Introduction
Access to land is inextricably linked to social justice. The concept of social justice pertains to fairness in the relation between individuals in society and the extent to which different socio-economic groups have equal access to land. It is a fundamental means whereby everyone including the poor can contribute to economic development. By 2030, the SDG 1 targets to provide equal rights in access to land, including ownership, control, and inheritance so that the poor, vulnerable groups, and women can benefit. In addition, the SDG 5 focuses on reforms to give land rights to women. Article 40 (1) gives everyone an equal right, either individually or collectively, to acquire and own property including land in any region of Kenya.
The National Land Policy (2009) contains the principles that aim to promote social justice. The first step is to achieve land rights by eradicating ethnic and gender discriminatory laws, customs, and practices. This allows the citizens to secure land rights tailored to their specific needs and socio-economic status. It also accounts for the diversity that exists among various societal groups. Second, is to secure land tenure and encourage landowners to invest their labour into it. Third, is to promote and facilitate the use of alternative dispute settlement processes in land conflicts. This enables everyone to express their ideas and concerns, and participate in any decision-making process that directly impacts their livelihood. Fourth, is to eliminate self-interest and power imbalances by providing transparent and cost-effective land administration while preserving human rights.
Article 67(1) establishes the National Land Commission (NLC). The commission was operationalized by the NLC Act (2012), Land Act (2012) and Land Registration Act (2012) and mandated to manage public land on behalf of the Government and counties and recommend the national land policy among other functions. The Environment and Land Court Act (2011) actualizes Article 162(2) by establishing the Environment Land Court to resolve disputes over environment and the use and occupation of, and title to land. This court exercises jurisdiction throughout Kenya and has the powers to deal with land administration and management issues and cases relating to public, private and community land and contracts. This blog discusses the status of social justice in access to land, identifies policy gaps and gives recommendations to address land-related issues.
Status of Social Justice in Access to Land
The National Titling Programme was started in 2013 to accelerate adjudication and settlement programmes through Rapid Result Initiatives and aid in issuance of title deeds using systematic registration of all property. In 2021, the Ministry of Land and Physical Planning began digitalizing land titles to enhance the security of land records, improve accessibility and cutdown the cost of land transaction through the National Land Information Management System. The online platform, Ardhi Sasa enables accessing land data and carrying out paperless transactions. The government allocated Ksh 2 billion for processing and registration of title deeds and digitization of land registries in the financial year 2023/24.
Figure 1 shows the number of title deeds processed and issued out per county from 2013 to 2021. The issuance of title deeds has helped to achieve equitable land ownership, occupation, and use.
Figure 1: The number of title deeds processed and issued out per county (2013-2021)
Source: Ministry of Lands and Physical Planning (2021)
The lowest issuance of title deeds was recorded in Isiolo, Marsabit, Garissa, Samburu and Lamu counties. A long history of land ownership disputes has contributed to this situation.
Social justice for the poor in access to land
Landlessness adversely affects effective land use, for instance, conflicts over water, land, and minerals. Section 134 of the Land Act (2012) provides remedy to bridge the divide by establishing a framework and mechanism for settlement of landless, displaced persons and squatters. In 2023, the government allocated Ksh 2.6 billion for settlement of the landless.[i] However, implementation of the Act in administration of land settlement faces challenges on the guidelines for identifying, verifying, and recording genuine squatters. The data on genuine squatters and landless is not up-to-date and accurate. It is also challenging to identify and validate the beneficiaries in the settlement schemes. Table 1 shows the title deeds processed for parcels of land under settlement schemes in various counties in 2021. The schemes are classified as either squatter or conventional.
Table 1: The title deeds processed in 2021
| County | Settlement scheme | Scheme type | Number of title deeds processed for parcel of lands |
| Kilifi | Mambrui extension | Squatter | 48 |
| Machakos | Tumu Tumu squatters | Squatter | 186 |
| Makueni | Kaunguni settlement scheme | Squatter | 1,721 |
| Mombasa | Miritini squatter settlement | Squatter | 204 |
| Nakuru | San Marco settlement scheme | Conventional | 161 |
| Mau Summit settlement scheme | Conventional | 320 | |
| Giwa IDP settlement scheme | Conventional (internally displaced persons) | 569 | |
| Taita Taveta | Mwachabo Phase II | Squatter | 1,260 |
Source: Ministry of Lands and Physical Planning (2021)
Social justice for the women in access to land
The National Land Policy (2009) offers direction to implement laws, policies, and programmes that respect, uphold and fulfill women’s rights to land. In the Community Land Act (2016), women were automatically granted community membership, and this membership remains until they remarry after a divorce or death. In addition, the Matrimonial Property Act (2013) protects the rights of women and gender responsibilities.
Women make up 70 per cent of the agricultural labourforce, but only 3 per cent own agricultural land, while 22 per cent own it jointly with their husband or another person (KNBS, 2022).[1] Equal access to land rights are not always conferred to women compared to men for instance women do not adequately participate or make decisions on land-related matters (State Department of Gender, 2021). Some communities have discriminatory cultural practices which do not recognize women rights. Majority of the women have limited knowledge, which compounds lack of awareness of their right in access to land (National Land Monitoring Report, 2022).
Social justice for the youths in access to land
Under the Succession Act (2012), young people can gain access to land through inheritance. These rights, especially for young women, are not sufficiently protected and enforced by customs or laws. Where land is owned by the community, decision on how to use it is generally taken by elders. The limited access to land is a constraint to the youths’ ability to be productive participants in agriculture.
Policy Gaps in Access to Land
Slow registration of community lands
The Community Land Act (2016) and the Community Lands Regulations (2017) contain the procedures for community land registration. Thus far, the Ministry of Lands and Physical Planning has processed community land title deeds for West Pokot County (4), Laikipia County (3), Samburu County (1) and Kajiado County (2). The registration has been slow due to inadequate political goodwill, insufficient funding, and inadequate capacity for implementation. The unregistered community lands are held in trust by the County governments.
The Act fails to recognize vital natural assets as grazing areas, watering holes and points as integral parts of community rights to land. For example, pastoralist communities have challenged lands taken involuntarily from them by county governments in their capacity as trustees. Similarly, the Mau Ogiek filed a case to challenge the decision to evict them from their lands inside forest reserves and resettle them elsewhere.
Insecure land tenure
Insecure tenure exposes one to the risk of losing their land rights to competing claims or eviction. Land tenure security is when the rights that we legitimately own are confirmed. Secure land tenures reduce conflicts and provide for other land uses such as agriculture, manufacturing, mining, and urban planning. Sections 5 (a) and (b) of the Land Act (2012) provides for a freehold tenure and a leasehold tenure, respectively. For leasehold tenure, there is no standardized criteria for granting lease period to encourage long-term investment. In addition, there is currently no complete inventory of public land, which presents obstacles for tenure regularization and public land allocation.
Inefficient dispute resolution mechanism in land cases
Land disputes in some counties have created landlessness such as Lamu. This leaves the affected persons insecure and bitter. Particularly, the legal process is time-consuming and costly in terms of court fees, travel expenses, and witness fees. Disputes over land take too long to be heard and determined. Informal dispute resolution mechanisms such as mediation, negotiation and conciliation cannot be enforced.
Land fragmentation and small land owners
Despite the need for a system and data to determine the economically viable land sizes, no action has been taken. Article 68 (c) mandates Parliament to enact legislation to prescribe minimum and maximum landholding acreage in respect to private land. Although the provisions have not been put in place yet, these could promote equity and offload excess land to the market. Setting a minimum land size could prevent land from being subdivided into uneconomical parcels.
Conclusion and Recommendations
It is important for the National Land Commission to educate and empower communities to assume their fundamental role as a custodian of public and community land. Land laws require communities to be sufficiently trained to perform their roles. Efforts should be made to improve the implementation of land policies at the national and county levels aimed at improving land governance. There should be considerations for gender, age, and physical disability during the land registration process, especially community land to ensure that it is an inclusive process. The gap between the law and practice needs to be closed for interventions to increase women land rights to be effective.
The government needs to allocate sufficient human and financial resources to support the registration of community land. The law courts and the government administrators can help to achieve social justice by ensuring land disputes are resolved in accordance with the rule of law. Developing and implementing guidelines for informal dispute resolution mechanisms can help in resolving some land disputes. In terms of accessibility to justice in land issues, equity, effectiveness, and efficiency can be measured. The accessibility of the court, access to information, legal aid, alternative dispute settlement, and public participation are all vital.
For the government to make informed decisions about land allocation, it is vital to develop an inventory of public lands. As a means of finding practical solutions to the squatter problem, the National Land Commission could develop collaborations and improve coordination among the various stakeholder in the land sector, particularly county governments.
[1] KNBS (2022) Kenya Demographic Health Survey
[i] Budget Statement for Financial Year 2023/24
Authors: Davis Milimo and Kelins Randiek
