Management of public land in Kenya and what the KU case reveals

July 15, 2022 - 5 minutes read

There has been a push and pull between the government and the management of Kenyatta University after the university’s management failed to release title deeds for the track of land that the State wants subdivided for different purposes.

The government’s plans on the 1,000-acre land include construction of the WHO emergency hub on 30 acres of the land, another 10 acres will be donated to the Africa Centers for Disease Control and another 190 acres will be given to the 10,000 squatters who already occupy the land illegally.

This will therefore reduce the university’s land from 1,000 acres to 590.

According to the National Land Commission, land is not only the most important factor of production, but also a very emotive issue in Kenya.

As a matter of fact, 80 percent of the Kenyan population relies on agriculture and yet, only 20 percent of the land mass comprises arable land.

Those in the political class as well as those in the business sector regard land as a source of personal wealth and power. For those in rural areas, land is not only their sole source of income, but also the subject of great emotional attachment since most of their lands are ancestral.

On such matters involving land disputes, it is the National Land Commission, which is the public body charged with the responsibility of managing public land on behalf of the national and county governments, that should be intervening to give a way forward.

This commission also acts as the lead agency in the land matters, working with the Ministry of Lands, Housing and Urban Development and county level institutions.

These are some of the broad range reforms introduced by the 2010 Kenyan Constitution.

Who has the mandate to administer public land?

It is the mandate of the National Land Commission (NLC) to notify the affected party in addition to placing notices in the Kenya Gazette and the relevant County Gazette. 

The notified party is required to attend an inquiry convened by the NLC which is tasked with receiving and interrogating compensation claims.

Compulsory acquisition

On the other hand, the government is allowed by the law to have a compulsory acquisition of land that they deem fit for establishment of a public facility. Then, what follows is gazettement and then compensation of the affected party.

Compulsory acquisition is the power of the government to acquire private rights in land for a public purpose, without the willing consent of its owner or occupant.

According to the Lands Act, subject to public needs or in the interest of defence, public safety, public order, public morality, public health, or land use planning, public land may be converted to community land.

Allocation of unutilized land to squatters

During conversion of unutilized land to squatters, it is both the National Land Commission, and the Cabinet Secretary for Lands who have prerequisite powers to make regulations to better carry into effect the provisions of the Land Act and Land Registration Act.

This creates independence in the allocation process as the executive arm of the Government does not have control of the process.

In addition to this, land available for allocation has to be Gazetted and notices published in at least two local dailies, prior to commencement of the allocation process.

Public participation

Article 10 of the Kenyan Constitution, 2010, provides for Public Participation in matters of public interest.

It is a democratic right. This is a way of creating transparency and public participation in the allocation process.

Further, the matters to be regulated by the land regulations have been outlined and include, with respect to squatters, regulations that “facilitate negotiations between private owners and squatters” and also those that deal with the “transfer of unutilized land and land belonging to absentee landowners to squatters”.

More so, it is the Commission that may issue Management Orders and not the Executive. Management Orders are orders issued to compel land managers to conserve, restore and enhance a land.

Where the Cabinet Secretary (as opposed to the Commission) makes regulations under the Land Registration Act, these have to take into account the advice of the Commission and be tabled before Parliament for approval.

This is meant to allow for public scrutiny and introduce transparency in the creation of the regulations.

More importantly, this is meant to ensure that the regulations are consistent with the general objectives of the Commission.

Reports indicate that the allocation of public land to private individuals has been a concern for many Kenyans for long. Allocation of public land was within the control of public officers at the Ministry of Lands, who were susceptible to influence by the Executive.

Therefore, the process of allocation of public land was shrouded in secrecy and often, members of the public would only realise that public land has been expropriated, after a title deed has been issued to private persons.

In this matter therefore, Prof Wainaina was justified to demand procedures to be followed when giving out the title deed for the tract of land.

In his defence, the don said that the land was meant for construction of a business school, whose construction had stalled, construction of a recreation centre for students as well as hostels.

In his statement, Prof Wainaina said the university was not opposing any project, but the management ought to have been notified in advance of any plans that the government had in regards to the utilisation of the university’s land.

“We are not opposed to the project that is being rumoured to be done on the land, but the proper procedure and process must be followed,” he said and added:

“The land in question has been earmarked for a children’s hospital to our knowledge. I am not aware of any other project nor have I been informed on the same by anyone.”

“The council has the responsibility to preserve university land, not to cede (it). The council has resisted ceding KU land. The council wrote to Mr. Kinyua stating that the VC did not have the capacity to surrender the title. The letter was taken to the State House at 6.50 pm. We had been ordered to take it by 5.00 pm,” Prof Wainaina said.

What followed was suspension of Prof Wainaina and formation of a new council.

The WHO hub was previously housed inside Kenyatta University Teaching Research and Referral Hospital (KUTRRH), which reportedly received government approvals to acquire the KU land and transfer the hub there.

KUTRRH was founded by the university 10 years ago.

However, the President gazetted the hospital as a parastatal under the Ministry of Health on January 25, 2019.

Treasury CS Ukur Yatani said that this was done because KU defaulted on a Sh10 billion loan that the State borrowed from Export-Import Bank (Exim) of China on behalf of the university to build the hospital.

Further, in his letter, Mr. Kinyua defended the move by the government to utilise the tracts of lands which lie unused.

“The decision was premised not only on the fact that Kenyatta University is holding large tracts of unutilized land, but more strategically, because the planned interventions have a nexus to KU’s academic and research programmes,” Mr Kinyua’s letter read.

President Uhuru seemed agitated and dared the management of the University saying that he would deal with them “swiftly and effectively”.

“A few of us who are learned unfortunately lack wisdom and behave like very ignorant people who have never even entered a classroom. This is the property of the Kenyan people held in trust by the Government of Kenya. We don’t operate in silos. You’re just a caretaker. Siku zake zimehesabiwa. I still have three weeks. We shall deal with those individuals swiftly and effectively. Tutaenda nyumbani na wao,” the President said.

The National Land Commission has not been involved in this KU land saga. It is its sole mandate to intervene in solving such land disputes as enshrined in the Kenyan law. This way, there will be accountability and fairness.

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