LEGAL EXPERT: CONVERSION OF COMMUNITY LAND TO PRIVATE

Introduction

What is a community land? Community land is land owned by groups of individuals identified by reference to a particular locality or membership of a particular class or ethnic or related grouping or some general defining characteristic. The Constitution of Kenya article 63 provides that community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. The Community Land Act describes it as;

(a) land declared as such under Article 63(2) of the Constitution;

(b) land converted into community land under any law

Classification of community land

Community land can be classified as registered or unregistered. Registered community land is land that has undergone due process of registration stipulated in the provisions of the Community Land Act and the Land Registration Act. It is land to which the particular community occupying it has a certificate of title to it having undergone the registration process to that particular community. While unregistered community land refers to land that has not been officially assigned to a particular community but the claimant community is known to be the occupants of the said land. Section 6(1) of Community Land Act 2016 provides that County Governments shall hold in trust all unregistered community land on behalf of the communities for which it is held. County Government is however prohibited from selling, disposing, transferring or conversion for private purposes any unregistered community land which it holds in trust for a community.

CONVERSION OF A REGISTERED COMMUNITY LAND TO PRIVATE LAND

There are two ways in which community land may be converted to private land based on section 23 of Community Land Act 2016. The two ways are:

      I.         Transfer

    II.         Allocation by the registered community.

CONVERSION OF COMMUNITY LAND TO PRIVATE LAND  BY TRANSFER.

STEP ONE: SEEK APPROVAL OF COMMUNITY ASSEMBLY.

Section 21 (2) of the Community Land Act 2016 provides that before conversion of community Land to any other category of land, an approval of two-thirds of the assembly convened for that purpose must be done. The same is reiterated in Rule 16 (1) of Community Land Regulations 2017.  Based on section 15 (1) of the same Act, a registered community shall have a community assembly which shall consist of all adult members of the community.

STEP TWO: PREPARATION OF TRANSFER INSTRUMENT AND EXECUTION

Rule 16 (2) of Community Land Regulations 2017,  upon approval by community assembly, a transfer instrument shall be prepared and executed by the chairman and secretary of the community land management committee.

STEP THREE : REGISTRATION OF THE TRANSFER.

Rule 16 (2) of Community Land Regulations 2017,  upon execution of the transfer, it is presented to the registrar for registration in accordance with Land registration Act 2012.

STEP 4: ISSUANCE OF TITLE DEED. Upon successful registration, a title deed is issued in the name of the individual or entity designated by the community to hold the private land rights.

 

NB: Throughout the process, adherence to all statutory and regulatory requirements is imperative. This includes obtaining necessary approvals, conducting searches in accordance with established procedures, and ensuring compliance with applicable laws. By adhering to the provisions set forth in Section 23(a) of the Community Land Act and Regulation 16(1) and (2) of the Community Land Regulations, the conversion of community land to private land can be accomplished in a legally sound and transparent manner, upholding the rights and interests of the community as a whole.

 

CONVERSION OF COMMUNITY LAND TO PRIVATE LAND BY ALLOCATION

Section 21 (2) of the Community Land Act 2016 provides that before conversion of community Land to any other category of land, an approval of two-thirds of the assembly convened for that purpose must be done. The same is reiterated in Rule 16 (1) of Community Land Regulations 2017. 

Rule 16 (3) of Community Land Regulations 2017 provides that a community may allocate whole or part of its land to the members upon approval of at least two-thirds of the community assembly.

STEP 1: Application.

Allocation starts by application to the community assembly for the allocation. The application can only be done by a member of the community land.

STEP 2: Identification of the community land.

The registered community has to identify the community land that will be converted for private use.

STEP 3: Resolution.

Members of the community in a meeting will reserve the piece of the land for individual use to the person that applied for the allocation.

STEP 4: Negotiation.

The registered community will then negotiate with the individual the terms for the allocation of the land which includes the use of the land and the fees payable to the community.

STEP 5: Approval.

Upon the resolution, the registered community will then approve of the allocation of part of the community land to the individual.

STEP 6: Ratification.

For the conversion of community land to private land through allocation, two thirds of the community assembly must approve in a special meeting convened for that purpose.