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Contents
INTRODUCTION....................................................................................................... 2
PROPOSED SOLUTIONS............................................................................................ 4
PRODUCTION........................................................................................................... 4
LAND BOARDS......................................................................................................... 6
PROVISIONS............................................................................................................. 7
TAXATION................................................................................................................ 7
EDUCATION............................................................................................................. 8
REDISTRIBUTION PROGRAMS.................................................................................. 9
ZONING................................................................................................................... 9
CONSOLIDATION.................................................................................................... 10
CONCLUSION......................................................................................................... 11
REFERENCES....................................................................................................... 133

INTRODUCTION
Land is important to the economic, social and cultural development of our country. It is also a
major factor that we had to struggle for our independence and to date land issues are very
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sensitive1. In recent years however, the issue of land has been cast in the limelight more
prominently than before, especially since the promulgation of the Constitution of Kenya, 2010.
The Republic of Kenya has an area of approximately 582,646 sq. km. comprising 97.8% land
and 2.2% water surface. 20% of the land can be used as agricultural land and the rest of the land
is mainly arid or semi-arid2. The 75% of the Kenyan population lives in the 20% while the
remaining live in the arid and semi arid areas. This causes a lot of congestion especially in the
major cities and towns while people in the rural areas continue to move to the urban areas3.
In the rural areas the potential agricultural land is characterized by small farm holdings. Many
areas are suffering continuous fragmentation of fertile agricultural into uneconomic sizes. In
addition, many large state farms that used to produce seed and breeding stock have been subdivided and transferred to private ownership. The continuous subdivision has led the country into
a quagmire in that in future we will not have any land that can be put to maximum agricultural
use.
The beginning of the land problem can be traced to the colonial and post colonial period. During
colonialisation, the British came up with new policies that facilitated massive disinheritance of
Africans of their land. Such policies are like the one of 1897 acting under the foreign jurisdiction
act of 1890 which was used to alienate land in favour of the white settlers. Most of the areas
targeted by the Europeans were areas rich in agricultural production and were characterized by
cool climate like the Central province which was known as the white highlands. The land taken
from the Africans was referred to as crown land and Africans were merely tenants at the will of
the crown. Places where massive displacement took place; Central province, Ol-joro-orok,
Suswa and Olkalau in 1902 where the commissioner had power to sell freeholds in the crown
land to a purchaser not exceeding 1000 acres. In 1905 the Nandi were finally subdued and their
land taken. The 1902, 1908 and 1915 0rdinances left majority of the African population landless
in reserves while the Europeans had occupied most of the fertile land belonging to the natives.

1
2
3

National land commission pg1

Ibid pg 4
Ibid pg 6

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According to Professor Okoth Ogendo, 3 million 4 hectares of agricultural land had been taken
away by the time of independence.5
The Lancaster House constitution in 1960 entrenched in the constitution of Kenya the willing
seller willing buyer as the basis of land acquisition and re-distribution. This plan however did
not achieve much as it was seen as a ploy by the Europeans to salvage their already diminished
control of Kenya. Nationalists such as Jaramogi Oginga Odinga reiterated that any purchase or
compensation arrangements were unacceptable on the grounds that land had been stolen from us
by the Crown and the British must grant full independence under African leadership and hand
over land previously alienated.6
After independence the new government embarked on a journey to resettle and redistribute
native Africans back to their land. Various schemes were started and put under various boards of
management that were to ensure the goal of resettlement had been achieved. However these
plans did not succeed. The government had continued with the use of European policies which
did not favour most of the Africans who were mostly poor. An example is the Million Acre
Settlement Scheme inaugurated in 1962 which involved the purchase of land from settlers who
were leaving the country. Most of this land was purchase and used to resettle not the absolutely
landless but those who had managed to accumulate wealth during the colonial era. The rich class
of Africans amassed large tracts of land for themselves leaving the poor who were the majority
still landless.

The major problems that have been caused by the historical injustices are:

Landlessness( squatters)
Idle land(massive chucks of land that is not put to use)
Uneconomical subdivision of land
Inefficient use of land

Partner News 2004; Okoth Ogendo,1991

Tenants of the crown : by Okoth-Ogendo, H. W. O. Publication: Nairobi, Kenya : ACTS Press,
African Centre for Technology Studies, 1991
6
Supra note.
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Illegally acquired land

Lack of employment

To address these problems the National Land Commission has to enact ways on how land has to
be allocated in accordance to principles and the objectives of National Land Policy and article 66
and 68 of the Constitution.
Article 68 of the Constitution states that parliament shall enact legislation to prescribe minimum
and maximum land holding acreages in respect of private land.
Private land according to Article 64 of the constitution is:

registered land held by any person under any freehold tenure ;

land held by any person under leasehold tenure;
any other land declared private land under an Act of Parliament.

The land issue has been a problem since independence. When we think about setting the
maximum and minimum acreage, we should consider how the land is being put to use.

PROPOSED SOLUTIONS
Some of the solutions that we proposed include the following.

PRODUCTION
In order to allocate maximum and minimum acreage in land, consideration must be put to how
much an area produces. Such instances include the Del Monte food processing limited which
owns 10,000 acres of pineapple plantation which has a production rate of 1,500 tons of
pineapples daily. Kenya is among the top five exporters of pineapple in the world and this is
because of the Del Monte food processing company. The company employs approximately 6000
workers with a minimum wage of approximately sh2800. In accordance to article 68 of the
constitution as stated above minimum and maximum acreage should be set. In instances where
land is being used for mass production an exception should be put since in the event such a
provision is enforced to such a company our foreign exchange will drop. Consideration should
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also be put in areas that are highly fertile like in the central Kenya regions. In allocation of
maximum and minimum acreage, attention should be given in such areas so that we do not make
a mistake of redistributing fertile and productive land in accordance to the provision forgetting
that its maximum output is being diminished as it is being made smaller and smaller. If such a
provision will be enforced many people would lose their jobs and national income would drop
hence our living standards as Kenyans would drop. If the maximum and minimum acreage
should be enforced it ought to be to the interest of every citizen in the country but not rushing
into solving a problem and creating another. High production areas should have a special
provision that protects them from the large tracts of land being taken away and redistributed into
smaller shares and the consequence is production rate going down and land not being used to its
optimum use. Similarly, the commission should also set up a maximum and minimum land
acreage policy for land set aside for development or investment. This however should be at a rate
which shall not hinder investors or developers from investing resources to build the nation and
progress Kenya forward.

LAND BOARDS

The National Land Commission should elect boards in each county to determine the population,
evaluate the amount of land available and how much land is owned by individuals in order to
allocate land equally. The county boards will be responsible for advising The National Lands
Commission as regards appropriate policy considerations that should be taken into account in
policy formation. The county boards will then be the same bodies that oversee the
implementation of the policy if adopted. Membership to this board should be representative of
the general population of the county. Seats should be advertised, qualifications published in the
said advertisement, public interviews held, remuneration addressed and public participation
enhanced. The appointments with particular regard to gender parity and cross-sectional
representation of all groups; youth, women, persons with disability, religious groups, business
community and other local representatives with an aim of building a good fiduciary relationship.
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The board should also investigate how much land is being put to good use, if there is any idle
land and illegally acquired land. This shall be done by a sub commission called the Commission
of Land Surveys.
This commission shall then survey the use, community relationships regarding land, population
density, environmental conservation and management, human rights et cetera, and have on
record the different land use within counties. Also, this commission shall give the specific
grounds and interests to be addressed in relation to the land in these counties. Notwithstanding, a
supervisory role should be played over this sub commission. This would best be by auditing
measure of the same process prepared, giving room for independent process observers and a
platform should be put in place for interrogation of the results of the survey before they are
forwarded to the National Board

PROVISIONS
Since the law cannot be applied retroactively there should be a provision that shall put a limit to
the minimum holding to ensure that land is not subdivided to uneconomical units or traded in
useless small units. This shall be dictated by the geographical location of the land in question.
Similarly, regarding vast amounts of land which lie idle and exceed the maximum acreage under
law should be repossessed by the government to be put to good economic use through
redistribution to the landless who would otherwise use it for agriculture or even investment. As
for the issue with matrimonial property in respect to land, in cases where the land registered
privately and individually when added together if agreed by the two spouses adds up past the set
maximum, it should not be taken away from them or reduced since this is title of two people
though under common law a marriage results in the two being treated as a single entity. Such
should be exempted otherwise it shall kill the institution of marriage and even make others evade
the law so that they can still own property creating social quagmire.
Critic
It will pose a challenge to land that is being inherited by multiple beneficiaries and may want
titles to enable them access collateral in banks and other financial situations.

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TAXATION
Kenya is a capitalistic country hence the issue of maximum limitation to land holding is
contradictory to its tenets. Even if the limit was set, an individual person may acquire and
register title to land as a person or a corporate body. It is probable that this section of the
maximum was inspired by the facts of efficient use of land, landlessness, idle land hence looked
for the solution to these facts 7. An approach that shall make land use imperative to the land
owner so as to create job opportunities and empower the landless so as to acquire their land.
According to a parliament Hansard8: Members emphasized on the need for a mechanism that
will force land owners to use land for the benefit of the community and for the economy of the
country other than the curtailing principles of private ownership. They envisaged a situation
whereby the land owners will employ the landless so as to make the land productive.
This is possible through imposition of heavy tax for the idle land so as the owner will be
impelled to put it into good use, lease it out or sell it hence there will be liability assets if they are
not producing for their maintenance. Consequently there is need for intense awareness creation
that land ownership is not the only way of property ownership hence enlightening the masses of
other forms of property to manage the present scramble of land in Kenya.

EDUCATION
The government and the National Land Commission should create awareness in regards to
acreage. Facilitated workshops to gain ideas and proposals from all the stakeholders on the land
that will be affected and involved in/by the policy implementation. These will help legitimize the
idea of minimum and maximum land acreage and minimize the cost of implementation of
7

Sessional paper no. 3 2009

Magazine for maximum and minimum land holding in Kenya

Kenya national assembly official record (hansard)

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recommended policy and protection of the same property rights. This is to ensure that the people
bring solutions to their land problems and not see it as their land being taken away from them. It
will also ensure that people see the disadvantage of subdividing land into smaller potions hence
reduce the rate at which land is being fragmented 9. Peoples minds should change with regard to
land as they should realize that land is an investment which appreciates. Family planning should
also be emphasized so as to help curb the high rate of unplanned population growth.

REDISTRIBUTION PROGRAMS
These are programs that are focused on the poor and people in rural areas so as to ensure that
they are able to purchase land. This can be enabled by the government providing subsidies,
loans, grants or credit.
It should also encourage ownership of land through small groups who combine as one so as to be
able to buy land since as individuals they cannot be able to afford buying the land but as a group
they are able to. Such ideas will enable such people be able to earn by leasing out the land and
the money earned is divided amongst themselves and over a period of time with enough savings
they can be able to buy land as individuals and not as a group. Redistribution can also be in terms
of allocation of public land which the government does not use to the landless people such as the
internally displaced as well as the squatters.

ZONING
This is a situation where different areas are divided into zones or partitions within the urban
areas such as the cities of Nairobi, Kisumu and Mombasa, the land boards of these areas would
set up different minimum and maximum land acreages. For example, the areas nearest to the
CBD or other Business districts would attracts a higher maximum land acreage as opposed to
those furthest from it. Also, affluent areas where most people would prefer to live, in gated
communities, there should be a maximum land acreage set there different from the less affluent
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National land policy

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suburbs of such cities. This zoning can also be applied in the rural areas where counties that have
more production or more fertility such as the counties of central Kenya, Nyanza and Western
would have higher maximum land acreage and also a lower minimum since land in those areas is
scarce and yet the population is high. As opposed to areas with pastoralists and less fertile
ground for agriculture and pasture or water 10. It would be more lenient on these since their use of
the land is much harder and hence it would be difficult to set a maximum because they move
from place to place in search of water and pasture for their livestock and themselves. Areas that
are to be used for industrial purposes and large scale farming should not be limited. There should
be set areas for specific land activities This would sustain their way of living and still comply
with the law on setting maximum and minimum land acreage for all.

CONSOLIDATION
Consolidation is meant to achieve the creation of large holdings necessary for purposes of
effective agriculture. Consolidation cures fragmentation. 11
In 2009 with Land Consolidation Act12, the following was what had been established so far and
any reform should continue from these: 7,975,119.96 hectares of land has been registered after Adjudication and consolidation
processes were completed.
3,303,600 hectares of land has been registered under group ranches.
497 Adjudication sections (administrative sub-locations) are undergoing Adjudication,
consolation and registration process.
Land Adjudication, consolidation and registration activities has not attracted any donor
support and depends entirely on the exchequer for funding
Setting minimum land a person can hold is a difficult concept to achieve. In the African setting
where land is inherited, fragmentation is bound to occur. As an attribute of land, land can be
10

11

Kivutha Kibwana, Smokin Wanjala,Essays on Land, Law Africa.

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(Cap 283)

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passed on from generations to generation therefore multiple claims and claimants will be there.
So, for example, saying that a county government sets a minimum land that a person should hold
is 1 hectare, and two people are to inherit it, is already a sign of fragmentation. The question
then becomes how can such a situation be avoided? The idea is that any person, who owns
fragmented land in a particular area, should be consolidated with the others around to hold that
piece of land under one title.
The idea, if implemented should be uncontested in order to have a policy that is implemented
and operational. These land reforms are mostly to ensure that there is maximum utility and
production from land. The issues to be considered here also include the rapid urbanization that is
taking place in the third world countries, Kenya included. The draft policy is heavily agrarian
and focused more on the need to rectify mistakes made in that sector, neglecting the huge shelter
needs that will be caused by urbanization. In urban areas, land consolidated should be set for
residential, office blocks and industrial purposes only. In areas that are agriculturally viable, a
survey should be carried to ensure that the consolidations of smaller agricultural parcels is done
so as to ensures maximum production of food to feed the growing population

CONCLUSION
For all the above to work however, there should be a set framework with a time schedule and a
goal to have achieved by given time. There should be a limit as to which the commission is to
work and produce results that the people of Kenya can have to show as progress. This timeframe
shall be influenced by various things, mostly stemming from the law. For example; applicability
of the ideas under the laws governing Kenya, practicability of the policies, the set proposals
should if they take effect not change too frequently otherwise they shall become weak and easily
disregarded. The plan stated herein can be implemented in phases, similar to Vision 2030 or the
Economic Rejuvenation Stimulus Programmes (ERS).
The logic behind these programmes is to envision the end result, then to form a step by step plan
of how to implement the entire plan in phases, starting with the most attainable. This will depend
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SOLELY on The National Land Commission, the budget allocated to it and the willingness of
stakeholders to participate in the process.
For purposes of clarity, the commission should set out a timeframe for which this should all be
implemented and completed effectively so that the people of Kenya can own land in a fair and
equal manner putting into place all the considerations that affect them and their relationship with
the land as the diverse people that they are.
We see three possible scenarios from this policy being implemented. Namely;
a) Land below the threshold
b) Land above the threshold
c) Transfer of land resulting into a) and b)
In anticipation of the three scenarios we have come up with one possible solution; the
government should put in place financial facilities for those below the threshold to be able to
acquire land.

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REFERENCES
1)
2)
3)
4)
5)

The constitution of Kenya, 2010

Sessional paper no. 3 2009
Partner News 2004; Okoth Ogendo,1991
National land commission
Tenants of the crown : by Okoth-Ogendo, H. W. O. Publication: Nairobi, Kenya : ACTS

Press, African Centre for Technology Studies, 1991

6) National land policy,2009
7) USAID Report on Land Policy in Kenya 2012;
usaidlandtenure.net/.../USAID_Land_Tenure_Kenya_Land_Pdf (accessed 3/21/2013)
8) Essay on Land Reform, Smokin Wanjala.
9) Ndungu Report.
10) Magazine for maximum and minimum land holding in Kenya
Kenya national assembly official record (hansard) 30th/3/2010 http://books.google.co.ke

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