical space;

(e) ecological space; or

(0 ethnicity.

"community assembly" means a gathering ofregistered adult members of a community convened inaccordance with this Act;

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Short title.

Interpretation.

No.3 of 2012

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2016 Community Land

"communal use of land" means holding or using land

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in undivided shares by a community;

"community land" means includes-(a) land declared as such under Article 63(2) of the

Constitution;

(b) land converted into community land under anylaw;

"community land register" means the community landregister established under section 8 of the Land No.3 or20r2

Registration Act, 2012;

"community land registration unit" means at areadeclared as such under section 10 of the Land RegistrationAct;

"community of interests" means the possession orenjoyment of common rights, privileges or interests inland, living in the same geographical area or having suchapparent association;

"community reserve land" means any land set asidefor communal or land allocated by the registeredcommunity for individual occupation and use;

"community tenure system" means unwritten landownership practices in certain communities in which landis owned or controlled by a family, clan or a designatedcommunity leader;

"Commission" means the National Land Commissionestablished by Article 67 of the Constitution;

"county government" means the county governmentprovided for under Article 176 of the Constitution;

"Court" means the Environment and Land Courtestablished under the Environment and Land Court Act, Noreor20rr.

20ll or any other court having jurisdiction over landmatters as may be prescribed by any wriffen law;

"customary land rights" refer to rights conferred by orderived from African customary law, customs or practicesprovided that such rights are not inconsistent with theConstitution or any written law;

"fragile ecosystem" means an ecosystem hostingthreatened biodiversity;

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Community Land

"natural resources" has the meaning assigned to it inArticl e 260 of the Constitution;

"organised group" includes any or both formal andinformal kinds of organrzation in the community setup;

"Principal Secretary" means the Principal Secretaryfor the time being responsible for matters relating to land;

"Registrar" means the Registtar of community landdesignated in accordance with section 9 of this Act;

"registered community" means a community that hascompleted the registration processes and is recognizedunder this law;

"spouse" has the meaning assigned to it under theMarriage Act, 2014;

"vested interest" means absolute and indefeasibleownership.

3. In the performance of the functions and exercise ofpowers under this Act, every person dealing withcommunity land shall be guided by the followingprinciples-

(a) the principles of land policy set out in Article 60 ofthe Constitution; and

(b) the national values and principles of governance setout in Article l0 of the Constitution.

PART II-RECOGNITION, PROTECTION ANDREGISTRATION OF COMMUNITY LAND RIGHTS

4. (1) Community land in Kenya shall vest in theCommunity.

(2) Subject to the provisions of this Act or arry otherwritten law, the State may regulate the use of communityland in accordance with Article 66 of the Constitution.

(3) Community land shall vest in the community andmaybehe1dunderanyofthefo11owingtenuresystem

(a) custom ary;

(b) freehold;

(c) leasehold; and

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Guiding principles.

Ownership and tenuresystem.

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(d) such other tenure system recognized under thisAct or other written law.

5. ( I ) Every person shall have the right, eitherindividually or in association with others, to acquire andown properly, in accordance with Article 40 of theConstitution-

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Protection ofcommunity landrights.

(a) of any description; and

(b) in any part of Kenya.

(2) Customary land rights shall be recognized,adjudicated for and documented for purposes ofregistration in accordance with this Act and any otherwritten Iaw.

(3) Customary land rights, including those held incommon shall have equal force and effect in law withfreehold or leasehold rights acquired through allocation,registration or transfer.

(4) Subject to Article 40 (3) of the Constitution andthe Land Act, no interest in, or right over community landmay be compulsorily acquired by the State except inaccordance with the law, for a public purpose, and uponprompt payment of just compensation to the person orpersons, in full or by negotiated settlement.

(5) Subject to the provisions of section 46 of this Act,any person who immediately before the commencement ofthis Act had a subsisting customary right to hold or occupyland shall upon cornmencement of this Act continue tohold such right.

6. (1) County governments shall hold in trust all Roreorcountv

unregistered community land on behalf of the communities sov€rnm€nts'

for which it is held.

(2) The respective county government shall hold intrust for a community any monies payable as compensationfor compulsory acquisition of any unregistered communityland.

(3) Upon registration of community land, therespective county government shall promptly release to thecommunity all such monies payable for compulsoryacquisition.

(4) Any such monies shall be deposited in a specialinterest earning account by the county government.

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(5) The respective county government shall transferthe amount and the interests earned to the communities as

may be prescribed.

(6) Any transaction in relation to unregisteredcommunity land within the county shall be in accordancewith the provisions of this Act and any other applicablelaw.

(7) Upon the registration of any unregisteredcommunity land in accordance with this Act, the respectiveregistered community shall, assume the management andadministrative functions provided in this Act and thetrustee role of the respective county government in relationto the land shall cease.

(8) A county government shall not sell, dispose,transfer, convert for private pu{poses or in any other waydispose of any unregistered community land that it isholding in trust on behalf of the communities for which itis held.

7. (1) A community claiming an interest in or rightover community land shall be registered in accordancewith the provisions of this section.

(2) The community land registrar shall by notice inat least one newspaper of nationwide circulation and aradio station of nationwide coverage, invite all membersof the community with some communal interest to apublic meeting for the purpose of electing the membersof the community land management committee.

(3) The notice shall also be given to the nationalcounty administrators and county governmentadministrators in the area where the community land islocated.

(4) The cornmunity land registrar may use allavailable means of communication including electronicmedia to reach the community members.

(5) The community shall elect between seven andfifteen members from among themselves to be themembers of the community land management committeeas provided in section 15, who shall come up with acomprehensive register of communal interest holders.

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Procedure forregistration ofcommunities.

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(6) The community land management committee shallcome up with the name of the community and shall submitthe name, register of members, minutes of the meeting andthe rules and regulations of the committee to the Registrarfor registration.

8. (l) Subject to this Act and any law relating toadjudication of titles to land, the Cabinet Secretary shall, inconsultation with the respective county goverrrments,develop and publish in the Gazette a comprehensiveadjudication programme for purposes of registration ofcofirmunity land.

(2) The Cabinet Secretary shall, in consultation withthe county governments ensure that the process ofdocumenting, ffi&pping and developing of the inventory ofcommunity land shall be transparent, cost effective andparticipatory.

(3) The inventory of community land referred to insubsection (2) may be accessed by the county governmentsfor ease of access by members of the community.

(4) The Cabinet Secretary shall issue a public noticeof intention to survey, demarcate and register communityland.

(5) The notice shall-(a) contain the name of the community;

(b) state which land is to be adjudicated;

(c) invite all interested personsinterests or any other claim ontheir claims;

(d) specify an area or areas of landland registration unit; and

with overridingthe land, to lodge

to be a community

(e) be for a period of sixty days.

(6) The Cabinet Secretary shall cause the land to beadequately surveyed but such survey shall exclude-

(a) all parcels already in use for public pu{poses; and

(b) adjudicated private land.

(7) A cadastral map of the land shall then be producedand presented to the Registrar for registration.

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Procedure forrecognition and

adjudication ofcommunity land.

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Community Innd

9. The Chief Land Registrar shall designate aqualified registrar to be the community land Registrarresponsible for registration of community land.

10. (l) There shall be maintained for each registrationunit, a community land register in accordance with section8 of the Land Registration Act, 2012 in which shallcontain-

(a) a cadastral map showing the extent of thecommunity land and identified areas of commoninterest;

(b) the name of the registered community;

(c) a register of members of the registeredcommunity which shall be updated annually;

(d) the user of the land;

(e) such particulars of members of the registeredcommunity as the Registrar may determine; and

(flany other requirement under this Act.

(2) The Registrar shall not register any instrumentpurporting to dispose of rights or interest in communityland except in accordance with this Act or any otherwritten law.

(3) For the avoidance of doubt, until any parcel ofcommunity land has been registered in accordance withthis Act, such land shall remain unregistered communityland and shall, subject to this Act, be held in trust by thecounty governments on behalf of the communities forwhich it is held pursuant to Article 63(3) of theConstitution.

11. (1) Community land shall be registered inaccordance with the provisions of this Act and the LandRegistration Act, 2012.

(2) The Cabinet Secretary shall by a notice in thegazette, appoint an adjudication officer in respect of everycommunity registration unit who shall-

(a) facilitate in consultation with the respectivecounty governments the adjudication of thecommunity land including the recording ofcommunity land claims, demarcation of

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Community landRegistar.

Register ofcommunity land.No. 3 of 2012

Registration ofcommunity land.No. 3 of 2012

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community land and delineation of boundaries;and

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(b) perform any other function conferred by this Act.

(3) Upon adjudication, the title relating to communityland shall be issued by the Registrar in the prescribed form.

12. Community land maybe held- :jffiili'JiJftr(a) as cornmunal land;

(b) as family or clan land;

(c) as reserve land; or(d) in any other category of land recognized under

this Act or other written law.

13. (1) A registered community may by a resolution :ffiHJ'of the majority members of that community in a generalmeeting, reserve a portion of the community land forcommunal purposes.

(2) Any land which has been used communally, forpublic purpose, before the commencement of this Act shallupon commencement of this Act be deemed to be publicland vested in the national or county government,according to the use it was put for.

(3) A registered community may reserve specialpurpose areas including areas for-

(a) farming;

(b) settlement;

(c) community conservation;

(d) cultural and heritage sites;

(e) urban development; or(0 any other purposes as may be determined by the

community, respective county government ornational government for the promotion orupgrading of public interest.

(4) An area reserved for special purposes undersubsection (3) shall be used exclusively for the intendedpurpose.

14. (1) A gygomary right of occupancy in :;rTffii$,ikcommunity land shall in every respect be equal in stafus customaryrightsor

and effect to a right of occupancy granted in any other occupancv'

category of land and shall, subject to this Act, be-

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(a) capable of being allocated by the community toan individual person, family, group of persons,clan, an association, partnership or bodycorporate wholly owned by citrzens of Kenya;

capable of being of indefinite duration; and

governed by customary law in respect of anydealings.

(2) A customary right of occupancy on anycommunity land subsisting before the commencement ofthis Act shall upon the commencement of this Act be a

recognisable right of occupancy in the respectivecommunity land subject to Article 40(6) of theConstifution.

(3) A person, a family unit, a group of personsrecognized as such under any customary law or who haveformed or organized themselves as an association, a co-operative society or any other body recognrzed by anywritten law, who are members of a community may applyto the registered community for customary right ofoccupancy.

(4) The registered community shall, when consideringthe application have regard to-

(a) proposals made by the adjudication team or anysub-committee of the registered community set upfor that purpose; and

(c) equality of all persons including-(i) equal treatment of applications for women and

men; and

(ii) non-discrimination of any person on the basisof gender, disability, minority, culture or maritalstatus.

(5) Upon approval by the registered community, theregistered community shall issue a certificate of customaryright of use and occupancy in the prescribed form.

PART III-ADMINISTRATION ANDMANAGEMENT OF COMMUNITY LAND

15. ( 1) A registered community shall have acommunity assembly which shall consist of all adultmembers of the community.

(b)

(c)

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Functions and powersof the community landmanaganentcommiffee.

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Community Land

(2) The quorum for decision making by thecommunity shall not be less than two thirds of thecommunity assembly.

(3) The community assembly shall elect betweenseven and fifteen members of the community assembly toconstifute the community land management committee.

(4) The functions of the community land managementcommittee shall be to-

(a) have responsibility over the running of the day today functions of the community;

(b) manage and administer registered community landon behalf of the respective community;

(c) coordinate the development of community landuse plans in collaboration with the relevantauthorities;

(d) promote the co-operation and participation amongcommunity members in dealing with matterspertaining to the respective registered communityland; and

(e) prescribe rules and regulations, to be ratified bythe community assembly, to govern the operationsof the community.

(5) Any decision of a registered community to disposeof or otherwise alienate community land shall be binding ifit is supported by at least two thirds of the registered adultmembers of the community, while all other decisions of theregistered community shall be by a simple majority of themembers present in a meeting.

PART IV-NATURE OF COMMUNITY LANT)TITLE

16. Subject to this Act-(a) the registration of a community as the proprietor

of land shall vest in that community the absoluteownership of that land together with all rights andprivileges belonging or appurtenant thereto; and

(b) the registration of a community or a person as theproprietor of a lease shall vest in that community

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Interest conferred byregistration.

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Community Land

or person the leasehold interest described in thelease, together with all implied and express rightsand privileges belonging or appurtenant theretoand subject to all implied or express agreements,liabilities or incidents of the lease.

17 . ( 1) The rights of a registered community as

proprietor, whether acquired on first registration orsubsequently for valuable consideration or by an order ofcourt, shall not be liable to be defeated except as providedin this Act or any other written law, and shall be held onbehalf of the community, together with all privileges andappurtenances belonging thereto, free from all otherinterests and claims whatsoever, but subject to-

(a) the leases, charges and other encumbrances and tothe conditions and restrictions, if an), shown inthe register; and

(b) such overriding interests as may affect the landand are declared by section 28 of the LandRegistration Act, 2012 .

(2) Nothing in this section shall be taken to relieve aregistered community from any duty or obligation to whichthe registered community is subject to as a proprietor.

18. (1) The certificate of title issued by the Registrarupon registration, or to a purchaser of community landupon a transfer or ffansmission by the proprietorcommunity shall be considered by courts as prima facieevidence that the person named as proprietor of the land isthe absolute and indefeasible owner, subject to theencumbrances, easements, restrictions and conditionscontained or endorsed in the certificate, and it shall not besubject to challetrBe, except-

(a) on grounds of fraud or misrepresentation towhich the person is proved to be a party; or

(b) where the certificate of title has been acquiredillegally, unprocedurally or through a corruptscheme.

(2) A certified copy of any registered instrument,signed by the Registrar and sealed with the Seal of theRegistrar, shall be received in evidence in the same manneras the original.

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Rights of a

community as

proprietor.

No. 3 of 2012

Certificate of title tobe evidence ofproprietorship.

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Community Land

19. (1) A registered community may, otr its ownmotion or at the request of the county govemment, submitto the county government a plan for the development,management and use of the corlmunity land administeredby the registered community for approval.

(2) Before submitting a plan to the county governmentunder subsection (l) a registered community shall-

(a) consider any conservation, environmental orheritage issues relevant to the development,management or use of the land;

(b) incorporate in the plan a statement that it hasconsidered those issues in paragraph (a) whendrawing up the plan;

(c) consider any environmental impact plan pursuant toexisting laws on environment;

(d) comply with the values and principles of theConstitution;

(e) seek ratification from the members of the registeredcommunity; and

(0 be bound by any approved relevant physicaldevelopment plan.

(3) If a registered community submits a plan to thecounty government under subsection ( 1) and thegovernment approves and notifies the registeredcommunity of that fact, the registered community shalldevelop, manage and use the land concerned in accordancewith the plan as approved or subsequently varied as thecase may be.

(4) The county government shall, in considering aplan submitted to it under this section comply with therelevant law relating to development planning.

(5) The county government shall on the request of theCommission submit records of development plans lodgedwith the county government in accordance with thissection.

20. ( 1) For purposes of the sustainable conservationof land based natural resources within community landacross counties, every respective registered communityshall abide by the relevant applicable laws, policies andstandards on natural resources.

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Land use anddevelopment planningof community land.

Conservation andmanagement ofresources incommunity land.

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(2) With respect to subsection ( 1), the communitiesshall establish -

(a) measures to protect critical ecosystems andhabitats;

(b) incentives for communities and individuals toinvest in income generating natural resourceconservation programmes ;

(c) measures to facilitate the access, use and co-management of forests, water and other resourcesby communities who have customary rights to theseresources;

(d) procedures for the registration of natural resourcesin an appropriate register; and

(e) procedures for the involvement of communities andother stakeholders in the management andutilization of land-based natural resources.

(3) A registered community shall put in placemeasures necessary to conserve resources in communityland.

PART V-CONYERSION OF LAND21. ( 1) The Community land register shall, in

addition to the particulars set out under section 8(1) of theLand Registration Act, 2012, contain the particulars of allconversions involving community land.

(2) A registered community shalI, before theconversion of registered community land into any othercategory of land seek and obtain approval from two thirdsof the assembly in a special meeting convened for thatpu{pose.

22. (1) Community land may be converted to publicland by-

(a) compulsory acquisition;

(b) transfer; or

(c) surrender.

(2) Nothing in this Act limitsLand Act, 2012 and any othercompulsory acquisition of land.

the application of thelaw in relation to

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Conversion ofcommunity land.

No. 3 of 2012.

Conversion ofcommunity land topublic land.

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Communiry Land

(3) Reversionary interest of such land shall lie withthe community in the first instance upon expiry of suchpublic use interest.

(4) Transfer of community land shall, subject to theapproval of the members of the registered community in acommunity meeting, be done in accordance with the LandAct, 2012 and any other applicable law.

23. Registered community land ma), subject to theapproval of the registered community, be converted toprivate land through-

(a) transfer; or

(b) allocation by the registered community, subject toratification of the assembly as provided in section2t(2).

24. (1) Public land may be converted to communityland by allocation by the Commission in accordance withthe Land Act, 2012

(2) Conversion of public land to community landunder subsection ( 1) may be effected on a case by case

basis.

(3) The Commission ma), by an order published inthe gazette identify other specific parcels to whichsubsection (2) shall not apply.

25. Private land may be converted to community landby-

(a) transfer;

(b) surrender;

(c) operation of the law in relation to illegally acquiredcommunity land; or

(d) operation of any other written law.

26. (1) A community may set aside part of theregistered community land for public purposes.

(2) Where land is set aside for public purposes undersubsection ( 1), the Commission shall gazette such parcel ofland as public land.

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No. 6 of 2012

Conversion ofcommunity land toprivate land.

Conversion of publicland to communityland.

No. 6 of 2012

Conversion ofprivate land to

community land.

Setting aside

community land forpublic purposes.

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ENrrd"ttil$;li'f#?-t'ffi LAND

27. (1) A registered community may upon applicationand with approval of the members of the registeredcommunity, allocate part of its registered cortmunity landto a member or a group of members of the corlmunity forexclusive use and occupation for such period as theregistered community shall determine.

(2) Despite subsection (1), a separate title shall not beissued 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 ofland under this section-

(a) shall pay to the registered community suchpremium or fees commensurate to the use as maybe determined by the community from time totime;

(b) may develop the land subject to the provisions ofany laws and regulations relating to land use;

(c) may not assign or lease the land to a third partywho is not a member of the corrmunity;

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Individual rights oncommunity land.

shall put the land into lawful use;

shall surrender the land back to the communityif the member no longer shall be entitled to quietenjoyment of the land.requires the land; and

28. (1) The customs and practices of pastoral Grzingrights'

communities relating to land shall be taken intoconsideration by a registered community as long as theyare consistent with the provisions of this Act or otherapplicable law.

(2) Community land in a pastoral community shall beavailable for use by members of the community for thegrazing of their livestock, subject to-

(a) such conditions as the respective registeredcommunity may impose, including conditionsrelating to-(i) the kind and number of livestock that may be

grazed;

(d)

(e)

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(ii) the section or sections of the land wherelivestock may be grazed and the grazing inrotation on different sections; and

(iii) a grazing plan;

(iv) the .right of the community to utilize theportion of land in accordance with this Act.

(3) The registered community may upon application byany person who is not a member of the registeredcofirmunity, grant grazing rights and upon such grant, thatperson shall exercise the rights subject to the conditionsreferred to in subsection (1):

Provided that the registered community shall subjectto the approval of the members of the registeredcorrmunity in a meeting convened for that purposewithdraw a grazing right granted under this subsection if,due to drought or any other reasonable cause, the registeredcommunity considers such cancellation to be in the interestof the residents of the community concerned.

(4) Notwithstanding subsection ( 1) , a registeredcommunity may withdraw the grazing right of any memberwho-

(a) fails to observe in a material respect any conditionreferred to in this Act; or

(b) contravenes any provision of subsection (2).

(5) A person shall not, except with the writtenauthority of the registered community-

(a) erect or occupy any building or other structure onthe designated grazing land;

(b) plough or cultivate any portion of the land;

(c) take up abode on or occupy any portion of thegrazing land; and

(d) obstruct the access to any watering place on theland, prevent or attempt to prevent any person fromdrawing water from, or watering stock at a wateringplace, pollute the water at a watering place orinterfere with the operation of any windmill, water-pump, water-pipe, dam or storage tank or otherappurtenance installed or constructed at such a

watering place.

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(6) A person who contravenes subsection (5) commitsan offence and is liable, oil conviction, to a fine notexceeding one hundred thousand shillings or imprisonmentfor a period not exceeding six months.

29. (1) A registered community may reserve specialpurpose areas including -

(a) farming areas;

(b) settlement areas;

(c) community conservation areas;

(d) access and rights of way;

(e) cultural and religious sites;

(0 urban development; or

(g) any other purpose as may be determined by thecommunity, county government or nationalgovernment for the promotion of public interest.

(2) An area designated for special purposes undersubsection ( 1) shall be used exclusively for the designatedpurposes.

30. (1) Every member of the community has the rightto equal benefit from community land.

(2) Equality includes full and equal enjoyment ofrights of use and access.

(3) Wometr, men, youth, minority, persons withdisabilities and marginahzed groups have the right to equaltreatment in all dealings in community land.

(4) A registered community shall not directly orindirectly discriminate against any member of thecommunity on any ground including race, gender, maritalstatus, ethnic or social origin, colour, age, disability,religion or culture.

(5) For the avoidance of doubt, every man or womanmarried to a member of the corrmunity shall gainautomatic membership of the community and suchmembership shall subsist until the spouses legally divorceand the woman remarries or the woman remarries after thedeath of a spouse.

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Designation ofother land userights in communityland.

Non-discrimination.

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Community l-and

(6) Subject to Article 159 of the Constitution, theculture of each community shall be recognrzed inaccordance with Article 11(1) of the Constitution in theexercise of community land rights.

31. (1) Subject to such exemptions as may beprescribed, or unless any condition attaching to acommunity land right or a right of leasehold under this Actprovides otherwise, a customary land right may be dealtwith only with the approval of the registered community ina meeting convened for such purpose.

(2) For the purposes of this Act, contracts andtransfers over community land shall be carried out in amanner similar to transactions over private land as

provided in the Land Act, 2012 and registered as providedin the Land Registration Act, 201,2.

32. (1) A lease over community land shall be on thebasis of an agreement between the community and thelessee and subject to such implied conditions, restrictionsand covenants as may be contained in any other writtenlaw.

(2) Despite section 55 (1) of the Land Act, 2012,unless the agreement contemplated under subsection ( 1)otherwise provides, the general provisions on leasescontained in Part IV of that Act shall apply to leases overcommunity land.

33. In addition to such grounds of cancellation as

may be set out in a deed of leasehold, a right of leaseholdmay be cancelled by a registered community, withapproval of the members of the registered community, ifthe leaseholder fails to comply with the requirements or toadhere to any restrictions imposed by or under any lawpertaining to the uttlization of the land to which the rightrelates.

34. (1) Any person who immediately before thecommencement of this Act, held a right to use and occupyany part of community land, whether by virfue of anyauthority granted under any law or otherwise than under alease, may continue to use and occupy such land under thatright, subject to the same terms and conditions until thelease expires, after which the provisions of sections 28 and29 shall apply.

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Transactions incommunity land.

No. 6 of 2012No. 3 of 2012

Leases overcommunity land.

No. 6 of 2012

Cancellation ofrights of leasehold.

Existing rights touse and occupycommunity land.

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(2) Any conversion which commenced before thepromulgation of the Constitution shall be deemed to havecommenced under this Act, while any conversioncommenced after the promulgation of the Constitutionshall be null and void.

PART VII-ENVIRONMENT AND NATURALRESOT]RCES MANAGEMENT

35. Subject to any other law, natural resources found Natumlrcsourceson

in community land shall be used and managed- communitv land'

(a) sustainably and productively;

(b) for the benefit of the whole community includingfuture generations;

(c) with transparency and accountability; and

(d) on the basis of equitable sharing of accruingbenefits.

36. (1) Subject to any other relevant written law, an Benentsharins'

agreement relating to investment in community land shallbe made after a free, open consultative process and shallcontain provisions on the following aspects-

(a) an environmental, social, cultural and economicimpact assessment;

(b) stakeholder consultations and involvement of thecommunity;

(c) continuous monitoring and evaluation of the impactof 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 negativeeffects of the investment;

(g) capacity building of the community and transfertechnology to the community; and

(h) any other matters necessary for determining howlocal communities will benefit from investments intheir land.

(2) An agreement relating to investment in communityland shall only be made between the investor and thecommunity.

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(3) No agreement between an investor and thecommunity shall be valid unless it is approved by twothirds of adult members at a community assembly meetingcalled to consider the offer and at which a quorum of twothirds of the adult members of that community isrepresented.

(4) The community may request the guidance andassistance of the county government or any other relevantstakeholders in considering the offer of investment.

37. Subject to this Act and any other written law, a Rures and bv-laws'

registered community may make rules or by-laws forregulating the management and administration of their landand such rules or byJaws may provide for-

(a) the regulation of investments on the land;

(b) the determination of terms of any leases granted forpurposes of investment;

(c) the conservation and rehabilitation of the land;

(d) land use and physical planning; and

(e) any other relevant matter.

38. (1) Pursuant to Article 66 of the Constitution,the State shall have the power to regulate the use of anyland, or interest in or right over land, in the interest ofdefence, public safety, public order, public morality, publichealth or land use planning.

(2) Despite the provisions of Part 1 and pursuant tosection 22 of the Fourth Schedule to the Constitution, themanagement of community land shall be subject to nationaland 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;

(0 energy poli cy; and

(g) exploitation of minerals and natural resources.

Regulation ofcommunity land useplanning.

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PART VIII-SETTLEMENT OF DISPUTESRELATING TO COMMUNITY LANT)

39. (1) A registered community may use alternativemethods of dispute resolution mechanisms includingtraditional dispute and conflict resolution mechanismswhere it is appropriate to do so, for purposes of settlingdisputes and conflicts involving community land.

(2) Any dispute arising between members of aregistered community, a registered community and anotherregistered community shall, at tirst instance, be resolvedusing any of the internal dispute resolution mechanisms setout in the respective community by-laws.

(3) Where a dispute or conflict relating to communityland arises, the registered community shall give priority toalternative methods of dispute resolution.

(4) Subject to the provisions of the Constitution andof this Act, a court or any other dispute resolution bodyshall apply the customary law prevailing in the area ofjurisdiction of the parties to a dispute or binding on theparties to a dispute in settlement of community landdisputes so far as it is not repugnant to justice and moralityand inconsistent with the Constitution.

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Dispute resolutionmechanisms.

40. (l) Where a dispute relating to community land Mediation'

arises, the parties to the dispute may agree to refer thedispute to mediation.

(2) The mediation shall take place in private or ininformal setting where the parties participate in thenegotiation and design the format of the settlementagreement.

(3) The mediator shall have the power to bringtogether persons to a dispute and settle the dispute by-

(a) convening meetings for the hearing of disputesfrom parties and keep record of the proceedings;

(b) establishing ground rules for the conduct of parties;

structuring and managing the negotiation process andhelping to clarify the facts and issues; and

(c) helping the parties to resolve their dispute.

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(4) If an agreement is reached during the mediationprocess, the agreement shall be reduced into writing andsigned by the parties at the conclusion of the mediation.

41. (1) Where a dispute relating to community land Arbitration'

arises, the parties to the dispute may agree to refer thedispute to arbitration.

(2) Where the parties to an arbitration agreement failto agree on the appointment of an arbitrator or arbitrators,the provisions of tn" Arbitration Act relating to the No'4orree5

appointment of arbitrators shall apply.

42. (t) Where all efforts of resolving a dispute under lljl!I}*r..this Act fal.l, a party to the dispute may refer the matter tocourt.

(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 maydeem fit.

PART IX-GENERAL PROVISIONS43. (1) No person shall occupy or use for any purpose y;f#:, *

any registered community land other than under a right comunitv rand.

acquired in accordance with the provisions of this Act.

(2) A person who contravenes this section commits anoffence.

4. A person convicted of an offence under this Act Generalpenaltv'

for which no other penalty is provided shall be liable to afine not exceeding five hundred thousand shillings or toimprisonment for a term not exceeding three years, or toboth.

45. The following laws are repealed- Repears'

(a) the Land (Group Representatives) Act, (Cap 287);and

(b) the Trust Lands Act, (Cap 288).

46. (I) Unless the contrary is specifically provided in *:i,r,"*fthis Act, any right, interest, title, power, or obligation provisions.

acquired, accrued, established, coming into force orexercisable before the commencement of this Act shall bedeemed to have been acquired under this Act.

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(2) Unless the contrary is specifically provided in thisAct or the circumstances are such that the contrary must bepresumed, if any step has been taken to create, acquire,assign, transfer, or otherwise execute a disposition incommunity land, any such transaction shall be continued inaccordance with the provisions of this Act.

(3) Any instrument executed before thecommencement of this Act whereby any dispositionpermitted under this Act is completed may be presented forregistration in the prescribed register and-

(a) the question whether any instrument so presentedis to be registered shall be determined by theRegistrar by reference to the law in force at thetime of its execution; and

(b) subject to the provisions of paragraph (a), theprovisions of this Act shall apply to thatinstrument as if it had been executed after theconunencement of this Act.

(4) If a lessor or chargor had initiated any steps toforfeit a lease or to foreclose a char ga, as the case may be,before the commencement of this Act, a court may on theapplication of the lessee or the chargee issue an injunctionto the lessor or, to the chargor to stop the continuation ofany such step.

(5) If a court had issued an injunction undersubsection (4), the lessor or chargor to whom theinjunction has been issued may commence any actionunder this Act to terminate that lease or bring that charge toan end.

(6) For the avoidance of doubt, the Cabinet Secretaryshall develop the adjudication programme and ensure thatthe new and existing adjudication programme shall, subjectto this Act, be governed by the law applicable to itimmediately before to the commencement of this Act andshall be concluded within three years of the enactment ofthis Act.

(7) If at the lapse of the time specified by the CabinetSecretary under subsection (6) there is any adjudicationprogramme not finalized, the Cabinet Secretary shallgazette new completion dates and frnahze the registrationunder the provisions of this Act.

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(8) The Director of Land Adjudication, anadjudication officer, demarcation officer, survey officer ora recording officer involved in an adjudication programmereferred to under subsection (6) shall, for purposes of thissection be deemed to be an officer of the nationalgovernment.

(9) The provisions of this section shall be subject tothe provisions of Article 63(4) of the Constitution and thelegislation providing for the review of grants anddispositions.

47. (1) In relation to land held under the Land(Group Representatives) Act, the respective grouprepresentatives together with the communities theyrepresent shall be registered as a cofirmunity in accordancewith the provisions of this Act.

(2) Upon registration, the respective grouprepresentatives shall cease to hold office.

(3) Land held by group representatives referred tounder subsection ( 1) shall not be sold, leased or convertedto private land before it has been registered under this Act.

(4) Title documents issued to group representativesunder the Land (Group Representatives) Act shall continueto be in force until new titles are issued in the names of therespective communities or other institutions in accordancewith this Act.

(5) The transitional provisions set out in the Scheduleshall apply upon commencement of this Act.

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Grouprepresentatives.Cap.287

Cap. 287

(6) The Cabinet Secretary may prescribe regulationsfor giving effect to this section.

48. (1) The Cabinet Secretary, ensuring public Regurations'

participation may make regulations generally for the bettercarrying into effect of this Act.

(2) Without prejudice to the generality of subsection(1), the Cabinet secretary, ensuring public participationmay make Regulations prescribing-

(a) the procedures ofrecognition and registration of allparcels of community land rights;

(b) procedure for settlement of disputes arising fromthe community land registration process;

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(c) the requirements for investor partnershipr;

(d) the procedures of registering any other entityholding community land;

(e) conversion of other categories of land intocommunity land;

(0 the fees payable for any application or the issue ofany certifi cate or other document in terms of thisAct;

(g) the conditions, in addition to conditions imposed byor under any other law, under which prospecting ormining operations may be carried out oncommunity land;

(h) public education and awareness on the rights ofcommunities over community land;

(i) the combating and prevention of soil erosion anddegradation, the protection of the pastoral resourcesand the limitation and control of the grazing ofstock;

0) payment of royalties to communities from incomegenerated from resources within community lands.

(k) the timelines within which the adjudicationprogramme must be gazetted, including guidelineson how to ascertain community or individual claimsof interest in or right over community land;

(l) the rules and procedure for election of a communityland management committee; and

(m) the procedures for registration of interest incommunity land as enshrined in Article 63 of theConstitution.

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SCHEDULE (s.47(5))

TRANSITIONAL PROVISIONS

1. (l) In this Schedule-

"appointed day" means the day this Act comes intooperation;

"former institution" means the instifution bywhatever name called registered under any of the repealedlaws.

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 bedeemed to be the rights, obligations and contracts of theregistered community.

(2) Notwithstanding any provision in this Act to thecontrary, all agreements entered into between a

community for the use of community land in the interestof defence, public safety, public order, public morality,public health, land use planning or shall continue in force.

3. On the appointed day-(a) all funds, assets, and other property, moveable

and immovable which, immediately before theappointed day were vested in a formerinstitution, shall, on the appointed duy, vest inthe registered community;

(b) every public officer having the power or duty toeffect or amend any entry in a register relatingto property, or to issue or amend any certifi cateor other document effecting or evidencing titleto properly, shall, without payment of a fee orother charge and upon request made by or onbehalf of the registered community, do all suchthings as are by law necessary to give effect tothe transfer of property referred to underparagraph (a); and

(c) all rights, powers, liabilities and duties whetherarising under any written law or otherwisehowsoever, which immediately before theappointed day were vested in, imposed on or

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lnterpretation.

Rights andobligations.

Assets and

liabilities.

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enforceable by or against a former institutionshall, by virtue of this paragraph, be tansferredto, vested in, imposed on or enforceable by oragainst the registered community.

4. On or after the appointed day, all actions, suits or Legal

legal proceedings whatsoiver pending by or against the proceedings'

former institution shall be carried on or prosecuted by oragainst the registered community, and no such action, suitor legal proceedings shall in any manner abate or beprejudicially affected by the enactment of this Act.

5. The Cabinet Secretary shall prescribe procedures Pending appeals

for the determination of aU pending appeals to the to the Minister

Minister brought under any of the r.p.i.d tu*r. over.communitv

6. Any reference to a former institution in anywritten law or in any contract, document or instrument ofwhatever nature shall, on the commencement of this Act,be read and construed as a reference to the registeredcommunity.

7. All directions, orders and authorizations givetr, orlicenses or permits issued, or registrations made by a

former institution and subsisting or valid immediatelybefore the appointed duy, shall be deemed to have beengiven, issued or made by the registered community underthis Act.

8. Nothing in this Schedule shall be construed as

giving exemption to the application of the provisions ofArticle 63(4) of the Constitution.

Reference towritten laws.

Directions,orders, etc offormerinstitution.