The Ndung'u Report: Annexe Volume 3

Sichangi Adv
REPUBLIC KENYA
REPUBLIC OF KENYA
••
Report of
Report of the Commission
Commission of Inquiry
of Inquiry
into
into the
Ille g Irrc
Irregular Allocation
Illegal/Irregular Mom 431
of
blicTa
Public d
Lal1d
Presented
Presented to
His Excellency
I-lis
Hon. Mwai
MwaiKibaki,
Kibaki,C.G.H.,
C.G.H., M.P.
President and Commander-in-Chief
President and Commander-in-Chief of
of the Armed .Forces
the Armed of the
Forces of the
Republic Kenya
Republic of Kenya
.Inne, 2004
June, 2004
Price: KSh. 600

Price: 600
PRINTED
PRINTED BY
BY THE
THE GOVERNMENT
GOVERNMENT PRINTER,
PRINTER, NAIROBI
NAIROBI
Sichangi Adv
Report of the
Report Coiumission of
theCemrnission of Inquiry
Inquiry
into the
Illegal/Irregular Allocation
IllegallIrregular Allocation
of
Public Land
Public
Sichangi Adv
TABLE OF
TABLE OF CONTENTS
CONTENTS
Page
Page
Forwarding Letter
Forwarding Letter (ix)
Acknowledgements
Acknowledgements :.......................................... (xiii)
(xiii)
Introduction
Introduction :....................................................................... (xvii)
(xvii)
Executive Summary
Executive Summary :............................................................................... (xix)
(xix)
PART ONE
PART
THE CONTEXT
THE CONTEXT 11
1.
1. INTRODUCTION
INTRODUCTION 11
2. AABRIEF
2. BRIEFHISTORICAL
HISTORICAL BACKGROUND
BACKGROUND 11
(a) The Pre-colonial
The Pre-colonial Period
Period 11
(b)
(b) Public Land
Public Land under
under African
African Customary
CustomaryTenure
Tenure 2
(c)
(c) The Colonial
The Colonial Period
Period 33
(d)
(d) Policy
Policy and Administrative Changes After
Administrative Changes After 1948
1948 3
(e)
(e) The
The Practice of Land
Practice of Land Allocation
Allocation After
After 1951
1951 5
(f)
(f) The
The Legal
Legal Position
Position Regarding
Regarding thethe Allocation
Allocation of of Public
Public Land Land
Before
Before and
and After
After Independence....................................................
Independence 6
3. THE
3. THELAND
LAND GRABBING
GRABBING PHENOMENON
PHENOMENON 7
(a)
(a) The
The Disappearance
Disappearance ofof the
the Public
Public Trust
Trust Doctrine
Doctrine in
in the
the
Allocation of Public
Allocation of Public Land
Land 8
(b)
(b) Powers of the Commissioner
Powers Commissioner of
of Lands
Lands to
to Dispose
Dispose of
of Land
Land within
within
Townships
Townships '11
11
(c)
(c) The
The Letter of Allotment
Letter of Allotment as
as an
an Instrument
Instrument of
of Land
Land Grabbing
Grabbing 12
12
(d)
(d) Allocations of
Allocations of Public
Public Land
Land by
by Unauthorised
Unauthorised Persons
Persons 14
(e)
(e) Land within
Land within the Jurisdiction of
the Jurisdiction of Local
Local Authorities
Authorities 14
(f)
(/) Special Lands and
Special Lands and Land
Land Territories
Territories 15
15
4. THE
4. THEMYTH
MYTHOF
OFTHE
THE SANCTITY
SANCTITY OF
OF TITLE
TITLE 15
15
5. PAST
5. PASTEFFORTS
EFFORTS AT
ATRECLAIMING
RECLAIMING PUBLIC
PUBLIC LAND
LAND 17
17
6. THE
6. THECOMMISSION
COMMISSION OF
OFINQUIRY
INQUIRYINTO
INTOILLEGAL/IRREGULAR
ILLEGALIIRREGULAR
ALLOCATION OF PUBLIC
ALLOCATION PUBLIC LAND
LAND 18
18
The Remit of
The Remit of the
the Commission
Commission 20
PART TWO
PART TWO
THE APPROACH
THE APPROACH 23
23
1. STAGE
1. STAGE ONE:
ONE: FORMATION
FORMATION 23
23
(iii)
Sichangi Adv
2.
2. STAGE
ST AGETWO:
TWO: DEFINITION
DEFINITION OF
OF THE PROBLEM
THE PROBLEM 23
. 23
3. STAGE
3. STAGE THREE:
THREE: ACQUIRING,
ACQUIRING, STORING
STORING AND
AND STRUCTURING
STRUCTURING
INFORMATION
INFORMATION . 25
25
(bj
(a) Sources of
Sources of Information
Information , , . 25
(b)
(b) Instruments for Acquiring
Instruments for Information .;
Acquiring Information . 26
26
(c)
(c) Receipt Classification
Receipt Classificationand~~rage
and torage 'ofInformation
of Information . 26
26
(d)
(d) Methods of Analysis
Methods of Analysis . 27
27
(e)
(e) Information
Information Received
Received in Response
Response-totd Summons
Summons . 28
(f)
(/) Information from
Information from Official
OfficialReports
Reports . 29
(g)
(g) Information
Received from
from Members
Members of the Public
Public through
through
Letters
Letters and memoranda
memoranda in in response
response totothe.Pubiic Notice ..... :;..;...
the.Public No,ticq 29
. . . ~
(h)
(h) Information froni Volunteers
Information from Volunteds andand Professional
ProfessionalBodies
Bodies . 30
4.
4. MEETINGS
MEETINGS :: , .' 32
. 32
5.
5. MONTHLY
6.
MONTHLY PROGRESS
6. FIELD
PROGRESS REPORTS'
FIELD VISITS
VISITS
REPORTS'
.•
::.:
.
:::.•.............................................
..
•::~t.:,
, ..,.: .
32
32
7. CONSULTATIVE
CONSULTATIVE WORKSHOP
WORKSHOP WITH
WITH OFFICIALS
OFFICIALS FROM
FROM
MINISTRIES
MINISTRIES
:~: : : . 33
8. THE
8. THECOMMISSION'S
COMMISSION'S CONTACT
CONTACT WITH
WITH THE PUBLIC
THE'PUBt1c .: . 34
34
(a)
(a) Public Hearings
Public Hearings ;..• 1••• : •••••••••••••••••••••••••••• 35
(b)
(b) Thematic Hearings
Thematic Hearings . 35
9. CONSTRAINTS
CONSTRAINTS AND
ANDCHALLENGES
CHALLENGES FACED BY THE
FACED BY COMMISSION. 36
THE COMMISSION 36
(a)
(a) The Time Period
The Time Period . 36
(b)
(b) Missing,
Missing, Inaccurate and Incomplete
Inaccurate and Incomplete Records
Records . 37
(c)
(c) Inadequate and
Inadequate and Irrelevant
Irrelevant Information
Received in
in Response
Response to
to
Summons
Summons . 38
(d)
(d) The Diversity
The Diversity of Publi~
Public Complaints
Complaints . 39
(e)
( e) Missing Company
Missing Company Records
Records at
at the
the Registry
Registry of
of Companies
Companies . 40
.'
(f)
(f) Operating Social
Operating Social and
and Political
PoliticalEnvironment
Environment . 40
(g)
(g) Addressing the Constraints
Addressing the Constraintsand
andChallenges
Challenges : . 41
PART THREE
PART tHREE
THE LAW
THE LAW RELATING TO TH1
RELATING TO THt ALLOCATION
OF PUBLIC LAND LAND
IN KENYA
IN KENYA ., :1................................................................
43
1. Introduction
Introduction Ill................................................................
ii 43
2. The
The Legal Meaning of
Legal Meaning of Land
Land in
in Renya
kenya 43
3. Categories of Land
Categories of Land in
in Kenya
Kenya 43
(iv) ;
Sichangi Adv
4. Some
4. SomeCommon
Common Terms
Terms and
and Phrases
Phrases used
used in this
this Report
Report 47
5. Theapplicable
5. The applicable law
law 49
6. The
TheAbuse
AbuseofofCurrent
CurrentLaws
LawsLeading
LeadingtotoIllegal
Illegal Allocation
Allocation of
ofPublic Land
Public Land 52
(a)
(a) Substantive
Substantive Abuses
Abuses ;... 52
~ ..- ~
(b)
(b) Procedural Abuses
Procedural 'Abiises 54
7. THE
7. THEPROBLEM
PROBLEM OF
OFTHIRD
THIRD PARTY INTERESTS
PARTY INTERESTS 55
55
(a)
(a) The
The Problem
Problem !.......................................................................... 56
(b)
(b) Illegality From
Illegality From the
the Very
Very Beginning
Beginning 57
(c)
(e) The Guarantee
The Guarantee of Titleby'
of Title by Government
Government ,. 60
(d)
(d) The Bonafide
The Bonafide Purchaset
Purchasef for
forValue
ValueWithout
WithoutNotice
Notice 61
\,',<
(e)
(e) The Legal
The Position Versus
Legal Position Versus the Reality ...:.:~.~................................
the Reality 62
: I ~, -'. . \'. .. .r: \ ~"
8.
8. POSSIBLE
POSSIBLE SOLUTIONS
SOLUTJONS : "'
:~;::.;.:,.:................... 63
•. ~.. , c' ot;jpo. • I,: \.. • '- .. ',' " " .,J,}
(a)
(a) Where
Where Land has been
Land has been Developed
Developel:! : : : ::. 63
(b)
(b) Where the Third
Where the Third Party
Party isis aa State
StateCorporation
Corporation ..:........................... 64
(c)
(e) Where the Third
Where the Third Party
Party isis aa Bank
Bankororother
otherChargee
Chargee 65
9. THE
9. THEESTABLISHMENT
EST AI3USHMENT OP
OFLAND
LAND TITLES
TITLES TRIBUNAL
TRIBUNAL 67
67
PART FOUR
PART
FINDINGS AND RECOMMENDATIONS

FINDINGS AND RECOMMENDATIONS : ::.. 71
71
1. INTRODUCTION
INTRODUCTION , , 71
. 71
2. URBAN, STATE
URBAN, STATE CORPORATIONS
CORPORATIONS AND MINISTRIES LANDS
AND MINISTRIES LANDS 71
. 71
(a)
(a) Urban Lands
Urban Lands . 71
71
(i)
(i) Urban Lands as
Urban Lands as Public
Public Land
Land . 73
(ii)
(ii) Findings
Findings : . 73
(iii)
(iii) Recommendations
Recommendations . 83
(b)
(b) State Corporations Land
State Corporations Land ; . 86
(i)
(i) Background
Background . 86
(ii)
(ii) State Corporations Land
State Corporations Land as
as Public
PublicLand
Land : . 87
(iii)
(iii) Findings
Findings .. 88
(iv)
(iv) Recommendations
110
(c)
(c) Land Reserved
Land Reserved for
for the
the use
use of
ofMinistries
Ministriesand
andDepartments
Departments . 111
III
(i)
(i) Background
Background . 111
111
(ii)
(ii) Ministries' Lands
Ministries' Lands as Public Land
Public Land . 114
(iii)
(Hi) Findings
Findings . 114
(iv)
Recommendations 117
. 117
(v)
Sichangi Adv
(d)
(d) The Impact of
The Impact of Illegal
Illegal Allocations
Allocations of
of Urban,
Urban, Ministries
Ministries and
and
Corporations Land
Corporations Land . 118
118
(v) Urban lands
Urban lands •. . 118
118
(vi)
(vi) State Corporations
State Corporations and
and Ministries'
Ministries' Lands
Lands . 120
120
3. SETTLEMENT SCHEMES
SETTLEMENT SCHEMES AND
AND TRUST
TRUST LANDS
LANDS . 122
(a)
(a) Settlement Schemes
Settlement Schemes (Background)
(Background) . 122
122
(i)
(i) Settl~ment Schemes
Settlement Schemes as Public Land
Public Land . 124
124
(ii)
(ii) Findings
Findings . 125
125
(iii)
136
(b)
(b) Trust
Trust Lands
Lands . 137
137
(i)
(i) Background
Background . 137
137
(ii)
(ii) Trust Lands
Trust Lands as Public
Public Land . 139
139
(iii)
(iii) Findings
Findings . 140
(iv)
145
(c) The Impact
The Impact ofof Illegal
Illegal Allocation
Allocation of
of Settlement
Settlement Schemes
Schemes and
and
Trust Lands
Trust Lands : . 145
145
(i) Settlement
Settlement Schemes
Schemes :, . 145
145
(ii) Trust
Trust Lands
Lands : . 147
147
4. FORESTLANDS, NATIONAL
FORESTLANDS, NATIONAL PARKS,
PARKS, GAME
GAME RESERVES,
RESERVES,
WETLANDS, RIPARIAN RESERVES,
WETLANDS, RIPARIAN RESERVES, NATIONAL
NATIONAL MUSEUMS,
MUSEUMS,
HISTORICAL
HISTORICAL MONUMENTS
MONUMENTS AND
AND PROTECT~REAS
PROTECTED.AREAS . 148
148
(a)
(a) Background
Background . 148
148
(b)
(b) Forestlands
Forestlands : . 148
148
(c)
(c) Wetlands
Wetlands :: : . 149
149
(d)
(d) National Parks and Game
National Parks Game Reserves
Reserves . 150
(e)
(e) Forest, National Parks,
Forest, National Parks, etc.
etc. as Public
Public Land
Land . 150
(f)
(f) Findings
Findings . 151
151
(i)
(i) Forestlands
Forestlands . 151
151
(ii)
(ii) Wetlands,
Wetlands, Riparian
Riparian Reserves
Reserves and
and Sites
Sites . 159
(iii)
(iii) Game
Game Reserves
Reserves and
and National
National Parks
Parks . 164
(iv)
(iv) National
National Museums
Museums and
and Historical
Historical Monuments
Monuments . 169
169
(v)
(v) Protected
Protected Areas
Areas for
for National
National Security
SecurityReasons
Reasons . 170
(g)
(g) Conclusion
Conclusion : . 174
(h)
(h) Recommendations
(i) Impact Forest Excisions
Impact of Forest Excisions on the Environment
Environment and
and Economy
Economy . 177
177
5. GENERAL FINDINGS
GENERAL FINDINGS . 181
181
(vi)
Sichangi Adv
6.
6. SOME ADDITIONAL
SOME RECOMMENDATIONS
ADDITIONAL RECOMMENDATIONS 188
188
7.
7. CONCLUSION
CONCLUSION 192
192
PART FIVE
PART FIVE
PROPOSALS ON
PROPOSALS ON IMPLEMENTATION
IMPLEMENTATION OF
OF THE
THE COMMISSION'S
COMMISSION'S
REPORT
REPORT 193
(a)
(a) Background
Background 193
193
(b)
(b) Frame Work
Frame Work 193
193
(c)
(c) Strategy
Strategy......... 194
(d)
(d) Programme
Programme 195
195
(e)
(e) Organisation
Organisation 198
(f)
(/) Structures
Structures..................................................................................... 199
(g)
(g) Implementers
Implementers 201
201
APPENDIXES
APPENDIXES
1. Gazette Notice No.

Gazette Notice No. 4559
4559 of
of 2003
2003 \........................................................ 205
205
2. Corrigendum of 44th
Corrigendum th July, 2003
July, 2003 209
209
3. Gazette Notice
Gazette Notice No.
No. 6724
6724 of
of 2003
2003 210
210
4. Gazette Notice
Gazette Notice No.
No. 711
711 of
of 2004
2004 211
211
5. Summons for
Summons for Production
Production of
of Records
Records 212
212
6. Notice to
Notice to the
the Public
Public 214
7. Summons for
Summons for the Production of
the Production of Documents
Documents for
for Examination
Examination 220
220
8. Public Notice
Public Notice 221
9.
9. Illustrations on
Illustrations on Forest
Forest Excisions
Excisions 223
10.
10. The Land
The Land Titles
Titles Tribunal...............................................................................
Tribunal 235
235
11.
11. Members of
Members of Staff
Staff of
of the
the Commission
Commission 241
241
LIST OF REFERENCES
LIST OF REFERENCES 243
ANNEXES
ANNEXES
. (Two
(Two Separate Bound
Bound Volumes)
Volumes)
(vii)
Sichangi Adv
COMMISSION OF INQUIRY
COMMISSION INQUIRY
INTO
INTO
ILLEGAL/IRREGULAR ALLOCATION
ILLEGAL/IRREGULAR ALLOCATION OF
OF PUBLIC
PUBLIC LAND
LAND
Tel: 2731319/2731308/2731321-2
27313191273130812731321-2 NSSF
NSSF Complex,
Complex, Block
Block A,A,
Mobile: 0721-72483"8,0734-750323
Mobile : 0721-724838, 0734-750323 Eastem Wing,
Eastern Wing, 11 Floor
IIIhth Floor
Fax:: 2722815
Fax 2722815 P.
P. O. Box6450-00100
0. Box 6450-00100
E-mail:
E-mail: landcommission@nbnet.co.ke NAIROBI
landcommission(anbnet.co.ke NAIROBI
Date:
Date: .
HIS EXCELLENCY,
HIS HON.MWAI KIBAKI,
EXCELLENCY, HON.MwAI C.G.H., M.P.
KIBAKI, C.G.H., M.P.
PRESIDENT AND
PRESIDENT AND COMMANDER-IN-CHIEF
COMMANDER-IN-CHIEF OF
OF THE
THE
FORCES OF THE
ARMED FORCES
ARMED THE REPUBLIC OF KENYA,
REPUBLIC OF KENYA,
STATE HOUSE,
STATE HOUSE,
NAIROBI
NAIROBI
YOUR EXCELLENCY,
YOUR EXCELLENCY,
RE:
RE: REPORT
REPORT OFOFTHE
THECOMMISSION
COMMISSION OF
OF INQUIRY
INQUIRY INTO
INTO
ILLEGALIIRREGULAR ALLOCATION OF
OF PUBLIC
PUBLIC LAND
LAND
Your Excellency appointed

Your Excellency appointed thisthis Commission
Commission by by Gazette
Gazette Notice
Notice No.4559
No.4559
dated 30th June,
dated 30th June, 2003
2003 and
and published
published on on 44th July, 2003
th July, 2003 as as read
read together
together with
with
Gazette
Gazette Notice No.6724 dated
Notice No.6724 dated 22 nd
22 nd September,
September, 2003 2003 published
published on 22nd
on 22 nd
September,
September, 2003;
2003; and Gazette Notice
and Gazette Notice No.711 dated 33rd
No.711 dated February, 2004
rd February, 2004
published 6th February,
published on 6th February, 2004
2004 to to inquire
inquire into
into illegal/irregular
illegal/irregular allocation
allocation
of public set out
public land and set out in
in our
our Terms
Terms of of Reference.
Reference.
Following
Following that commission we
that commission have completed
we have completed the
the inquiry
inquiry and
and
accordingly submit this
accordingly we submit this Report.
Report.
We remain,
We remain,
Your
Your Excellency's most obedient
Excellency's most obedient servants,
servants,
Sichangi Adv
Paul Ndiritu
Paul Ndiritu Ndungu
Chairman
Chairman
Ndungu
~l~ ~
;,; ....•7.
~
u.::.:.:..::'::::::: -.
Michael Aronson
Michael Aronson
Vice-Chairman
Vice-Chairman .......
J1.,.~.~.~
Abdallah Ahmed
Abdallah Ahmed Abdallah
Abdallah
Davinder Lamba
Davinder Lamba
,P.offaeet-4144---
Ann
Ann Kirima
Kirima (Ms.)
Ishan Kapila
Ishan Kapila .........
I.J.~.~)~ .
Odenda I,umumba
Odenda Lumumba ......
f!: ~.
Winston 0. Ayoki
Winston O. Ayoki
Nancy Wanjiru
Nancy Wanjiru Mukunya
Mukunya (Ms.)
(Ms.)
Peter Koech
Peter Koech ..
~ ,.
••••••• I ••••••••••••••••••••••••• II ••••••••••••••
John
John Githongo
Githongo
(Permanent
(Permanent Secretary,
Secretary,
in the Office
Office of the President
President
responsible for
responsible
and Ethics)
and Ethics)
for Governance
Governance
.......~ .. ~ ..~ -.
(x)
Sichangi Adv
Kiriinya
Kiriinya Mukiira
Mukiira
Ministry of
Ministry of Lands
Lands and
and Settlement)
Settlement) .......~~ .
Rachel
Rachel Arungah
Arungah
Ministry of
Ministry of Environment,
Environment, Natural
Natural
Resources and Wildlife)
Resources. and Wildlife) .~ ~ .
Eng.
Eng. Erastus
Erastus Kabutu
Kabutu Mwongera
Mwongera
(Permanent
Ministry
Ministry of
and Housing)
and Housing)
Secretary,
of Roads,
Roads, Public
Public Works
Works
01/
~~
.L!l!.~
.~
. ~~ .
.
".=...
..
Zachary Onyancha
Zachary Onyancha Ogongo
Ogongo
Ministry of
Ministry of Local
Local Government)
Government)
Lawrence
Lawrence Agayi
Agayi Orowe
(Designated representative
(Designated representative of the
Permanent Secretary,
Office of
Office of the
the President
President
responsible for Governance
responsible for Governance & & Ethic
Ethics)$. ) ""-"'I"I'I't4~Pr4 .
Nelson Waruinge
Nelson Waruinge Kimani
Kimani
(Designated representative of
of the
the 't\. to.. •
Permanent
Secretary, \ '\J'-.N\.
Ministry
Ministry of Lands
Lands and
and Settlement)
Settlement)
(xi)
Sichangi Adv
David K.
David K. Mbugua
Mbugua
of the
the
Ministry
Ministry of
of Environment,
Environment,
Natural
Natural Resources
Resources and
andWildlife)
Wildlife)
Musa Kibiti
Musa Kibiti Rintari
Rintari
(Designated
representativeof
of the
the
Ministry of
Ministry of Roads,
Roads, Public
Public Works
Works
and Housing)
and Housing) ....... ~ .
Muli Nyamai
Muli Nyamai Malombe
Malombe
of the
the
Permanent
Permanent
Ministry
Ministry of
of
Secretary,
Secretary,
Local
Local Government)
Government) w~
•••••••••••••••••••••••••••••••••••••••••••••••••••• .!••••••
Joint Secretaries
Joint Secretaries
Smokin Wanjala
Smokin Wanjala p
..............h-
~ .
Victoria Kattambo
Victoria Kattambo (Mrs.)
(Mrs.) .................... ~
~ . .
Counsel to
Counsel to the
the Commission
Commission
•
Wanyiri Kihoro
Wanyiri Kihoro
Sichangi Adv
ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS
This Report
This Report is the
the result
result of
of hard
hard work
work support
support and
and commitment
commitment byby many
many
individuals.
individuals. WeWe are
are deeply
deeply indebted
indebted toto all
all those
those who
who supported
supported and
and
facilitated
facilitated our work and
and wish
wish to
to acknowledge
acknowledge them.
them.
We
We wish
wish to
to express
express our
our gratitude
gratitude to
to His
His Excellency
Excellency the the President
President andand
Commander-in-Chief
Commander-in-Chief of of the
the Armed
Armed Forces
Forces ofof the
the Republic
Republic of of Kenya
Kenya forfor
his
his wisdom
wisdom in establishing
establishing this
this Commission
Commission to to inquire
inquire into
into illegal
illegal and
and
irregular allocation of
irregular allocation of public
public land.
land. We
We thank
thank him
him for
for appointing
appointing us us and
and
thereby giving us the
thereby giving the opportunity
opportunity and privilege
privilege of serving
serving our
our nation
nation in
in aa
special way.
special
In addition
In addition thethe Commission
Commission wishes
wishes toto extend
extend its
its appreciation
appreciation to toHon.
Hon.
Amos
Amos Kimunya,
Kimunya, M.P.,
M.P., Minister
Minister for
for Lands
Lands and
and Settlement,
Settlement, the
the Permanent
Permanent
Secretary Mr. Kiriinya
Secretary Mr. Kiriinya Mukiira,
Mukiira, the Heads
Heads of Department
Department in the the Ministry
Ministry
as well
as well as
as their
their staff
staff who
who participated
participated in
in our
our meetings
meetings and
and facilitated
facilitated our
our
investigations.
investigations.
We are
We are also
also grateful
grateful for the
the support
support we
we received
received from
from the
the Office
Office ofof the
the
President and
President and in particular
particular from
from Permanent
Secretary, the
the Secretary
Secretary totothe
the
Cabinet and Head
Cabinet Head of Civil Service
Service (Ambassador
(Ambassador Francis
Francis K.K. Muthaura)
Muthaurajwho who
ensured that the
ensured that the Commission
Commission was was provided
provided with
with material,
material, financial
financial and
and
human resources. We
human resources. We wish
wish to single
single out
out several
several officers
officers in
in his
his office
office for
for
special
special mention;
mention; namely:
namely: Mr. Mr. Hyslop
Hyslop IpuIpu(Principal
(Principal Administrative
Administrative
Secretary), Mrs
Secretary), Mrs Rosemarie
Rosemarie Kigame
Kigame (Deputy
(DeputySecretary/Administration)
Secretary/Administration)
who served the Commission's Co-ordinator, Mr.
who served as the Commission's Co-ordinator, Mr. Francis
Francis K.K. Musyimi
Musyimi
(Deputy Secretary/Administration),
(Deputy Secretary/Administration), Mr. Mr. Mwarapayo
Mwarapayo A. A. M.
M.Wa-Mwachai
Wa-Mwachai
(Undersecretary/Finance),
(UndersecretarylFinance), Mr. Isaiah
Mr. Isaiah 0.
O. Nyaribo
Nyaribo(Undersecretary/-
(Undersecretary/-
Administration),
Administration), Mr. Mr. Tom.
Tom. P. 0.O. Odhiambo
Odhiambo (Senior
(Senior Assistant
Assistant Secretary/-
Secretary/-
Finance), Ms.
Finance), Ms. Margaret
Margaret Wairimu
Wairimu (Transport
(Transport Officer)
Officer) and Mr.Mr. Dishon
Dishon I.I.
Saunya
Saunya (Supplies
(Supplies Assistant).
Assistant).
We are
We are also
also grateful
grateful to the
the Hon.
Hon. Chief
Chief Justice
Justice Evans
Evans Gicheru
Gicheru who
who met
met us
us
and discussed
and discussed many legal
legal issues
issues pertaining
pertaining to
to our
our work.
work.
We also
We also express
express deep
deep appreciation
appreciation to the
the contributions
contributions of
of Ms.
Ms. Raychelle
Raychelle
Omamo and Mr.
Omamo Mr. Thuita
Thuita Mwangi
Mwangi who
whobriefly
briefly served
servedasasAssisting.
Assisting Counsel
Counsel
(xiii)
Sichangi Adv
and Joint Secretary
Secretary respectively
respectively but left the Commission
Commission to
to serve
serve in
in other
other
official capacities.
The officers
The officers of the
the Standing
Standing Committee
Committee onon Human
Human Rights
Rights served
served inin the
the
Interim
Interim Secretariat
Secretariat and assisted in laying
laying down
down the
the foundation
foundation of
of our
our work.
work.
We are thankful
thankful to those officers
officers and especially to Mr.
Mr. Felix
Felix Kombo,
Kombo, Alice
Alice
Nderitu,
Nderitu, Jane Mulwa., Edmud Kamu, Ezekiel Obanda and,Lawrence
Mulwa, Edmud and.Lawrence Ilua.
Ilua.
Several
Several Ministries,
Ministries, various
various Government
Government Institutions,
Institutions, including
including Parastatals,
Parastatals,
Municipalities
Municipalities and and County
County Councils
Councils responded
responded to to the
the Commission's
Commission's
requests information and thereby
requests for information enriched our
thereby enriched our findings.
findings. WeWearearedeeply
deeply
indebted
indebted toto all
all those
those who
who helped
helped usus in this
this way.
way. We Weare areparticularly
particularly
grateful
grateful to the representatives
representatives of of Ministries,
Ministries, Government
Government Departments
Departments and and
Institutions who
Institutions who attended
attended ourour Workshops
Workshops and and other
other meetings,
meetings, andand
representatives of
representatives of Government
Government agencies who helped
agencies who helped usus in
in various
various ways.
ways.
We wish
We wish toto single
single out
out for
forspecial
specialmention
mention the theMinistries
Ministries which
which sent
sent
representatives to
representatives to our workshop
workshop at the Kenya
Kenya School
School ofof Monetary
Monetary Studies
Studies
in November,
in November, 2003 2003 namely:
namely: Office
Office of of the
thePresident
President(Provincial
(Provincial
Administration and National
Administration National Security),
Security), Ministry
Ministry of Lands
Lands andand Settlement,
Settlement,
Ministry of
Ministry of Roads,
Roads, Public
Public Works
Works andand Housing,
Housing, Ministry
Ministry of of Water
Water
Resources, Management
Resources, Management and and Development,
Development, Ministry
Ministry ofof Environment,
Environment,
Natural
Natural Resources
Resources and Wildlife,
Wildlife, Office
Office ofof the
the Vice-President
Vice-President and andHome
Home
Affairs, Ministry of Livestock
Affairs, Ministry Livestock & Fisheries
Fisheries Development,
Development, Ministry
Ministry ofof Local
Local
Government
Government and the the Ministry
Ministry ofof Agriculture.
Agriculture.
The
The Principal,
Principal, Kenya
Kenya Institute
Institute of
of Mass
Mass Communication
Communication and and Mr.
Mr. Charles
Charles
Manyara
Manyara (Lecturer)
(Lecturer) , Kenya
Kenya Institute
Institute of
of Mass
Mass Communication
Communication helped helped us
us
with
with recording
recording facilities
facilities which
which wewe used
used atat our
our workshops.
workshops. The The Officer
Officer
Commanding,
Commanding, Kilimani
Kilimani Police
Police Station
Station assisted
assisted us
us with
with service
service of
of summons
summons
to several
several witnesses.
witnesses. WeWe thank
thank them
them sincerely
sincerely for
for their
their support.
support.
A
A number
number of of Professional
Professional Organizations
Organizations namely:
namely: TheThe LawLaw Society
Society ofof
Kenya,
Kenya, thethe Institution of Surveyors
Institution of Surveyors 'ofof Kenya,
Kenya, thethe Kenya
Kenya Institute
Institute of
of
Planners, and Kenya Bankers Association held discussions with us and
Planners, and Kenya Bankers Association held discussions with us and
gave
gave us
us memoranda
memoranda that that helped
helped usus shape
shape some
some of of our
our findings
findings and
and
recommendations. We
recommendations. Wedeeply
deeply appreciate
appreciate their
their contribution.
contribution.
Members of
Members of the
the public
public also
also sent
sentmemoranda
memoranda andand complaints
complaints which
which
provided insight
provided insight into
into the
the magnitude
magnitude of illegal
illegal and
and irregular
irregular allocation of
allocation ,of
(xiv)
Sichangi Adv
public
public land.
land. Many
Many of
oftheir
their contributions
contributions were
were used
used to
to enrich
enrich our
our report
report and
and
we therefore
therefore thank
thank all those
those who
who wrote
wrote to
to us
us or
or visited
visited our
our offices.
offices ..
The Media
The Media Houses
Houses also
also contributed
contributed inin various
various ways.
ways. They,
They, among
among other
other
things, kept
things, kept the
the debate
debate on
on 'land
'land grabbing'
grabbing' alive
alive and
and helped
helped usus with
with
important perspectives
important perspectives onon the
the problem.
problem. WeWe thank
thank all
all of
of them
them for
for their
their
contribution.
contribution.
We would
We would like to
to pay
pay special
special tribute
tribute to
to the
the Commission
Commission StaffStaff who
who worked
worked
tirelessly and
tirelessly and efficiently
efficiently toto make our work
make our work successful.
successful. Their
Their dedication
dedication
and commitment
and commitment went went beyond
beyond the the call
call of duty..
duty., WeWeare areparticularly
particularly
indebted to
indebted to Mr.
Mr. Alfred
Alfred Muthee
Muthee (Data
(Data Analyst);
Analyst); Mrs.
Mrs. Dorothy
Dorothy Kaari
Kaari
Mwanzile (Editor);
Mwanzile (Editor); Ms. Juliet
Juliet Wanjiru
Wanjiru Mwaniki
Mwaniki (Personal
(Personal Secretary)
Secretary) and
and
Robert Ochung'
Robert Ochung'aa Amutabi
Amutabi (Typesetter)
(Typesetter) who who worked
worked tirelessly
tirelessly on
on the
the.final
final
report to ensure
report ensure that
that all
all the
the relevant
relevant information
information waswas included.
included. The
The names
names
of all the members
members of of staff
staff appear
appear on Appendix 11 of this Report.
on Appendix Report.
Lastly we are very grateful

Lastly grateful to all those
those who contributed
contributed to our
our work
work in
in one
one
way or another
way another but have not
not been
been specifically
specifically mentioned.
mentioned.
Sichangi Adv
INTRODUCTION
INTRODUCTION
Land retains
Land retains aa focal
focal point
point in Kenya's
Kenya's history.
history. It It was
was thethe basis
basis uponupon which
which
the struggle
the struggle for
for independence
independence was was waged.
waged. It It has
has traditionally
traditionally dictated
dictated the
the
pulse of
pulse of our
our nationhood.
nationhood. It continues
continues to command
command a pivotal pivotal position
position inin the
the
country's social,
country's social, economic,
economic, political
political and
and legal
legal relations.
relations. ItIt isis not
not surprising
surprising
therefore that
therefore that land
land has has since
since the
the colonial
colonial times
times to-date,
to-date, been
been the subject
subject of
myriad state
myriad state managed
managed policy policy and and legal
legal interventions.
interventions. Neither Neither is is itit
surprising that itit has
surprising that has been
been the subject
subject of many
many Commissions
Commissions of of Inquiry.
Inquiry. AtAt
every epoch,
every epoch, the
the needneed toto address
address systemic
systemic landland related
related grievances
grievances has has
forced successive
forced successive regimes
regimes to makemake adjustments
adjustments to to the
the policy,
policy, institutional
institutional
and legal
and legal arrangements
arrangements in the country's
country's land
land relations.
relations.
This Report is
This Report is a product
product of an
an Inquiry
Inquiry by aa Commission
Commission appointed
appointed by His
His
Excellency the
Excellency the President,
President, Hon.
Hon. Mwai
Mwai Kibaki,
Kibaki, vide Gazette Notice
vide Gazette Notice No.
No.
4559 dated
4559 30th June
dated 30th June 2003
2003 and
and published
published onon 44th July, 2003.
th July, The·
2003. The
Commission was
Commission was appointed
appointed toto inquire
inquire generally
generally into
into the
the allocation
allocation of
of
lands, and particular,
lands, and in particular,
(a)
(a) (i)
(i) to
to inquire
inquire into
into the
the allocation,
allocation, to to private
private individuals
individuals or or
corporations,
corporations, of public
public lands
lands or
or lands
lands dedicated
dedicated oror reserved
reserved
for
for a public
public purpose;
purpose;
(ii)
(ii) to collect
collect and collate
collate all
all evidence
evidence and
and information
information available,
available,
whether from
whether from ministry-based
ministry-based committees
committees or from
from any
any other
other
source, relating to
source, relating to the
the nature
nature and
and extent
extent of
of unlawful
unlawful oror
irregular allocations
irregular allocations of such lands;
lands; and
(iii) to prepare
(iii) to prepare aa list
list ofofallalllands
landsunlawfully
unlawfully ororirregularly
irregularly
allocated, specifying particulars
allocated, specifying particularsofof thethe lands
lands andand of of the
the
persons to
persons whom they
towhom they were
were allocated,
allocated, the
the date
date ofof allocation,
allocation,
particulars of all subsequent
particulars subsequent dealings
dealings in
in the
the lands
lands concerned
concerned
and their
and their current
current ownership
ownership and and developthent
development status;
status;
(b)
(b) to inquire
inquire into and
and ascertain-
ascertain-
(i) the identity
the identity of
of any
any persons,
persons, whether
whether individuals
individuals or
or bodies
bodies
corporate, toto whom
corporate, whom any
any such
such lands
lands were
were allocated
allocated byby
unlawful or irregular
unlawful irregular means;
means; and
and
(ii)
(ii) the identity
the identity of
of any
any public
public officials
officials involved
involved in
in such
such
allocations;
allocations;
. (xvii)
... " .
'." .
Sichangi Adv
(c) to carry
carry out
out such
such other
other investigations
investigations into
into any
any matters
matters incidental
incidental
to the foregoing
foregoing as, inin the
the opinion
opinion ofof the
the commissioners,
commissioners, willwill be
be
beneficial to a better
beneficial better and fuller discharge
discharge ofof their
their commission;
commission;
(d)
(d) to carry
carry out such
such other
investigations as may
may be
be directed
directed by
by the
the
President
President or the Minister
Minister for
for Lands and
and Settlement;
Settlement;
(e)
(e) to recommend-
recommend-
(i) legal and administrative
legal administrative measures
measures for
for the
the restoration
restoration of
of such
such
lands to their
lands their proper
proper title
title or purpose,
purpose, having
having due
due regard
regard toto
the
the rights
rights of
of any
any private
private person
person having
having any fide
bona fide
any bona
entitlement
entitlement to or claim of right over the lands
lands concerned;
concerned;
(ii)
(ii) legal and
legal and administrative measures to
administrative measures to be
be taken
taken in the
the event
event
that
that such
such lands
lands are for any
any reason
reason unable
unable to
to be
be restored
restored to
to
their proper
their proper title or
or purpose;
purpose;
(iii) criminal
(iii) criminal investigation
investigationoror prosecution
prosecutionof,
of, and
and any
any other
other
measures
measures toto be
be taken
taken against,
against, persons
persons involved
involved in
in the
the
unlawful irregular allocation
allocation of such lands;
lands; and
and
(iv) legal
(iv) legal and
andadministrative
administrative measures
measures for
for the
the prevention
prevention of of
unlawful
unlawful or
or irregular" allocations of such land in
irregular' allocations in the
the future;
future; 11
The appointment
The appointment of of this Commission
Commission was was an indication
indication that
that the
the law
law and
and
practice of
practice of allocating public land
allocating puhlic land in
in the
the country
country had
had led
led to
to a crisis
crisis in
in the
the
country's land
country's land relations
relations warranting
warranting state
state intervention.
intervention. The
The detailed
detailed context
context
of the
of the Commission's
Commission's appointment
appointment is is discussed
discussed in in PART
PART ONEONE of of this
this
Report.
Report.
The Commission undertook
The Commission undertook the
the inquiry
inquiry as
as directed
directed by
by the
the President
President within
within
a cumulative
cumulative period
period of nine
nine (9)
(9) months.
months. The
The resultant
resultant Report
Report as
as presented
presented
is summarized
summarized the
the Executive
Executive Summary,
Summary, which
which follows.
follows.
For the
I For the Full
Full Terms
Terms of Reference
Reference issued the Commission,
issued to the Commission, and
and other
other Instruments
Instruments of
of
Appointment see
Appointment see APPENDICES
APPENDICES 1-4 1-4
(xviii)
Sichangi Adv
EXECU TIVE SUMMARY
EXECUTIVE SUMMARY
This
This. Report
Report comprises
comprises Six main main PARTS
PARTS which
which are
are organized
organized in inlogical
logical''
sequence. Part
sequence. discusses the
ODe discusses
Part One context in which
the context which this
this Commission
Commission was was
appointed in
appointed in historical
historical perspective.
perspective. TheThe main
main question
question answered
answered in thisthis'
part therefore
part is, why
therefore is, why this
this Commission?
Commission? In the the process
process of of answering
answering thethe
question, this
question, this part of
of the
the report
report provides
provides detailed
detailed and
and critical
critical background
background
information about
information about the
the phenomenon
phenomenon of illegal
illegal allocations
allocations of of public
public land
land
(land grabbing)
(land grabbing) in Kenya.
Kenya.
Part
Part Two the methodology,
discusses the
Two discusses methodology, that that is the
the approach
approach adopted
adopted andand
used by the
used the Commission
Commission in in conducting
conducting the the inquiry.
inquiry. The
The problem
problem under
under
inquiry as
inquiry as understood
understood by by the
the Commission
Commission is is defined.
defined. The
The sources
sources andand
methods of acquiring,
methods acquiring, storing
storing and
and analyzing
analyzing information
information are are adequately
adequately
highlighted. This
highlighted. This part
part also
also discusses
discusses the
the main
main challenges
challenges andand constraints
constraints
the Commission
the Commission facedfaced during
during the
the inq~",
inquiv,,The ibe manner
manner in in which
which these
these
constraints and challenges
constraints challenges were
were surmounte4
sunnoun~{SQ - w as not to seriously
as: not seriously impact
impact
upon the
upon the integrity
integrity of
of the
the inquiry
inquiry isis explained
explained in in ~last-
thlast section
sectionofofthis
thispart.
part.
Part Three contains

Part Three contains aa restatement
restatement of of the
the law relating to the allocation
law relating allocation of
public
public land
land in
in Kenya.
Kenya. An An important
important aspect
aspect of of this
this restatement
restatement isis whatwhat
constitutes public
constitutes public land
land in thethe context
context ofof this
this inquiry.
inquiry. The
The relevant
relevant legal
legal
provisions
provisions in various
various statutes
statutes which
which stipulate
stipulate the
the manner
manner in in which
which public
public
land is to be allocated
land allocated are
are briefly
briefly explained.
explained. TheThe allocations
public land
land
contrary to
contrary to the provisions of law which have resulted in illegal titles are
provisions of law which have resulted in illegal titles are
extensively discussed in
extensively discussed in this
this part.
part. Finally,
Finally, the
the effect
effect of an illegal
illegal title
title and
and
its impact
impact on third party
party or
or "innocent"
"innocent" purchasers
purchasers isiscritically
critically analyzed.
analyzed.
Part
Part Four of this Report
Four of Report contains
contains the the key findings of
key findings of the
the inquiry.
inquiry. It is
is aa
situational analysisofof how
situational analysis how public
public land land was was illegally
illegally allocated
allocated to to
individuals and companies.
individuals and companies. It It provides
provides an an insight
insight into
into what
what actually
actually took
took
place. Examples
place. Examples of how
how public
public land
land was
was grabbed
grabbed andand even
even sold
sold are
are given.
given.
This part
This part also
also contains
contains the
the key specific and
key specific general recommendations
and general recommendations
made
made by by the
the Commission
Commission as as to
to what
what action
action should
should be be taken
taken byby the
the
Government with regard to
Government to illegal
illegal titles
titles to
to land.
land.
Five of the Report

Part Five
Part Report contains
contains the
the key
key proposals
proposals by
by the
the Commission
Commission onon
how the
how the recommendations
recommendations in this Report
Report can be implemented.
implemented. ItItdiscusses
discusses
(xix)
Sichangi Adv
the framework,
framework, strategy
strategy and
and programme
programme of
of implementation
implementation as proposed
proposed by
the Commission.
Commission.
The
The ANNEXES
ANNEXES to the the Report
Report contain
contain among
among other
other particulars, lists of
particulars, lists of
land and names
names of individuals
individuals and corporations
corporations to whom
whom public land
land was
was
illegally allocated. These
illegally allocated. These lists
lists appear
appear in separate
separate bound
bound volumes
volumes (Vol.
(Vol. II
and II) which
which are part of
of this
this Report.
Report.
(xx)
Sichangi Adv
· PART ONE
THE CONTEXT
CONTEXT
Introduction
1. Introduction
This Commission
This Commission of of Inquiry
Inquiry waswas appointed
appointed by His His Excellency
Excellency the the
President to
President to examine
examine in detail,
detail, the
the phenomenon
phenomenon of of illegal
illegal and
andirregular
irregular
allocation of public
allocation public land in Kenya. The phrase "public land" is is used
used inin this
this
report to
report to mean
mean all
all that
that land
land ininwhich,
which, given
given itsitsnature,
nature, andandstrategic
strategic
location, the
location, the public
public retains
retains an interest.
interest. At the
the time
time ofof the
theCommission's
Commission's
appointment, the
appointment, the country
country waswas already experiencing aa major
already experiencing major crisis
crisis in
in its
its
Public land tenure. Land meant
meant for
for public
public purposes
purposes had hadover
overthe
theyears
yearsbeen
been
wantonly and illegally allocated
wantonly allocated to private
private individuals
individuals and and corporations
corporations in in
disregard of the public interest. The privatization of public land
total disregard land in
in this
this
manner is commonly
manner commonly referred to as "Land Grabbing".
So pervasive
pervasive was was this practice
practice that by the the turn
turn of
of the
theCentury,
Century, there
therewaswas
real danger that Kenya could be without aa public land land tenure
tenure system.
system. There
There
is no legal
legal or
or political
political system
system in in the
the world
world which
which condones
condones thethe extinction
extinction
of its public land tenure. A country's physical development planning
of its public land tenure. A country's physical development planning
depends largely on the manner in in which
which itit balances
balances private
private and
andpublic
publicland
land
rights. Kenya
rights. Kenya has two options
options of of recreating
recreating its public
public land
land tenure
tenure system.
system.
Either, the
Either, the system
system cancan bebe recreated
recreated through
through massive
massive and and large
large scale
scale
compulsory acquisitions
compulsory acquisitions of of private
private lands
lands by thethe Government
Government (this (this would
would
have to be undertaken
have undertaken at at aa considerable
considerable cost cost to
to an
analready
alreadyburdened
burdened and and
impoverished tax payer), or,
impoverished or,the
the Government
Government can can embark
embark on onthe
theprocess
processofof
tracing illegally
tracing illegally allocated
allocated public
public land
land with
with a view
view to torepossessing
repossessing and and
restoring the same to the publicpublic forfor its
its original
original purpose.
purpose. TheThereasons
reasonsforforthe
the
emergence and intensification
emergence intensification of illegal
illegal and
and irregular
allocations ofofpublic
public
land
land areare toto be
be found
found ininthe thecountry's
country'shistorical,
historical, legal
legal and
andpolitical
political
dispensation (In
dispensation (In part,
part, unbridled
unbridled greedgreed andand complicity
complicity of ofGovernment
Government
thus fuelling illicit land markets throughout
officials thus throughout the Country.)
( /
2. A BRIEF
BRIEF HISTORICAL
HISTORICAL BACKGROUND
BACKGROUND
(a)
(a) The
ThePre-colonial
Pre-colonial Period
Period
Land in pre-colonial
Land pre-colonial Kenya
Kenya was
was owned
owned and
and held
held under
under .a
.a complex
complex system
system
of customary
of tenure in
customary tenure in which
which rights of access
rights of access to
to and
and use
use of
of land
land were
were
regulated by
regulated by intricate
intricate rules,
rules, usages
usages and
and practices.
practices. These
These were
were often
often based
based
on communal
on communal solidarity
solidarity such
such as clan,
clan, and
and other
other lineal
lineal heritages.
heritages. In
In the
the
Sichangi Adv
multiplicity Of
multiplicity of customary
customary tenures,
tenures, a number
number of of salient
salient features
features have
have been
been
recorded
recorded by by '¥oters
Miters inin this
this field.'
field.! These
These are
are as
as follows:
follows:
• Under
Under African
African Customary
Customary land land law,
law, there
there was
was aa distinction
distinction between
between
rights
rights of
of access
access to landland and
and control
control of of those
those rights.
rights.
• The
The power
power of of control
control waswas vested
vested inin aa recognized
recognized political
political authority
authority
or entity within
or entity within aa specific
specific community.
community.
• The political
.The political entity
entity exercised
exercised these
these powers
powers to to allocate
allocate rights
rights of of
access to
access to individuals
individuals depending
depending on the
on the needs
needs and and status
status of of the
the
individual
individual in in question.
question.
• Rights
Rights of of access
access werewere guaranteed
guaranteed by by the
the political
political authority
authority on on the
the
basis
basis ofof reciprocal
reciprocal duties
duties performed
performed by the
by the rights
rights holder
holder to to the
the
community.
community.
• Rights
Rights to to land
land were
were determined
determined on on aa continuum
continuum ofof flexibility;
flexibility;
always adjusting and changing
always adjusting and changing as
as circumstances
circumstances demanded.
demanded.
•• There
There was was no no element
element of of exclusivity
exclusivity to
to land
land under
under African
African
Customary Law
Customary Law asas found
found within
within English
English Property
Property Jurisprudence.
Jurisprudence.
(b)
(b) Public
PublicLand
Landunder
underAfrican
African Customary
Customary Tenure
Tenure
It
It must
must be beappreciated
appreciated that thatnotwithstanding
notwitltsfflnding the the apparently
apparently complex
complex
tenurial
tenurial arrangements
arrangements in in the African
African ctIstomary
CHstomary system,
system, thethe concept
concept of of
"Public Land"
"Public Land" asas used
used in this
this Report
Report w4s not alien
was not alien to it. Public
Public land
land fell
fell
under
under what
what are usually
usually referred
referred to asas "Commons",
"Cemmons", thus thus there
there was
was territory
territory
which
which served
served the interests
interests ofof the
the Community
Community in in its
its corporate
corporate status.
status. In
In this
this
category were found
category were found lands
lands such
such asas common
common pathways,
pathways, watering
watering points,
points,
grazing
grazing fields,
fields, recreational areas/grounds, meeting
recreationalareas/grounds, meeting venues,
venues, ancestral
ancestral andand
cultural grounds, and
cultural grounds, and many
many others.
others. NoNo individual
individual or or group
group could
could be be
allocated rights
allocated rights of access
access to such
such public
public lands
lands other
other than
than for
for purposes
purposes for for
which
which they
they had
had been
been setset aside
aside and
and recognized.
recognized. The The community's
community's needs needs
could
could not yield
yield to
to private
private interests.
interests. .
I See for example,

See for example, M.P.K Sorrenson, The
M.P.K Sorrenson, Origins of European
The Origins European Settlement
Settlement inin Kenya,
Kenya,
Nairobi, O.U.P
Nairobi, O.U.P 1968.
1968.
Yl
Y.P GHAI
GHAI and J.P.W.B
J.P.W.B MacAuslan,
MacAuslan, Public
Public Law and Political
Law and Political Change
Change inin Kenya, O.U.P
Kenya, O.U.P
147Q.
19<70.
H.W.Q Okoth
H.W,Q Okoth Ogendo,
Ogendo, Tenants of the
Tenants of the Crown:
Crown: The
The Evolution
Evolution ofofAgrarjdt:
Agrarjan Law
Law and
and
Institutions in Kenya,
Institutions ACTS PRESS
Kenya, ACTS PRESS 1995.
1995.
2
Sichangi Adv
(c)
(c) The
The Colonial
Colonial Period
Period
The British
The British conquest,
conquest, the
the declaration
declaration of a Protectorate
Protectorate and
and later
later aa Colony
Colony
fundamentally altered
fundamentally altered the African
African land
land relations
relations in
in Kenya.
Kenya.
The promulgation
The promulgation of of the
the Crown
Crown Lands
Lands Ordinance
Oroinance of of 1902
1902 and
and later
later the
the
Crown Lands Ordinance
Crown Land'S Ordinance of of 1915
1915 conferred
conferred enormous
enormous powers
powers on on the
the
colonial government
colonial government to to deal
deal with what
what had
had been
been declared
declared Crown
Crown land.
land. In
In
effect, the
effect, the Governor
Governor could
could make
make grants
grants ofof freehold
freehold andand leasehold
leasehold ininfavour
favour
individuals and corporate
of individuals corporate bodies
bodies on
on behalf
behalf of of the
the Crown.
Crown. After
After 1915,
1915,thethe
Governor could make
Governor could make grants
grants of agricultural
agricultural leases
leases of up to to 999
999 years
years and
and
of Town
Town plots
plots of
of up
up to
to 99 years on behalf
years on behalf of of His
His Majesty.
Majesty. By By 1949,
1949, those
those
settlers who had
settlers who had acquired
acquired 99 99 year
year agricultural
agricultural leases
leases were
were allowed
allowed to to
convert them,
convert them, atat aa price,
price, into
into 999
999 year
year leases.
leases. Commercial
Commercial PlotsPlots inin
townships
townships andand urban
urban centers
centers were
were allocated
allocated through
through a system
system of of public
public
auction
auction while
while residential
residential plots within
within municipalities
municipalities were were allocated
allocated through
through
public tender
a public tender system.
system.
(d) Policy
Policy and Administrative
Administrative Changes
Changes After 1948
1948
In September,
In September, 1939,
1939, a Committee
Committee under
under the
the Chairmanship
Chairmanship of of Mr.
Mr. C.E
C.B
Mortimer, then
Mortimer, then Commissioner
Commissioner ofof Lands,Lands, was was appointed
appointed to to make
make
recommendations regarding
recommendations regarding certain
certain aspects
aspects of Land Tenure
Tenure Policy.
Policy. Among
Among
the
the matters
matters to bebe reviewed
reviewed waswas the
the system
system ofofallocation
allocation ofofcommercial
commercial
plots of a general
plots general nature
nature in
in Townships
Townships andand Municipalities
Municipalities andand the
the method
method
of allocating
of allocating residential
residential plots.
plots. The
The report
report of
of this
this Committee
Committee was was published
published
in 1941
in 1941 and
and became
became the the subject
subject matter
matter ofofintermittent
intermittent discussion
discussion and
and
debate in the
debate the Legislative
Legislative Council
Council and
and correspondence
correspondence withwith the
the Secretary
Secretary of
of
State for
State for the Colonies.
Colonies.i 2
With regard
With regard to the allocation
allocation of
of commercial
commercial plots
plots ofof aa general
general nature
nature in
in the
the
Townships and
Townships and Municipalities,
Municipalities, it was decided
decided that
that for
for a trial
trial period
period of twotwo
years, the
years, the previously
previously existing system of
existing system of auctioning
auctioning such such plots
plots be be
abandoned. In
abandoned. In future,
future, such
such plots
plots in
in Townships
Townships wouldwould be be allocated
allocated by by
means
means of of direct
direct grant
grant with
with the
the assistance
assistance ofof aalocal
localcommittee.
committee. The The
allocation
allocation would
would have
have toto be
be subject
subject to
to precise
precise development
development conditions.
conditions. In In
municipalities,
municipalities, it it was
was decided
decidedthat that for
for aa trial
trial period
period of of two
'two years,
years,
commercial plots
commercial plots ofof a general
general nature
nature would
would be be disposed
disposed of of by
by tender
tender
2 This
This information
information was embodied in a COMMUNIQUE
was embodied COMMUNIQUE issued
issued by the Governor
Governor in
in 1951
1951
Sichangi Adv
(c)
(c) The Colonial Period
The Colonial Period
The
The British
British conquest,
conquest, the
the declaration
declaration of
of aa Protectorate
Protectorate and
and later
later aa Colony
Colony
fundamentally
fundamentally altered the
altered the African
African land
land relations
relations in in Kenya.
Kenya.
The
The promulgation
promulgation of the
of the Crown
Crown Lands Lands Ordinance
Oroinance of
of 1902
1902 and and later
later the
the
Crown
Ordinance of
of 19151915 conferred
conferred enormous
enormous powers
powers on on thethe
colonial government to
colonial government to deal
deal with
with what
what hadhad been
been declared
declared Crown Crown land.land. In In
effect, the
effect, the Governor
Governor could could make
make grants
grants of of freehold
freehold and and leasehold
leasehold inin favour
favour
of
of individuals
individuals and and corporate
corporate bodies
bodies on on behalf
behalf of of the
the Crown.
Crown. After After 1915,
1915, thethe
Governor could
Governor could make
make grants
grants of of agricultural
agricultural leases
leases of of up
up toto 999
999 years
years andand
of Town
of Town plotsplots of
of up
up toto 99
99 years
years on behalf of
on behalf of His
His Majesty.
Majesty. By By 1949,
1949, those
those
settlers who
settlers who hadhad acquired
acquired 99 99 year
year agricultural
agricultural leases
leases werewere allowed
allowed to to
convert them, at a price, into 999 year
convert them, at a price, into 999 year leases. Commercial Plots inleases. Commercial Plots in
townships and
townships and urban
urban centers
centers were were allocated
allocated through
through aa systemsystem of of public
public
auction while residential plots within municipalities were allocated through
auction while residential plots within municipalities were allocated through
aa public
public tender
tender system.
system.
(d)
(d) Policy and Administrative
Policy and Administrative Changes After
Changes After 1948
1948
In September,
In September, 1939, aa Committee
1939, Committee under the
under the Chairmanship
Chairmanship of Mr.
of Mr. C.E
C.E
Mortimer, then Commissioner of
Mortimer, then Commissioner of Lands, was appointed to makeLands, was appointed to make
recommendations regarding
recommendations regarding certain
certain aspects
aspects of of Land
Land Tenure
Tenure Policy.
Policy. Among
Among
the matters to be reviewed was the system
the matters to be reviewed was the system of allocation of commercialof allocation of commercial
plots of
plots of a general
general nature
nature in in Townships
Townships and and Municipalities
Municipalities and
and thethe method
method
of allocating residential plots. The report of this Committee
of allocating residential plots. The report of this Committee was published was published
in
in 1941
1941 and and became
became the the subject
subject matter
matter of of intermittent
intermittent discussion
discussion and and
debate in the Legislative Council and correspondence
debate in the Legislative Council and correspondence with the Secretary of with the Secretary of
State for
State for the
the Colonies.
Colonies.' 2
With
With regard
regard to to the
the allocation
allocation of of commercial
commercial plots plots ofof aa general
general nature
nature inin the
the
Townships and
Townships and Municipalities,
Municipalities, it
it was
was decided
decided thatthat for
for a trial
trial period
period of of two
two
years, the previously existing system of auctioning such plots be
years, the previously existing system of auctioning such plots be
abandoned. In
abandoned. In future,
future, such such plots
plots in in Townships
Townships would be
would be allocated
allocated by by
means of direct grant with the assistance
means of direct grant with the assistance of a local committee. The of a local committee. The
allocation would
allocation would have have to to be
be subject
subject to to precise
precise development
development conditions. In
conditions. In
municipalities,
municipalities, it itwas
was decided
decidedthat that forfor aa trial
trial period
period of of two years,
'two years,
commercial plots
commercial plots of of a general
general nature
nature would
would be be disposed
disposed of of byby tender
tender
2 This information
This was embodied
information was embodied in
in aa COMMUNIQUE issued by the Governor
COMMUNIQUE issued Governor in
in 1951
1951
3
Sichangi Adv
instead
instead of
of by
by auction,
auction, inin cases
cases where
where the
the Government
Government considered
considered such
such aa
course desirable
course desirable in the
the public
public interest.
interest.
As
As for
for residential
residential plots
plots the
the practice
practice of of allocation
allocation by by direct
direct grant
grant with
with the
the
assistance of
assistance of a local
local committee
committee which
which had had informally
informally replaced
replaced thethe public
public
tender
tender system
system wouldwould continue.
continue. As
As shallshall become
become apparent,
apparent, these
these
administrative changes
administrative changes inin the
the method
method of of allocating
allocating these
these types
types ofof public
public
land would
land would have have profound
profound and and far
far reaching
reaching effect
effect on
on how
how successive
successive
regimes
regimes were were going
going toto deal
deal with
with land
land in in general
general and
and public
public land
land in in
particular
particular in independent
independent Kenya.
Kenya.
There
There isis a difference
difference of of opinion
opinion as as to the
the real
real reasons
reasons for
for such
such aa change
change ofof
policy
policy andand practice
practice in in the
the manner
manner of of land
land allocation
allocation by by the
the Colonial
Colonial
Authorities.
Authorities. There
There areare those
those who
who argue
argue that
that by
by 1948/49,
1948/49, the
the public
public auction
auction
system had
system had fallen
fallen: into
into disrepute
disrepute as as wealthy
wealthy syndicates
syndicates andand individuals
individuals
often outbid
often outbid the not- so wealthy
thenotso wealthy for all prime
prime plots
plots available.
available. This created
created a
land speculation
land speculation Cartel leading ',to
Cartel leading To serious
serious discontent
discontent within
within the
the entire
entire
Settler community. More
Settler community. More critically;
critically, the speculative
speculative activities
activities threatened
threatened to to
distort
distort the
the agricultural
agricultural development
development agenda agenda which
which hadhad been
been the
the prime
prime
factor
factor for the colonization
colonization of of Kenya.
Kenya.
It was
was therefore
therefore imperative
imperative thatthat the
the Governor
Governor be given given more
tnore latitude
latitude in
in
Controlling
controlling the the manner
manner inin which
whi~h landland could
could pass
pass to to individuals
individuals and and
Corporations.
Corporations. The selection
selection of
of allOttees
alldhees from
from the list of of all
ail applicants
applicants whowho
had responded
had responded to to the
the advertisenlent
advertisement of of the
the plots
plots would
wouid be be done
done after
after
interview by
interview by aa Selection
Selection Btiard
B6lrrd established
established by by. thetheProvincial
Provincial
Administration under
Administration under thethe directidn
direcd~h of the the Provincial
Provincial Commissioner
Commissioner or or
District Commissioner
District Commissioner as the latter4latt~Wss representative.
representative. The The guiding
guiding principles
principles
to be followed
to followed included
included the ability
ability of the
the selected
selected allottee
allottee to paypay for
for land
land
and
and carry
carry out the
the intended
intended develotitnents
developments withinwithin the
the presciribed
prescribed timetime limits.
limits.
Another
Another consideration
consideration was whether
whether, the prospective
prospective allottee
allottee already
already owned
owned
plots of
plots of aasimilar
similar nature
nature elsewhere.
elsewHere. These
These policy
policy and andadministrative
administrative
changes were
changes were formalized
formalized through
througli the
the Circular
Circular issued
issued by the the Governor
Governor in in
1951. The
1951. The trials
trials proved
proved successfiil
successfUl and and it
it would
would appear,
appear, werewere adopted
adopted
permanently.
permanently. .
bn the
~n the other
other hand,
hand, there
there are
are those
tHose who
who argue
argue that
that· the
the policy
policy and
and
administrative
administrati ve changes
changes outlined
outlined abbve
aBbve were
were meant
meant toto further
further crowd
crowd out
out the
the .
natives (as Africans were officially
natives (as Africans were , referred to) and other Non White
officitlfIy referred to) and olher Non White
communities
communities from
from the land market
market by tightening
tightening the Governor's
Governor's control
control onon
the land allocation process. The Natives had already been declared Tenants
the land allocation process. The Natives had already been declared Tenants
4
Sichangi Adv
atat the
the Will
Will of of the
the Crown
Crown by by thethe Crown
Ordinance ofof 1915
1915 (as(as
affirmed by
affirmed by aa judicial
judicial interpretation
interpretation of
of the
the relevant
relevant Provision
Provision in
in the
the
Ordinance). The
Ordinance). The Circular
Circular therefore
therefore isis seen seen by by those
those who who belong
belong to to this
this
School ofof Thought
School Thought as
as aa further
further subversion
subversion of the
of the Rule
Rule of of LawLaw by by the
the
colonial government
colonial government ifif there there waswas any.any. Be Be that
that asas itit may,
may, forfor the
the purposes
purposes
of this
of this Report,
Report, there
there areare two
two inescapable
inescapable conclusions
conclusions that
that cancan bebe made
made
about
about the the main
main objective
objective of of the
the Circular
Circular of of 1951:
1951:
•• The
The Policy
Policy andand Administrative
Administrative changes
changes embodied
embodied in
in the
the Circular
Circular
were meant
were meant to to streamline
streamline the
the allocation
allocation of
of Crown
Crown Land Land so so asas to
to
prevent speculative
prevent speculative accumulationof of land
accumulation land by by the the wealthy.
wealthy.
Speculation had
Speculation had become
become rife
rife through
through the the public
public auction
auction system
system
sanctioned
sanctioned by the
by the Crown
Crown Lands
Lands Ordinance
Ordinance (and
(arid later
later carried
carried overover
into the
into the Government
Government Lands
Lands Act Act (Cap
(Cap 280)).
280)).
•• These changes
These changes were
were exclusively
exclusively meant
meant toto enhance
enhance the the development
development
paradigm of
paradigm of the
the Colonial
Colonial Economy.
Economy. The
The land
land rights
rights andand interests
interests of
of
the Natives
the Natives were
were not
not part
part ofof this
this development
development agenda.
agenda.
(e)
(e) The
The Practice
Practice ofofLand
Land Allocation
Allocation After
After 1951
1951
The Applicant
The Applicant would
would be
be selected
selected for for allocation
allocation following
following ail
Advertisement.The
Advertisement. TheApplicant
Applicantwould wouldbebe required
requiredto. to sign
sign a Letter
Letter of of
Allotment signifying
Allotment signifying hishis acceptance
acceptance of of the
the Terms
Terms and and Conditions
Conditions of of the
the
Offer. He
Offer. He would
would then be required
required to to pay
pay the
the recommended
recommended price price within
within 30 30
days failing
days failing which
which thethe Offer
Offer would
would lapselapse making
making the the plot
plot available
available for for
offer to
offer to someone
someone else. else. AA Letter
Letter of of Allotment
Allotment was was aatemporary
temporary expedient
expedient
and allottees
and allottees were
were permitted
permitted to develop
develop the plot plot inin question
question atat their
their own
own
risk before
risk before the completion
completion of survey
survey of of the
the plot.
plot. AA Letter
Allotment was was
an offer
an offer and
and notnot aa contract
contract and
and asas such,
such, itit could
could not not be be sold
sold ororotherwise
otherwise
transferred to
transferred to a third
third party.
party. ItIt conferred
conferred no no transferable
transferable interest
interest or or rights
rights
over land
over land in favour
favour of of the
the person
person to to whom
whom ititwas wasaddressed.
addressed. Therefore,
Therefore,
Letters of
Letters of Allotment
Allotment were were never
never soldsold toto third
third parties.
parties. TheyThey served
served the the
purpose they were intended
purpose intended forfor as
as stated
stated above.
above.
Because the
Because the main
main objective
objective of allocating
allocating land in those
those days was (and (and still
still.is
today) encourage development,
today) to encourage development, the land
land was sold at 20% of its estimated
estimated
market value.
market value. For this
this reason,
reason, the
the Special
Special Conditions
Conditions inin the
the Title
Title provided
provided
for development
for development of the allocated
allocated land within aa specified
specified period
period (six
(six months
months
to
to submit
submit Development
Development PlansPlans and
and twenty
twenty four
four months
months to to complete
complete the the
55
Sichangi Adv
development).
development). During
During thisthis period,
period, thethe Grantee
Grantee could
could not
not bebe allowed
allowed toto
sell, sub
sell, sub divide
divide or or otherwise
otherwise deal deal with
with the
the land.
land. The
The Grantee
Grantee was was only
only
allowed to
allowed to mortgage
mortgage or or charge
charge the the land
land to
to finance
finance the
the said
said development.
development.
This
This remains
remains thethe position
position as as of
of today.
today.
TheLegal
(f) The
(0 LegalPosition Regardingthe
Position Regarding theAllocation
Allocation of
of Public
Public Land
Land
Before and After
After Independence
Independence
As, already
As. already indicated
indicated in in the
the foregoing
foregoing discussion,
discussion, the the legal position
legal position
regarding
regarding land
land allocation
allocation during
during thethe colonial
colonial era
era in
in Kenya
Kenya isisembodied
embodied inin
the Crown
the Crown Lands
Lands Ordinance
Ordinance of of 1915,
1915, which
which was was later
later retitled
retitled the
the
Government Lands
Government Lands Act, Cap 280 of the Laws Laws of Kenya
Kenya (the(the Ordinance
Ordinance andand
the.Government
the Government Lands
Lands ActAct are
are actually
actually the
the same
same in substance).
substance). Section
Section 15 15
of the Crown
Crown Lands
Lands Ordinance
Ordinance provided
provided thatthat the
the Commissioner
Commissioner of ofLands
Lands
could
could cause
cause any
any portion
portion of aa township
township plotplot which
which was was notnot required
required forfor
public purposes to
public purposes to be
be divided
divided into into plots
plots suitable
suitable forfor thethe erection
erection of of
buildings for business
buildings business oror residential
residential purposes.
purposes. Such
Such plots
plots could
could from
from time
time
to time
time be disposed
disposed of of in
in the
the prescribed
prescribed manner;
manner; that is is by
by Public
Public Auction
Auction
unless the Governor
unless Governor directed
directed otherwise.
otherwise. The substance
substance of of this
this Provision
Provision isis
repeated
repeated in Section
Section 1212 of
of the
the Government
Government-Lands -Lands Act which
which superceded
superceded the the
Crown
Crown Lands
Lands Ordinance
Ordinance of of 1915
1915 atat independence.
independence.
The only
The only significant
significant difference
difference is that
that the
the word
word "Governor"
"Governor" isis substituted
substituted
by the
by the word
word "President."
"President." TheThe Commissioner
Commissioner was was also
also vide
vide Section
Section 25 of .
the
the Ordinance
Ordinance empowered
empowered to to cause
cause land
land available
available for for leasing
leasing forfor
agricultural purposes to be surveyed
agricultural purposes surveyed and and divided
divided into
into farms
farms not
notexceeding
exceeding
5000
5000 acres,
acres, unless
unless the
the Governor
Governor consented
consented to to the
the leasing
leasing of of farms
farms
exceeding that
exceeding that acreage
acreage butbut only
only upup to 7500 acres.
to 7500 acres. Any
Any lease
lease of
of more
more than
than
this
this acreage
acreage would
would require
require the
the Consent
Consent of of the
the Secretary
Secretary of of State.
State. Again,
Again,
just
just as
as in
in the
the case
case of
of Town
Town Plots,
Plots, such
such leases
leases were
were to to be
begranted
granted through
through
Public
Public Auction.
Auction. These
These Provisions
Provisions are are also
also substantially
substantially replicated
replicated in the the
Government Lands
Government Lands Act save thatthat sections
sections 19 and 20 of the latter latter Act do not
limit
limit the acreage
acreage to be leased
leased byby the
the Commissioner.
Commissioner.
The effect
The effect of the Circular
Circular of 1951
1951 was to formalize
formalize the allocation
allocation of of Crown
Crown
land by
land by direct
direct grant.
grant. It
It would
would appear
appear that
that this
this method
method of of allocating
allocating land
land
became permanent.
became. permanent. The The colonial Governmentmust
colonial Government must have have found
found itit
successful in controlling
successful controlling the
the mischief
mischief of
of land
land speculation.
speculation. ItIt isishowever
however one
one
of the
of the greatest
greatest ironies
ironies in the
the history
history of
of land
land allocation
allocation in
in Kenya
Kenya thatthat what
what
6
Sichangi Adv
appears
appears to to have
have succeeded
succeeded in in the
the colonial
colonial periodperiod (i.e.
(i.e. allocation
allocation by by direct
direct
grant)
grant) is whatwhat later
later facilitated
facilitated the the massive
massive illegal
illegal and and irregular
irregular allocation
allocation ofof
public
public landland byby thethe Government
Government after after independence.
independence. The
The abandonment
abandonment ofof
the
the Public
Public Auction
Auction systemsystem gave gave the
the President
President and and the the Commissioner
Commissioner of
of
Lands
Lands the the opportunity
opportunity to
to allocate
allocate land
land in in ways
ways thatthat amounted
amounted to to abuse
abuse of of
office.
office. Thus
Thus the the very
very Officials
Officials and and Institutions
Institutions that that were
were supposed
supposed totobe be the
the
custodians
custodians of
of public
public landland became
became the the facilitators
facilitators of of illegal
illegal andand irregular
irregular
allocations
allocations of of the
the same.
same. '\
The
The District
District andand Provincial
Provincial Plot Plot Allocation
Allocation Committees
Committees became
became powers
~owers
unto
unto themselves
themselves exercising
exercising the
the authority
authority to to allocate
allocate' public
public land
land onon Ibehalf
behalf
of the President
President without
without reference
reference to to the
the public
public interest.
interest. These
These Committees
Committees
were
were supposed
supposed to to allocate
allocate land
land which
which hadhad been
been duly
duly advertised
advertised by by the
the
Commissioner
Commissioner of Lands Lands in in accordance
accordance withwith the
the relevant
relevant provisions
provisions of ofthe
the
Government
Government LandsLands Act. In otherother words,
words, the Committees
Committees were were toto simply
simply act
act
as Agents
Agents of the Commissioner
Commissioner of of Lands.
Lands.
Apart
Apart from virtually
virtually embracing
embracing the the allocation
allocation of of land
land through
through direct
directgrants,
grants;
successive Commissioners
successive Commissioners of of Lands
Lands have have allocated
allocated and and administered
administered
public land
public land in in ways
ways that
that contravene
contravene certain
certain provisions
provisions of of the
theGovernment
Government
Lands
Lands Act.
Act. Section
Section 18 18 for
for example
example forbids forbids the the sale,
sale, change,
change, lease,
lease,
subdivision of land or
subdivision or other
other dealing
dealing prior
prior to to completion
completion of ofthe
thedevelopment
development
conditions
conditions in the Grant.
Grant. The
The Commissioner
Commissioner is is also
also empowered
empowered totore-enterre-enter
the land
the land and thus terminate
terminate the
the title
title ifif the
the grantee
grantee fails
fails to
todevelop
develop thetheland
land
within the
within the time
time limits
limits set out
out in the Title.
Title. These
These provisions
provisions and and practices
practices
established by
established by the
the Government
Government LandsLands Act Act also
also apply
apply to to the
the allocation
allocation of of
land by
land by Local
Local Authorities
Authorities for whom
whom the Commissioner
Commissioner of Lands Lands acts
acts as as an
an
Agent as
Agent as they
they themselves
themselves although
although having
having the the power
power totomake
make allotments;
allotments;
do not
\ do not have
have thethe capacity
capacity toto do
do so.
so. The
The Commissioner
Commissioner must must still
still bear
bear inin
mind the principle
mind principle of public
public interest.
interest.
3. THE
3. THELAND
LAND GRABBING
GRABBING PHENOMENON
PHENOMENON
A combination
A combination of legal
legal and political
political factors
factors discussed
discussed above
above have
have over
over the
the
years conspired
years conspired to
to facilitate
facilitate illegal
illegal and irregular
allocations of public
public land.
land.
The Government
The Lands Act
Government Lands Act (vide
(vide Section
Section 3)3) confers
confers powers
powers upon
upon the
the
President to
President to make
make Grants
Grants of of Freehold
Freehold or orLeasehold
Leasehold ofofun-alienated
un-alienated
government land
government land toto individuals
individuals ororCorporations.
Corporations. Certain
Certain Presidential
Presidential
powers are
powers are delegated
delegated to the Commissioner
Commissioner of of Lands
Lands asas provided
provided bybySection
Section
7
Sichangi Adv
33 of
of the
the Act.
Act. Section
Section 77 is is however
however categorical
categorical that
that the
the Commissioner
Commissioner isis not
not
authorized
authorized toto make
make grants
grants ofof landland under section 33 on
under section on behalf
behalf of of the the
President. It is instructive that the Commissioner has over the years
President. It is instructive that the Commissioner has over the years
exercised
exercised powers
powers under under Section
Section 3. 3. A A strict
strict reading
reading of of Section
Section 77 indicates
indicates
that the powers conferred upon the President under section 3 cannot be
that the powers conferred upon the President under section 3 cannot be
delegated (except
delegated (except in in the
the specified
specified circumstances
circumstances discussed
discussed later
later in in this
this
Chapter).
Chapter).
While
While Section
Section 7 of of the
the Government
Government Lands
Lands Act Act permits
permits the the Commissioner
Commissioner
of Lands
of Lands to to execute
execute for for andand on on behalf
behalf of of the
the President
President any any Conveyance,
Conveyance,
lease or
lease or licence
licence of of oror for
for the
the occupation
occupation of
of Government
Government Lands,
Lands, onlyonly the the
President has
President has power
power to to make
make GrantsGrants or or dispositions
dispositions of
of any
any Estates,
Estates,
Interests
Interests or Rights
or Rights in in oror overover unalienated
unalienated Government
Government Lands.
Lands. The The
President
President would have
would have to to notify
notify thethe Commissioner
Commissioner of
of Lands
Lands in in writing
writing thatthat
he
he intends
intends to to make
make aa grant grant of of unalienated
Government Land
Land toto whoever
whoever
has
has been
been selected
selected as as aa grantee.
grantee. Only Only then,
then, can can aaCommissioner
Commissioner legally
legally
proceed
proceed to to formalize
formalize and
and sign
sign thethe Grant
Grant of of Title.
Title. It It would
would appear
appear thatthat on on
the
the whole,
whole, in
in thethe early
early yearsyears ofofindependence;
independence; public
public land land was was
administered
administered and allocated
and allocated inin the the public
publicinteres
interes -nd ".nd inin accordance
accordance with
with the the
legal
legal provisions.
provisions.
But with
But with the the passage
passage of of time,
time, these
these substantive
substantive and
and procedural
procedural safeguards
safeguards
have been
have been blatantly
blatantly disregarded
disregarded in
in the
the allocation
allocation exercise.
exercise. Public
Public land land has
has
been allocated
been allocated in in total
total disregard
disregard of of the
the public
public interest
interest and and inin circumstances
circumstances
that fly
that fly in in the
the faceface of of the the law.
law. The The practice
practice ofof illegal
irregular
allocations intensified in the late 1980s and throughout the 1990s. Land
allocations intensified in the late 1980s and throughout the 1990s. Land
was
was no no longer
longer allocated
allocated for for development
development purposes
purposes but but asas political
political reward
reward
and for
and for speculation
speculation purposes.
purposes. This
This practice
practice which
which is is usually
usually referred
referred to to as
as
"land grabbing"
"land grabbing" became
became part
part andand parcel
parcel of of official
official grandgrand corruption
corruption
through
through which which land land meant
meant for for public
public purposes
purposes (including
(including land land specifically
specifically
reserved
reserved for public
for public purposes)
purposes) has
has been
been acquired
acquired by by individuals
individuals and
and
corporations.
corporations.
(a)
(a) The
The Disappearance
Disappearance ofofthe
the Public
Public Trust
Trust Doctrine
Doctrine in
in the
the Allocation
Allocation
of Public
of Public Land
Land
ItIt must
must bebe emphasized
emphasized at
at the
the outset
outset that
that the
the powers
powers vested
vested in in the
the President
President
to make
to make grants
grants of of Freehold
Freehold and and Leasehold
Leasehold ofof unalienated
Government
Land to
Land to individuals
individuals and
and bodies
bodies corporate;
corporate; are
are notnot absolute
absolute or or unfettered.
unfettered.
These powers
These powers are are supposed
supposed to to be
be exercised
exercised strictly
strictly inin the
the public
public interest.
interest. InIn
other words,
other words, thethe President
President "administers"
"administers" the
the land
land inin Trust
Trust forfor the
the people
people of of
8
Sichangi Adv
Kenya.
Kenya. Any
Any allocation allocation of public
of public land is
land is therefore
therefore meant
meant to enhance
to enhance the
the
public
public interest.
interest. The Doctrine
The Doctrine of "Public
of "Public Interest"
Interest" isis itself
itself not not aa theoretical
theoretical
one. A cri t i c al readi n g
one. A critical reading cf the Constitution of the Republic of Kenya reveals of t h e Const i t u t i o n of t h e Republ i c of Kenya reveals
that
that the
the doctrine doctrine revolves
revolves around
around matters
matters touching
touching upon
upon public
public safety,
safety,
securi t y , heal t h ,
security, health, defence, morality, town and country planning, defence, moral i t y , t o wn and count r y. pl a nni n g,
infrastructure,
infrastructure, andand general general development
development imperatives.
imperatives. TheThe doctrine doctrine isis
ttherefore
herefore aa very
very broad
broad one. 3 one. '
The circumstances
The circumstances under which
under which aa public
public officer
officer must
must exercise
exercise statutory
statutory
powers
powers have
have been been the subject
the subject matter
matter of much
of much judicial
judicial discourse.
discourse. InIn this this
regard,
regard, aa long long lineline ofof authorities authorities" 4 from from Commonwealth
Commonwealth and other
and other
jjurisdictions
urisdictions lays down
lays down the Principle
the Principle toto the the effect effect that discretionary
that discretionary powers
powers
deriving
deriving from
from statute
statute must
must be exercised
be exercised reasonably.
reasonably. They
They are not
are not absolute. absolute.
The
The exercise exercise of such
of such discretion
discretion must
must be aa real
be real exercise exercise of discretion.
of discretion. If, in
If, in
the
the statute statute conferring
conferring the
the discretion,
discretion, there
there is
is to to be be found, found, expressly
expressly or or by by
implication,
implication, matters
matters to
to which which the
the authority
authority exercising
exercising thethe discretiondiscretion ought
ought
to have
to have regard,
regard, then,
then, in exercising
in exercising the discretion,
the discretion, they must
they must have regard
have regard to to
tthose
hose matters.
matters. Conversel y,
Conversely, if if tthe he nature nature of the
of the subject subject matter
matter and and the the
general interpretation
general interpretation of
of an an Act Act make make itit clear
clear that
that certain certain matters
matters would
would notnot
bebe germane germane to
to the the matter matter in in question,
question, they
they must must disregard disregard those
those matters.
matters.
TheThe word word "unreasonabl e " i s
"unreasonable" is used as a general description of the things that used as a general descri p t i o n of t h e t h i n gs that
must notnot be
must be done. done. Powers
Powers of
of this this nature nature must
must bebe exercised exercised in in conformity
conformity
wiwith
th tthe
he legitimate
legitimate expectations
expectations ofof the the public. public.
The
The bottom bottom line
line is is that
that public public land
land cannot cannot be
be allocated
allocated to
to individuals
individuals by
by the the
President
Presi dent wiwithout
thout reference
reference to
to the the foregoing foregoing imperatives.
imperatives. He
He cannot cannot dishdish
away
away lland and to people
to people at his
at his personal personal whim
whim oror caprice.
caprice. Yet, this
Yet, this isis what what has has
happened
happened overover the the years years since
since independence.
independence. (It must
(It must however
however be noted
be noted
tthat
hat abuses
abuses were
were also
also not
not uncommon uncommon during
during the
the colonial colonial times
times but
but this this
Commi s si o n' s i n qui r y
Commission's inquiry does not extend to that period). Public land has been does not ext e nd t o t h at peri o d). Publ i c l a nd has been
vari ously
variously alallocated
located forfor political
political patronage
patronage purposes.
purposes. Land
Land has been
has been given
given
out
out either either as
as politicalpolitical reward,
reward, or
or in in returnreturn for
for political
political loyalty.
loyalty. In In extreme
extreme
situations,
situations, publpublic
ic lland
and has
has been been the
the subject subject ofof outrightoutright plunder
plunder through
through
33The
The salient
salient elements
elements of
ofthe
the Public
Public Interest
Interest Doctrine
Doctrine are
are used
used ininSection
Section 75
75of
ofthe
the
Constitution although
Constitution although the
the doctrine
doctrine itself
itself isis nowhere
nowhere defined.
defined.
4 See for example,
example, Associated
Associated Provincial
Provincial Picture
Picture Houses
Houses Ltd.
Ltd. V.
V.Wednesbury
Wednesbury Corporation
Corporation
1947
1947 22 ALL
ALL ER ER 680.
680. See
See also, R R vv Secretary
Secretary of of State
State for
for the
the Home
Home Department
Department andand I
Another,
Another, ex parte
parte Hargreaves
Hargreaves andand Others
Others 1997 1997 1I ALL
ALL ERER 397.
397.
f
1
Sichangi Adv
speculation.
speculation. ThiThis
s latter
lat er phenomenon
phenomenon has
has resulted
resulted in
in the
the unjust
unjust enrichment
enrichment
of
of aa few few people
people at
at great
great expense
expense of
of the
the general
general welfare
welfare of
of thethe public.
public.
The
The power
power given
given to
to the the President
President to
to allocate
allocate public
public land land directly
directly was was
intended
intended toto enable enable hihim
m deal
deal with
with the
the few few cases
cases where
where such such direct
direct
alallotments
lotments were
were necessary
necessary in
in the the national
national interest.
interest. InIn such
such situations,
situations, public public
auctions or allocation
auctions allocation through through selection selection committees, committees, would would be be considered
considered
long drawn
long drawn and cumbersome. cumbersome. The power to allocate allocate land land directly
directly could could not not
have been
have been intended
intended to cover cover each each and and every
every plot available available for for allotment.
allotment. ItIt
is however
is however a fact fact that that not not much much public public land land has has been
been allocated
allocated by by
advertisement and
advertisement and auction auction or selection selection by Plot Plot Allocation
Allocation Committees Committees in in
Kenya for the last 20 years
Kenya years of so. so. We We have have already already observed observed that that this this was
was aa
carry
carry over over from
from the colonial colonial period; period; only only that this time time around,
around, itit was was for for
the wrong
the wrong reasons.
reasons.
Even where
Even where the the President
President hashas delegated
delegated hishis powers
powers ofof making
making directdirect
allocations of
public land
land to the
the Commissioner
Commissioner of Lands,Lands, this
this isis severely
severely
restricted
restricted inin the
the public
public interest.
interest. The
The Public
Public Trust
Trust Doctrine
Doctrine is not
not lost. In
lost. In
this
this regard,
regard, the
the President
President has
has delegated
delegated thethe powers
powers vested
vested in himhim under
under
Section of the GOVerriment Lands Act to the Commissioner to make
Section 3 of the G6{'le"tnment Lands Act to the Commissioner to make
direct allocations
direct allocations of tzblic
public land
land in
inthe
the following
following circumstances
circumstances only.
only.
For religious,
1. For religious, charitable,
charitable, educational
educational oror sports
sports purposes
purposes on on the
the
terms and
terms and conditions
conditions in
in accordance
accordance with
with the
the general
general policy
policy of
of the
the
Government and
Government and the
the terms
terms prescribed for such
prescribed for such purpose
purpose by by the
the
President;
President;
For Town
2. For Town Planning
Planning exchanges
exchanges on on the
the Recommendation
Recommendation of of the
the
Town Planning
Town Planning Authority,
Authority, Nairobi,
Nairobi, within
within the
the total
total value,
value, and
and
subject to the conditions,
subject conditions, laid
laid down
down byby the
the President;
President;
3. The
The sale
sale of
of small
small remnants
remnants ofof land
land in the
the City
City of
of Nairobi
Nairobi and
and
Mombasa Municipality
Mombasa Municipality acquired
acquired for
for town
town planning
planning purposes
purposes and
and
left over after those town planning
left over after those town planning needs have been met;
met;
For . the
4. For, the use
use of local
local authorities
authorities for
for municipal
municipal or or district
district purposes,
purposes,
viz; office
viz; office accommodation,
accommodation, town town halls,
halls, public
public parks,
parks, native
native
locations, fire
locations, fire stations,
stations, slaughter
slaughter houses,
houses, ponds,
ponds, incinerators,
incinerators,
mortuaries, crematoria,
mortuaries, crematoria, stock
stock sale
sale yards,
yards, libraries,
libraries, hospitals,
hospitals, child
child
welfare institutions,
welfare institutions, garages,
garages, housing
housing schemes,
schemes, markets
markets andand public
public
cemeteries;
cemeteries;
5. The
The; extension
extension of existing
existing township
township leases
leases on the
the fulfillment
fulfillment of
of the
the
conditions specified
conditions specified therein
therein as
as precedent
precedent to such
such extensions;
extensions;
10
1
Sichangi Adv
The temporary
6. The
6. temporary occupation
occupation of
of farmlands
farmlands on
on grazing
grazing licenses
licenses
terminable
terminable at
at short
short notice;
notice;
7.
7. The
The sale
sale of
of farms
farms and
and plots
plots which
which havehave been
been offered
offered for for auction
auction
and
and remain
remain unsold,unsold, such such grants
grants being
being subject
subject to to the
the general
general terms
terms
and conditions for the advertised auction sale and the application
and conditions for the advertised auction sale and the application
therefore
therefore being submitted
being submitted w~thin within six six months
months ofof the the date
date of of the
the
auction in the case of farms, except that in the case of godown
auction in the case of' farms, except that in the case of godown
plots,
plots, thethe power
power to to sell
sell shall
shall not
not bebe limited
limited to to six
six months
months from from the the
date
date of of sale.
sale.
ItIt is
is therefore
therefore clear clear from
from the the foregoing
foregoing specifications,
specifications, that
that the
the legislature
legislature
did not
did not intend
intend to to de-emphasize
de-emphasize the
the public
public interest
interest whilewhile vesting
vesting the the power
power
to make
to make direct
direct allocations
allocations of
of public
public land land inin the
the President
President or
or allowing
allowing such such
powers to
powers to be be delegated
delegated to
to the
the Commissioner
Commissioner ofof Lands.
Lands. ThA T¥ problem
problem
however lies in the fact that both the policy makers and legislators could
however lies in the fact that both the policy makers and legislators could
not have
not have imagined
imagined that that the
the very
very officers
officers and and persons
persons who who werewere supposed
supposed toto
act as the custodians of public land would be the same people who
act as the custodians of public land would be the same people who would
would
facilitate the
facilitate the illegal
irregular allocatiOns
allocations of
of the
the same.
same.
(b) Powers ofofthe

(b) Powers the Commissioner
Commissioner ofof Lands
Lands toto Dispose
Dispose of
of Land
Land within
within
Townships
Townships
Section 99 of
Section of thethe Government
Government Lands
Lands Act Act provides
provides that that thethe Commissioner
Commissioner
may cause
may cause any any portion
portion of of aa township
township which
which is is not
not required
required for for public
public
purposes toto be
purposes be divided
divided into into plots
plots suitable
suitable for for the
the erection
erection of of buildings
buildings for for
business or
business or residential
residential purposes,
purposes, and
and such
such plots
plots maymay fromfrom timetime to to time
time be be
disposed of
disposed of inin the
the prescribed
prescribed manner.
manner. The The Commissioner
Commissioner then
then causes
causes the the
plots to
plots to be
be valued
valued to to determine
determine the
the selling
selling price,
price, taking
taking into into account
account the the
basic cost
basic cost ofof thethe land
land and and infrastructure.
infrastructure. The
The Commissioner
Commissioner furth~t
isis further
required to determine
required determine the the land
land rent,
rent, building
building conditions,
conditions, special
special covenants
covenants'
..e.t.c
e.t.c in respect
respect of each each plot.
plot. Section
Section 12 12 ofof the Act provides
the Act provides that the the town
town
plots shall,
plots shall, unless
unless the President
President otherwise
otherwise orders orders in in any
any Particular
rirticular case or
cases be sold
cases sold by auction.
auction. It has already already been been observed
observed that that no no plots
plots have have
been sold
been sold byby auction
auction for more more than than 50 years.years. It can only only be be assumed
a-ssumed that that
the plots
the plots have
have beenbeen soldsold by by direct
direct allotment
allotment pursuant
pursuant to to Presidential
Presidential order; order;
otherwise, they
otherwise, they wouldwould have have been
been illegally
illegally allocated.
allocated. Bin Bot even
even where
where such such
order is given
order given in respect
respect of of aa certain
certain plot,
plot, the
the inherent
inherent restrictions
restrictions based based on on
the public
the public trust
trust doctrine
doctrine still still stand.
stand. (Besides,
(Besides, common
common prudence prudence requiresrequires
that such
that such order
order be given in in writing
writing by by the
the President
President personally)
personally)
11
Sichangi Adv
The wording
The wording of the
of the Act Act leaves
leaves no no doubt
doubt that that the the powers
powers of of the
the
Commissioner of
Commissioner of Lands
Lands to to allocate
allocate plots plots in in this
this category
category are are not
not without
without
limitations. First
limitations. First and and foremost,
foremost, the the Commissioner
Commissioner can only
can only dispose
dispose of of aa
township
township plot plot, , in the prescribed
in the prescribed manner manner if if the
the plot
plot is is not
not required
required for for
public purposes.
public purposes. Secondly, the
Secondly, the township portions must.
township portions must be be subsub divided
divided
into plots suitable
into plots suitable for for business
business or or residential
residential purposes. Thirdly, the
purposes. Thirdly, the plots
plots
should be sold subject to specified building conditions.
should be sold subject to specified building conditions. Fourthly,
Fourthly, the
the
plots
plots must
must be advertised followed
be advertised followed by by actual
actual balloting.
balloting. Every title
Every title
requires
requires the the allottee
allottee of the plot
of the plot to to develop
develop it it within
within 24 24 months
months of of being
being
issued with
issued with thethe title.
title. In In addition
addition to to such
such conditions,
conditions, sectionsection 18(1)
18(1) of of the
the Act
Act
provides that
provides that there
there shallshall be be implied
implied in in every
every title
title aa covenant
covenant by by the
the allottee
allottee
not to
not to sell,
sell, lease,
lease, chargecharge or or otherwise
otherwise dispose dispose of of thethe plot
plot without
without the the
previous written
previous written consent
consent of of the
the Commissioner.
Commissioner. With
With aa viewview to to prohibiting
prohibiting
speculation
speculation inin land land acquired
acquired from from the the Government,
Government, Section 18(1)
Section 18(1) (i) (i)
provides that no application for the
provides that no application for the Commissioner's consent Commissioner's consent "shall
"shall be
be
entertained
entertained unlessunless the the building
building conditions
conditions have have beenbeen complied
complied with".with". The The
clear
clear meaning
meaning of this section
of this section is is that
that the allottee of
the allottee of a Government
Government plot plot must
must
develop
develop itit himself,
himself, within within the the period stipulated in
period stipulated in the
the title,
title, before
before he he can
can bebe
permitted to sell it. If he unable to undertake the development, his only
permitted to sell it. If he is unable to undertake the development, his only
option isis to
option to surrender
surrender the the plot
plot to the Government;
to the Government; failure to
failure to which,
which, the the
Commissioner of Lands may take steps to repossess the land through aa
Commissioner of Lands may take steps to repossess the land through
forfeiture action or by
forfeiture action by re-entry.
re-entry.
(c) The
(c) The Letter
Letter of
of Allotment
Allotment as
as an
an Instrument
Instrument of
of Land
Land Grabbing
Grabbing
It should
It should bebe noted
noted at at the
the outset that most
outset that most of of the
the unalienated
Government
Land within urban areas and townships in the Country has been allocated
Land within urban areas and townships in the Country has been allocated
by the
h~ the Commissioner
Lands pursuant
pursuant to the the exercise
exercise of ofpowers
powers
conferred upon
conferred upon the President by the Government Lands Act.
President by the Government Lands Act. It should also It should also
be restated
be that the
restated that the town
town plots
plots in
in question
question are are supposed
supposed to be be sold
sold byby
auction unless
auction unless the
the President
President otherwise orders. It
otherwise orders. It is to
to be
be assumed
assumed that that all
all
these allocations' have
these allocations have been
been mademade by by public
public auction
auction or or pursuant
pursuant to to
Presidential orders for direct grants. Even where
Presidential orders for direct grants. Even where either of the two either of the two
conditions has
conditions has been
been met in in the
the allocation
allocation process
process by the the Commissioner
Commissioner of of
Lands,
Lands, the
the public
public interest
interest limitations
limitations still remain. Until
still remain. Until June
June 2003,
2003, notnot
withstanding
withstanding the the absolute
absolute prohibition
prohibition of sales
sales ofof undeveloped
undeveloped land, land, there
there
was
was a vibrant
vibrant land
land market
market in such such lands.
lands. TheThe selling
selling and and buying
buying of of
undeveloped
undeveloped leaseholds
leaseholds took took place
place pursuant
pursuant to to consents
consents illegally
illegally given
given by by .
the Commissibner,
the Commissioner, of of Lands.
Lands. The The sales
sales were
were often
often actualized
actualized through
through the the
12
Sichangi Adv
informal transfers of
informal transfers of Letters
Letters of
of Allotment.
Allotment. (This
(This practice
practice could
could be
be inin fact
fact
criminal)
criminal)
As already
As already pointed
pointed out, out, aa Letter
Allotment was was- not not transferable
transferable toto aathird third
party during the colonial times and in the
party during the colonial times and in the early years of Independence. early years of Independence.
This was
This was due due to to the
the fact
fact that
that such
such aa letter
letter is is not
not in in itself
itself an an interest
interest in in land
land
which is capable of being transferred. (This fact is made clear in the
which is capable of being transferred. (This fact is made clear in the
"definitions"
"definitions" section of
section of Part
Part Three
Three of of this
this Report).
Report). It It isis however
however clear clear that
that aa
letter of allotment has been institutionalized as representing an interest in
letter of allotment has been institutionalized as representing an interest in
land capable of
land capable of being
being bought
bought and and sold.
sold. Through
Through such such letters,
letters, individuals
individuals
and bodies
and corporate are
bodies corporate are able
able to to get
get titles
titles to to' land
land illegally
illegally or or irregularly
irregularly and and
sell the same
sell the same to to third
third parties
parties at at exorbitant
exorbitant prices. prices. On On obtaining
obtaining aa letter letter of of
allotment from
allotment from thethe Commissioner
Commissioner of Lands,
of Lands, the the prospective
prospective allottee allottee would
would
sell
sell itit to
to aa purchaser
purchaser as as ifif the
the letter
letter werewere land land itselfitself atat a apremium.
premium. The The
purchaser then would assume the responsibility of paying the Government
purchaser then would assume the responsibility of paying the Government
levies
levies and charges, and
and charges, and obtain
obtain the the title
title inin his/her
his/her name. name. Thus, Thus, the the original
original
allottee would not feature anywhere in the
allottee would not feature anywhere in the title deeds that are open to title deeds that are open to
examination
examination by
by thethe public.
public. ItIt isis the the existence
existence of of thisthis illicit
illicit market
market that that
fuelled the land grabbing mania
fuelled the land grabbing mania in the Country. in the Country.
The original allottee

The original allottee waswas ableable to to transfer
transfer the the letter
letter ofof allotment
allotment by by paying
paying aa
consent fee
consent fee equivalent
equivalent to to 2%
2% of of the
the selling
selling price
price or or the
the capital
capital value
value ofof the
the
plot whichever
plot whichever was higher. The
was higher. The authority
authority for for this
this fee
fee was
was contained
contained inin
Legal
Legal Notice No. 305
Notice J;'Jo. 305 of of 1994
1994 published
published by by the
the Minister
Minister for for Lands
Lands and and
Settlement
Settlement titled
titled the the Government
Government Lands
Lands (Consents)
(Consents) (Fees) (Fees) Amendment
Amendment
Rules. This
Rules. notice was
This notice was itself
itself illegal
illegal since
since itit was
was contrary
contrary to to Section
Section (18)(18) (1)
(1)
of the
of the Government
Government Lands
Lands Act. Act. AA Minister's
Minister's Legal Legal Notice
Notice cannot
cannot purport
purport
to amend
to amend the the saidsaid Section.
Section. Only Only Parliament
Parliament can amend
can amend an an Act.
Act. Indeed,
Indeed,
Section
Section 31 31 (b)
(b) of of the
the Interpretation
Interpretation and
and General
General Provisions
Provisions Act Act (Cap
(Cap 22 ofof
the
the Laws
Laws of of Kenya)
Kenya) provides
provides that that no no subsidiary
subsidiary legislation
legislation shall
shall bebe
inconsistent
inconsistent with the
with the Provisions
Provisions of
of anan Act
Act under
under which
which such such subsidiary
subsidiary
legislation
legislation isis made.
made. The The informal
informal transfers
transfers of of Letters
Letters of of Allotment
Allotment had had
however
however been been going
going on on long
long before
before the the publication
publication of of this
this Legal
Legal Notice.
Notice.
(The woist
(The worst period
period being
being the the years
years between
between 1992 1992 andand 2002).
2002). The The Notice
Notice
was revoked by
was revoked by the
the current
current Minister
Minister in in June
June 2003.
2003.
By charging
By charging Consent
Consent Fees Fees for
for the
the informal
informal transfers,
transfers, the the Government
Government hadhad
recognized
recognized this
this is
is Illicit
Illicit Land
Land Market
Market and and the
the Government
Government had had ignored
ignored the
the
illegitimate dealing with
illegitimate dealing with land
land matters.
matters. This
This meant
meant that
that the
the Government
Government hadhad
in effect
in effect abdicated
abdicated its its role
role to
to speculators,
speculators, thus distorting
thus distorting the
the economic
economic
13
Sichangi Adv
value of land.
value land. The Government
Government has has over
over the
the years
years acted
acted in
in aadual
dual capacity
capacity
of supplier
of supplier andand buyer
buyer ofof public
public land.
land. Over
Over time,
time, with
with the
the collusion
collusion of of
speculators
speculators and public officials,
and public officials, there
there arose
arose the
the syndrome
syndrome of of the
the "Captive
"Captive
Buyer"
Buyer" of public land.
of public land. The
The "politically
"politically correct"
correct" individuals
individuals at at the
the time
time
would acquire public
would acquire public land
land inin the
the manner
manner described
described above
above and
and dispose
dispose of of itit
target State
to target State Corporations
Corporations at at exorbitant
exorbitant prices.
prices. The
The resultant
resultant emergence
emergence
of land
of land buying
buying syndicates
syndicates and and cartels
cartels crowded
crowded out out anyany legitimate
legitimate
purchasers ofof land
purchasers land for
for development.
development. Even Even the the soso called
called "private
"private
developers" simply bought
developers" simply bought such
such land
land for
for construction
construction and and disposal
disposal to to the
the
public without any
public without any regard
regard totoplanning
planning imperatives
imperatives sincesince Planning
Planning
Legislation (the
Legislation (the Physical
Physical Planning
Planning Act Act 1996)
1996) waswas equally
equally circumvented
circumvented or or
totally ignored.
totally ignored.
(d)
(d) Allocations of Public
Allocations Public Land by Unauthorized
Unauthorized Persons
Persons
Information available
Information available suggests
suggests that that public
public land
land has has been
been allocated
allocated by by
Officers and
Officers and other
other personalities
personalities whowho have have no no legal
legal authority
authority to to allocate
allocate it.it.
Thus, there are situations
Thus, there situations where
where land
land has been been allocated
allocated by Chiefs,
Chiefs, District
District
Officers, District Commissioners,
Officers, District Commissioners, ProvincialProvincial Commissioners
Commissioners and and even
even
Members
Members of of Parliament.
Parliament. The The activities
activities of of these
these personalities
personalities signifysignify the the
complete breakdown of the Rule of Law
complete breakdown Law in in land
land allocations
allocations over over thethe years.
years.
With
With thethe entry
entry of of these
these Officers
Officers in in the
the public
public land land allocation
allocation process,
process,
impunity
impunity set in thus
set in thus complicating
complicating the the problem
problem further.
further. But But perhaps
perhaps the the
most disquieting aspect
most disquieting aspect of
of the
the activities
activities of of the
the Provincial
Provincial Administration
Administration inin
the realm of public
the realm public land
land tenure
tenure was
was the the brazen
brazen politicization
politicization of of the
the same.
same.
Land
Land waswas no longer
longer viewed
viewed as as belonging
belonging to the the Kenyan
Kenyan people
people in in their
their
sovereign
sovereign and and corporate
corporate entity;
entity; but
but as vacant space
as vacant space to be dished
to be dished out out toto
"politically correct" individuals
"politically correct" indi viduals for
for personal
personal enrichment.
enrichment. The The wider
wider social,
social,
economic,
economic, ecological
ecological and. developmental interests
and developmental interests of the Country
of the Country were were
never considered. Because
never considered. Because of of the the confusion
confusion introduced
introduced into into landland
allocations
allocations through
through the involvement of
the involvement entities other
of entities other thanthan the
the ones
ones with
with
legal authority, there
legal authority, there have been cases
cases of double
double and even even triple
triple allocations;
allocations;
with many involving
with many involving forgery,
forgery, thus
thus giving
giving riserise to to intricate
intricate legal
legal issues
issues
which could
which could interfere
interfere with
with planning
planning in in the
the future.
future.
(e)
(e) Land
Land within
within the
the Jurisdiction
Jurisdiction of
of Local
Local Authorities
Authorities
At Independence,
At Independence, all that
that land
land which
which was
was formerly
formerly referred
referred to
to as
as "Native
"Native
Reserves"
Reserves" or "Native Lands"
or "Native Lands" and
and to
to which
which the
the Land
Land Adjudication
Adjudication and and
Land Consolidation Acts
Land Consolidation Acts had not been
had not been applied
applied became
became vested
vested in in the
the
14
Sichangi Adv
County Councils
County Councils ofof the the areas
areas in in which
which they they were were situated.
situated. The The landslands
became known
became known as as Trust
Trust Lands.
Lands. According
According to to the
the Constitution,
Constitution, the
the County
County
Council isis to
Council to hold
hold suchsuch land
land on on Trust
Trust for for the
the people
people ordinarily
ordinarily resident
resident in in
the area
the area in in accordance
accordance with
with the the applicable
applicable Customary
Customary Law.
Law. Thus,
Thus, eveneven in in
the case
the case of of Trust
Trust land,
land, thethe trust
trust doctrine
doctrine as as thethe name
name suggests,
suggests, isis firmly
firmly
embodied. The
embodied. The local
local authorities
authorities are
are notnot supposed
supposed to to deal
deal with
with the
the land
land as as if
itit is
is theirs
theirs to to own
own and and dispose
dispose of of asas they
they wish.
wish. Yet Yet over
over thethe years,
years, the the
county councils
county councils have have dealt
dealt with
with Trust
Trust landland in in ways
ways thatthat defeat
defeat thethe interests
interests
of local
of local residents.
residents. To
To the
the extent
extent that that Trust
Trust landland remains
remains un-adjudicated,
un-adjudicated, itit
must be
must be considered
considered Community
Community Land
Land whose
whose interest
interest is is of
of aa public
public nature
nature
requiring state
requiring state protection
protection against
against illegal
irregular allocations.
allocations.
(0
(f) Special
Special Lands
Lands and
and Land
Land Territories
Territories
There are
There are certain
certain lands
lands which,
which, given their ecological
given their ecological integrity,
integrity, cultural
cultural
relevance or
relevance or strategic location, cannot
strategic location, cannot be allocated
allocated to to private
private individuals
individuals
unless public
unless public interest
interest dictates
dictates that they should.
should. Even
Even where
where such
such lands
lands have
have
to be alienated
alienated for private
private use,
use, certain
certain special
special procedures
procedures mustmust be
befollowed
followed
over and
over and above
above those
those provided
provided for in in the
the Government
Government LandsLands ActAct, oror the
the
Trust
Trust lands
lands Act.
Act. These
These lands
lands are
are considered
considered so so important
important that
that they
they must
must
remain in the public
remain public domain.
domain. The The Government
Government has has aasacred
sacred duty
duty totoprotect
protect
and conserve
and conserve such
such lands
lands from
from alienation
alienation or improper
improper use by individuals
individuals or
corporate
corporate bodies.
bodies. This explains
explains why why Parliament
Parliament has has enacted
enacted specific
specific laws
laws
meant to
meant to protect
protect thethe lands
lands in in question.
question. They
They include
include forests,
forests, wetlands,
wetlands,
riparian
riparian reserves,
reserves, the foreshore,
foreshore, historical
historical sites
sites and
and monuments,
monuments, museums,
museums,
military and other security
military security installations
installations andand many
many others.
others.
These
These lands
lands were
were notnot spared
spared the
the illegal
illegal and
andirregular
allocations either.
either.
Many such
Many such territories
territories were
were either
either allocated
allocated inin total
total disregard
disregard ofof the
the special
special
procedures under
procedures under the specific
specific laws,
laws, oror contrary
contrary toto their
their ecological,
ecological, cultural
cultural
and strategic
and strategic significance.
significance.
4. THE
THEMYTH
MYTH OF
OFTHE
THESANCTITY
SANCTITY OF
OFTITLE
TITLE
The final
The final stage
stage in in the
the process
process of of land
land allocation
allocation isis achieved
achieved by by the
the
acquisition of aa Title
acquisition of Title Deed
Deed issued
issued by thethe Commissioner
Commissioner of Lands Lands toto the
the
Registered Proprietor.
Registered Proprietor. SomeSome of of the
the land
land registration
registration statutes
statutes inin Kenya
Kenya
declare that
declare that the
the registration
registration of a person
person asas the
the proprietor
,proprietor ofof land
land or
orlease
lease
confers upon
confers upon the person title not capable
person a title capable of of being
being defeated
defeated by by any other
other
15
15
Sichangi Adv
claim(unless such
claim(unless such aa claim
claim be be a fraud
fraud or or anan overriding
overriding interest
interest inin the
the
case of
case of the
the Registered
Registered Land
Land Act). The title
Act). The title deed
deed operates
operates asas evidence
evidence of of
registration. Section
registration. Section 75
75 ofof the
the Constitution
Constitution provides
provides thatthat no
no property
property of of
whatever description
whatever description shall
shall be
be compulsorily
compulsorily acquired
acquired by by the
the Government
Government
unless:
unless:
• It is
It is needed
needed forfor aa public
public purpose
purpose
• The proprietor
The proprietor is is fully
fully and
and promptly
promptly compensated
compensated
• Parliament has enacted a law to specifically
Parliament has enacted a law to specifically provide
provide for
for and
and
regulate such
regulate such acquisition
acquisition (The
(The Land
Land Acquisition
Acquisition Act,
Act, Cap
Cap 295)
295) .
It has
It has been
been argued
argued that that aa combination
combination of of these
these provisions
provisions clothes
clothes TitleTitle toto
land
land with
with legal
legal sanctity
sanctity which
which must must remain
remain untouched
untouched by by the
the State
State unless
unless
and
and until
until thethe same
same has has been
been extinguished
extinguished through through compulsory
compulsory acquisition
'acquisition
as
as laid
laid outout above.
above. In In other
other words,
words, onceonce aa person
person acquires
acquires titletitle toto land,
land, itit
cannot be
cannot be questioned
questioned even even in aa court
court of of law.
law. Lawyers
Lawyers are are wont
wont to to argue
argue on on
behalf of their clients whose titles to land are sought to be impeached that
behalf of their clients whose titles to land are sought to be impeached that
such
such titles
titles are
are sacrosanct.
sacrosanct. This This type
type of of jurisprudential
jurisprudential logic
logic has has over
over the
the
years
years given
given the the title
title deed
deed an an imprimatur
imprimatur of of legal
legal invincibility.
invincibility. In In certain
certain
situations,the
situations, the lawlaw seeks
seeks to to protect
protect such such titles
titles even
even ifif they they werewere
fraudulently acquired
fraudulently acquired as as long
long as as they
they are are aa first
first registration.
registration. We We use use the
the
term seek
term seek herehere because
because the Commission
Commission has serious serious doubts
doubts as as toto whether
whether
such a provision
such provision in in law
law can
can stand
stand aa constitutional
constitutional challenge.
challenge.
On the
On the face
face of
of it,
it, this
this reasoning
reasoning is
is legally
legally sound
sound taking
taking into
into account
account the the
utility of the institution
utility institution of of property
property in
in aa capitalist
capitalist society.
society. Not
Not only
only must
must anan
individual feel
individual feel secure
secure in his his possessions,
possessions, he mustmust also
also be
be able
able to
to transfer
transfer
the same
the same for
for aa fair
fair return.
return. The
The free
free transfer
transfer of
ofproperty,
property, especially
especially land
land
(Economists will
(Economists will argue), encourages and
argue), encourages and in
in fact,
fact, leads
leads to
to its efficient
efficient use
use
for the larger
larger good of of society.
society.
This legal
This legal reasoning
reasoning has has led
led to the
the perception
perception in in the
the mind
mind of of the
the public
public
(including lawyers,
(including lawyers, and and other
other professionals),
professionals), hitherto
hitherto unchallenged,
unchallenged, that that all
all
that matters
that matters for for aa person
person toto be
becushioned
cushioned against
against anyany investigation
investigation or or
challenge is
challenge is toto get
get registered
registered asas a proprietor
proprietor of of land
land or lease
lease and
and toto.be
be
issued with
issued with a title
title deed.
deed. The
The manner
manner in in which
which such such title
title isis acquired
acquired isis
irrelevant. The
irrelevant. The titletitle deed
deed is an
an end
end inin itself.
itself. It is
is this
this extreme
extreme notion
notion of
of the
the
sanctity of
sanctity of title
title which
which has
has fuelled
fuelled thethe illegal
illegal and
and irregular
allocations of of
public
public land
land in thethe country.
country. This view
view of of the
the title
title deed
deed must
must have
have also
also been
been
embraced
embraced by by Officials
Officials at the Ministry
Ministry of LandsLands and and Settlement
Settlement sincesince they
they
16
Sichangi Adv
facilitated
facilitated thethe wanton
wanton issuance
issuance of of title
title deeds
deeds overover public
public lands
lands as
as illustrated
illustrated
in
in Part
Part Three
Three of of this
this Report.
Report. Thus, Thus, thisthis legal
legal lawlessness
lawlessness has provided
has provided the the
twisted rationale of
twisted -rationale of public
public landland grabbing
grabbing in in Kenya.
Kenya. This This Commission
Commission holds holds
the view that sanctity of title depends on its legality and not otherwise. A
the view that sanctity of title depends on its legality and not otherwise.
title
title acquired
acquired illegally
illegally is is not
not valid
valid inin the
the eyes
eyes of of the
the law.
law.
In
In fact,
fact, there
there is nono such
such concept
concept at at common
common law law as as "absolute" title.s 5 The.
"absolute" title. The
availability
availability of rectification
of rectification and revocation
and revocation (in both
(in both the the Registration
Registration of
of
Titles Act
Titles Act and
and the
the Registered
Registered Land Land Act)Act) emphasizes
emphasizes the the principle
principle thatthat titles
titles
are
are relative,
relative, notnot absolute,
absolute, and and that
that no no title
title isis completely
completely free free from
from the the
danger that
danger that some
some better
better right
right toto land
land maymay be be established.
established. Unfortunately,
Unfortunately, aa
large section of
large section of the juaiclllrY has
the judidiary interpreted' the
nas interpreted the law
law of of title
title to
to land
land in in
absolutist terms. They
absolutist terms. They have have failed
failed to to adequately
adequately appreciate
appreciate the the fact
fact that
that
certain categories of
certain categories of land
land cannot
cannot be be privatized
privatized in in disregard
disregard of of the
thepublic
public
interest.
interest.
5. PAST
PASTEFFORTS
EFFORTS AT
ATRECLAIMING
RECLAIMING PUBLIC
PUBLIC LAND
LAND
The intensification
The intensification of public
public land
land grabbing
grabbing in in most
most parts
parts of
ofthe
theCountry,
Country,
gave rise
gave rise toto public
public resistance
resistance of of the
thepractice.
practice. As Ascommunities
communities and and
neighbourhoods lost
neighbourhoods lost land meant
meant forfor their
their use
use asasplaygrounds,
playgrounds, recreational
recreational
areas, hospitals, schools and other social amenities to the so called "private
areas, hospitals, schools and other social amenities to the so called "private
developers", public
developers", public resentment
resentment set in, leading
leading to organized
organized protests
protests against
against
the now almost
the now almost daily spectre of land grabbing. The protests at first took the
spectre of land grabbing. The protests at first took the
form
form of appeals
appeals andand petitions
petitions to to the
the President
President ororSenior
Senior Government
Government
Officials seeking intervention on their behalf.
Officials seeking intervention on their behalf. But given the fact that
the fact that hardly
hardly
any, remedial action
any remedial action waswas taken
taken following
following thesethese protests,
protests, the
the resistance
resistance
became more belligerent and pronounced. Organized groups could be
became more belligerent and pronounced. Organized groups could be seen
seen
tearing down walls
tearing down walls and and fences
fences erected
erected by by thethe private
private developers
developers in in
desperate efforts to safeguard
desperate efforts safeguard their land.land.
Eventually,
Eventually, however,
however, such
such actions
actions were
were defeated by the resort
defeated by resort to the use of
force by the
force by the grabbers.
grabbers. Often,
Often, they
they would
would enlist
enlist the
the support
support ofof law
law
enforcement agenciestotoprotect
enforcement agencies protectthem
themasas they
they went
went onon with
with their
their
"development activities". Soon,
"development activities". Soon, the
the land
land in
in question
question would
would cease
cease toto be
be
public land and become private property. Some public spirited litigants
public land and become private property. Some public spirited litigants
5 See the discussion

discussion on Indefeasibility
Indefeasibility of Title MEGARRY AND
Title in MEGARRY AND WADE,
WADE, The
The Law
Law of
of
Property, London,
Real Property,
Real London, Sweet
Sweet and Maxwell
Maxwelle"6th Edition
Edition at pp 278-290.
pp278-290.
17
17
Sichangi Adv
went to
went to Court
Court in in aa bid
bid toto protect
protect public
public land.
land. This
This tooktook the the form
form of of
Residents
Residents Associations
Associations filing representative
filing representative suits. The
suits. The Courts
Courts could could in in
certain cases rule
certain cases rule for
for the
the community
community while
while in in others
others they
they ruled
ruled in in favour
favour of of
private
private developers
developers whose
whose titletitle they
they held
held sacrosanct.
sacrosanct. As As itit isis toto be
be expected,
expected,
Courts of law took too long to deliver their verdicts, thus rendering action
Courts of law took too long to deliver their verdicts, thus rendering action
by citizens
by citizens obsolete.
obsolete. With With the the problem
problem becoming
becoming national,
national, civil civil society
society
groups joined
g):pups joined in in the
the struggle
struggle againstagainst landland grabbing.
grabbing. They
They adopted
adopted aa
strategy of
strategy of internationalizing
internationalizing the problem
the problem using human
using human rights rights and and
ecological parameters.
ecological. parameters.
The
The problem
problem of
of illegal
of public landland alsoalso
attracted
attracted the the attention
attention of of Parliamentary
Parliamentary watch
watch dog dog Committees
Committees such
such as as the
the
Public Accounts
Public Accounts Committee,
Committee, the
the Parliamentary
Parliamentary Investments
Investments Committee
Committee
and the
and the Parliamentary
Parliamentary'Select Select Committee
Committee on on Corruption.
Corruption. The
The Committees
Committees in in
their
their Reports
Reports acknowledged
acknowledged the
the existence
existence of of the
the problem
problem and and suggested
suggested
certain prescriptions toto address
certain prescriptions address it.it. No No official
official actionaction has has been
been taken
taken to to
address
address the the problem
problem on on the
the basis
basis of of such
such recommendations.
recommendations. The
The President
President
on
on his
his part
part issued
issued aa Directive
Directive banningbanning the the allocations
allocations of
of public
public landland in in
1999. However,
1999. However, apart apart from
from the the fact
fact that
that thethe legality
legality of of this
this Presidential
Presidential
directive
directive isis doubtful,
doubtful, it is is common
common knowledgeknowledge that
that itit was
was largely
largely ignored.
ignored.
The practice
The practice of of backdating
backdating Letters
Allotment (( which which isis aa fraudulent
fraudulent act act
and therefore
and therefore illegal)
illegal) continued.
continued.
Efforts by
Efforts by the
the aggrieved
aggrieved PublicPublic andand Civil
Civil Society
Society groups
groups to to challenge
challenge the the
allocations have therefore proved largely futile or not so effective. The past
allocations have therefore proved largely futile or not so effective. The past
Government had
Government had no no political will to
political 'will to stamp
stamp outout this
this practice.
practice. The The reasons
reasons
for this official reluctance to address a problem that had become so
for this official reluctance to address a problem that had become so
rampant notwithstanding
rampant notwithstanding persistent
persistent public
public outcry
outcry willwill become
become apparent
apparent in in
Part Three
Part Three ofof this
this Report.
Report.
6. THE
6. THE COMMISSION
COMMISSION OF
OF INQUIRY
INQUIRY INTO
INTO ILLEGAL/
ILLEGAL!
IRREGULAR ALLOCATION OF PUBLIC
IRREGULAR ALLOCATION OF PUBLIC LAND LAND
After
After thethe defeat
defeat of of the
the then
then Ruling
Ruling Party
Party KANU
KANU in in the
the 2002
2002 General
General
Elections,
Elections, the People
the People of of Kenya
Kenya expected
expected the the new
new Government
Government to
to address
address
past
past wrong
wrong doingsdoings of of the
the former
former regimes.
regimes. The The victorious
victorious party
party had had
anchored its campaign on an anti- corruption platform. One of the wrongs
anchored its campaign on an anti- corruption platform. One of the wrongs
the
the electorate
electorate wanted
wanted corrected
corrected was the
was the widespread
widespread and
and massive
massive land land
grabbing
grabbing which
which in in their
their perception
perception had had either
either been
been condoned
condoned or or perpetrated
perpetrated
18
Sichangi Adv
by
by the
the past
past regimes.
regimes. ThereThere had had been
been past
past demonstrations
demonstrations against
against land
land
grabbing
grabbing by residents
by residents of of affected
affected areasareas and and other
other interested
interested parties.
parties.
Writings
Writings and Policy
and Policy Reports
Reports on the
on the landland problem
problem in in Kenya
Kenya have have
recommended
recommended the need
the need to to rationalize
rationalize the public
the public tenure
tenure system
system in in the
the
country. Among
country. Among the the common
common suggestions
suggestions isis the the need
need toto protect
protect public
public land
land
from being
from being allocated
allocated by by the
the ruling
ruling elite
elite for
for political
political reasons.
reasons. Such Such land
land
should
should only
only bebe allocated
allocated to to individuals
individuals or or corporations
corporations for for development
development
purposes and in the public interest. Historically,
purposes and in the public interest. Historically, land matters in land matters in general
general
have elicited
have intense and
elicited intense and emotive
emotive national
national debates.
debates.
Given this
Given scenario therefore,
this scenario therefore, itit did not come
did not come as as aa surprise
surprise when when the. the
President
President appointed
appointed this this Commission
Commission just just six
six months
months afterafter taking
taking overover thethe
reigns of power. Although the practice of land
reigns of power. Although the practice of land grabbing was known to the grabbing was known to the
public
public in in general,
general, its its extent
extent and and actual
actual manifestation
manifestation was
was notnot clear.
clear. AA
number of Official Reports had established
number of Official Reports had established that illegal and irregular that illegal and irregular
allocations
of public land land had had been
been taking
taking place.
place. However,
However, withoutwithout aa
systematic
systematic and and thorough
thorough probe probe of of the
the situation,
situation, it it would
would not not bebe possible
possible to to
determine
determine how extensive
how extensive and and deep
deep rooted
rooted the the problem
problem had had become.
become. ItIt
would also be difficult to unearth the types of illegality
would also be difficult to unearth the types of illegality and irregularity that and irregularity that
had
had characterized
characterized land allocations.
land allocations. Critically also,
Critically also, the
the harm
harm donedone to to the
the
Country's economy and general welfare had not been clearly brought toto
Country's economy and general welfare had not been clearly brought
the fore.
the fore. The
The general
general operational
operational spirit
spirit ofof the
the Commission
Commission isis best best captured
captured
by the
by the Preamble
Preamble to to the
the Terms
I
Terms of of Reference
Reference as as follows:
follows:
WHEREAS itit appears

WHEREAS appears that
that lands vested in the
lands vested the
Republic
Republic or dedicated or
or dedicated or reserved
reserved forfor public
public
purposes may
purposes have been
may have been allocated,
allocated, by corrupt
corrupt or
or
fraudulent practices
fraudulent practices or other unlawful
or other unlawful means,
means, toto
private persons,
private persons, and
and that such
such lands continue to be
lands continue be
occupied contrary to the good
good title of the Republic
Republic or
or
inconsistent with the purposes for which
in a manner inconsistent which
such lands
such lands were
were respectively
respectively dedicated
dedicated or or
reserved
reserved .
The complex
The complex political
political and legal
legal web in in which
which land
land grabbing
grabbing schemes
schemes had
had
been operationalized
been requiredan
operationalized required anInquiry
Inquiryofof this
this kind.
kind. At
At the
the time
time this
this
Commission
Commission was appointed, there
was appointed, there were
were other
other Ministerial
Ministerial based
based
Committees, Task
Committees, Task Forces
Forces and atat least,
least, one
one other
other Commission
Commission (commonly
(commonly
referred to
referred to as the "Goldenberg
"Goldenberg Commission
Commission of of Inquiry")
Inquiry") that
that had been
been set
set
19
19
Sichangi Adv
up to
up to probe
probe various
various malpractices
malpractices (including
(including thethe allocation
allocation of of Government
Government
properties such
properties such asas Houses)
Houses) which
which had had resulted
resulted in in the
the plunder
plunder of of public
public
property and
property and massive
massive violations
violations .ofof Human
Human Rights
Rights by the the former
former regime.
regime.
This
This Commission
Commission therefore
therefore fitted
fitted into
into an
an elaborate
elaborate Transitional
Transitional Justice
Justice
Strategy that
Strategy that the
the Narc
Narc Government
Government was was putting
putting in in place.
place. TheThe
Commission's findings
Commission's findings and
and recommendations
recommendations are are supposed
supposed to provide
provide aa
solid foundation
solid foundation for the recovery
recovery of illegally
illegally or
or irregularly
irregularly allocated
allocated public
public
lands. This would ensure that the Government pursues a coherent and
lands, This would ensure that the Government pursues a coherent and
uniform strategy
uniform strategy which
which would guarantee
guarantee equal treatment
treatment for for all.
all.
The Remit of the Commission
From
From the
the Terms
Terms of Reference
Reference as set out in
in Part
Part One
One ofof this
this Report,
Report, itit,can
can
generally be inferred
generally be inferred that
that this
this Commission
Commission waswas expected
expected to to answer
answer aa
number of distinct
number distinct questions.
questions. These
These can
can be
be simply
simply stated
stated thus:
thus:
I.
1. What
Whatisisthe
theextent
extentofofillegal
illegalandandirregular
allocation of of public
public land
land
(otherwise known as land grabbing)
(otherwise known grabbing) in the Country?
Country?
2. In which
which areas have thesethese allocations
allocations taken
taken place?
place?
3. To
To which
which Individuals
Individuals and and Corporations
Corporations were were these
these allocations
allocations
made?
made?
4. What
4.. What is the
the identity
identity of
of the
the Officials
Officials who
who made
made or or facilitated
facilitated these
these
allocations?
allocations? .
How or
5. How or through
through which
which procedures
procedures did did these
these unlawful
unlawful allocations
allocations
take place?
take place?
What measures
6. What measures can be taken taken toto remedy
remedy the
the situation?
situation?
7. What
What measures
measures can can be
be putput' in
in place
place to
toprevent
prevent future
future unlawful
unlawful
allocations public land?
8. What
What action
action (legal
(legal oror otherwise)
otherwise) should
should be be taken
taken against
against thethe
Officials
Officials who were involved
involved in thesethese unlawful
unlawful practices?
practices?
In
In answering
answering the
the questions
questions detailed
detailed above,
above, the
the Commission
Commission was
was to
to
undertake
undertake the following
following Tasks;
Tasks:
The First Task

The Task would
would be to prepare
prepare' a detailed list of all illegal
detailed list illegal and irregular
irregular
allocations of public land;
land; the
the areas
areas where
where such
such lands
lands are
are situated;
situated; the
the
identity of all
identity of all the allottees (Beneficiaries)
the allottees (Beneficiaries) andand the
the identity
identity of of all
all the
the
Officials
Officials involved
involved inin such unlawful allocations.
such unlawful allocations.
20
20
Sichangi Adv
The
The Second Task would
Second Task would be detail the
be to detail the current
current status
status ofof each
each ofof such
such
lands. Under
lands. this, the
Under this, the Commission
Commission would
would have
have to
to determine
determine whether
whether thethe
land is undeveloped,
land undeveloped, partially
partially developed,
developed, or fully developed.
developed. A A correlative
correlative
.duty would be
duty to this task would be the
the determination
determination of whether
whether the
the said
said land
land had
had
been transferred or
been transferred or in any other
in any other manner
manner disposed
disposed of third parties
of to third parties in
in
subsequent
subsequent transactions.
transactions. The
The question
question asas to whether the
to whether the Third
Third Party
Party was
was
innocent or otherwise
innocent otherwise would
would also
also have
have to
to be
be determined
determined atat this
this stage.
stage.
The
The Third Task would
Third Task recommend to the
would be to recommend theGovernment
Government what what measures
measures
(legal and
(legal administrative) toto be
and administrative) taken to
be taken to recover
recover such
such illegally
illegally or or
irregularly allocatedlands
landsandand to
to restore
restore them
them to their proper
to their proper title
title or
or
purpose. In
purpose. the event
In the event that
that recovery
recovery oror restoration
restoration isis not
not possible,
possible, thethe
Commission was
Commission was to
to recommend
recommend alternative
alternative measures
measures toto the
the Government.
Government.
The Task was

Fourth Task
The Fourth Commission to
was for the Commission to recommend
recommend Short-Term,
Short-Term, Mid-Mid-
Term and Long-Term
Term and Long-Term legallegal and
and administrative
measures necessary
necessary toto
prevent future
prevent illegal and irregular
future illegal irregular allocations
public land.
land. To
To this
this end,
end,
the Commission was
the Commission suggest legal
was to suggest legal and
and institutional
institutional reforms
reforms forfor the
the
prevention of future
prevention future land
land grabbing.
grabbing.
The
The Fifth Task was
Fifth Task Commission to recommend
was for the Commission recommend aa range
range of
of punitive
punitive
actions to
actions taken against
to be taken against the Officials
Officials who were
were involved
involved in
in one
one way
way oror
another in these
another these unlawful
unlawful allocations.
allocations.
In making
making these
these recommendations,
recommendations, the Commission was
the Commission was to bear
bear in in mind
mind
the interests innocent Third Parties.
interests of innocent Parties. In In other
other words,
words, itit was
was to to be
be sensitive
sensitive
to the fact that
the fact that somewhere
somewhere along along the line,
line, land
land which
which hadhad been
been grabbed
grabbed did did
change
change hands and ended
hands and ended in thethe name
name of of anan innocent
innocent purchaser
purchaser for for value
value
without
without Notice illegality. The
Notice of such illegality. The Commission
Commission was was toto critically
critically address
address
this problem
this problem and and determine
determine whether
whether an illpgal
illegal title
title ab initio could confer
could confer
legal title
legal title to aa third
third party
party however
however innocent.
innocent. ItIt waswas totorecommend
recommend what what
action
action to be taken
taken in the
the event
event that
that aa third
third party
party could
could notnot acquire
acquire legal
legal title
title
from
from anan. illegal
illegal one. fundamental challenge
one. The fundamental challenge facedfaced by the the Commission
Commission
was how to do justice but within
justice but within the
the strict
strict confines
confines of of the
the law
law ofof the
the land.
land.
Although the
Although the Commission
Commission was was given
given aa wide
wide evidence
evidence gathering
gathering mandate,
mandate,
it is implicit
it is implicit in
in the
the Terms
Terms ofofReference
Reference that
that its
its principal
principal sources
sources of of
information
information would
would bebe official
official Government
Government Records Reports of
Records and Reports of past
past
Commissions Committees. The
Commissions and Committees. The bulk
bulk of
of its
its work
work therefore
therefore would
would entail
entail
collecting
collecting and collating all
and collating all written
written evidence
evidence andand material
material that
that already
already
exists.
exists. This should not
This should not however
however be construed to
be construed mean that
to mean that the
the
21
Sichangi Adv
Commission's work
Commission's work would
would only only be
be restricted
restricted toto the
the collection
collection andand collation
collatior
of evidence.
of evidence. As As it later
later became
became clear,
clear, the
the Commission
Commission was was forced
forced to to seek
seek
information from
information from thethe public
public and and other
other sources.
sources. It It also
also became
became necessary
necessary to to
carry out
carry out further
further investigations
investigations to to verify
verify thethe information
information contained
contained in in the
the
official documents.
official documents. In many
In many instances,
instances, the the records
records available
available were were
incomplete, forcirig
incomplete, forcing the the Commission
Commission to to consult
consult secondary
secondary sources.
sources. In In yet
yet
many other
many other instances,
instances, there
there waswas no correlation
correlation between
between the the information
information on on
record and
record and the
the situation
situation on on the
the ground.
ground. ThisThis necessitated
necessitated somesome field
field visits
visits
to verify
. to verify the
the development
development status status of thethe land
land inin question.
question. TheThe Commission
Commission
had to
had to conduct
conduct interviews
interviews with with selected
selected pastpast and
and present
present public
public officials
officials to to
determine the
determine the social,
social, economic
economic and and political
political factors
factors that
that fuelled
fuelled thethe illegal
illegal
and irregular
and irregular allocations
public land.
land.
22
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Sichangi Adv
PART TWO
PART TWO
THE APPROACH
THE APPROACH
In
In this
this part
part ofof the
the Report,
Report, we we discuss
discuss thethe process
process which
which thethe Commission
Commission
went through in conducting
went through conducting thisthis Inquiry.
Inquiry. In In view
view ofof the
the fact
fact that
that the
the subject
subject
matter of
matter of the
the Inquiry
Inquiry (the , illegal
(the illegal and
and irregular
allocation of public land)
of public land) is a
complex
complex social
social problem,
problem, the the investigation
investigation was was multifaceted
multifaceted and and not
not
necessarily sequential.
necessarily sequential. ThusThus the Inquiry
Inquiry went
went through
through various
various stages
stages until
until
the submission
submission of of this
this Report.
Report.
1. Stage One: Formation

One: Formation
This
This stage
stage entailed
entailed the appointment
appointment of the Commission.
Commission. The formalformal aspects
aspects
of this
of this stage
stage consisted
consisted of of the
the gazettement
gazettement and and swearing
swearing in in ofof the
the
Commissioners... This
Commissioners This was
was followed
followed by the the practical
practical steps
steps ofof establishing
establishing
the Commission's
the Commission's Secretariat.
Secretariat. Before
Before the setting
setting upup of
of aafully
fullyfunctional
functional
Secretariat, the
Secretariat, the Commission
Commission had had an interim
interim arrangement
arrangement with with thethe then
then
Standing Committee
Standing Committee on on Human
Human Rights
Rights by which
which itit was
was permitted
permitted limited
limited
use of the
use the latter's
latter's facilities.
facilities. The
The Commission
Commission used used this
this opportunity
opportunity to to
address critical
address critical conceptual
conceptual andand procedural
procedural issues
issues which
which would
would enable
enable itit
carry out
carry out its
it's work
work well.
well. InInthis
thisregard,
regard, the
theCommission
Commission constituted
constituted aa
planning
planning Committee
Committee to to devise
devise aa number
number of of strategies
strategies through
through which
which itit
would execute
would execute its mandate.
mandate. .
The
The Planning
Planning Committee
Committee firstfirst devised
devised aa tentative
tentative Work Programme
Programme or or Plan
Plan
and an Information
and Information Acquisition
Acquisition Schedule.
Schedule. The The Plan
Plan laid
laid out
out the
the overall
overall
Time
Time Table
Table indicating
indicating thethe various
various targets
targets and
and milestones
milestones to to be
be met
met bybythe
the
Commission within
Commission within the
the time
time stated
stated inin the
the Gazette
Gazette Notice
Notice appointing
appointing thethe
Commission. The
Commission. The Information
Information Schedule
Schedule laid out out the
the manner
manner of ofacquiring
acquiring
relevant information and
relevant information and the Sources from which such information would
Sources from which such information would
be
be retrieved.
retrieved. These
These twotwo documents
documents prepared
prepared by by the
the Planning
Planning Committee
Committee
were then
were then tabled
tabled atat successive
successive FullFull Commission
Commission Meetings
Meetings for for critical
critical
discussion and
discussion and eventual
eventual adoption. While adopting
adoption. While adopting the the two
two documents,
documents, it it
was the
was the understanding
understanding of of the
the.Commission
Commission that that thethe envisaged
envisaged workwork
schedules would
schedules would change
change withwith the
the dictates
dictates ofof time.
time.
2. Stage Two: Definition

Definition of
of the
the Problem
Problem
Having
Having adopted
adopted the general
general framework,
framework, within
within which
which itit would
would proceed
proceed toto
execute its mandate,
execute its mandate, the next challenge for the Commission was to
next challenge for the Commission was to define
define
23
Sichangi Adv
the nature
the nature and
and scope
scope of thethe Problem
Problem under
under Inquiry.
Inquiry. Although
Although the the Terms
Terms of of
Reference were stated fairly specific and clear wording, the exact nature
Reference were stated in fairly specific and clear wording, the exact nature
of the
of the Problem
Problem was was not
not immediately
immediately apparent.
apparent. A A number
number of of fundamental
fundamental
questions had
questions had toto be
be answered
answered before
before the
the Commission
Commission could could embark
embark on on the
the
substantive Inquiry.
substantive Inquiry. The
The following
following questions
questions were
were ofof immediate
immediate interest
interest toto
the Commission:
the Commission:
1. What is Land?
1. What Land?
What constitutes
2. What
2. constitutes "Public
"Public Land?"
Land?"
What are
3. What
3. are the
the various
various categories
categories of
of Public
Public Land?
Land?
What is
4. What
4. is an
an "Allocation"
"Allocation" and how
and how does
does it
it differ
differ from
from an
an
"Allotment" if it does?
"Allotment" does?
What constitutes
5. What
5. constitutes an
an "Illegal
"Illegal Allocation"
Allocation" of Public
Public Land?
Land?
6. What Constitutes
6. What Constitutes an
an "Irregular Allocation" of
"Irregular Allocation" of Public
Public Land?
Land?
Who has
7. Who
7. has the
the legal
legal authority
authority to
to allocate
allocate Public
Public Land?
Land?
8. Under
8. Under what
what circumstances
circumstances andand pursuant
pursuant to what
what conditions
conditions should
should
Public Land
Public Land be
be allocated
allocated to
to an individual or
an individual or body
body corporate?
corporate?
9. What
9. What legal
legal procedures should be
procedures should be followed in the
followed in the allocation
allocation of
of
Public Land?
Public Land?
To answer
To answer these
these questions,
questions, thethe Commission
Commission decided
decided toto organize
organize aa one
one day
day
Workshop
Workshop at at which
which elaborate
elaborate presentations
presentations would
would be be made
made by by experts
experts
drawn from
drawn from thethe Commission,
Commission, relevant
relevant Government
Government Ministries
Ministries and and other
other
Sectors. Various
Sectors. Various presentations
presentations addressing aspects of
addressing aspects of the questions were
the questions were
made at the Workshop.
made Workshop. FromFrom thethe Workshop
Workshop findings,
findings, the
the Commission
Commission was was
able
able to clarify
clarify the
the operational
operational concepts
concepts andand formulate
formulate working
working definitions
definitions
of the same.
same. These
These' concepts
concepts andand definitions
definitions would
would guide
guide thethe Commission
Commission
in
in its
its Inquiry.
Inquiry. TheThe definitions
definitions derived
derived from
from thethe inquiry
inquiry exercise
exercise are are
elaboratedin'
elaborated in part
part three
three ofof this
this Report.
Report. The
The bottom
bottom line line isis that
that the
the
Commission
Commission was able to approach approach its task with aa veryvery clear
clear notion
notion ofof what
what
constitutes public land
constitutes public land and
and how
how the the same
same may
may be be the
the subject
subject matter
matter ofof
illegal irregular allocations.
allocations.
24
Sichangi Adv
3. Stage
3. Three: Acquiring,
Stage Three: Acquiring, Storing
Storing and
and Structuring
Structuring Information.
Information.
The Commission
The Commission had had then
then to to decide
decide on on the
the most
most appropriate
appropriate method
method of of
acquiring the
acquiring the information
information necessary
necessary to to enable
enable it analyze
analyze thethe Problem
Problem and and
respond specifically
respond specifically toto the the Terms
Terms of of Reference.
Reference. The The initial
initial tasks
tasks inin this
this
regard entailed
regard entailed the the determination
determination of the
of the Sources
Sources of of Information,
Information, the the
manner of
manner of collecting
collecting or or acquiring
acquiring such such information,
information, and the
and the way
way of of
structuring and
structuring and storing
storing thethe same. This stage
same -.This stage was
was considered
considered crucial
crucial given
given
the fact
the fact that
that the
the sources
sources of of information
information wouldwould be be diverse
diverse and
and thethe amount
amount
massive. The
massive. The success
success of of the
the task
task ofofs'ypthesizing
synthesizing and and analyzing
analyzing such such
information would
information would to to aa very
very large
large extent
extent depend
depend on on how
how itit was
was received,
received,
collated and
collated and stored.
stored. In In this
this regard,
regard, thethe Commission
Commission determined
determined the the
followingtoto be
following be Sources
Sources from from which
which it it would
would collect
collect and and collate
collate
information.
information.
(a) Sources ofofInformation

(a) Sources Information
1.
1. Land Records
Land Records stored
stored in the
the various
various Files
Files at
at the
the Ministry
Ministry of
of Lands
Lands
Registry at Nairobi
Registry Nairobi
2.
2. Land Records
Land Records stored
stored in
in the
the various
various District
District Registries
Registries in
in the
the
Country
Country
3.
3. Official Reports
Official Reports of
of Standing
Standing and and Select
SelectParliamentary
Parliamentary
Committees
Committees
4.
4. Official
Official Reports
Reports byby Commissions
Commissions of of Inquiry,
Inquiry, Committees,
Committees, TaskTask
Forces
Forces and
and Ministries
Ministries
5.
5. Reports
Reports by by Non
Non Governmental
Governmental Organizations
Organizations and
and other
other Civil
Civil
Society groups working on land issues
Society groups working on land issues
6. Reports
6. Reports and
and Memoranda
Memoranda by by Professional
Professional Associations
Associations
7. Reports
7. Reports and
and Memoranda
Memoranda by by Individuals
Individuals
8.
8. Public Complaints
Public Complaints received
received from
from members
members of of the
the Public
Public
~> 9. Statements recorded
Statements recorded fromfrom past
past and
and present
present Officials
Officials during
during
private interviews
private interviews with
with the
the Commission
Commission
10. Documents and
10. Documents and Records
Records submitted
submitted by by Ministries,
Ministries, Departments,
Departments,
State
State Corporations, Local Authorities
Corporations, Local Authorities andand other
other institutions
institutions inin
response to Summons
response Summons for theirtheir production
production by the Commission
Commission
11. Media Reports
11. Media Reports
25
Sichangi Adv
(b) Instruments
(b) Instruments for
forAcquiring
Acquiring Information
Information
The required information

The required information was was produced
produced by by gathering
gathering data
data from
from these
these
multiple sources as well as
multiple sources as interpreting
interpreting and organizing
organizing itit for
for each
each class
class of
of
land. The
land. The 'variables
variables identified
identified for the data
for the data set
set included:
included: land
land reference
reference
number, title
number, number, reserved
title number, reserved or intended use,
or intended current use,
use, current use, area
area inin
hectares, original
hectares, allottee, current
original allottee, current registered
registered owner,
owner, date
date ofof allocation,
allocation,
allocating authority,
allocating authority, developments
developments status
status etc.
etc.
The Commission then
The Commission then developed
developed Instruments
Instruments for the Acquisition
for the Acquisition of of
information from
information from these Sources. Towards
these Sources. Towards this this end, number of
end, a number of Source
Source
specific documents
specific documents in the form form of Summons
Summons and and Notices
Notices were
were developed.
developed.
These included:-
These included:-
1. A Summons for
A Summons for Production
Production ofof Records.
Records. This
This document
document was
was
directed at
directed sources of
at sources of information
information described
described in
in 10 above. (See
10 above.
Appendix 5)
Appendix
2. A Notice to the
A Notice the Public
Public published
published in the
the Media
Media for for submission
submission of of
complaints, information
complaints, information and
and memoranda
memoranda by by members
members of of the
the Public.
Public.
This document was
This document was directed
directed at
at the
the sources
sources of
of information
information described
described
in 9 above.
above. (See Appendix 66 also
(See Appendix also translated
translated into
into Kiswahili)
Kiswahili)
3. A Summons
Summons forfor the
the Production
Production of ofDocuments
Documents for forExamination.
Examination.
This document was
This document was directed
directed at
at those
those public
public officials
officials who
who had
had failed
failed
or neglected to
or neglected respond to
to respond the Summons
to the Summons in above. (See
in 11 above. (See Appe-
Appe-
ndix 7)
ndix 7)
Receipt,Classification
(c) Receipt, Classificationand
andStorage
Storage ofofInformation
Information
The Instruments for

The Instruments for acquiring
acquiring information
information were
were dispatched
dispatched to
to the
the various
various
destinations. Inin response
destinations. response to the Summons
to the Summons and and Public
Public Notice,
Notice, the the
Commission
Commission Secretariat
Secretariat started
started receiving
receiving information
information on illegal and
on the illegal and
irregular al-location
irregular allocation of public land
of public land from
from official,
official, professional
professional and and public
public
sources. The
sources. The information
information so received was
so received was registered
registered and
and receipt
receipt
acknowledged. The
acknowledged. initial registration
The initial registration of information
information was was simply
simply meant
meant toto
serve as
serve as aa record
record ofof all
all information
information coming
coming in and to
in and to provide
provide an an
information
information movement
movement tracking
tracking system.
system. From
From this Record, itit would
this Record, would.be be
26
Sichangi Adv
possible
possible for the Commission
for the Commission to determine
determine atat -a glance the
-a glance the amount
amount ofof
information
information coming
coming in. individual Commissioner
in. An individual Commissioner could
could also be able
able to
to
track
track a specific
specific document
document required
required for
for examination.
examination.
The documents, and

The documents, and other
other information
information received
received werewere classified
classified according
according
to the cluster
to the cluster or typetype ofof land
land to to which
which they
they related.
related. The
The Commission
Commission had had
developed
developed a matrixmatrix of categories
categories of publicpublic land
land at the definitional
definitional stage stage ofof
its Inquiry. This
its Inquiry. This exercise
exercise enabled
enabled the the Commission
Commission to to focus
focus itsits inquiry
inquiry on on
the specific types
the specific types of public land
of public land and and by
by so doing
doing come
come to to terms
terms fromfrom thethe
outset with the
outset with the relevant
relevant laws
laws and and procedures
procedures whichwhich would
would determine
determine its its
conclusions
conclusions as to to whether
whether an an illegal
illegal oror irregular
allocation hadhad taken
taken place.
place.
The classification exercise
The classification exercise also also enabled
enabled the the Commission
Commission toto identify identify
"Inquiry Relevant Information".
"Inquiry Relevant Information". BecauseBecause of magnitude of
of the magnitude of the
the "Land
"Land
Problem"
Problem" in Kenya, Kenya, manymany respondents
respondents sent sent information
information and and complaints
complaints
which
which were clearly beyond
were clearly beyond its its mandate.
mandate. Most Most of of the
the complaints
complaints in in this
this
category
category dealt
dealt withwith private
private landland disputes;
disputes; somesome of of which
which were were before
before
Courts
Courts of Law. It was
of Law. was therefore
therefore necessary
necessary thatthat this
this type
type ofof information
information be be
sorted
sorted out and the
out and the respondents
respondents informed
informed accordingly.
accordingly. General
General FilesFiles were
were
then opened for each
then opened each category
category of of land
land inin respect
respect ofof which
which information
information and and
documentation
documentation had been received.
had been received. Individual
Individual Files
Files were
were also
also opened
opened for for
each specific case.
each specific case. This
This rawraw data data waswas then
then made
made available
available to to the
the
Commission's
Commission's workingworking TeamsTeams for for analysis.
analysis.
(d) Methods
(d) Methods of
ofAnalysis
Analysis
Based
Based on statement of the
on the statement the Problem,
Problem, definition
definition of Public
Public Land
Land andand thethe
classification of
classification public lands,
of public lands, the
the Commission
Commission developed
developed aa Checklist
Checklist of of
items relating to
items relating illegal and
to illegal and irregular
public land.
land. TheThe
Checklist
Checklist waswas used
used by each
each Working
Working TeamTeam in in analyzing
analyzing thethe information
information to to
determine the trends and patterns of illegality and irregularity.
determine the trends and patterns of illegality and irregularity. Towards Towards
this end,
this end, the Commission
Commission had had established
established three
three working
working teams;
teams; i.e.
i.e. aateam
team
on 'Urban, Ministries and State Corporations Land, a
on Urban, Ministries and State Corporations Land, team on Trust landsteam on Trust lands
and Settlement
and Settlement Schemes,
Schemes, and the third
and the third one
one onon Forests,
Forests, Wetlands
Wetlands and and
Riparian Sites, Protected Areas, Museums, Historical
Riparian Sites, Protected Areas, Museums, Historical Monuments and Monuments and
Sites.
The analysis
The entailed the
analysis entailed the identification
identification ofof cases
cases which disclosed either
which disclosed either an
an
illegality or
illegality irregularity on
or irregularity on their
their face
face i.e.
i.e. non-compliance
non-compliance with
with the
the
applicable
applicable rules and standards.
rules and standards. The
The case
case so chosen
chosen was
was then
then subjected
subjected to
to aa
27
Sichangi Adv
thorough scrutiny by
thorough scrutiny by the
the particular
particular land land working
working team.team. OnceOnce it was was
determined
determined that that anan allocation
allocation actually
actually disclosed
disclosed an an illegality
illegality or irregularity,
irregularity,
• it was taken up for audit and verification at the Ministry of Lands
'it was taken up for audit and verification at the Ministry of Lands andand
Settlement.
Settlement. One One member
member of of the
the particular
particular Working
Working Team Team would
would then
then call
call
for the relevant files relating the case under scrutiny for verification of
for the relevant files reiating to the case under scrutiny for verification of
the
the disclosed
disclosed illegality.
illegality. WithWith the the help
help ofof technical
technical Assistants
Assistants from from thethe
Ministry attached
Ministry attached to the the Commission,
Commission, aa concluSion
conclusion wouldwould be be made
made based
based
on the
on the contents
contents of the the files.
files.
This initial
This initial analysis
analysis of of specific
specific casescases waswas meant
meant to to achieve
achieve two two mainmain
purposes namely, to
purposes namely, to identify
identify cases
cases withwith thethe appropriate
appropriate ingredients
ingredients to to
mount thematic
mount thematic public
public hearings
hearings and and toto establish
establish aa model
model for for analyzing
analyzing all all
the
the cases
cases and and information
information that
that hadhad come
come to to the
the Commission
Commission for for thethe
purposes
purposes of of this
this Report.
Report. While
While the the Commission
Commission had had realized
realized veryvery early
early in in
its work
its work thatthat it would
would notnot be
be able
able toto deal
deal with
with each
each and
and every
every casecase ofof illegal
illegal
and irregular
and irregular allocation
public land,
land, itit decided
decided to to adopt
adopt thisthis approach
approach to to
ensure
ensure that that whichever
whichever case was
case was identified
identified had to
had to bebe as as rigorously
rigorously
scrutinized as possible.
scrutinized possible.
The above
The above method
method ofof analysis
analysis was
was used
used toto process
process the
theinformation
information
received
received from
from the
the determined
determined sources.
sources.
(e)
(e) Information
Received ininResponse
Response to
to Summons
Summons
The information
The information received
received from
from Ministries,
Ministries, State
State Corporations,
Corporations, Local Local
Authorities and
Authorities and other
other Government Institutions was
Government Institutions was of of a diverse
diverse nature
nature inin
terms of quality, complexity and relevance. It was subjected to the
terms of quality, complexity .and relevance. It was subjected to the
analytical process
analytical process described
described above.
above. The analysis
analysis revealed
revealed that that some
some of of the
the
information was totally inadequate terms of content; some was partially
information was totally inadequate in terms of content; some was partially,
adequate while
adequate while some
some was quite
quite detailed
detailed and
and went
went aa long
long wayway in
in facilitating
facilitating
the Inquiry.
the Inquiry. Where
Where the the information
information was was either
either inadequate
inadequate or or partially
partially
adequate, Summons
adequate, Summons for better particulars,
particulars, were
were sent
sent toto those
those responsible.
responsible.
The
The detailed
detailed information
information was was put
put through
through an an inventory
inventory exercise.
exercise. ThisThis
entailed the
entailed the preparation
preparation of Lists detailing the Land
Lists 'detailing Land reference
reference number,
number, the the
name of the allottee,
name allottee, the
the allocating
allocating authority,
authority, and
and the
the year
year of
of allocation.
allocation. AA
tentative conclusion
tentative conclusion as as to whether
whether the allocation
allocation was
was illegal
irregular
was made
was made using
using the
the Checklist.
Checklist. The
The reason
reason for this
this conclusion
conclusion was was also
also
'recordedtoto aid
'recorded aid in
in the
the verification
verification process
process (for
(for example,
example, the the land
land inin
question
question may
may have
have been
been set
set aside
aside for
for aa public
public purpose
purpose hence
hence notnot available
available
28
Sichangi Adv
for allocation;
for allocation; or
or the
the person
person oror institution
institution that
that made
made the
the allocation
allocation hadhad no
no
legal
legal authority
authority to
to allocate
allocate the
the land,
land, or or the
the legal
legal procedures
procedures for forallocating
allocating
the said
the said land
land were
were not not followed,
followed, etc).etc). The
The information
information would
would thenthen be
be
subjected to
subjected to a verification process at
verification process at the
the Lands
Lands registry
registry in in the
the manner
manner
already
already described.
described.
(f) Information from Official

Information from Official Reports
Reports
As mentioned
As mentioned earlierearlier some
some important
important information
information was was derived
derived from from
various sources. A
various sources. A number
number of of official
official reports
reports proved
proved to to be
be aa critical
critical source
source
of information
of information and and the
the Commission
Commission was was mandated
mandated to to consult
consult such
such reports
reports
during its
during its inquiry.
inquiry, TwoTwo of of these
these Reports
Reports require
require special
special mention.
mention. The The first
first
one was
one was thethe Report
Report. of of aa Committee
Committee which which had had been
been appointed
appointed by by thethe
Minister for
Minister for Roads,
Roads, Public
Public Works
Works and and Housing
Housing toto investigate
investigate illegal
illegal
allocations
allocations of of Government
Government houses, road
houses, road reserves,
reserves, work work camps
camps and and
materials depots.
materials depots. TheThe Commission
Commission found found thethe Report
Report very
very useful
useful to the the
inquiry and
inquiry and indeed
indeed adopted
adopted somesome ofof its
its recommendations
recommendations particularly
particularly with with
regard to
regard to the
the illegal
illegal allocation
Government houses.houses. TheThe other
other important
important
Report was
Report was presented
presented to to the
the Commission
Commission by by the
the Ministry
Ministry of of Lands
Lands and and
Settlement. The
Settlement. The Ministry
Ministry had had set
set up
up committees
committees in in early
early 2003
2003 to to inter alia
inter alia
prepare an
prepare an Inventory
Inventory of publicpublic utility
utility lands
lands countrywide
countrywide and and toto determine
determine
the status
the status of such
such lands.
lands.
The Reports
The Reports were
were also
also Synthesized
synthesized with
with a view
view to abstracting
abstracting the the main
main andand
relevant findings
relevant findings which
which had
had been
been arrived
arrived at
at after
after systematic
systematic investigations
investigations
and inquiries
and inquiries into
into allocations
public land
land by by earlier
earlier committees,
committees, task task
forces and
forces and commissions.
commissions. The The Commission
Commission has has incorporated
incorporated thesethese findings
findings
in this
in this report
report after
after some
some cross
cross referencing
referencing with
with records
records at at the
the registries
registries and
and
being
being satisfied
satisfied that
that they
they are
are credible.
credible. These
These Reports
Reports willwill nono doubt
doubt form
form an an
important source
important source of of reference
reference during
during thethe implementation
implementation of
of this
this
Commission's Recommendations.
Commission's Recommendations.
(g)
(g) Information
Received from
from Members
Members of the Public
of the Public through
through
Letters
Letters and
and Memoranda Response to the
Memoranda in Response the Public Notice
Public Notice
The
The Commission
Commission received
received a substantial
substantial amount
amount of information
information from from the
the
public
public alleging
alleging various
various irregularities and illegalities
irregularities and illegalities inin the
the allocation
allocation of of
public land.
public land. The
The Commission
Commission had had given
given the
the public
public aa period
period of of two
two (2)
(2)
months
months within
within which
which to
to submit
submit complaints.
complaints. This
This time
time limit
limit could
could however
however
29
29
Sichangi Adv
not be
not be adhered
adhered to since
since letters
letters and
and petitions
petitions kept
kept streaming
streaming in in long
long after
after the
the
time had expired.
time had expired. The The Commission
Commission decided decided to to continue
continue receiving
receiving and and
accepting
accepting such petitions and
such petitions and memoranda.
memoranda. This decision was
This decision was arrived
arrived at at
given
given the
the importance
importance of of such
such information
information and and the
the fact
fact that
that the
the Government
Government
would use
would use recorded
recorded information
information long long after
after the
the Commission
Commission had had ceased
ceased to to
exist. The
exist. The petitions
petitions andand letters
letters from
from thethe public
public were
were therefore
therefore received
received by by
the Commission
the Commission throughout
throughout its its tenure
tenure (even
(even during
during the
the preparation
preparation of of this
this
Report).
Report).
Once
Once aa Complaint
Complaint was was received,
received, it it would
would be be classified,
classified, stored
stored and and
subjected
subjected to analysis. This
to analysis. This entailed
entailed an an elimination
elimination exercise
exercise to to determine
determine
what was
what was relevant
relevant for for the
the purposes
purposes of of the
the Commission
Commission in in the
the context
context of of the
the
Terms of Reference.
Terms Reference. Letters
Letters werewere consequently
consequently writtenwritten to to the
the complainants
complainants
informing them
informing them of of the
the status
status of of their
their complaints.
complaints. ThoseThose casescases that
that were
were
determined
determined to to bebe relevant
relevant werewere subjected
subjected to to an
an abstracting
abstracting process.
process. The The
Research Assistants
Research Assistants attached
attached to to thethe Commission
Commission preparedprepared Abstracts
Abstracts of of
each case
each case under
under thethe guidance
guidance of of thethe Commission.
Commission. Tentative
Tentative conclusions
conclusions
about an
about an illegality
illegality or or irregularity
irregularity were were mademade on on the
the basis
basis of of the
the abstracts.
abstracts.
The
The information
information was was then
then keyed
keyed into into the
the computer
computer by by thethe Data
Data Analyst
Analyst
attached
attached toto the the Commission.
Commission. The
The data data waswas thenthen subjected
subjected to to thethe
verification
verification process
process adopted
adopted for for other types of
other types of information.
information. It must must be be
pointed out
pointed out at at this
this stage
stage thatthat while
while all allthe
thecomplaints
complaints received
received went went
through the
through the initial
initial process
process of of analysis
analysis and and abstracting,
abstracting, many many could
could notnot bebe
verified due to fhe
verified due the constraints
constraints highlighted
highlighted below. below.
All the
All the public
public complaints
complaints whichwhich havehave been
been received
received by by the
the Commission
Commission
have been
have been compiled
compiled into into an
an annex
annex which
which will
will form
form the
the basis
basis for
for action
action asas
recommended in
recommended in this
this Report.
Report. The The complaints
complaints whose
whose details
details have
have been
been
verified will
verified will be
be acted
acted upon
upon in in -the
-the same
same manner
manner as as all
all other
other public
public land
land
parcels which
parcels which have have been
been determined
determined by by the
the Commission
Commission as as having
having been
been
illegally or
illegally or irregularly
irregularly allocated.
allocated. The The complainants
complainants may be
may be required
required to to
supply
supply betterbetter particulars
particulars by
by thethe implementing
implementing authority where
authority where it it isis
considered
considered necessary.
necessary. ThisThis digest
digest of of public
public complaints
complaints isis toto continuously
continuously
serve as
serve as a reference
reference point
point for
for those
those who
who would
would like
like to
to provide
provide details
details oror:
add
add to it.
(h)
(b) Information
Information from
fromVolunteers
Volunteers and
and Professional
Professional Bodies
Bodies
Apart from
Apart from information
information sent
sent in
in from
from Official
Official sources
sources in
in response
response toto the
the
Summons for
Summons for production
production of Records,
Records, the
the Commission
Commission also also received
received
30
Sichangi Adv
information
information from from past
past and
and present
present Officials
Officials of of the
the Ministry
Lands and and
Settlement and also local authorities such the Nairobi City Council. The
Settlement and also local authorities such as the Nairobi City Council. The
information
information was was received
received either
either onon aa voluntary
voluntary basis
basis or
or following
following private
private
interviews of some officials pursuant to a Summons to that effect. This
interviews of some officials pursuant to a Summons to that effect. This
type
type of of information
information provided
provided the the Commission
Commission with an
with an insight
insight into
into thethe
political,
political, social,
social, economic
economic and and administrative
administrative environment
environment that that fuelled
fuelled thethe
practice
illegal and
and irregular
public land.
land. This
This insight
insight waswas
not just of theoretical or academic value; the Commission relied on it in
not just of theoretical or academic value; the Commission relied on it in
making
making legallegal and
and administrative
administrative recommendations
recommendations for
for the
the prevention
prevention of of
land
land grabbing
grabbing impunities
impunities in in future.
future.
Closely
Closely related
related to to the
the above,
above, was was information
received from from volunteer
volunteer
members
members of of the
the public.
public. Such Such information
information camecame fromfrom public
public spirited
spirited
individuals
individuals or or crusaders
crusaders for for justice.
justice. The
The secondary
secondary records
records provided
provided by by the
the
volunteers
volunteers were were moremore detailed
detailed than
than the
the complaints
complaints received
received fromfrom the
the public
public
in response
in response to to the
the Public
Public Notice.
Notice. ThisThis information
information disclosed
disclosed extensive
extensive
illegalities and
illegalities and irregularities
irregularities in in the
the allocation
allocation of land
land reserved
reserved forfor research
research
institutions and
institutions and also
also inin settlement schemes. Some
settlement schemes. Some of of the
the information
information was was
confirmed
confirmed by by official
official records.
records.
Information
Information and contributions
and contributions by professional
by professional bodies and
bodies and non non
governmental
governmental organizations was
organizations was considered important in
considered important in clarifying
clarifying the the
Commission's mandate
Commission's mandate and and anticipating
anticipating conceptual
conceptual and
and practical
practical
difficulties that could
difficulties that could bebe generated
generated byby some
some ofof the
the recommendations
recommendations to
to be
be
made by the Commission. In this regard, the Commission received
made by the Commission. In this regard, the Commission received
memoranda
memoranda and/or
and/or held working
working sessions
sessions with
with the
the following:
following:
The Institution
1. The Institution of Surveyors
Surveyors of
of Kenya
Kenya
The Kenya
2. The Kenya Bankers
Bankers Association
Association
3. The
The Kenya
Kenya Institute
Institute of Planners
Planners
The Kenya
4. The Kenya Forestry
Forestry Working
Working Group
Group
5. The
The Justice
Justice and
and Peace
Peace Commission
Commission of
of Kenya,
Kenya, Kitale
Kitale Catholic
Catholic
Diocese
Diocese
31
Sichangi Adv
4. MEETINGS
4. MEETINGS
The Commission
The Commission initially
initially held
held weekly
weekly plenary
plenary meetings
meetings every
every Monday
Monday
during
during the
the entire
entire period
period of of the
the inquiry.
inquiry. The
The meetings
meetings provided
provided aa forum
forum at at
which
which the
the Commissioners
Commissioners ventilated their thoughts
ventilated their thoughts on on various
various aspects
aspects ofof
the inquiry.
the inquiry. As As itit isis totobebeexpected,
expected, many
many issues
issues revolving
revolving around
around thethe
problem of illegal
problem illegal oror irregular
public land
land did
did not
not have
have ready
ready
answers. Thus,
answers. Thus, every
every aspect
aspect of thethe inquiry
inquiry process
process had
had to
to be
be discussed,
discussed, andand
debated
debated fully
fully before
before conclusions
conclusions could could be
be arrived
arrived at.
at.
It was
It was during
during these
these weekly
weekly meetings
meetings thatthat the
the Commission
Commission was was able
able to to
review and
review and take
take stock
stock of of the
the various
various aspects
aspects of of its
itswork.
work. Strategic
Strategic
adjustments
adjustments andand modifications
modifications of of the
the work
work programme
programme were were made
made at at the
the
meetings. The
meetings. The Commission
able to to devise
devise appropriate
appropriate responses
responses. to to
some
some ofof the
the challenges
challenges to its work work as as discussed
discussed in thethe section
section dealing
dealing with with
"Constraints" below.
"Constraints" below. In In between
between the the weekly
weekly meetings,
meetings, the the working
working
groups or
groups or land
land working
working teams
teams metmet on on aa daily
daily basis.
basis. During
During the the last
last two
two
months of
months of its
its tenure,
tenure, thethe Commission
Commission held held daily
daily meetings
meetings including
including
Saturdays and
Saturdays and Sundays.
Sundays. ThisThis waswas necessitated
necessitated by by the
the mass
mass of of information
information
which had
which had come
come intointo the
the Commission's
Commission's possession
possession fromfrom diverse
diverse sources.
sources.
The information
The information had had to
to be
be sifted
sifted and
and analyzed.
analyzed. Complaints
Complaints and and Petitions
Petitions
from the
from the public
public came
came in in varying
varying degrees
degrees of of detail,
detail, relevance,
relevance, clarity
clarity and
and
complexity. This
complexity. This meant
meant thethe Commission
Commission had had toto read
read andand classify
classify the the
information for purposes
information purposes of of deriving
deriving aa matrix
matrix for
for future
future action.
action.
5. MONTHL
5. MONTHLYY PROGRESS
PROGRESS REPORTS
REPORTS
The
The Commission
Commission prepared
prepared and
and submitted
submitted monthly
monthly progress
progress reports
reports about
about
the inquiry
the inquiry toto the
the Minister
Minister ofof Lands
Lands and and Settlement.
Settlement. This
This was
was in in
conformity with
conformity with term
term of
of reference
reference (h)
(h) of the
the Gazette
Gazette Notice
Notice appointing
appointing thethe
Commission. The
Commission. The progress
progress reports
reports not
not only
only kept
kept the
the Minister
Minister abreast
abreast of
of the
the.
inquiry, but
inquiry, but provided
provided an an opportunity
opportunity for for both
both the
the Commission
Commission and and
Government to continually
Government continually appraise
appraise the magnitude of the
themagnitude the problem.
problem.
6.
6. FIELD
FIELD VISITS
VISITS
One
One ofof the
the terms
terms ofof reference
reference required
required the
the Commission
Commission to to prepare
prepare a list
list of
all
all lands
lands unlawfully
unlawfully or or irregularly
irregularly allocated,
allocated, specifying
specifying particulars
particulars of thethe
lands
lands and
and of persons
persons toto whom
whom they
they were
were allocated,
allocated, the
the date
date of
of allocation,
allocation,
32
Sichangi Adv
particulars of
particulars of all
all subsequent dealings in
subsequent dealings in the
the lands
lands concerned
concerned and their
and their
current ownership
current ownership and and development
development status.status. This
This particular
particular requirement
requirement
meant that
meant that the
the Commission
Commission had had to
to conduct
conduct sitesite visits
visits to
to verify
verify the
the situation
situation
on the
on the ground
ground as as compared
compared to to that
that on
on paper.
paper. ForFor example,
example, aaparticular
particular
parcel of
parcel of land
land would
would be be represented
represented on on the
the land
land maps
maps as as aa forest,
forest, while
while onon
the ground
the ground it hadhad changed
changed intointo aa settlement
settlement scheme
scheme or or farmland.
farmland. ItIt was
was
therefore important
therefore important thatthat the
the Commission
Commission appraises itself of
appraises itself of the
the correct
correct
position regarding
position regarding the
the land.
land.
Site visits
Site visits were
were also
also important
important in enabling
enabling the the Commission
Commission determine
determine the the
extent to
extent to which
which lands
lands set
set aside
aside forfor public
public purposes
purposes (such(such asas road
road reserves,
reserves,
school
school playgrounds,
playgrounds, stadia,
stadia, e.t.c)
e.t.c) had
had been
been grabbed
grabbed and and later
later developed.
developed.
The
The records
records at at the
the Ministry
Lands andand Settlement
Settlement did did not
not have
have allall the
the
particulars regarding
particulars regarding the the allocation
public landslands within
within municipalities
municipalities
and townships
and townships out out of
of Nairobi.
Nairobi. This
This meant
meant that
that the
the Commission
Commission had had toto visit
visit
district land
district land registries
registries inin order
order to to obtain
obtain and
and verify
verify information
information relating
relating to to
lands which
lands which had had been
been illegally
illegally and and irregularly
irregularly allocated.
allocated. However,
However, the the
district land
district land registries
registries did
did not
not also
also have
have all
all the
the relevant
relevant information.
information.
7. CONSULTATIVE
7. CONSULTATIVE WORKSHOP
WORKSHOP WITH
WITH OFFICIALS
OFFICIALS FROM
FROM
MINISTRIES
MINISTRIES
In December
December 2003,2003, the Commission
Commission organized
organized aa consultative
consultative workshop
workshop at at
which
which keykey officials
officials from
from various
various ministries
ministries were
were invited
invited to
to make
make
presentations
presentations on on a number
number of issues.
issues. The following
following ministries
ministries were
were invited
invited
to participate:
participate:
1. Ministry
Ministry of Lands
Lands and Settlement
Settlement
2. Ministry
Ministry of Roads,
Roads, Public
Public Works
Works and Housing
Housing
3. Ministry of Water
Ministry Water Resources
Resources Management
Management and Development
Development
4. Ministry of Environment,
Ministry Environment, Natural
Natural Resources
Resources and Wildlife
Wildlife
5. Office
Office of the Vice
Vice President
President and Ministry
Ministry of Home
Home Affairs
Affairs
6. Ministry of Livestock
Ministry Livestock and Fisheries
Fisheries Development
Development
7. Ministry of Local
Ministry Local Government
Government
8. Ministry of Agriculture
Ministry Agriculture
9. Office of the President
Office President
The criteria
The criteria for identification
identification of the
the ministries
ministries were
were based
based on
on aa number
number of
of
factors. These
factors. These included
included such
such factors
factors as
as the
the legal
legal and
andadministrative
administrative
33
Sichangi Adv
jurisdiction that
jurisdiction that the
the specific
specific ministry
ministry has has over
over public
public land,
land, the
the amount
amount of of
public
public land
land held
held by
by aa ministry
ministry forfor its
its purposes,
purposes, the
the type
type and
and amount
amount of of
public
public land
land managed
managed by a specific
specific ministry.
ministry. ItI! was
was also
also considered
considered ifif from
from
the available
the available records,
records, aa specific
specific ministry
ministry hadhad apparently
apparently lost
lost large
large chunks
chunks
of its land
of land through
through illegal
illegal and
and irregular
allocations and
and whether
whether aaministry
ministry
would be
would be aa key
key player
player ininthe
theimplementation
implementation of of some
some of of the
therecom-
recom-
mendations that
mendations that the Commission
Commission was was bound
bound toto make.
make.
The
The main
main objective
objective ofof the
the workshop
workshop was was toto give
give the
the Commission
Commission aa forum forum
to
to understand
understand and and appreciate
appreciate some
some of of the
the administrative
administrative and and operational
operational
environments under
environments under which
which ministries
ministries lostlost their
their land
land through
through illegal
illegal and
and
irregular allocations. Secondly,
irregular allocations. Secondly, the the Commission
Commission intendedintended to to give
give thethe
specified
specified ministries
ministries an opportunity to
an opportunity make suggestions
to make suggestions on on the
the way
way to to
prevent land
prevent land grabbing
grabbing in the the future.
future. This
This waswas considered
considered necessary
necessary so so as
as to
to
make
make thethe ministries
ministries bebe part
part of
of the
the overall
overall solution
solution toto the
the problem
problem underunder
inquiry. In this
inquiry. this regard,
regard, the
the ministries
ministries were
were requested
requested to to give
give their
their views
views on on
the
the following:
following:
• Legal, administrative
Legal, administrative andand policy
policy measures
measures thatthat should
should bebe taken
taken for
for
the
the restoration
restoration of illegally
illegally and
and irregularly
irregularly acquired
acquired public
public lands
lands to to
their
their proper
proper title
• Legal, administrative
Legal, administrative policy
policy measures
measures that
that should
should be be taken
taken inin cases
cases
where
where such
such lands
lands cannot
cannot be restored
restored to their
their proper
proper purpose
purpose and;
and;
• Measures to prevent
Measures prevent such
such illegal
illegal and
and irregular
public
land in future
land future
At the
At the end
end of
of the
the workshop,
workshop, thethe Commission
able to
to determine
determine thethe
extent to
extent to which
which some
some of
of the
the recommendations
recommendations itit was was in thethe process
process ofof
making were in accord
making were accord with
with the official
official thinking
thinking or not.
not. It was
was also
also able
able to
to
determine
determine whether
whether the government fully
the government appreciated what
fully appreciated what inin the
the
Commission's opinion
Commission's opinion were
were the
the causes
causes of
of illegal
illegal and
and irregular
allocations
of public
public land.
land.
8. THE
THE COMMISSION'S
COMMISSION'S CONTACT
CONTACT WITH
WITH THE
THE PUBLIC
PUBLIC
Although the Commission's

Although the Commission's inquiry
inquiry entailed
entailed mainly
mainly the
the examination
examination of of
records
records and
and documents,
documents, the
the importance
importance of of maintaining
maintaining contact
contact with
with the
the
\public
PUbliC waswas considered
considered necessary
necessary at at the
the outset. The nature
outset. The nature of
of the
the subject
subject
. matter
~atter of the
the inquiry
inquiry was such
such that
that constant
constant communication
communication with
with the
the public
public
\
34
Sichangi Adv
had to
had to be
be maintained.
maintained. TheThe most
most immediate
immediate wayway of of maintaining
maintaining this this contact
contact
was through
was through the.publication
the.publication of
of relevant
relevant notices
notices in in the
the print
print and
and electronic
electronic
media.
media. TheThe notices
notices toto the
the public
public took
took the
the form
form of aa callcall for
for information
information or or aa
caution
caution to to the
the public.
public. The
The cautions
cautions werewere aimed
aimed at at alerting
alerting thethe public
public about
about
certain
certain factsfacts regarding
regarding public
public land.
land. This
This strategy
strategy was was considered
considered
appropriate
appropriate given given the fact that
the fact that unscrupulous
unscrupulous beneficiaries
beneficiaries of illegal
of illegal andand
irregular allocations of public land
of public hind would
would anticipate
anticipate the the outcome
outcome of of the
the
Commission's
Commission's work and
work and seek
seek to to defeat
defeat the
the same
same at at the
the expense
expense of of the
the
public.
public. (See
(See Appendix
Appendix 8). 8).
(a)
(a) Public
Public Hearings
Hearings
In addition
addition to the use of of public
public notices
notices through
through the
the media,
media, thethe Commission
Commission
scheduled aa number
scheduled number of publicpublic hearings.
hearings. These
These hearings
hearings were
were toto take
take two
two
forms
forms namely, Forums and
namely, Forums Thematic Hearings.
and Thematic Hearings. Public
Public forums
forums werewere toto be
be
held at
held at provincial
provincial level.
level. The main objective
The main objective of these forums
of these forums was was to.to
introduce the Commission
introduce the Commission to to the public. This would provide a
public. This would provide a forum for forum for
the Commission
the Commission to explain and
to explain and clarify
clarify its' mandate
mandate (as(as contained
contained in in the
the
terms of reference) to the people. The forums would also enable the
terms of reference) to the people. The forums would also enable the
Commission to
Commission to gauge
gauge thethe intensity
intensity of public
public feeling
feeling about
about thethe problem
problem of of
land grabbing
land grabbing and and the peoples' prescriptions on how to solve
peoples' prescriptions on how to solve and preventand prevent
the
the problem.
problem. The The Commission
Commission would would also
also be
be able
able to
to place
place its
itsInquiry
Inquiry
within the context of the wider national anti- corruption strategy
within the context of the wider national anti- corruption strategy that the that the
Government
Government had had embarked
erribarked on. on. Lastly,
Lastly, these
these forums
forums would
would enable
enable the the
Commission to de-politicize its Inquiry.
Commission to de-politicize its Inquiry.
(b) Theniatic
The~atic Hearings
Hearings
As their
As their title suggests,
suggests, these
these hearings
hearings were
were designed
designed toto conform
conform to to certain
certain
themes on
themes on illegal
illegal and
and irregular
allocation ofof public
public land.
land. The
The hearings
hearings
would
would be be based
based on on specific
specific cases
cases identified
identified by
by the
the working
working teams.
teams. They
They
would
would conform
conform to to the various
various categories
categories of public
public land
land identified
identified byby the
the
Commission. Hence,
Commission. Hence, specific
specific hearings
hearings would
would bebe held
held onon forests,
forests, urban
urban
land, land
land, land held
held by
by State
State Corporations,
Corporations, trust
trust land,
land, settlement
settlement schemes
schemes and and
land
land reserved
reserved or dedicated
dedicated for a public
public purpose.
purpose. These
These hearings
hearings would
would be be
educative as
educative as well
well asas investigative. They would
investigative. They would assist
assist the
the public
public toto
understand
understand somesome ofof legal
legal and
and social
social complexities
complexities regarding
regarding the the illegal
illegal
allocation of public land.
allocation land.
35
Sichangi Adv
The hearings
The hearings would wouldbebe designed
designedinin such such aa way
way as as toto enable
enable the the
Commission
Commission cover cover significant
significant historical
historical epochs
epochs when
when such
such allocations
allocations took
took
place.
place. The
The first
first thematic_ hearing would
thematic. hearing would be be held
held inin Nairobi
Nairobi followed
followed by by
seven
seven others
others at provincial
provincial level.
level. No
No generalized
generalized testimonies
testimonies aboutabout the
the land
land
problem
problem wouldwould be be entertained.
entertained. TheThe Commission
Commission would would as as far
far as
as possible
possible
restrict itself to
restrict itself to allocations
allocations of "public
"public land"
land" as
as defined.
defined. The
The hearings
hearings would
would
complement
complement the Commission's
the Commission's overall
overall methodology
methodology of of information
information
gathering,
gathering, and and analysis.
analysis. A A hearing
hearing schedule would be
schedule would be published
published in good good
time for the public to prepare.
time for the public to prepare.
9. CONSTRAINTS
9. CONSTRAINTS AND CHALLENGES
AND CHALLENGES FACED BY
FACED BY THE
THE
COMMISSION
COMMISSION
As
As it is
is to
to be
be expected
expected inin an
an Inquiry
Inquiry ofof this
this kind
kind and
and magnitude,
magnitude, the the
Commission faced
Commission faced a number
number of of constraints
constraints and
and challenges
challenges in in the
the process
process ofof
its work.
its work. Some
Some of of the
the problems
problems were
were resolved
resolved after
after some
some time
time while
while others
others
continued to
continued to adversely
adversely affect
affect the
the Commission
Commission throughout
throughout itsits tenure.
tenure. These
These
problems affected
problems affected the
the work
work of
of the
the commission
commission in varying
varying degrees.
degrees.
(a)
(a) The
TheTime
Time Period
Period
One of
One of the
the most
mostintractable
intractable problems
problems thatthat faced
faced the theCommission
Commission
throughout its
throughout its tenure
tenure was was the limited
limited time
time within
within which
which itit was was toto conduct
conduct
and
and complete
complete its its inquiry.
inquiry. The The Commission
Commission was was directed
directed to to report
report its its
findings and
findings and anyany such
such recommendations
recommendations withinwithin a period
period of of one
one hundred
hundred
and
and eighty
eighty (180)
(180) days from from the
the date
date of
of gazettement.
gazettement. The The limitation
limitation of of time
time
by the
by the appointing
appointing instrument
instrument.had had a lot ofof merit
merit inin that
that itit emphasized
emphasized the the
need
need to deal
deal with
with thethe problem
problem atat hand
hand expeditiously.
expeditiously. ItIt also also forced
forced the the
Commission to be focused
Commission focused from
from the
the very
very beginning
beginning of of its
itsInquiry.
Inquiry. Lastly,
Lastly,
the
the time
time limit meant
meant thatthat the
the Commission
Commission wouldwould conclude
conclude its its work
work without
without
exerting too much cost on
exerting on the
the Exchequer.
Exchequer.
These advantages
These advantages were
were however
however diminished
diminished by the fact that the magnitude
magnitude
and
and extent
extent of illegal
illegal and
and irregular
allocations ofof public
public land
land had
had been
been
grossly
grossly underestimated.
underestimated. No sooner
sooner had had information
information started
started streaming
streaming into
into
the Commission's
the Commission's secretariat,
secretariat, than
than itit was
was realized
realized that
that the problem
problem waswas so
so
exiensive and
extensive and complex
complex that
that it would
would not not be possible
possible toto unravel
unravel it within
within a
period of one
period one hundred
hundred and and eighty
eighty (180)
(180) days.
days. Initial
Initial evidence
evidence received
received
indicated that
indicated that land grabbing
grabbing was
was aa country
country wide
wide problem.
problem. ItIt had
had occurred
occurred
36
Sichangi Adv
at
at different
different periods inin the
periods the Country's
Country's history
history and
and had
had taken
taken many
many forms.
forms. ItIt
would
would not not bebe possible
possible to to deal
deal with
with every
every aspect
aspect of
of the
the Inquiry
Inquiry within
within the
the
wording of the terms of reference.
wording of the terms of reference.
The
The Commission
Commission would
would require
require aa time
time period
period far
far longer
longer than
than that
that assigned
assigned
by the
by the appointing
appointing Authority.
Authority.
Another
Another time related
time related factor
factor thatthat had
had not
not been
been adequately
adequately appreciated
appreciated was
was
the period it
the period it would
would take take for
for the
the Commission's
Commission's Secretariat
Secretariat to
to be
be established
established
in
in terms
terms of of office
office space,
space, equipment
equipment and
and personnel.
personnel. ItIt took
took at at least
least two
two
months
months before
before the the Commission
Commission was
was fully
fully established
established toto systematically
systematically
embark
embark uponupon its its work.
work. This
This meant
meant that
that the
the Commission
Commission was
was only
only ableable to
to
commence
commence the
the substantive
substantive inquiry
inquiry sometime
sometime in in early
early September
September 2003. 2003.
The time
The time related
related constraints
constraints affected the Commission
affected the Commission in
in aa number
number of
of ways
ways
forcing it to adjust its work plan and aspects of its methodology:
forcing it to adjust its work plan and aspects of its methodology:
•• Firstly
Firstly and
and foremost,
foremost, the
the Commission
Commission could
could notnot manage
manage to to report
report
after one
after one hundred
hundred and eighty
and (180) days.
eighty (180) days. ItsIts tenure
tenure had
had to to be
be
extended for
extended for an
an extra
extra ninety
ninety (90)
(90) days
days to to enable
enable itit finalize
finalize its its
report.
report. .
• Secondly, the
Secondly, the Commission
Commission had toto cut
had cut down
down on on some
some of of itsits planned
planned
activities. In this regard, it was only able to conduct limited site
activities. In this regard, it was only able to conduct limited site
visits to
visits to determine
determine the
the status
status of of development
development of
of identified
identified public
public
land. While
land. While many
many visits
visits to to provincial
provincial registries
registries were were conducted
conducted for
for
verificationpurposes,
verification purposes,notnot all all registries
registries could be
could be visited.
visited. The The
Commission was
Commission was only
only ableable to to verify
verify aa limited
limited number
number of of public
public
complaints
complaints received in
received in resporise
response to to the
the notice
notice for for information.
information.
•• Thirdly, only
Thirdly, only one
one public forum could
public forum could be
be held
held and
and that
that in
in Nairobi.
Nairobi.
•• Fourthly,
Fourthly, the Commission
the Commission had toto abandon
had. abandon some
some ofof its
its planned
planned
activities altogether.
activities altogether.ItIt was
was not
not possible
possible to
to mount
mount the
the planned
planned
thematic hearings
thematic hearings at at all.
all.
(b) Missing,
Missing,Inaccurate,
Inaccurate, and
andIncomplete
Incomplete Records
Records
The bulk of the Commission's

The bulk Commission's work
work entailed
entailed the examination
examination ofof records
records atat
the
the Ministry
Ministry of Lands
Lands and
and Settlement.
Settlement. It was
was envisaged
envisaged that
that most
most of
of the
the
37
37
Sichangi Adv
information regarding
information regarding thethe illegal
illegal and
and irregular
public land
land
would be
would be found
found by by perusing
perusing the the relevant
relevant files.
files. This
This waswas necessary
necessary to to
establish the
establish the history
history ofof allocations
allocations and and transactions
transactions relating
relating to to aa given
given
parcel of
parcel of land
land to to ensure
ensure accuracy.
accuracy. Unfortunately,
Unfortunately, throughout
throughout its its tenure,
tenure, the
the
Commission would
Commission would bebe inhibited
inhibited by the the problem
problem of of missing,
missing, inaccurate
inaccurate and and
incomplete records
incomplete records at at the
the Ministry.
Ministry. HighHigh profile
profile cases
cases of
of land
land grabbing
grabbing
(such as
(such as the
the Karura,
Karura, Ngong,
Ngong, Mau and other
Mau "and other Forests,
Forests, thethe Northern
Northern and and
Southern Nairobi
Southern Nairobi By By passes,
passes, town
town andand municipal
municipal stadia
stadia etc)
etc) could
could not not bebe
verified easily
verified easily because
because relevant
relevant files
files had
had gone
gone missing.
missing. In In the
the view
view of of the
the
Commision,this
Commision, this was
was nono accident
accident and and no no reflection
reflection on on the the general
general
I .
competence and
competence accuracy ofof the
and accurac9y the Records
Records Department.
Department. ItIt seemedseemed to to bebe
deliberate.
deliberate.
In certain
In certain instances,
instances, thethe available
available records
records werewereeither
either.. inaccurate
inaccurate or or
incomplete inin material
incomplete material particulars.
particulars. TheThe overall
overall effect
effect waswas that
that thethe
Commission could
Commission could not
not prepare
prepare allall the
the lists
lists of
of allocations
allocations on on the
the basis
basis ofof
these records.
these records. This
This problem
problem meant
meant that the Commission
Commission spentspent aa lot
lot of
of time
time
updating the
updating the lists
lists of allocations
allocations with a limited
limited degree
degree of success
success inin certain
certain
cases.
cases. Some
Some ofofthe thelists
listsprepared
prepared for forthis
thisreport
reporttherefore
therefore remain
remain
incomplete. (See Vol.
incomplete. Vol~JI and II ofof the Annexes).
(c) Inadequate
Inadequate and
andIrrelevant
Irrelevant Information
Received in
inResponse
Response to
to
Summons
Summons
As indicated
indicated earlier,
earlier, the Commission
Commission issued
issued aa Summons
Summons for for the
the production
production
of records
of records and
and information
information totoministries,
ministries, departments,
departments, local
local authorities,
authorities,
state corporations and other government institutions. The information
state corporations and otherI
government institutions. The information
required
required was specified
specified inin the
the summons.
summons. A A prescribed
prescribed form
form was
was enclosed
enclosed in
in
the summons guide the respondents in answering to the summons.
the summons to guide the respondents in answering to the summons.
Through
Through thisthis summons,
summons, the the Commission
Commission hoped hoped to to obtain
obtain information
information
regarding the following:
regarding following:
1. The
The amount
amount of public
public land held by the institution
institution since 1962
1962
2. The
The amount
amount of of land
land acquired
acquired byby the
the institution
institution since
since its
its inception
inception
and the price
and price paid
3.. The
3.. The list
list and
andparticulars
particulars of
of public
public land
land allocated
allocated or sold
sold byby the
the
institution
institution to individuals
individuals and corporations
corporations during
during this
this. period
period and
and
the
the price
price obtained
obtained
38
Sichangi Adv
4. The
4. The list
listand
andparticulars
particulars ofofland
land sosoallocated
allocated which
which may
may have
have been
been
allocated illegally or irregularly
allocated illegally or irregularly
Once
Once it received
received such
such information,
information, the the Commission
Commission would would cross
cross reference
reference
the
the same
same with
with the
the records
records at at the
the Ministry
Lands for for purposes
purposes of of
verification and
verification and compilation.
compilation. Unfortunately,
Unfortunately, the the returns
returns from
from these
these official
official
sources were highly inadequate. Some institutions sent in massive volumes
sources were highly inadequate. Some institutions sent in massive volumes
of
of information
information whichwhich however
however were were largely
largely or or totally
totally irrelevant.
irrelevant. Some
Some
information
information so so sent
sent in was
was found
found to to be
be inadequate
inadequate for for the
the purposes
purposes of of the
the
Commission.
Commission. Some Some ministries,
ministries, state
state corporations
corporations and and local
local authorities
authorities diddid
not
not send
send inin the
the required
required information
information at at all
all either
either out
out ofof negligence
negligence or or
intentionally.
intentionally.
To deal
To deal with
with this,
this, the
the Commission
Commission had had toto re-issue
re-issue the the Summons
Summons toto those those
who
who had
had not
not complied.
complied. This This took
took a lot
lot of
of the
the Commission's
Commission's time. time. ItIt later
later
transpired that some
transpired that some of the the institutions
institutions sent
sent in in irrelevant
irrelevant information.
information. The The
Commission had
Commission had to redesign
redesign thethe Form
Form so so asas toto elicit
elicit relevant
relevant information.
information.
The
The Commission
Commission howevercannot
however cannotrule rule outout sabotage
sabotage of of its
its work
work by by
individual officers
individual officers given
given thethe fact
fact that
that the
the reluctance
reluctance to provideprovide information
information
persisted
persisted to,to the
the very
very end.
end. Returns
Returns from
from County
County and and Municipal
Municipal Councils
Councils
were the
were the worst
worst in in this
this regard.
regard. The
The Commission
Commission was was unable
unable to to get
get the
the
necessary cooperation from
necessary cooperation from the
the Nairobi
Nairobi City City Council
Council and and other
other local
local
authorities despite
authorities despite intervention
intervention by by the
the Permanent
Permanent SecretarySecretary for for Local
Local
Government.
Government. The The Commission
Commission was was therefore
therefore unableunable to to establish
establish the the full
full
extent of land
extent of land grabbing
grabbing in areas
areas administered
administered by local local authorities.
authorities.
(d) The
(d) TheDiversity
Diversity ofofPublic
Public Complaints
Complaints
As
As already
already indicated, one of
indicated, one of the
the main
main sources
sources of of information
information to to the
the
Commission
Commission were were the
the Complaints
Complaints from from members
members of of the
the public.
public. TheThe
Complaints came in by
Complaints carne by way
way ofof written
written letters,
letters, memoranda
memoranda and and petitions.
petitions.
The complaints
The complaints were
were in
in varying
varying degrees
degrees of of clarity,
clarity, relevance,
relevance, detail
detail and
and
complexity.
complexity. TheThe Commission
Commission had had toto examine
examine all all these
these totodetermine
determine
whether
whether aa specific
specific complaint
complaint fell
fell within
within itsits mandate.
mandate. It It had
had also
also to
to notify
notify
the
the complainants about the
complainants about the status
status ofof their
their complaint.
complaint. To To deal
deal with
with these
these
complaints,
complaints, the
the Commission
Commission had had to verify
verify the
the information
information at at the
the Ministry
Ministry
of Lands.
Lands.
Unfortunately,
Unfortunately, the
the majority
majority ofof the
the complaints
complaints referred
referred to
to parcels
parcels of
of land
land in
in
general terms which
general terms which could
could not
not enable
enable aa conclusive
conclusive search
search to
to be
be conducted.
conducted.
Where such
Where such particulars
particulars as
as the
the Land
Land Reference
Reference number
number were
were provided,
provided, the
the
39
Sichangi Adv
problem of
problem of missing
missing files
files would
would return
'return toto haunt
haunt the
the Commission.
Commission. TheseThese
problems notwithstanding, the
problems notwithstanding, the Commission
Commission found found this
this information
information fromfrom
the public
the public to be most
most useful.
useful. ItIt was
was able
able to
to appreciate
appreciate thethe nature
nature and
and extent
extent
of land
of land grabbing
grabbing in the the country.
country. TheThe Digest
Digest of of Public
Public Complaints
Complaints which
which
appears as
appears as one
one ofof the
the Annexes
Annexes to this this Report
Report willwill form
form aa sound
sound base
base of of
investigation and
investigation and enforcement
enforcement of of the
the recommendations
recommendations appearingappearing in in the
the
Report. All
Report. All those
those cases
cases received
received and and listed
listed inin this
this Annex
Annex have
have to to bebe
addressed on the
addressed the basis
basis ofof the
the Recommendations.
Recommendations.
(e)
(e) Missing Company
Missing Company Records
Records at
at the
the Registry
Registry of Companies
Companies
The Commission
The discoveredquite
Commission discovered quite early
early in
in its
its work
work that
that many
many illegal
illegal
allocations of
public land
land were
were made
made notnot to
to individuals
individuals but companies.
but , companies.
These companies
These companies were
were ostensibly
ostensibly registered
registered at thethe Registry
Registry of of Companies
Companies
in conformity
in conformity with
with the
the requirements
requirements of thethe Companies
Companies Act, Act, Cap
Cap 486 of of the
the
Laws of Kenya.
Laws Kenya. The
The Commission
Commission wouldwould not
not have
have fulfilled
fulfilled one
one of of its
its Terms
Terms
of Reference
of Reference if it did
did not
not disclose
disclose the
the names
names of of the
the people
people (either
(either directors
directors
or share
or share holders)
holders) behind
behind these
these companies.
companies. This This meant
meant that that in in many
many
instances, a single
instances, single title
title of land
land required
required aa double
double search
search atat the
the Ministry
Ministry of of
Lands
Lands and at the Registry
Registry ofof Companies.
Companies.
Yet the
Yet the problem
problem of of missing
missing records
records was just as
was just as pronounced
pronounced at the the latter
latter
registry
registry as thethe former.
former. TheThe Commission
Commission received
received full full cooperation
cooperation from from the
the
Registrar
Registrar of of Companies
Companies OfficeOffice Gust
(just as
as it did
did from
from the
the Ministry
Ministry of of Lands,
Lands,
and Settlement)
and Settlement) but but the
the problem
problem of missing
missing records
records could
could notnot just
just gogo away.
away.
It
It is now
now aa real
real possibility
possibility that
that some
some of of these
these companies
companies to to which
which public
public
land
land was
was allocated
allocated diddid not
not actually
actually exist
exist in law.
law. Individuals
Individuals are said said to have
have
acquired blank
acquired blank Certificate
Certificate of of Incorporation
Incorporation Forms either
Forms either from from the the
companies' registry or
companies' .registry or elsewhere
elsewhere which
which they they then
then used
used to to bebe allocated
allocated
public land.
public land. Some
Some companies
companies were were allocated
allocated land land before
before theythey hadhad been
been
incorporated
incorporated under under thethe law.
law. Some
Some other
other companies
companies were were specifically
specifically
formed
formed and and incorporated
incorporated for for the
the purpose
purpose of acquiring
acquiring public
public land.
land. In In yet
yet
other
other instances,
instances, somesome companies
companies had had mere
mere nominee
nominee directors
directors while
while details
details
of the
of the real
real shareholders
shareholders were were not
not disclosed.
disclosed. Thus Thus thethe line
line ofof illegality
illegality isis
long.
long. ForFor a a list
list of
ofcompanies
companies that that were
were allocated
allocated land land and and whosewhose
particulars were
particulars were yet to to be
be found
found at at the
the time
time of of writing
writing thisthis Report,
Report, (see (see
Annexes
Annexes 11and
and 22in
in Volume
Volume II of
of the
the Annexes).
Annexes).
(f)
(0 Operating Social
Operating Social and
and Political
Political Environment
Environment
The
The land
land question
question forms
forms an
an integral
integral part of Kenya's
Kenya's social,
social, economic
economic and
and
political
political history.
history. Long
Long before
before and
and after
after independence,
independence, itit remains
remains the most
themost
40
Sichangi Adv
debated and
debated and highly
highly emotive
emotive issue
issue in the
the Country's
Country's political
political discourse
discourse andand
development agenda. It
development agenda. It is therefore
therefore notnot surprising
surprising thatthat the
the appointment
appointment of of
this
this Commission
Commission to look
to look into
into one
one aspect
aspect of of the
the land
land problem
problem i.e.i.e. public
public
land
land grabbing
grabbing was bound.
was bound toto set set inin motion
motion aa seriesseries of of events
events andand
occurrences
occurrences that
that would
would pose
pose aa challenge
challenge to to the
the Inquiry.
Inquiry.
Public
Public reaction
reaction toto the
the Commission
Commission was was threefold.
threefold. A A large
large majority
majority of of,the
the
public
public welcomed
welcomed the the Inquiry
Inquiry with
with the the expectation
expectation that that the
the problem
problem of of land
land
grabbing would be solved once and for all. They looked forward to the
grabbing would be solved once and for all. They looked forward to the
immediate repossession and
immediate repossession and restoration
restoration of of public
public land.
land. Some
Some expected
expected the the
immediate
immediate prosecutionofof the
prosecution the culprits.
culprits. Another section of
Another section of the
the public
public
received the
received the news
news of of thethe Commission's
Commission's appointment
appointment with
with fearfear andand
trepidation. This
trepidation. This group
group comprised
comprised of of those
those who who were
were beneficiaries
beneficiaries of
of
illegal and
public land.
land. This
This category
category set set out
out to to
frustrate the work of the Commission from the beginning by either rushing
frustrate the work of the Commission from the beginning by either rushing
to develop
to develop their
their land
land (in (in the
the belief
belief thatthat once
once developed,
developed, the the land
land could
could not not
be repossessed) or to dispose of it. The last group sought to politicize and
be repossessed) or to dispose of it. The last group sought to politicize and
ethnicize the
ethnicize the work
work of of thethe Commission
Commission by misinforming
misinforming communities
communities to to the
the
effect that
effect that they
they were
were targets
targets of victimization.
victimization.
Thus throughout
Thus throughout the the Inquiry,
Inquiry, the
the Commission
Commission had
had to
to tread
tread the
the delicate
delicate
route of
route of heightened
heightened (and
(and in
in some
some instances
instances unrealistic)
unrealistic) expectations
expectations byby the
the
public, misinformation
public, misinformation and and misrepresentation
misrepresentation of
of its
its work.
work.
(g) Addressing the

(g) Addressing theConstraints
Constraints and
and Challenges
Challenges
There is
There is no
no doubt
doubt that
that these
these constraints
constraints affected
affected the
the inquiry
inquiry in in one
one wayway or or
another. But as already indicated, the Commission had to keep devising
another .. But as already indicated, the Commission had to keep devising
ways to
ways to surmount
surmount the the problems
problems posed. posed. While
While the the Commission
Commission did did notnot
succeed in preparing a list of every conceivable illegal or irregular
succeed in preparing a list of every conceivable illegal or irregular
allocation of
public land
land in in the
the country,
country, itit managed
managed to to identify
identify manymany such such
allocations which are highlighted the annexes to this report. In the same
allocations which are highlighted in the annexes to this report. In the same
vein, while
vein, while itit waswas not not possible
possible for for the
the Commission
Commission to
to verify
verify all all the
the
information
information itit had had received
received from from members
members of of the
the public,
public, itit managed
managed toto
compile aa comprehensive
compile comprehensive digest of
digest of suspected
suspected illegal
irregular
allocations based on public complaints, which must be investigated in
allocations based on public complaints, which must be investigated in the
the
near
near future
future so so asas to
to decisively
decisively deal deal with
with thethe problem
problem of of land
land grabbing.
grabbing.
Most importantly, the
Most importantly, the Commission
Commission got
got adequate
adequate information
information on
on which
which
it has
it has based
based its
its findings
findings and
and recommendations
recommendations which
which should
should be
be used
used to
to
41
Sichangi Adv
rectify the problem
rectify the problem now now and
and ininthe thefuture.
future. The
TheRecommendations
Recommendations
made
made by by this
this Commission
Commission are are not
not only
only applicable
applicable to to the
the titles
titles listed,
listed, .
but to all illegal
but to illegal titles.
titles. The
The illegal
allocations listed
listed in
in this
this
Report may very
Report may very well
well just
just be
be the
the tip
tip of
of the
the iceberg.
iceberg.
42
Sichangi Adv
PART THREE
PART THREE
THE LAW
THE LAW RELATING
RELATING TO
TO THE
THE ALLOCATION
ALLOCATION OF
OF
PUBLIC LAND
PUBLIC LAND IN
IN KENYA
KENYA
1. Introduction
Introduction
In
In this
this chapter,
chapter, wewe briefly
briefly address
address the
the relevant
relevant legal
legal provisions
provisions whichwhich setset
out
out the
the manner
manner inin which public land
which.public land may
may bebe allocated.
allocated. We We also
also discuss
discuss thethe
ways
ways in in which
which these
these laws
laws have
have been
been disregarded
disregarded thus thus leading
leading to to the
the illegal
illegal
allocation
public land,
land, hence
hence this
this Inquiry.
Inquiry. But
But first
first the
the definitions
definitions of of
public
public land
land and
and critical
sritical terms
terms which
which are
are used
used throughout
thro ghout this this Report
Report are are
highlighted
highlighted below.
below.
The Legal
2. The Legal Meaning
Meaning of
of Land
Land in
in Kenya
Kenya
LAND,
LAND, in in Kenya
Kenya means
means the the soil
soil and
and everything
everything aboveabove andand below
below it. it. ItIt
includes
includes any any estate
estate or
or interest
interest in in the
the land
land plus
plus all
all permanent
permanent fixtures,
fixtures, and and
buildings,
buildings, together
together with
with allall paths,
paths, passages,
passages, ways,
ways, waters,
waters, watercourses,
watercourses,
liberties,
liberties, privileges,
privileges, easements, plantations
easements, plantations and and gardens
gardens thereon
thereon or or
thereunder. However, certain
thereunder. However, certain items
items areare specifically
specifically excluded
excluded by by legislation
legislation
such
such that
that even
even if anan individual
individual were were to to acquire
acquire title
title to
to land,
land, such
such items
items
would remain
would remain vested
vested in in the
the Government.
Government. (an (an example
example isis where
where minerals
minerals
are discovered.)
are discovered.)
It should
It should also
also bebe noted
noted that,
that, while
while included
included in in Kenya
Kenya Laws,Laws, thisthis isis the
the
English
English definition
definition of land.
land. ItIt was
was inherited
inherited like
like many
many other
other legal
legal concepts,
concepts,
from colonial
from colonial England.
England. The The definition
definition largely
largely applies
applies to to registered
registered land
land as as
opposed to
opposed to land
land held
held under
under customary
customary law. law. Land
Land under
under customary
customary law law
refers
refers mainly
mainly to to the
the soil.
soil. There
There is is therefore,
therefore, under
under this
this latter
latter body
body of of law
law aa
clear
clear distinction
distinction between
between landland andand thethe things
things that
that are
are affixed
affixed upon
upon itit such
such
as vegetation,
as trees and
vegetation, trees and buildings.
buildings. Also Also at
at the
the Coast
Coast mainly,
mainly, there
there is is the
the
legal definition
legal definition of landland under
under Islamic
Islamic laws
laws and
and practices.
practices.
3. Categories Land in
Categories of Land in Kenya
Kenya
In
In Kenya,
Kenya, land
land is divided
divided into
into three
three different
different legal
legal categories.
categories. These
These are:
are:
• Government
Government LandLand
• Trust
Trust Land
Land
• Private
Pri vate Land.
Land.
43
Sichangi Adv
Government
Government land land is is the
the land
land that
that was
was vested
vested in the
the Government
Government of of Kenya
Kenya
by Sections
by Sections 204 and and 205
205 of
of the
the Constitution
Constitution that
that was
was contained
contained inin Schedule
Schedule
22 to the. Kenya Independence
the, Kenya Independence Order Order in
in Council
Council 1963
1963 and
and Sections
Sections 21,21, 22,
22,
25 and
25 and 26 26 ofofthetheConstitution
Constitution ofofKenya
Kenya (Amendment)
(Amendment) Act Act 1964.
1964.
Government land
Government land in turn
turn comprises
comprises of of two
two sub-categories
sub-categories i.e.
i.e. un-alienated
un-alienated
Government Land
Government Land and
and Alienated
Alienated Government
Government Land.
Land.
Un-alienated Government
Un-alienated Government Land Land isis defined
defined by by the
the Government
Government Lands Lands ActAct
as meaning
as meaning Government
Government land land which
which is notnot for
for the
the time
time being
being leased
leased toto any
any
other person
other person or in in respect
respect of of which
which thethe Commissioner
Commissioner has has not
not issued
issued any
any
letter of
letter of allotment.
allotment. As is is explained
explained elsewhere
elsewhere in in this
this Report,
Report, un-alienated
un-alienated
Government lands
Government lands areare those
those lands
lands vested
vested in the the Government
Government and and over
over
which no
which no private
private title
title has
has been
been created.
created. They
They dodo not
not belong
belong to to indiliiduals
individuals
or bodies
or bodies corporate
corporate in in their
their private
private capacities; hence they
capacities; hence they are
are not private
not private
lands.
lands. The
The defining element of
defining element of such
such lands
lands isis that
that they
they have
have not not been
been
alienated, meaning
.alienated, meaning given, away or
given, away or ceded
ceded by by the
the Government
Government to to another
another
person or
person or entity.
entity. Un-alienated
Government land land is notnot Trust Land in that
Trust Land that it
is not
is not vested
vested in local
local communities
communities and and held
held on
on trust
trust for
for them
them byby aaCounty
County
Council.
Council.
Alienated
Government land on
land on the
the other
other hand
hand is is land
land which
which the the
Government has
Government has leased
leased to aa private
private individual
individual or or body
body corporate,
corporate, or or which
which
has been
has been reserved
reserved for for the use
use ofof aa Government
Government Ministry,
Ministry, Department,
Department, StateState
Corporation
Corporation or or other
other public
public institution,
institution, or land
land which
which has
has been
been set
set aside
aside by
way of
way of planning,
planning, for for aa public
public purpose
purpose (this
(this latter
latter category
category isis usually
usually
referred to as public utility land). The defining element of alienated
referred to as public utility land). The defining element of alienated
Government land
Government land isis that
that it has
has been
been reserved
reserved forfor the
the use
use of
of aa Government
Government
institution or
institution or itit has
has been
been setset aside
aside for
for the
the use
use of
of the
the public
public or itit has
has been
been
leas - toto an
leased2. an indi vidual.
individual.
Trust land
Trust land isis the
the land
land that
that is
is declared
declared to to be
be Trust
Trust Land
Land andand defined
defined in in
Section 114
Section 114 of
of the
the Constitution
Constitution of of Kenya.
Kenya. Under both the
Under both the Constitution
Constitution andand
the Trust
the Trust Land
Land Act,
Act, (Chapter
(Chapter 288 288 ofof the
the Laws
Laws of Kenya) trust lands
Kenya) trust lands areare
neither
neither owned
owned by the Government
by the Government nor nor byby the
the County
County Council.
Council. The The
County Councils
County Councils simply
simply hold
hold lands
lands onon behalf
behalf ofof the
the local
local inhabitants
inhabitants ofof the
the
area. For
area. For as long
long asas trust
trust land
land remains
remains un-adjudicated,
un-adjudicated and and un-registered,
un-registered, itit
belongs
belongs to to the
the local
local communities,
communities, groups,
groups, families
families and and individuals
individuals in in the
the
area in
area in accordance
accordance with the applicable
with the applicable' African-Customary
African_Customary Law. Law. Once
Once
registered under
registered under/any-of,
any of the the land
land registration
registration statni-e-S;
sta~rust trust 'land
land is is
44
Sichangi Adv
transformed
transformed into
into private
private land.
land. ItIt then
then becomes
becomes the the. sole
sole property
property of
of the
the
individual or group
individual group in favour
favour of
of whom
whom itit is
is registered
registered
Private land
Private land is land,
land, the
the title
title to
to which
which isis registered
registered in in'accordance
accordance with with any
any
of the
of the laws
laws that
that provide
provide forfor registration
registration of of title.
title. Land
Land maymay be be registered
registered in in
the name of an individual or company. Private land
the name an individual or company. Private land may be created from may be created from
either Government
either Government land land or
or Trust
Trust land
land through
through registration
registration after
after all
all the
the other
other
legal procedures have been strictly followed. As will soon
legal procedures have been strictly followed. As will soon become evident, become evident,
any attempt to create
any attempt create private
private title to public land land without
without following
following the the legal
legal
procedures, results in an illegal
procedures, results in an illegal title. title.
Public land
Public land
Having discussed
Having discussed the different
different categories
categories of land
land in
in Kenya,
Kenya, itit isisimportant
important
to immediately
to immediately comecome to terms
terms with
with what
what constitutes Public Land.
constitutes Public Land. This
Commission of Inquiry was appointed inquire into all cases ofofillegal
Commission of Inquiry was appointed to inquire into all cases illegal
and allocation of Public Land.
and irregular Land.
Generally speaking,
Generally speaking,public
public landland isis all
all that
that land
land which
which is is vested
vested inin the
the
public
public or held under
or held under public
public tenure.
tenure. It means
means all the the land
land in in which
which every
every
Kenyan has an interest
Kenyan has an interest by virtue being member the public. Thus, aa
virtue of being a member of the public. Thus,
citizen
citizen who comes
comes from
from or or resides
resides in in one
one part
part of
of the
the country
country has has an
aninterest
interest
public land which
in public which isis located
located in in another
another part
part ofof the
the country.
country. ForFor example,
example,
a resident
resident of Mandera
Mandera has has anan interest
interest in
in.what
what happens
happens to to Kakamega
Kakamega and and
Karura forests.
Karura forests. Similarly,
Similarly,aa resident
resident of of Busia
Busia hashas an interest
interest inin what
what
happens to
happens to the ocean
ocean at at the
the Kenyan
Kenyan Coast.Coast. Every
Every citizen
citizen has
has anan interest
interest in
in
what
what happens
happens to the the country's
country's' road road reserves,
reserves, public
public playgrounds,
playgrounds, game game
parks, rivers
parks, rivers etc.
etc. Throughout
Throughout the the inquiry,
inquiry, the
the Commission
Commission was was concerned
concerned
with
with the illegal
illegal allocation
allocation ofof these
these types
types of
of land.
land.
Public land
Public land includes
includes aa wide
wide variety
variety of
of different
different kinds
kinds of
of land
land that
that isis
administered by the Central
administered Central Government
Government and
and also
also by
by the
the Local
Local Authorities.
Authorities.
Below are some
Below mare common
some of the mffe common types
types of PUBLIC
PUBLIC LAND:
LAND:
I
All un-alienated
un-alienated Government
Governm~nt land
land as
as defined
defined above
above is
is Public
Public land,
land, in
in that
that itit
is vested
vested in
in the
the Government
Governxbent ofof Kenya.
Kenya. The
The Government
Government belongs
belongs to to the
the
people Kenya. Therefore,
people of Kenya. Therefore, the
the Government
Government holds
holds oror administers
administers such
such
land in trust
land trust for
for the
the people
people of Kenya.
Kenya. Such land remains
Such land remains public
public land
land until
until itit
legally privatized.
is legally privatized. I'
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Sichangi Adv
All
All alienated
alienated Government
Government land as
land as defined above is
defined above is public
public land,
land, inin that
that itit
has
has been
been setset aside
aside for
for a public
public purpose
purpose or or reserved
reserved for for the
the use
use ofof aa ministry,
ministry,
department, State
department, State Corporation
Corporation or
or other
other Government
Government institution.
institution. All All these
these
are
are funded
funded by by tax
tax payers'
payers' money.
money. They They belong
belong to to the
the public
public andand they
they must
must
protect
protect land
land which
which is reserved
reserved forfor them
them in thethe interest
interest of thethe public.
public.
Trust Land
Trust Land is is not
not strictly
strictly speaking
speaking public public land.
land. The
The explanation
explanation for for this
this
position
position is is given
given in in detail
detail in in Part
Part Four
Four if if this
this Report.
Report. In In this
this section
section itit isis
important
important to to state
state that
that inin the
the course
course of of its
its inquiry,
inquiry, this
this Commission
Commission came came
across
across incidents
incidents where
where Trust Trust Land
Land had had been
been illegally
illegally allocated
allocated contrary
contrary to to
the
the provisions
provisions of the
of the law.
law. In In other
other words,
words, even even Trust
Trust landland hadhad been
been
targeted
targeted by by land
land grabbers.
grabbers. The The Commission
Commission made made aa decision
decision to to regard
regard allall
those
those Trust
Trust lands
lands that that hadhad beenbeen illegally
illegally allocated
individuals and and
companies
companies in total
in total disregard
disregard of of the
the interests
interests of of local
local communities,
communities, asas
Public land.
Public land. TheThe Commission
Commissionconcluded concludedthat thatthe
the interests
interests ofof local
communities
communities in their
in their Trust
Trust landland were
were sufficient
sufficient enough
enough to to be
be regarded
regarded as as
"public
"public interest"
interest" in in the
the context
context of of this
this inquiry.
inquiry.
Other
Other Public
Public Lands
Lands
Land
Land purchased
purchased by the
by the Settlement Fund Trustees
Settlement Fund for the
Trustees for the purpose
purpose of
of
settlement
settlement of landless
landless people
people is
is public
public land.
land.
Government Land or Trust

Government Landor Trust Land
Land held
held on
on leasehold
leasehold tenure
tenure is public
public land
land toto
the
the extent
extent that
that the
the reversion
reversion of
of the
the lease
lease should
should be
be administered
administered forfor the
the
benefit
benefit of the
the public.
public.
Some areas
Some areas ofof private
private land
land may
may. have
have been
been compulsorily
acquired underunder
the
the provisions
the Land
Land Acquisition
Acquisition Act Act (Cap.
(Cap. 295)
295) oror an
an area
area of
of trust
trust
land may
land may have
have been
been set
set apart
apart under
under s.117
s.117 of thethe Constitution
Constitution in which which case
case
the
the land
land can
can only
only be used
used for
for the
the specific
specific purpose
purpose forfor which
which it it was
was acquired
acquired
or set
or set apart.
apart. The
The passage
passage of of time
time before
before the
the land
land is
is so
so used
used has
has nono effect
effect onon
the restriction
the affectingthe
restriction affecting the use
use of
of the
the land.
land. Land
Land whichwhich has has been
been so so
compulsorily
acquired is is Public
Public Land.
Land.
All
All Public
Public Land
Land should
should be be administered
administered either
either by the Government
by the Government or or by
by the
the
Local
Local Authority for the
Authority for the benefit
benefit of
of the
the public;
public; that
that is to
to say
say the
the people
people ofof
Kenya. Trust Land
Kenya. Trust Land is is specifically
specifically heldheld by by the
the Local
Local Authority
Authority withwith
jurisdiction over
jurisdiction over the
the area
area where
where it isis situated
situated to be be used
used for
for the
the benefit
benefit ofof
the
the persons
persons normally
normally resident
resident in that
that area.
area. The
The Local
Local Authority
Authority shall
shall give
give
46
Sichangi Adv
effect to rights,
effect to rights, interests
interests andand other benefits in
other benefits in respect
respect of of the
the land
land asas may
may
under African
under African customary
customary law law for
for the
the time
time being
being be in in force
force in in that
that area.
area.
(Section 115
(Section 115 (2)
(2) of Constitution
Constitution of Kenya).
Kenya). There
There isis no
no such
such constitutional
constitutional
provision
provision in in respect
respect ofof Government
Government Land Land but
but legally
legally it is is clear
clear that
that the
the
government should
government should not treat
treat Government
Government LandLand asas its
its private
private property
property to tobebe
dealt with
dealt with as itit pleases.
pleases. Government
Government landland should
should be be administered
administered in in the
the
same
same way
way a prudent
prudent trustee
trustee administers
administers the
the assets
assets ofof aa trust.Public
trust.Public Land Land
must be administered
must be administered and allocated in the
and allocated public interest
the public interest only.
only.
4. Some
Some Common
Common Terms
Terms and
and Phrases
Phrases used
used in
in this
this Report
Report
Throughout this
Throughout this Report
Report the
the Commission has used
Commission has used a number
number of
of terms
terms andand
phrases which
phrases which it considers
considers important
important to
to provide
provide some
some working
working definition
definition
of. These
of. follows:
These are as follows:
Allocation
Allocation
ALLOCATION
ALLOCA TION is the the process
process of selection
selection of of the
the person
person to whom
whom an an area
area
of land
of land isis toto bebeallocated
allocated ororallotted
allotted forfor the
the specific
specific purpose
purpose of of
development
development for for a particular
particular and
and identified
identified use.use. The
The Government
Government Lands Lands
Act (Cap.
Act 280) establishes
(Cap. 280) establishes the
the legal
legal authority
authority forfor allocation
allocation in Parts III and
Parts III and
IV.
IV. While
While modified
modified over
over the
the years,
years, the
the current
current legal
legal method
method of of allocation
allocation
includes advertising
includes advertising the the availability
availabilityof of the
the land
land and
and the
the intention
intention of the the
administering authority
administering authority to offer
offer the land forfor sale
sale and
and the
the conditions
conditions of ofthe
the
offer including the
offer including the tenure
tenure and
and permitted
permitteduse use ofof the
the land.
land. Before
Before it is is
advertised, such
advertised, such land
land must
must bebe planned,
planned, surveyed
surveyed and and provided
provided with
with thethe
necessary
necessary infrastructure
infrastructure namely
namely roads,
roads, water,
water, etc.
etc.
The law
The law is silent
silent onon precisely
precisely who
who makes
makes the
the selection
selection ofof the
the person
person toto
whom Government land
whom Government land should
should bebe allocated.
allocated. But
But the
the law
law isis quite
quite clear
clear
(Section 3 GLA)
(Section GLA) thatthat only
only "the
"the President
President may
may make
make grants
grants or
or dispositions
dispositions
of any estates,
estates, interests
interests or rights
rights in
in or over un-alienated
Governmentland",land".
While the
While the President
President cancan and
and has
has delegated
delegated some
some ofof his
his powers
powers under
under the
the
GLA,
GLA, hehe can
can only
only delegate
delegate very
very limited
limited powers
powers under
under Section
Section 3 to to the
the
Commissioner
Lands.
Any
Any attempt
attempt by the
the Commissioner
Commissioner of LandsLands toto exceed
exceed these
these delegated
delegated
powers
powers under
under Section
Section 33 will
will result
result in
in an
an abuse
abuse ofof his
his office
office and
and he
hemay
may
have
have committed
committed an
an act
act of
of forgery
forgery resulting
resulting in
in an
an illegal
illegal title.
title.
47
47
Sichangi Adv
Illegal Allocations
Illegal Allocations
There are
There are many
many waysways in which
which aa title
title to
to land
land may
may bebe illegal.
illegal. Besides
Besides the
the
allocation of
allocation of land
land that is not
that -is not available
available forfor allocation
allocation as
as described
described above,
above, aa
title
title that
that has
has been
been created
created directly
directly asas aa result
result of
of one
one or
or more
more illegal
illegal acts
acts isis
also illegal title.
also an illegal title.
Letters of Allotment.
Letters Allotment.
In the
In the process
process ofof allocation,
allocation, once
once the
the approved
approved candidate
candidate forfor the
the land
land has
has
been selected,
been selected, a formal
formal offer
offer is made
made toto such
such person
person byby the
the Commissioner
Commissioner
of Lands.
of Lands. This
This offer
offer is called aa LETTER
is called LETTER OF ALLOTMENT. This
OF ALLOTMENT. This is
is
NOT a statutory
NOT statutory legal
legal requirement.
requirement However,
However, it practice that
it is a practice that has
has
the
the force
force of law. (In(In the
the law
law of
of contract).
contract).
Letter of Allotment
A Letter
A Allotment is is only
only anan offer
offer mademade to to the
the person
person to whom whom itit is is
addressed -—and
addressed andnono oneone else
elSe -- on the conditions
on the contained in the
conditions contained the Letter.
Letter.
One
One ofof the
the conditions
conditions in in the
the Letter
Letter states
states that
that the
the offer
offer is
is valid
valid for
for aa period
period
of
of 30 days
days only
only after
after which
which itit lapses
lapses andand isis of
of no
no further
further effect.
effect. During
During thatthat
period
period ofof 30 days,
days, the
the Letter
Letter ofof Allotment
Allotment is is of limited
limited valuevalue only
only to to the
the
person to
person to whom
whom it it isis addressed.
addressed. It It isis of
of absolutely
absolutely no no value
value totoanyone
anyone
else.
else. After
After the
the period
period of 30 30 days
days has
has elapsed,
elapsed, the the Letter
Allotment isis of of
no value to anyone
no value anyone at at all.
all. .
Being an offer
Being offer to
to aa named
named person,
person, aa Letter
Letter of
of Allotment cannot validly
Allotment cannot validly be
be
"sold" to
"sold" to some
some other
other person.
person. Any
Any person
person other
other than
than the
the person
person to
to whom
whom
the
the Letter
Letter is addressed
addressed cannot
cannot legally
legally use
use the
the Letter
Letter of Allotment
Allotment forfor any
any
purpose at all.
purpose
Letters of
Allotment also contain as
also contain as part
part of the the offer
offer thethe conditions
conditions
affecting the land tat will be included in the title when it is issued. One
affecting the land that will be included in the title when it is issued. One of
these conditions states
these conditions states that
that the
the land
land shall
shall not
not be be sold
sold or
or dealt
dealt with
with inin any
manner without first obtaining the prior consent of the Commissioner of
manner without first obtaining the prior consent of the Commissioner
Lands
Lands and, further,
further, that
that the
the Commissioner
Commissioner is is forbidden
forbidden from from considering
considering aa
request for his consent
request for consent until
until the
the land
land has
has been
been developed
developed ininaccordance
accordance
with
with the development
development condition
condition contained
contained in the title.title. If
If the
the Commissioner
Commissioner
of Lands,
of Lands, in breach
breach ofof his
his powers,
powers, attempts
attempts to consent
consent to to such
such aa sale
sale of
of an
an
accepted Letter of
accepted Letter of Allotment,
Allotment, his his consent
consent may may amount
amount to an an abuse
abuse ofof
office.
48
Sichangi Adv
Irregular Allocations
Irregular Allocations
An irregular
An irregular allocation
allocation is is an
an allocation
land that
that is is available
available forfor
allocation but
allocation but inin circumstances
circumstances where where thethe standard
standard operating
operating or or
administrative procedures
administrative procedures havehave not
not been
been observed.
observed. TheThe title
title created
created out
out of
such an irregular allocation will not be void
such an irregular allocation will not be void or illegal or illegal if
if all
all the
the other
other legal
legal
formalities have
formalities have been
been complied
complied with.
with. It
It will
will be
be an
an irregular
irregular title
title capable
capable ofof
rectification where
rectification where necessary.
necessary. SuchSuch titles are particularly
titles are particularly commoncommon in in
settlement schemes.
settlement schemes.
The
The Public
Public Interest
Interest
The phrase
The phrase "public
"public interest"
interest" isis used
used throughout
throughout this this Report
Report as as the
the doctrinal
doctrinal
basis for
basis for legally
legally faulting
faulting allocations
allocations of of Public
Public Land.
Land. ItIt is aa widely
widely usedused
doctrine by
doctrine by jurists and political
jurists and political scientists
scientists to describe
describe the corporate
corporate interest
interest
of a society.
of society. Although
Although the the doctrine
doctrine does
does not
not lend
lend itself
itself to
to very
very precise
precise
definition, itit is generally
definition, generally applied
applied toto refer
refer to
to interests
interests that
that are
are inherent
inherent inin
members
members of the public
of the public as as such.
such. These
These interests
interests cutcut across
across thethe socio,
socio,
political
political andand economic landscapeofof aa nation.
economic landscape nation. The The doctrine
doctrine is is not
not
specifically defined
specifically defined in in the
the Constitution
Constitution but but its
its salient
salient elements
elements for for the
the
purposes
purposes of this inquiry
inquiry are
are captured
captured in in section
section 75.
75.
5. THE
5. THE APPLICABLE
APPLICABLE LAW
LA W
The categories of public
The categories public land highlighted
highlighted above
above are subject
subject to various
various laws
laws
which prescribe
which prescribe the
the legal
legal procedures
procedurestoto be be followed
followed ifif they
they are
are to be be
allocated
allocated toto private
private individuals
individuals or companies.
companies. ThereThere are
are several
several laws
laws the
the
provisions of which
provisions which must
must bebe followed
followed by by the
the Government
Government to to create
create private
private
title
title to public
public land.
land. The
The main
main laws
laws in
in this
this regard
regard are:
are:
• The Constitution
The Constitution
• The Government
The Government Lands
Lands Act,
Act, (Cap
(Cap 280)
280)
• The Registration
The Registration of
of Titles
Titles Act,
Act, (Cap
(Cap 281)
281)
• The Trust
The Trust Land Act,
Act, (Cap
(Cap 288)
288)
• The Land
The Land Adjudication
Adjudication Act,
Act, (Cap
(Cap 284)
284)
• The Registered
The Registered Land Act,
Act, (Cap
(Cap 300)
300)
• The Sectional
The Sectional Properties
Properties Act,
Act, 1987
1987
• The Forests
Forests Act,
Act, (Cap
(Cap 385)
385)
• The Physical
The Physical Planning
Planning Act, 1996
1996
• The Wildlife
The Wildlife Management
Management and and Conservation
Conservation Act, (Cap 376)
• The Survey
Survey Act,
Act, (Cap
(Cap 299)
299)
49
Sichangi Adv
• The Land
The Land Consolidation
Consolidation Act,
Act, (Cap
(Cap 283)
283)
• The Environmental
The Environmental Management
Management and
and Coordination
Coordination Act,
Act, 1999
1999
These
These laws
laws contain
contain provisions
provisions which
which must
must be be strictly
strictly adhered
adhered to to before
before
public land
public land can
can be said
said to
to have
have been
been legally
legally allocated.
allocated. In In other
other words,
words, the
the
Government
Government cannot cannot validly
validly create
create private
private title
title to
to public
public land
land without
without
following
following thethe requirements
requirements as as stipulated
stipulated in in the
the laws.
laws. This
This isis because
because the
the
lands in
lands in question
question belong
belong to the
the people
people of Kenya
Kenya andand cannot
cannot be disposed
disposed of
to private
to private interests
interests without
without due
due diligence
diligence andand care
care toto the
the public
public interest.
interest.
Below
Below we we state
state in
in simple
simple terms,
terms, the
the steps
steps that
that must
must be be followed
followed in in the
the
allocation process
allocation process of public
public land.
land.
Who may
Who may allocate
allocate Public
Public land?
land?
Un-alienated Government Land
Land
Section
Section 33 of of the
the Government
Government lands lands Act
Act provides
provides that
that the
the President
President may may
subject to
subject to any
any written
written law,
law, make
make grants
grants of
of any
any estates,
estates, interest
interest or or rights
rights in
in
over "un-alienated
or over
or "un-alienated Government
Government Land".Land". The The power
power to to allocate
allocate un- un-
alienated
Government land land vests
vests only
only in
in the
the President
President and
and no
no other
other person.
person.
The President
The President maymay delegate
delegate such
such powers
powers to makemake direct
direct grants
grants of of un-
un-
alienated GovernmentLand Landtoto thethe Commissioner
of Lands only only inin
specified limited
specified limited circumstances
circumstances as as itemized
itemized in in PART
PART ONE ONE of ofthis
this Report.
Report.
In no
In no other
other circumstances
circumstances can can the
the President
President legally
legally delegate
delegate hishis powers
powers to to
the
the Commissioner
Lands.
But even
But even the
the President
President cannot
cannot exercise
exercise his
his powers
powers without
without paying
paying regard
regard toto
the public
the public interest.
interest. This
This argument
argument has
has already
already been
been advanced
advanced in
in detail
detail in
in
PART ONE
PART ONE of this
this Report.
Report.
Section
Section 9 ofof the
the Government
Government LandsLands Act
Act provides
provides that
that the
the Commissioner
Commissioner of
Lands may
Lands may cause
cause any
any portion
portion of a Township
Township Plot which is
Plot which is not
not required for
required for
public purposes
public purposes to to bebe divided
divided into
into plots
plots suitable
suitable forfor the
the erection
erection of of
buildings for
buildings for business
business or or residential purposes. Section
residential purposes. Section 12 12 of
of the
the Act
Act
provides that such
provides that such plots
plots shall
shall be sold by
be sold by auction
auction unless
unless the the President
President
orders
orders otherwise. Similar provisions
otherwise. Similar provisions are contained in
are contained in sections
sections 19 19 and
and 20 of
the same Act with regard to Agricultural land.
the same Act with regard to Agricultural land. This means that This means that the
the
Commissioner
Commissioner of of lands
lands can
can only
only cause
cause thethe subdivision
subdivision ofoftownship
township plots
plots
which are not required for public purposes. Such plots can only be sold by
which are not required for public purposes. Such plots can only be sold by
auction unless
auction unless the
the President
President gives
gives a written
written exemption.
exemption.
50
Sichangi Adv
The lands
The lands in in question
question must
must bebe planned and surveyed
planned and surveyed under
under the
the various
various
Planning legislations
Planning legislations such
such as
as the
the Physical PlanningAct. Act and
Physical Planning and the
the Survey
Survey ActAct
before being allocated.
before being allocated.
Alienated Government Lands
Lands
Neither the
Neither the President,
President, nor nor the
the Commissioner
Commissioner of
of Lands,
Lands, or or any
any other
other person
person
or authority has
or authority has powers
powers to to allocate
allocate public
public lands
lands which
which havehave been
been setset aside
aside
for
for aa public
public purpose.
purpose. ThusThus all all public
public utility
utility lands
lands and and protected
protected landslands
cannot be
cannot be legally
legally allocated
allocated to to an
an individual
individual or or company
company by by the
the President
President or or
the
the Commissioner
Commissioner of
of Lands.
Lands. Lands
Lands such
such asasroad
road reserves,
reserves, byby—passes,
-passes, playplay
grounds, forests,
grounds, forests, protected
protected areasareas etc
etc cannot
cannot be be legally
legally allocated.
allocated. Before
Before
such
such lands
lands are
are allocated,
allocated, theythey must
must bebe made
made available
available for for allocation.
allocation.
Before Public
Before Public utility
utility lands
lands can can be be allocated
allocated for for any
any other
other purpose;
purpose; they they
must be
must be subjected
subjected to to the
the legal
legal processes
processes of of user
user change
change contained
contained in in the
the
relevant statutes and then replanned in accordance
relevant statutes and then replanned in accordance with the areas' Master with the areas' Master
Plan making
Plan making them them available
allocation. OnceOnce that
that is
is done,
done, such
such lands
lands
can
can only
only be be allocated
allocated strictly
strictly in in accordance
accordance with
with the
the provisions
provisions of
of the
the
GLA. Haphazard
GLA. Haphazard re-planning
re-planning through Part
through Part Development
Development Plans does
Plans does notnot
suffice to
suffice to change
change land land from
from alienated
alienated toto un-alienated
Government land, land,
hence
hence available
allocation.
Similarly,
Similarly, lands which'
lands which I are
are already
already committed
committed to to the
the use
use ofofGovernment
Government
Ministries, Departments
Ministries, Departments or State
State Corporations
Corporations cannot
cannot bebe legally
legally allocated
allocated
since they are not un-alienated
since they un-alienated Government
Government lands.
lands. Such
Such lands
lands would
would have
have
to formally surrendered
to be formally surrendered to the
the Commissioner
Lands into
into the
the pool
pool of
of
un-alienated Government land before
before they
they can
can be
be allocated.
allocated. But
But even
even then,
then,
they
they would
would have
have to
to be
be allocated
allocated strictly
strictly in
in conformity
conformity with
with the
theprovisions
provisions
the Government
of the Government Lands Act Act and
and other
other Planning
Planning legislation
legislation cited
cited above.
above.
Protected lands
Protected lands are
are those
those which
which are
are specially
specially protected
protected under
under specific
specific
legislation such
legislation such as Gazetted
Gazetted Forests,
Forests, National
National Parks andand Reserves,
Reserves, Security
Security
Areas, Wetlands etc, such
Areas, Wetlands such lands
lands would
would have
have to
to be
be legally
legally removed
removed from
fromthethe
specific legislations
specific legislations under which
which they
they are
are protected
protected before
before they
they can
can legally
legally
be allocated. Thus, Forests
allocated. Thus, Forests would
would have
have to
to be
be removed
removed fromfrom the
the Forests
Forests Act
Act
through degazettement
through degazettement before
before they
they can be allocated.
allocated. National
National Parks
Parks would
would
have
have to removed from
to be removed from the
the Wildlife
Wildlife Conservation
Conservation and and Management
Management Act. Act.
The
The Protected
Protected Areas
Areas would
would have
have to
to be
be removed
removed from
from thetheProtected
Protected Areas
Areas
51
51
Sichangi Adv
Act.
Act. Again, even after
Again, even after these
these actions
actions have
have been
been taken
taken by
by the
the Minister
Minister forfor the
the
time being in
time being in charge
charge of of the
the protected
protected areas,
areas, the
the provisions
provisions of of thethe
Government
Government Lands Act and
Lands Act and other
other Planning
Planning and
and Environmental
Environmental Legislation
Legislation
would have
would have to
to be
be strictly
strictly followed
followed before
before such
such lands
lands cancan bebe legally
legally
allocated.
allocated.
Trust land
Trust land
We have
We have already
already indicated
indicated that
that Trust
Trust lands
lands have
have been
been abused
abused by
by those
those who
who
are charged with
are charged with the
the duty
duty of
of protecting
protecting them
them under
under the
the law.
law.
\
The only ways
The only ways in in which
which trust
trust land
land can
can be
be legally
legally removed
removed fromfrom thethe
communal
communal ownership
ownershipofofithe the people
people isis through
through adjudication and
adjudication and
registration
registration oror Setting Apart. Adjudication
Setting Apart. Adjudication and
and registration
registration removes
removes the the
particular lands
particular from the
lands from the purview
purview of of community
community ownership
ownership and and places
places
them under
them under individual
individual ownership.
ownership. Setting
Setting apart
apart removes
removes the the trust
trust lands
lands
from
from thethe dominion
dominion of of community
community ownership
ownership andand places
places them
them under
under the
the
dominion
dominion of of public
public ownership.
ownership.
The Constitution makes
The Constitution makes it clear
clear that
that Trust
Trust lands
lands belong
belong to to the
the people
people who who
are ordinarily resident
are ordinarily resident in in the
the area
area inin which
which they
they are
are situated.
situated. Therefore
Therefore any any
allocation
allocation of of Trust
Trust land
land can
can only
only be be made
made to thethe local
local people
people of of the
the area.
area.
The area must
The area must bebe declared
declared an an Adjudication
Adjudication Area Area under
under the the Adjudication
Adjudication
Act.
Act. The local people
The local people must
must be be given
given ample
ample notice
notice and
and opportunity
opportunity to to make
make
claims
claims of of ownership
ownership to to the
the land
land in in accordance
accordance with with their
their Customary
Customary Law. Law.
Their rights must
Their rights must be be recorded
recorded on on the
the Adjudication
Adjudication RegisterRegister by by the the
Adjudication
Adjudication officer.
officer. After every body
After every body isis satisfied
satisfied with
with thethe Adjudication
Adjudication
Process, then
Process, each person
then each person whose
whose name name is is on
on the
the Adjudication
Adjudication Register
Register isis
registered as
registered as a proprietor
proprietor of of his/
his/ herher particular
particular piece
piece of of land
land under
under the the
Registered
Registered Land Land Act.
Act.
Trust land cannot
Trust land cannot be be legally
legally allocated
allocated unless
unless the
the above
above procedure
procedure is is strictly
strictly
followed.
followed.
6. THE
6. THE ABUSE
ABUSE OF
OF CURRENT
CURRENT LAWS
LAWS LEADING
LEADING TO
TO ILLEGAL
ILLEGAL
ALLOCA TION OF
PUBLIC LAND
LAND
(a)
(a) Substantive
Substantive Abuses
Abuses
The
The laws
laws as as stated
stated above
above have
have been
been variously
variously abused
abused by byGovernment
Government
officials collaboration with professionals and other individuals. These
officials in collaboration with professionals and other individuals. These
abuses have
abuses have resulted
resulted in the
the creation
creation of
of thousands
thousands ofof illegal
illegal titles
titles totopublic
public
52
Sichangi Adv
land hence
land hence this Commission of
this-Commission of Inquiry.
Inquiry. TheThe abuses
abuses lielie in
in the
the fact
fact that
that
public
public land
land has
has been
been allocated
allocated contrary
contrary to to the
the substantive
substantive and and procedural
procedural
provisions
the relevant
relevant laws
laws as
as outlined
outlined above.
above. WeWe here
here below
below re-state
re-state
the main abuses
the main abuses of
of law
law which
which lead
lead to the
the creation
creation of illegal
illegal titles
titles to
to land.
land.
1. Where the
1. Where the Commissioner
Commissioner of Lands without
of Lands without thethe written
written instructions
instructions of
of
the President
the purports to
President purports to directly
directly allocate
allocate un-alienated
Government
land to
land to anan individual
individual or
or company
company under
under section
section 3 of of the
the Government
Government
Lands Act
Lands Act inin circumstances
circumstances other
other than
than inin exercise
exercise ofofdelegated
delegated
authority.
authority.
Where the
2. Where
2. the President
President allocates allocates un-alienated
Government land
land to to an
an
individual or
individual or company
company contrary contrary to to the
the provisions
the Government
Government
Lands Act
Lands Act andand any any otherother applicable
applicable laws laws andand in in circumstances
circumstances that that
show a total
show total disregard
disregard of of the
the Public
Public interest.
interest.
3. Where
3. Where the the President
President or or Commissioner
Lands allocates
allocates alreadyalready
alienated land or land which is designated for a public utility/purpose
alienated land or land which is designated for a public utility/purpose
to an
to an individual
individual or or company.
company. (Alienation
(Alienation includes
includes aa letter
letter of of
reservation)
-, reservation)
4. Where the
4. Where the Commissioner
of Lands allocates
allocates a townshiptownship plot plot to to an
an
individual or company without auction or other recognized form of
individual or company without auction or other recognized form of
public sale
public sale in in circumstances
circumstances where the
where the President
President has has not
not givengiven aa
written exemption.
written exemption.
5.
5. Where
Where the the Commissioner
Commissioner of
of Lands
Lands allocates
allocates land land which
which is is suitable
suitable
for
for agricultural
agricultural purposes
purposes to an an individual
individual or or company
company without without auctionauction
in
in circumstances
circumstances where the
where the President
President has has notnot givengiven aa written written
exemption.
exemption.
6. Where
6. Where the the President
President or or Commissioner
Lands allocates
allocates land land which
which
is
is classified
classified as as aa protected
protected area area under
under aa specific
specific statute.
statute.
7.
7. Where
Where the the President,
President, Commissioner
Commi-ssioner of Lands
of Lands or or county
county council council
allocates Trust land
allocates Trust land to to people
people in in a.manner
a.manner which which does does notnot conform
conform to to
the Constitution,
the Constitution, the the Trust
Trust Land
Land Act,Act, andand the
the Land
Land Adjudication
Adjudication Act. Act.
8. Where aa County
8. Where County Councilor
Council or any any other
other calocal authority,
authority, allocates
allocates land land
which
which is is within
within its its jurisdiction
jurisdiction but but whi
whi is set
is set aside
aside for for public
public
purposes; unless
purposes; unless the the allocation
allocationisisaa sub sub lealeas for for the
the same
same publicpublic
purpose.
purpose.
All
All these
these amount
amount to to abuses
abuses ofof substantive provisionso~e
shbstantive provisions o he law
law which
which
render
render the
the allocation
public land
land illegal.
illegal. All
Alltitles
titles is3.-u,ed by the
issued by, the
Commissioner
Lands subsequent
subsequent toto suchsuch illegal
illegal allocation\are
allocations-are also
also
53
Sichangi Adv
illegal. In
illegal. In such
such cases,
cases, the
the Commissioner
Lands oror officers
officers of
of the
the Local
Local
Authority concerned
Authority concerned may
may bebe guilty
guilty of
of abuse
abuse of
of office.
office.
(b)
(b) Procedural
Procedural Abuses
Abuses
Apart from
Apart from the
the abuses
abuses ofof substantive
substanti ve provisions
provisions of
of the
the law,
law, there
there are
are other
other
transgressions of
transgressions of procedural
procedural requirements which also
requirements which also render
render the
the resultant
resultant
titles to
titles to public
public land
land illegal.
illegal.
It is in
It is the allocation
in the allocation process
process thatthat most
most of thethe corruption
corruption andand fraudulent
fraudulent
practices relating
practices relating to to land
land have
have occurred.
occurred. AsAs mentioned
mentioned above,
above, Section
Section 33 of of
the GLA is
the GLA is the
the law
law that
that authorises
authorises thethe President
President toto make
make a grant
grant [of[of title]
title] or
the disposition
the disposition ofof any
any estate
estateoror interest
interestinin or over unalienated
or over unalienated
Government
Government land. The
land. The word "unalienated" means
word "unalienated" means just
just what
what itit says.
says. With
With
reference to
reference to a plot
plot of
of land
land itit means
means that
that the
the particular
particular plot
plot has
has not
not already
already
been made
been made the the subject
subject ofof aa grant
grant or
or other
other disposition
disposition by by the
the only
,only lawful
lawful
authority, the
authority, the President.
President.
It also
It also means
means thatthat the
the particular
particular plot
plot has
has not
not been
been lawfully
lawfully reserved
reserved for
for aa
particular use
particular use or or protected
protected by by law
law from
from being
being disposed
disposed of of without
without some
some
other step
other step first
first being
being taken
taken lawfully
lawfully -toto make
make the the land
land available
available forfor
alienation. Thus, for
alienation. Thus, for example,
example, landland that
that is
is being
being andand has
has been
been used
used for
for aa
school including
school including a playground
playground cannot
cannot lawfully
lawfully be allocated
allocated until
until and
and unless
unless
the procedure
the procedure, for for obtaining
obtaining a change
change of use use under
under the the Physical
Physical Planning
Planning
Act 1996
Act 1996 hashas been
been strictly
strictly complied
complied with with and and allall appeals
appeals heard
heard and
and
determined. An
determined. An area of forest
area of forest cannot
cannot be be allocated
allocated until
until it has
has ceased
ceased to be be
"forest" and
"forest" and under
under thethe Forests
Forests Act,
Act, that
that means
means formal
formal degazettement
degazettement and and
the settling
the settling of all
all objections.
objections.
Any attempt
Any to allocate
attempt to allocate land
land that
that is
is not
not available
available forfor allocation
allocation is
is of
of no
no
legal effect and
legal effect and any
any title
title issued
issued in
in such
such cases
cases is
is illegal.
illegal.
Trust
Trust Land
Land is administered
administered by by the
the Local
LOGal Authority
Authority having
having jurisdiction
jurisdiction over
over
the area
the area where
where the
the land
land is
is situated.
situated. When
When suchsuch land
land isis to
to be
be allocated,
allocated, itit
must be
must be subjected
subjected to to all
all the
thestipulated
stipulated procedures
procedures under under the the Land
Land
. Adjudication
Adjudication Act. Any
Act. Any attempt
attempt to to allocate Trust land
allocate Trust land contrary
contrary to to the
the
" procedures under this
procedures under this Act
Act renders
renders thethe resultant4itle
resultant{}tle illegal.
illegal.
The
The entire
entire policy
policy of
of the
the Government
Government relating
relating toto die administration of
the.administration of land
land
must be
must be based
based on
on planning
planning the
the use
use of
of that
that land.
land. There
There are
areoverall.
overall Master
.Master
54
Sichangi Adv !iIio-'
Plans for all

Plans for all or
or most
most townships
townships andand other
other urban
urban areas
areas in
inthethecountry.
country.
Individual developments should
Individual developments should fit
fit into
into the
the master
master plan
plan and
andanyanyvariation
variation
should
should receive
receive the
the formal
formal approval
approval of of planning
planning authorities
authorities ininaccordance
accordance
with the current
with current law.
law.
Frequently,
Frequently, thisthis has
has not happened at
not happened all. In
at all. In many
many other
other cases,
cases, aaPart Part
Development
Development Plan Plan (PDP),
(PDP), whichwhich isis the
the formal
formal document
document required
required before
before aa
Survey is
Survey carried out,
is carried out, is prepared
prepared in the the office
office of aa Planner
Planner who
who does
does not not
even visit
even visit the
the site
site totoascertain
ascertain thethe current
current development
development or or whether
whether the the
proposed development is
proposed development is aa practical
practical useuse of
of the
the land.
land. Sometimes
Sometimes suchsuchPlansPlans
are prepared in total
are prepared total disregard
disregard of the legallegal status
status of the land.
land. Thus,
Thus, itit is
is not
not
unusual
unusual to see aa part
to see part development
development plan plan of of a a.residential
residential house
house being
being
prepared for
prepared for land
land that
that isis reserved
reserved forfor aaroad!
road! AllAllthese
theseprocedural
procedural abuses
abuses
render resultant titles
render the resultant titles to
to such
such land
land illegal.
illegal.
This Commission
This Commission therefore
therefore based
based itsits Inquiry
Inquiry onon the
the definition
definition ofofpublic
public
land, and
land, and the law relating
relating to
to such
such land
land as as stated
stated in
in this
this Chapter.
Chapter. During
During the
the
process of
process of the
the inquiry
inquiry however,
however, the the Commission
Commission had had to
to grapple
grapple with
with aa
number of difficult
number difficult questions
questions and
and legal
legal intricacies.
intricacies. Some
Some ofof these
these questions
questions
are addressed below.
addressed below.
7. THE
THEPROBLEM
PROBLEM OF
OFTHIRD
THIRD PARTY
PARTY INTERESTS
INTERESTS
One of the main

One main terms
terms ofof reference
reference forfor this
this Commission
Commission isistotorecommend
recommend
legal and administrative
legal and administrative measures
measures for for the
the restoration
restoration of of public
public lands
lands toto
their proper title
their proper title or purpose,
purpose, having
having due regard
regard to thethe rights
rights ofof any private
private
person having
person having anyany bona
bona fide
fide entitlement
entitlement to to or
or a claim
claim of of right
right over
over the
the
lands concerned.
lands concerned. Such rights are referred
Such rights referred to in thisthis section
section as as third
third party
party
interests. For
interests. For the
the avoidance
avoidance of of doubt,
doubt, inin the
the context
context of of this
this Inquiry,
Inquiry, third
parties are those
parties those people
people whowho have
have subsequent
subsequent to to an
an illegal
illegal ororirregular
irregular
allocation public land
land toto the
the original
original allottee,
allottee, "acquired
"acquired an an interest"
interest"
such land.
in such land. Such
Such interest
interest may be acquired
acquired pursuant
pursuant to to the
the following:
following:
1. By
Bywayway of an inter
of an inter vivos transfer through
vivos transfer through purchase
purchase or lease
lease from
from
the original
the original allottee
allottee to
to the
the third
third party.
party.
2. By way of
By way mortgage or
of aa mortgage charge of
or aa charge the land
of the land by
by the
the original
original
allottee (usually aa bank
allottee to the third party (usually bank or
or other
other chargee).
chargee).
3. By
By way
way of transmission of
of aa transmission of the
the original
original allottee's
allottee's title
title to
to his
his
successor or assign
successor assign (heir
(heir through
through intestacy
intestacy or
or will).
will).
55
55
Sichangi Adv
4. By
4. Byway
way of
oftransfer
transfer through gift by
through a gift by the
the original
original allottee
allottee to
to the
the third
third
party.
party.
It should
It should bebe noted
noted that
that third
third parties
parties can
can and
and do also
also create
create interests
interests similar
similar
to those
to those acquired
acquired by
by them
them in in favour
favour of
of subsequent
subsequent parties.
parties. The
The third
third party
party
need
need not
not therefore
therefore be
be the
the immediate
immediate One.
one.
Those parties who

Those parties who acquire
acquire interests
interests inin the
the land
land in
in the
the manner
manner 'specified
'specified in in 1,1,
3,
3, and
and 4 above
above would
would claim
claim to to have
have obtained
obtained an an estate
estate similar
similar and
and equal
equal inin
terms of
terms of quantum that held by the original
quantum to that-held original allottee.
allottee. Those
Those whowho acquire
acquire
interests
interests inin the land in the
the land the manner
manner specified
specified in above do
in 2 above do notnot obtain
obtain aa
similar
similar or equal
equal estate.
estate. They
They however
however acquireacquire substantial
substantial rights
rights over
over the
the
mortgaged or charged
mortgaged charged landland in in that
that in
in .the event of the mortgagor
'the event mortgagor or chargorchargor
failing
failing to repay
repay the
the loan,
loan, theythey can
can exercise
exercise powers
powers overover the
the land
land aimed
aimed atat
enabling them
enabling them realize
realize their
their security.
security. TheseThese powers
powers include
include but but are
are not
not
limited to the right of
limited of sale.
sale. Thus, to to the
the extent
extent that
that the
the loan
loan remains
remains unpaid,
·unpaid,
the original
the original allottee's
allottee's title
title isis to
to that
that extent
extent encumbered.
encumbered. After After all,
all, the
the
purpose of
-purpose of a mortgage
mortgage or charge charge is is to enable
enable thethe lender
lender hold
hold title
title to
to the
the
land as security
land security for
for the
the repayment
repayment of of the
the loan.
loan.
(a)
(a) The
TheProblem
Problem
The main question

The main question which
which this
this Commission
Commission had had to answer
answer from
from the
the very
very
beginning was; what
beginning was; what should
should happen
happen toto all
all these
these people
people who
who have
have acquired
acquired
interests
interests in illegally allocated
in illegally allocated land
land from
from thethe original
original allottees?
allottees? Several
Several
questions -arise
questions from this scenario:
arise from scenario:
1. Is such
1. such aa third
third party
party title/interest
title/interest legal
legal or valid
valid in
in any
any sense?
sense? If
If so
so
on what
what basis
basis or ground?
ground?
2. Isr"such
2 sucha athird
thirdparty
partytitle/interest
title/interest illegal
illegal from
from the
the very
very beginning?
beginning?
3. If the answer
answer to question
question 11 above
above is
is in
in the
the affirmative,
affirmative, what
what effect
effect
would
would such aa conclusion
conclusion have
have on
on the
the recommendation
recommendation to to revoke
revoke all
all
illegal allocations?
illegal allocations?
4. If the
the answer
answer to
to question
question 22 above
above is
is in
in the
the affirmative,
affirmative, what
what effect
effect
would such a conclusion
would conclusion have on the third party
party title/ interest?
interest?
5. Assuming
Assuming thatthat the
the third
third party
party has
has developed the land
developed 'the land at
at aa
considerable cost, would
considerable cost, would such
such aa factor
factor have
have any
any bearing
bearing on the
the
recommendation
recommendation to revoke
revoke and restore
restore such title?
title?
56
Sichangi Adv
6. If
6. If the
the third
third party
party is
is aa mortgagee/
mortgagee/ chargee,
chargee, would
would the
the fact
fact that
that itit has
has
advanced considerable
advanced considerable amounts
amounts of
of money
money onon the
the security
security of of such
such
title have any bearing on the recommendation to revoke and restore
title have any bearing on the recommendation to revoke and restore
such title?
such title?
7. Is there
7. Is there any
any legal
legal basis
basis for
for treating
treating third
third party
party interests/
interests/ titles
titles
differently from
differently from all
all the
the other
other illegally
illegally acquired
acquired titles?
titles?
If the
8. If
8. the answer
answer to to question
question 7 above
above isis in
in the
the negative,
negative, what
what are
are the
the
options available
options to provide
available to provide aa legal
legal basis
basis ifif any
any for
for maintaining
maintaining
such
such interest?
interest?
(b) Illegality From

(b) Illegality From the
the Very
Very Beginning (void ab
Beginning (void ab initio)
initio)
One
One of of the
the fundamental
fundamental principles
principles of of law
law in in land
land transactions
transactions is
is that
that aa
person
person (interest holder) cannot
(interest holder) cannot transfer
transfer aa greater
greater or or better
better interest
interest to to
another than
another than he he himself
himself holds.
holds. This
This means
means for for example
example that that aaperson
person
having a leasehold
having leasehold interest
interest cannot
cannot purport
purport to to transfer
transfer aa freehold
freehold interest
interest to to
another in
another in the
the same
same parcel
parcel of of land
land asas the
the latter
latter isis greater
greater than
than thethe leasehold.
leasehold.
This also
This also means
means that that the
the holder
holder of of anan illegal
illegal title
title cannot
cannot transfer
transfer andand pass
pass
on
on a legal
legal title
title to
to another
another person
person in in the
the same
same parcel
parcel of of land.
land. The The situation
situation
would be
would be different
different where
where thethe title
title in
in question
question is is an
an irregular
irregular one one asas opposed
opposed
to
to being
being out out rightly
rightly illegal,
illegal, as as the
the former
former can can be bevalidated
validated through
through
rectification
rectification of title.title.
If
If this
this principle
principle is is to
to bebe applied
applied toto third
third parties
parties whowho acquired
acquired illegally
illegally
allocated public
allocated public land
land from
original allottees,
allottees, it means
means those
those titles
titles are
are
illegal without
illegal without exception.
exception. Nor Nor would
would thethe manner
manner of of acquisition
acquisition makemake any any
difference
difference (purchase, gift,
(purchase, gift, transmission
transmission or
or mortgage).
mortgage). The The ultimate
ultimate
consequence
consequence ofof this
this conclusion
conclusion isis that that a decision
decision to to revoke
revoke would,
would, ifif
implemented,
implemented, extinguish all
extinguish all such
such interests
interests since
since they
they never
never existed
existed in in the
the
eyes
eyes of of law
law in the
the first
first place.
place.
Arguments
Arguments in in favour
favour of of such
such third
third party
party interests
interests areare bound
bound to to be
be based
based on on
the
the Constitution.
Constitution. In
In this
this respect,
respect, opinions
opinions (hitherto
(hitherto unchallenged)
unchallenged) have have
been expressed
been expressed to to the
the effect
effect that
that the
the Constitution
Constitution protects
protects private
private property;
property;
land included.
land included. Being
Being the the supreme
supreme law law of
of the
the land,
land, itit supercedes
supercedes all all policies
policies
and laws
and laws inin respect
respect of of private
private property.
property. TheThe often
often quoted
quoted section
section ininsupport
support
of this
of this reasoning
reasoning is section
section 75 75 ofof the
the Constitution.
Constitution. A A close
close reading
reading of of that
that
section however
section however reveals
reveals that that itit is meant
meant to to protect
protect legitimate
legitimate holders
holders of of
property
property fromfrom compulsory
acquisition of of their
their property
property without just cause
without just cause
57
Sichangi Adv
and without
and without fullfull compensation
compensation by by the
the Government.
Government. Property
Property in in this
this sense
sense is is
not
not confined
confined to to land.
land. The
The Constitution
Constitution in
in this
this regard
regard only
only seeks
seeks to to protect
protect
legally acquired
legally acquired property
property andand not
not otherwise.
otherwise. The supreme
The supreme law law ofof the
the land
land
cannot
cannot by any stretch
by .any stretch ofof imagination
imagination purport
purport to to protect
protect stolen
stolen property
property (in (in
this
this instance,
instance, public
public land
land acquired
acquired contrary
contrary to to law).
law). It It is the
the considered
considered
opinion
opinion of of this
this Commission
Commission that that illegally
illegally acquired
acquired land land is is not
not property
property
falling under
falling under the category that
the category that is protected by
is protected Section 75
by Section 75 ofof the
the
Constitution against
Constitution against state
state expropriation
expropriation without compensation.
without compensation.
By revoking
By revoking all
all illegally
illegally acquired
acquired titles
titles to to land,
land, the
the government
government would would
simply
simply be be officially
officially declaring
declaring that such
that such titles
titles were
were never titles ab
never titles initio
ab initio
(from
(from thethe beginning)
beginning) and
and cannot
cannot enjoy
enjoy protection
protection by
by the
the law.
law. ByBy restoring
restoring
them
them to to their
their original
original title
title oror purpose,
purpose, the the Government
Government would
would simply
simply be be
applying
applying the doctrine
the doctrine of restitution
of restitution which which courts courts of
of lawlaw do do habitually
habitually
apply
apply with
with respect
respect to to stolen
stolen property
property in in the
the criminal
criminal justice
justice system.
system. Thus,
Thus,
compulsory acquisition is
is the
the exercise
exercise of Eminent Domain
of Eminent Domain powers powers of of the
the
state by Government
state by Government in
in respect
respect of justly, and
of justly, and legally
legally held
held private
private land.
land.
However, aa number
However, number of of provisions
provisions in
in the
the Registered
Registered Land
Land Act,
Act, CapCap 300 300
raise some
raise some legal
legal difficulties
difficulties which
which mustmust be be surmounted
surmounted to
to facilitate
facilitate
revocation of
revocation of illegal
illegal titles
titles toto land.
land. OfOf these,
these, the
the most
most formidable
formidable is
is section
section
143 (1)
143 (1) and
and (2).
(2). Sub
Sub section
section 11 provides
provides as as follows:
follows:
Subject
Subject to subsection (2),
to subsection the court
(2), the court may
may order
order rectification
rectification of of the
the
register
register byby directing
directing that
that any
any registration
registration be be cancelled
cancelled or or amended
amended
where itit is
where is satisfied
satisfied that
that any
any registration
registration (other than
(other than a first
first
registration)
registration) has been
has been obtained, made or
obtained, made or omitted
omitted by by fraud
fraud or or
mistake.
mistake.
While sub
While sub section
section (2)
(2) provides
provides as
as follows:
follows:
The register shall

The register shall notnot be
be rectified
rectified so so as
as to
to affect
affect the
the title
title of
of aa
proprietor who
proprietor who is is in
in possession
possession and and acquired
acquired thethe land,
land, lease
lease oror
charge .for
charge . for valuable
valuable consideration,
consideration, unless such
unless such proprietor
proprietor had had
knowledge ofof the
knowledge the omission,
omission, fraudfraud oror mistake
mistake inin consequence
consequence of of
which the
which the rectification
rectification is is sought,
sought, or or caused
caused such
such omission,
omission, fraud
fraud oror
mistake or
mistake substantially
or substantially contributed
contributedtoto itit by his act,
by his act, neglect
neglect or or
default.
default. '
In interpreting
In interpreting these provisions,
these provisions, the Courts
the Courts have have ruled
ruled that
that they
they are
are
effectively prevented
effectively prevented fromfrom revoking
revoking aa first
first registration
registration even
even when
when itit' isis
clear that
clear that such
such registration
registration has
has been
been obtained
obtained fraudulently.
fraudulently. To
To ourour
58
58
Sichangi Adv
knowledge, there has
knowledge, there has not
not been
been any
any case
case brought
brought before
before the
the Courts
Courts where
where
they
they have
have ruled
ruled that
that they
they are
are unable
unable to
to rectify
rectify aa subsequent
subsequent registration.
registration.
Section
Section 14 14 of
of the
the RLA
RLA clearly
clearly states
states that
that the
the date
date ofof aafirst
first registration
registration
under the
under the Act
Act isis the
the date
date on on which
which the the land
land first
first came
came ontoonto thethe register
register
(14(d) or, where
(14(d) or, where thethe title
title has
has been
been converted
converted from
from thethe Registration
Registration of ofTitles
Titles
Act, the
Act, the date
date on
on which
which the the RLA
RLA waswas applied
applied to thethe land
land concerned
concerned [14(a)].
[14(a)].
This
This Section
Section taken
taken together
together withwith Section
Section 12(a)
12(a) and
and (b)(b) shows
shows conclusively
conclusively
that
that the
the Registrar
Registrar shall
shall register
register thethe Government
Government as as the
the proprietor
proprietor of of all
all
Government
Government land in
land in the
the area
area and
and shall
shall register
register thethe appropriate
appropriate CountyCounty
Council
Council as as the
the proprietor
proprietor of of all
all Trust
Trust Land
Land in in the
the area
area unless
unless the the Land
Land
Adjudication Act
Adjudication Act oror the
the Land
Land Consolidation
Consolidation Act Act hadhad already
already beenbeen applied
applied
to
to that
that area.
area.
Thus
Thus in the
the case
case of
of any
any land
land that
that has
has been
been registered
registered under
under the
the RLA
RLA since
since
1963, the first
1963, the first registered proprietorofof that
registered proprietor that land
land will
will be be either
either the
the
Government or the
Government the appropriate
appropriate County
County Council,
Council, whether
whether the
the register
register shows
shows
such registration or
such registration or not.
not.
Where however
Where however the the title
title in
in question
question satisfies
satisfies all
all the
the legal
legal requirements
requirements of of aa
first
first registration,
registration, then
then constitutional
constitutional arguments
arguments can can be be raised
raised against
against
section 143(1)
section 143(1) pending
pending its repealrepeal byby Parliament.
Parliament. A law law that
that seeks
seeks toto protect
protect
fraud
fraud or or any
any other
other formform ofofillegality
illegality would
would bebeunconstitutional
unconstitutional and and
therefore void. A
therefore void. A constitutional
constitutional challenge
challenge to to section
section 143(1)
143(1) would
would be be aa
necessary response to
necessary response to all
all those
those whowho will
will seek
seek to to challenge
challenge revocations
revocations of of
their illegal titles
their illegal titles on
on thethe basis
basis ofof this
this section.
section. Fraud
Fraud is is one
one ofof the
the worst
worst
forms
forms of of illegality
illegality and and aa lawlaw which
which legalizes
legalizes fraud
fraud through
through thethe backdoor
backdoor
should
should bebe struck
struck offoff from
from thethe statute
statute books.
books.
With
With regard
regard toto section
section 143(2),
143(2), similar
similar constitutional
constitutional arguments
arguments cancan be
be
raised. But other
raised. But other solid
solid legal
legal arguments
arguments cancan also
also be
be raised
raised based
based onon the
the
Registered Land Act
Registered Land Act itself.
itself. For
For example,
example, section
section 4 ofof this
this Act
Act provides
provides as
as
follows:
follows:
Except
Except as as otherwise
otherwise provided
provided in thisthis Act,
Act, no no other
other written
written law
law andand
no
no practice
practice or or procedure relating toto land
procedure relating land shall
shall apply
apply to to land
land
registered under this
registered under this Act
Act soso far
far as
as itit isis inconsistent
inconsistent with with this
this Act:
Act:
provided that,
provided that, except
except where
where a contrary
contrary intention
intention appears,
appears, nothing
nothing
contained
contained in in this
this Act
Act shall
shall be
be construed
construed as as permitting
permitting any any dealing
dealing
which
which is is forbidden
forbidden by by the
the express
express provisions
provisions of of any
any other
other written
written
law,
law, oror asas overriding
overriding any any provision
provision of of any
any other
other written
written law law
requiring
requiring thethe consent
consent oror approval
approval of of any
any authority
authority to to any
any dealing.
dealing.
59
Sichangi Adv
It is clear
It clear from
from the
the above Proviso that
above Proviso that the
the Registered
Registered LandLand ActAct was
was never
never
meant to supercede all other written laws which regulate
meant supersede all other written laws which regulate dealings in land. dealings in land.
This means
This means that
that valid
valid title
title to
to land
land cannot
cannot be be created
created under
under the
the Registered
Registered
Land
Land Act,
Act, for
for example
example contrary
contrary to the the provisions
provisions of the the Forests
Forests Act Act if if the
the
land question is aa Gazetted
land in question Gazetted Forest,
Forest, oror the
the provisions
the Government
Government
Lands
Lands ActAct if the land
land in
in question
question is is Government
Government land, land, or
or the
the provisions
provisions of of
the Land Control
the Land Control ActAct if the the land
land inin question
question is is agricultural
agricultural land,
land, or or the
the
provisions of
provisions of the
the Trust
Trust Land
Land ActAct oror the
the Land
Land Adjudication
Adjudication Act Act ifif the
the land
land
in question is Trust
in question Trust Land
Land and and soso on.
on. AnAn invalid
invalid title
title under
under the
the Registered
Registered
Land Act cannot
Land Act cannot enjoy
enjoy thethe protection
protection of of that
that Act.
Act.
(c) The
(c) TheGuarantee
GuaranteeofofTitle
Titleby
byGovernment
Government
Arguments are
Arguments are bound
bound to to be
be advanced
advanced to to the
the effect
effect thatthat titles
titles acquired
acquired
pursuant to the
pursuant the registration
registration ofof aa person
person under
under either
either thetheRegistered
Registered Land Land
Act the Registration of Titles Act are guaranteed by the Government
Act or the Registration of Titles Act are guaranteed by the Government
hence
hence unchallengeable
unchallengeable in courts
courts of law.
law. While
While itit is
is legally
legally correct
correct to to assert
assert
that such titles
that such titles are
are guaranteed
guaranteed by the Government,
by the Government, itit would would be be aa
misstatementofofthe
misstatement the law
law toto argue
argue that
that the
the titles
titles are aretherefore
therefore
unchallengeable
unchallengeable in law.
law.
The guarantee
The guarantee of title which
of title which is is aa feature
feature ofof the
the TORRENS
TORRENS SYSTEM SYSTEM of of
registration
registration"6 simply
simply means
means that
that the
the Government
Government guarantees
guarantees the the correctness
correctness
of
of all the entries in the register with regard to a
the entries in the register with regard a specific title. Itspecific title. It seeks
seeks to
to
make the
make the search
search ofof information
information beyondbeyond whatwhat is notednoted on on thethe register
register
superfluous.
superfluous. Any Any person
person who suffers
suffers loss as a resultresult of the incorrectness
incorrectness of
the
the register
register hashas toto bebecompensated
compensated by by the
theGovernment
Government which which has has
guaranteed the correctness
guaranteed the correctness of the register. Guarantee of title is against
register. Guarantee of title is against loss loss
and not an assurance
and not assurance of of all time
time legality
legality of
of title.
title. That
That is is why
why bothboth the
the
Registered
Registered Land Land Act Act and
and the
the Registration
Registration of of Titles
Titles Act
Act provide
provide for for
rectification of title by the
rectification the Registrar
Registrar and and the
the Court.
Court.' 7 I
6 For a detailed
detailed discussion
discussion of systems
systems of land registration
ofland registration in general
general and the TORRENS
TORRENS
SYSTEM
SYSTEM in particular,
particular, see SIMPSON
SIMPSON S.R Land Law and
Land Law and Registration,
Registration, Book
Book 1,1,
Cambridge
Cambridge University
University Press
Press from
from pp 14.
14.
The Registered
7 The Registered Land
Land Act
Act provides
provides for
for rectification
rectification of
of the
the Register
Register inin sections
sections 142-144.
142-144,
Section
Section 144(2)
144(2) provides
provides that
that no
no indemnity
indemnity shall
shall be
be payable
payable under
under the
the Act
Act to
to any
any person
person
who
who has
has himself
himself caused
caused or substantially
substantially contributed
contributed toto the
the damage
damage byby his fraud
fraud or
negligence,
negligence, or whowho derives
derives Title (otherwise than
Title (otherwise than under
under a registered
registered disposition
disposition made
made
bona fidefor
bona fide for valuable
valuable consideration) from aa person
consideration) from person who-so
who so caused
caused or substantially
substantially
contributed to the
contributed the damage. The Registration
damage, The Registration of Titles provides for
Titles Act provides for rectification
rectification of
of the
the
register in sections
register sections 59-64.
59-64,
60
60
Sichangi Adv
(d)
(d) The
TheBona
BonaFide
FidePurchaser
Purchaser for
forValue
Value Without
Without Notice
Notice
In the course
course of'of this
this inquiry,
inquiry, arguments
arguments have have beenbeen advanced
advanced totothe theeffect
effect
that
that a person
person who acquires
acquires an illegal
illegal title
title from
from an an original
original allottee
allottee without
without
notice of such
notice of such illegality
illegality is is an
an innocent
innocent purchaser
value who
who should
should be be
protected
protected by by law.
law. The The doctrine
doctrine of Bona Bona Fide
Fide purchaser
value without
without
Notice has
Notice has its roots
roots in the branch
branch of law called Equity. It specifically
called Equity. specifically relates
relates'
to
to the
the institution
institution of of aa Trust
Trust in in English
English law.law. A A trust
trust isis essentially
essentially an an
equitable interest as
equitable interest as opposed
opposed toto aa legal legal interest. Trusts were
interest. Trusts were not not
enforceable atx. common law
enforceable atlommon law but
but they
they ,were
were only only in Equity.
Equity. If If land
land was
was
conveyed
conveyed to to A in trusttrust for
for B,B, the
the common
common law law courts
courts regarded
regarded A A as
as the
the
absolute
absolute owner
owner and would would not recognize
recognize any rights rights in B. But EquityEquity would
would
enforce such a trust,
enforce such trust, as aa matter
matter of of conscience
conscience and and compel
compel A to to hold
hold the
the
land
land on B's behalf and to allow B to enjoy it. In such a case, A is the "legal
B's behalf and to allow B to enjoy it. In such a case, A is the "legal
owner",
owner", while B is is the
the "equitable
"equitable owner".
owner".
Legal
Legal ownership confers rights
ownership confers rights in rem, i.e.
in rem, i.e. rights
rights of property
property inin the
the land
land
itself, which can be enforced against anyone. Equitable ownership
itself, which can be enforced against anyone. Equitable ownership
conferred
conferred at at first
first only
only a right
right in personam, a right
in personam, right toto compel
compel thethe trustee
trustee
personally to perform his trust. But later, equity extended the category of
personally to perform his trust. But later, equity extended the category of
persons against
_""-l'e.rsons against whom whom thethe performance
performance of of the
the trust
trust would
would bebe held.
held. The
The
th century, a rule was
extensions became
'F:C'~ extensions very wide with time. By the- 15
became very wide with time. By the 15 th century, a rule was
laid down to the
·,:,;.".laiddown the effect
effect that
that aa trust
trust would
would be be enforced
enforced against
against anyone
anyone whowho
took
took a conveyance
conveyance of the land with with notice
notice of of the
the trust.
trust. This
This rule extended
extended to to
include the
include the trustee's
trustee's heirs
heirs and
and anyone
anyone to to whom
whom the the land
land had
had been
been conveyed
conveyed
as aa gift.
as gift. Even
Even creditors
creditors of of the
the trustee
trustee would
would be be bound.
bound. These
These
developments led
developments led to the
the emergence
emergence of of two
two equitable
equitable principles
principles which
which cancan
be summarized
summarized below thus: thus:
1. A
A person
person whowho takes
takes the
the land
land without
without giving
giving value
value in
in'exchange
exchange
(such as
(such as an
an heir,
heir, executor
executor or or donee) must take
donee) must take it with
with all
all its
its
burdens, equitable
burdens, equitable as
as well
well as
as legal
legal
2. Even
Even a person
person who
who hashas given
given value
value will
will be bound
bound if if before
before hehe
obtained
obtained the
the land,
land, he knew
knew of the the trust:
trust: trusts
trusts bind
bind those
those who
who take
take
with notice
with notice
The
The two
two principles
principles are
are in
in turn
turn summarized
summarized in the the cardinal
cardinal maxim
maxim to to the
the
effect that legal
effect that legal rights
rights are good
good against
against all the
the world;
world; equitable
equitable rights
rights are
are
good
good against
against all persons
persons except
except a bona fide purchaser
bona fide purchaser of
of aa legal
le~al estate
estate for
for
value without notice,
value without notice, and
and those
those claiming
claiming under
under the
the purchaser.
purchaser.
8 For a detailed
detailed discussion
discussion of
of this
this doctrine,
doctrine, see
see MEGARRY Ibid at pp
MEGARRY Ibid l38 - 150
pp 138 150
61
Sichangi Adv
It is therefore
It is therefore clear
clear that
that the
the doctrine
doctrine of ofaa bona
bona fide
fide purchaser
value
without notice
without notice isis only
only applicable
applicable in in the
the situations
situations described
described above.
above. ItIt
applies
applies to to equitable
equitable interests
interests in land
land such
such asas trusts
trusts which
which are are purchased
purchased by by
third
third parties
parties without
without notice
notice of them
them and
and who
who therefore
therefore acquire
acquire legal
legal title
title to
to
the
the land.
land. The
The doctrine
doctrine does
does not
not apply
apply toto an
an illegal
illegal title
title to
to public
public land
land which
which
is purchased
is purchased by by aa third
third party.
party. The
The doctrine
doctrine only only protects
protects thethe purchaser
purchaser
against claims
against claims by those having
by those having an equitable interest
an equitable interest in in the
the land
land in question.
question.
The bona fide
The bona fide purchaser
purchaser must must have purchased a legal
have purchased legal estate.
estate. ItIt must
must be be
emphasised that
emphasised that Equity
Equity follows the Law.
follows the Law.
(e) The
(e) TheLegal
Legal Position
Position Versus
Versus the
the Reality
Reality
The above
The above analysis
analysis indicates
indicates that
that this
this Commission
Commission would would be be onon legally
legally
sound
sound grounds
grounds to to conclude
conclude thatthat all interests
interests in land
land which
which were
were acquired
acquired
from illegally
from illegally allocated
allocated public land are
public land are illegal.
illegal. They
They stand
stand in in the
the same
same
position
position asas the
the titles
titles ofof the
the original
original allottees.
allottees. This
This also
also means
means thatthat they
they
should be
should treated in
be treated in thethe same
same manner
manner as as the the latter.
latter. TheThe main main
recommendations made
recommendations made by by the
the Commission
Commission arisingarising outout of
of the
the inquiry
inquiry entail
entail
revocation or
revocation or restoration
restoration and and rectification
rectification of of titles. However, there
titles. However, there areare aa
number of
number of difficult
difficult questions
questions regarding
regarding third parties
third parties which
which the the
Commission had
Commission had to to resolve.
resolve. The
The Commission
Commission was was alive
alive to
to the
the fact
fact that
that law
law
does not
does not exist
exist in a vacuum.
vacuum. The The questions
questions which
which must
must be be answered
answered are: are:
1. What
1. What should
should happen
happen where
where the
the land
land in
in question
question has
has been
been purchased
purchased
by
by aa third
third party
party who
who hashas extensively
extensively developed
developed the the land?
land? (For
(For
example where
example where he he has
has constructed
constructed aa residential
residential ororcommercial
commercial
building, or
building, or aa housing
housing estate,
estate, units
units of
of which
which have
have been
been bought
bought by
by
individuals either
individuals either out
out rightly
rightly oror on
on mortgage).
mortgage).
2. What
2. What should
should happen
happen where
wherethethe third
third party
party isis in
in fact
fact aa State
State
Corporationwhich
Corporation whichwas was pressurized
pressurizedtotobuybuy the
the land
land from
from the
the
original allottee
original allottee at
at aa considerable
considerable cost?
cost?
3. What
What should
should happen
happen where
wherethe the third
third party
party isis aa bank
bank or
or other
other
morgagee/chargee to
morgagee/chargee to which
which the
the land
land has
has been
been mortgaged
mortgaged in in return
return
for millions
for millions of
of Kenya
Kenya shillings?
shillings?
The Appointing
The Appointing Authority
Authority appears
appears toto have
have had
had these
these questions
questions in in mind
mind
when
when issuing
issuing this
this Commission.
Commission. The
The questions
questions pose
pose some
some difficulties
difficulties when
when
it comes
comes to restoring
restoring such
such lands
lands to
to their
their original
original purpose.
purpose. This
This isis especially
especially
62
62
Sichangi Adv
so in
so in number
number 11 above above since
since the
the physical
physical character
character of the the lands
lands is is bound
bound to to
have
have significantly
significantly changed.
changed. Question
Question number number 22 posesposes aaproblem
problem because
because
the
the monies
monies used used toto purchase
purchase the the land
land belong
belong to to the
the tax tax payer.
payer. Question
Question
number 33 is
number is also
also problematic
problematic because
because the the banks
banks havehave lent lent a lotlot of
of money
money
the
the realistic
realistic recovery
recovery of of which
which depends
depends on exercising
exercising their their statutory
statutory power
power
of sale.
of sale. These
These problems
problems cannotcannot be be satisfactorily
satisfactorily resolved
resolved by by. aablanket
blanket
decision to
decision to revoke
revoke thethe titles
titles and
and restore
restore the the land
land toto its
its proper
proper purpose.
purpose. This This
is
is the
the reason
reason one one ofof the
the terms
terms ofofreference
reference requires
requires the the Commission
Commission to to
recommend
recommend legal legal and
and administrative
administrative measuresmeasures to to be
be taken
taken in in the
the event
event that
that
such lands are
such lands for any
are for any reason
reason unable
unable to to be
be restored
restored to to their
their proper
proper title
title or
or
purpose.
purpose. (Term (Term of Reference
Reference (f) (f) (ii)).
(iij).
8. POSSIBLE
8. POSSIBLE SOLUTIONS
SOLUTIONS
(a)
(a) Where
Whereland
landhas
hasbeen
beendeveloped
developed
The general
The general recommendation
recommendation with with regard
regard to
to all
all illegally
illegally allocated
allocated public
public
lands which
lands which have
have passed
passed to thirdthird parties
parties and
and which
which have
have not
not been
been
developed
developed isis that
that all
all such
such titles
titles should
should be
be revoked
revoked and and restored
restored toto their
their
proper
proper public
public purpose.
purpose.
Where
Where land land has however
however been been developed,
developed, consideration
consideration should
should bebe given
given to to
a number
number of factors:
factors: for example,
example, the cost of of development,
development, the the number
number of
persons
persons involved
involved financially
financially or or otherwise
otherwise in in the
the said
said development,
development, the the
economic value the country of such development, the disruption to the
economic value to the country of such development, the disruption to the
public
public that
that the
the demolition
demolition of of such
such development
development wouldwould occasion,
occasion, etc.
etc. IfIfatat
the end,
the end, it is is shown
shown th .at the
that the public
public interest
interest would
would not not be
be served
served by by
revocation of
revocation of title;
title; it could
could then
then bebe argued
argued that
that the
the third
third party
party should
should be be
made
made to to pay
pay to the the government
government the the market
market value
valueof of the
the land.
land. The
The third
third
party should
party should have have the the right
right toto sue
sue the
the immediate
immediate partyparty who
who passed
passed the the
illegal title
illegal title to him.
him. The The suit
suit would
would thenthen trigger
trigger aa chain
chain reaction
reaction of
of suits
suits up up
to the
to the original
original allottee.
allottee. The
The suit
suit would
would be be based
based onon the
the argument
argument that
that thethe
original allottee
original allottee purported
purported to sell sell what
what hehe did
did not
not have,
have, hence
hence occasioning
occasioning
the third
third party
party loss.
loss.
Some where
Some where along
along thethe line,
line, the
the original
original allottee
allottee in in collusion
collusion with
with some
some
public officials,
public officials, is likely
likely toto have
have committed
committed an an offence
offence under
under the
the .country's
country's.
laws. The original
laws. The original allottee
allottee will also
also have
have been
been unjustly
unjustly enriched
enriched by by selling
selling
public land
public land for large
large amounts
amounts of of money.
money. ItIt is
is therefore
therefore necessary
necessary thatthat the
the
Government initiates
Government initiates action
action to to recover
recover the
the money
money and and also
also punish
punish the the
63
Sichangi Adv
offenders in
offenders in accordance with the
accordance with the law
law and
and leave
leave the
the third
third party
party to
to seek
seek
compensation.
compensation.
The
The problem
problem howeverhowever withwith thethe first
first suggestion
suggestion is is how
how to to establish
establish the the legal
legal
basis for
basis for such
such a refund
refund to to the
the Government.
Government. If If itit has
has been
been concluded
concluded that that the
the
title in question was illegal, then how can the Government derive
title in question was illegal, then how can the Government derive
recompense from
.. recompense from such
such a title?
title? Would
Would the the acceptance
acceptance of the the market
market value value of
the land constitute a validation of the illegal title? Isn't an illegal title
the land constitute a validation of the illegal title? Isn't an illegal title
illegal for all
illegalfor all purposes?
purposes? Would Would a Tribunal
Tribunal have have power power in in law
law to to validate
validate
illegal titles?
illegal titles? OneOne wayway of of going
going around
around this this problem
problem would would be be to to enact
enact aa
law or
law or an
an appropriate
appropriate amendment
amendment to to specific
specific statutes
statutes providing
providing for for such
such aa
payment in
payment in situations where public
situations where public land land hashas passed
passed to to aa third
third party
party whowho
has in
has in turn
turn developed
developed it. it. Another
Another optionoption couldcould be be toto revoke
revoke the the title,
title, let
let the
the
Government repossess the land and then offer the same to the third party at
Government repossess the land and then offer the same to the third party at
the market
the market price price as as suggested
suggested above. above. The The Government
Government would would have have to to
follow the
follow the provisions
provisions of of all
all relevant
relevant laws laws to to avoid
avoid subsequent
subsequent illegality.
illegality. In In
this way,
this way, the the Government
Government could could be be acknowledging
acknowledging the the fact
fact that
that thethe land
land
cannot
cannot be be restored
restored to its its proper
proper title
title and
and purpose.
purpose. This This would
would qualify
qualify such such
land
land as being
being available
available forfor allocation.
allocation.
From
From the the foregoing
discussion, and and taking
taking all all the
the legal
legal complexities
complexities into into
account,
account, the the Commission
Commission came came to the the conclusion
conclusion that that each
each case
case must
must bebe
dealt with
dealt with on on its
its own
own merit.
merit. Where
Where aa titletitle isis tainted
tainted with
with illegality,
illegality, then
then itit
should be
should be revoked.
revoked. ButBut given
given thethe fact
fact that
that certain
certain titles
titles cannot
cannot be be restored
restored
to
to their
their original
original purpose,
purpose, the the Government
Government should should consider
consider issuing
issuing newnew
titles upon
titles upon newnew andand reasonable
reasonable terms terms and and conditions.
conditions. The The revocation
revocation isis
meant to
meant to cure
cure such
such titles
titles of
of their
their inherent
inherent illegalities.
illegalities.
(b) Wherethe
(b) Where theThird
ThirdParty
Party isisaaState
State Corporation
Corporation
The Commission
The Commission has has already
already established
established the the fact
fact that
that aa number
number of of State
State
Corporations were
Corporations were 'politically
politically pressurized
pressurized to to purchase
purchase illegally
illegally allocated
allocated
public land
public land at at millions
millions of of shillings
shillings (tax(tax payers'
payers' money).
money). ItIt isis already
already
concluded that
concluded that such
such titles
titles are
are just
just as
as illegal
illegal asas all
all the
the others
others andand should
should be be
revoked. What
revoked. What thisthis means
means is is that
that where
where such
such land
land hadhad been
been reserved
reserved for for aa
public purpose,
public purpose, hence
hence notnot capable
capable of of allocation,
allocation, itit should
should revert
revert back
back toto the
the
Government for
Government for the
the use
use it had
had been
been setset aside
aside for.
for. IfIf the
the state
state corporation
corporation
has developed
has developed the the land
land in in question,
question, aa legallegal basis
basis wouldwould have have to to bebe
established
established toto enable
enable the the corporation
corporation retain retaintitle
title toto such
such land
land for
for thethe
purposes
purposes of of its
its own
own financial
financial future
future and
and inin the
the public
public interest.
interest. TheThe public
public
64
Sichangi Adv
interest would
interest would bebe considered
considered to havehave replaced
replaced the
the earlier
earlier one
one for
for which
which the
the
land had
land had been
been setset aside.
aside. But
But possible
possible legal
legal avenues
avenues ofof recovering
recovering the
the
money from
money from the
the original
original allottee
allottee must
must also lie explored.
also.be explored.
Where the
Where the land
land remains
remains vacant,
vacant, the titl 3 to
the.title to such
such land
land should
should be be revoked
revoked so so
that it
that it reverts
reverts toto its
its proper
proper purpose.
purpose. Again
Again this this should
should onlyonly happen
happen ifif thethe
land in
land in question
question had
had been
been set
set aside
aside for
for aa public
public purpose.
purpose. In In this
this situation,
situation,
the corporation
the corporation should
should be be able
able to
to sue
sue the
the original
original allottee
allottee for
for thethe purchase
purchase
price it
price it paid.
paid. This
This recommendation
recommendation is
is important
important because
because it it would
would run run
across the
across the board.
board.
(c) Where the

(c) Where theThird
Third Party
Party isisaaBank
Bank or
or Chargee
Chargee
Banks, financial
Banks, financial institutions
institutions and other
and other chargees
chargees have have over
over thethe years
years lentlent
money upon
money upon the
the security
security of of lands
lands whose titles may
whose titles may turn turn out
out toto be
be illegal
illegal or or
irregular within
irregular within the
the context
context of of the
the findings
findings of of this
this Inquiry.
Inquiry. SuchSuch titles
titles are
are
supposed toto be
supposed be revoked
revoked as as suggested
suggested in in the
the foregoing
foregoing analysis.
analysis. In In the
the
memorandumpresented
memorandum presentedtoto the the Commission
Commission by
by thethe Kenya
Kenya BankersBankers
Association,
Association, concernwas
concern was expressed
expressedtoto the the effect
effect thatthat the the blanket
blanket
revocation
revocation of of such
such titles
titles would
would have have farfar reaching
reaching negative
negative consequences
consequences on on
the
the financial
financial system
system and and the
the macro
macro economy
economy as a whole. whole. In In many
many cases,
cases, the the
lands
lands in in question
question havehave beenbeen developed
developed as as huge
huge investments
investments based based on on the
the
loans received from
loans received from the the banks.
banks. In In others,
others, the the lands
lands had had been
been soldsold toto "bona
"bona
fide purchasers
fide purchasers for for value
value without
without notice"
notice" of of any
any illegality.
illegality. If If the
the titles
titles are
are
revoked, huge
revoked, huge outstanding
outstanding loans
loans may may not not bebe repaid
repaid thus thus causing
causing serious
serious
ripples in
ripples in the
the business
business and and banking
banking sector.
sector. The The Association
Association therefore
therefore
suggested that
suggested that revocation
revocation ofof titles
titles in in such
such circumstances
circumstances must
must be be
approached carefully
approached carefully and and be be done
done on on aa case
case by by case
case basis.
basis. InIn particular,
particular, the the
Association suggested
Association suggested the the following:
following:
1. Where
1. Where lands
lands had
had been
been sold
sold to
to innocent
innocent people,
people, nullification
nullification must
must be
be
avoided.
avoided.
2. Where
2. Where purchasers
purchasers of
of the
the lands
lands had
had invested
invested inin the
the properties
properties by
by
developing them,
developing them, etc,
etc, nullification
nullification should
should bebe avoided.
avoided.
3. Only
3. Only where
where the
the land
land inin question
question is is clearly
clearly public
public land,
land, e.g.
e.g. road
road
reserves, utility land,
reserves, utility land, etc,
etc, then
then the the issue
issue should
should be be considered
considered
further. Even then,
further. Even then, only
only thethe initial
initial allottee
allottee ofof the
the land
land who
who acted
acted
65
Sichangi Adv
sdi fraudulently
fraudulently should be investigated,
should be investigated, and
and subsequent
subsequent bona
bona fide
fide
purchasers should not. However,
purchasers should However, they
they may
may voluntarily
voluntarily give
give the
the land
land
back to the
back Government.
the Government..
While the
While the Commission
Commission is not not bound
bound by by the
the recommendations
recommendations of of the
the Kenya
Kenya
Bankers Association,
Bankers Association, the the nature
nature of the problem
of the problem of blanket
blanket revocation
revocation of of
such titles
such titles is such
such that
that the
the views
views expressed
expressed in in the
the memorandum
memorandum cannot cannot bebe
totally ignored. In this
totally ignored. this regard,
regard, thethe Commission
Commission must must first
first restate
restate the
the legal
legal
position to the effect
position effect that if if the
the titles
titles in
in question
question werewere issued
issued irregularly
irregularly asas
opposed illegally, then
opposed to illegally, then such
such titles
titles should
should be be validated.
validated. However,
However, where
where
the titles
the titles are
are illegal
illegal inin the
the sense
sense thatthat thethe lands
lands in
in question
question werewere not
not
available
available for allocation, then
for allocation, then they
they areare illegal
illegal from
from the
the very
very beginning
beginning and and
cannot be
cannot be cured
cured through
through validation.
validation. The The onlyonly recourse
recourse banks
banks andand other
other
financial
financial institutions
institutionshave have isis to to sue
sue thethe borrowers
borrowers on on their
their personal
personal
covenant to
covenant repay or on
to repay on other
other legal
legal grounds.
grounds. The The doctrine
doctrine of of bona
bona fide
fide
purchaser for value
purchaser value without
without notice
notice doesdoes not
riot apply.
apply.
This approach would

This approach would not solve the
not solve the dilemma
'dilemma of of the
the banks
banks due
due toto the
the fact
fact
that the borrowers
that the borrowers may
may for one
one reason
reason oror another
another be unable
unable to
to repay.
repay. The
The
problem would be
problem would be further
further compounded
compounded by by the
the factors
factors already
already raised
raised bybythe
the
Association. (For
Association. (For example
example where
where the
the loan
loan has
has.been used to
been used to develop
develop the the
\ "
land
land or for other
or for other investment
investment purposes;
purposes; or, where
where the landland has
has been
been bought
bought
auction by another
at an auction another person).
person).
The suggestions made

The suggestions made toto the
the Commission
the Bankers
Bankers Association
Association seem seem
suggest that
to suggest that no title should
should be be revoked
revoked as long
long as it it is
is held
held byby aa bank
bank as as
security for
security the repayment
for the repayment of of a loan.
loan. The
The Association
Association goes goes onon toto suggest
suggest
that
that even where the
even where the land
land in question
question is a public
public utility
utility plot such
such asas aa road
road
reserve,
reserve, the
the soso called
called bona
bona fidefide purchaser
purchaser should
should be be left
left untouched.
untouched. In In
other words, he should
other words, should be left
left to hold
hold the
the road
road reserve
reserve in totaltotal disregard
disregard of
the public
the interest in the land.
public interest land. This
This in our opinion
opinion is anan extreme
extreme viewview ofof the
the
quality title. It
quality of title. It suggests
suggests that
that banks
banks and
and other
other financial
financial institutions
institutions have
have
not contributed in
not contributed any way
in any way to to the
the problem
problem ofof illegal
illegal allocation
public
land
land or land grabbing.
grabbing.
Yet during the

Yet during the course
course of
of this
this inquiry,
inquiry, the
the Commission
Commission came came across
across cases
cases
where banks lent money
where banks money inin aa most
most unprofessional
unprofessional manner.
manner. They
They had
had all
all the
the
reasons believe that
reasons to believe that the
the land
land upon
upon which
which"they were lending
they were lending money
money was was
public land which
public land which must
must have
have been
been illegally
illegally acquired.
acquired. How
How else
else does
does one
one
explain situation where.
explain a situation where- aa bank lends money
bank lends money upon
upon the
the security
security of
of land
land
upon which the
upon which the High
High Court
Court of of Kenya,
Kenya, oror Military
Military Barracks
Barracks stand?
stand? In
In other
other
66
66
Sichangi Adv
situations,
situations, the banks lent
the banks lent money
money uponupon thethe security
security ofofundeveloped
undeveloped
leasehold land but
leasehold land but did
did not
not care
care to
to inquire
inquire whether
whether the
the loan
loan they
they were
were
advancing was
advancing was meant
meant to
to develop
develop the
the land.
land.
If the
If the Commission
Commission were were to to accept
accept the
the position
position taken
taken by by the
the banks
banks not not
withstanding
withstanding thesethese glaring
glaring illegalities,
illegalities, then
then the whole purpose
the whole purpose of of this
this:
inquiry i.e.
inquiry i.e. restoring
restoring illegally
illegally acquired
acquired public
public land
land would
would be bedefeated.
defeated.
Taking into account
Taking into account thethe financial
financial reasons
reasons advanced
advanced andand the
the needs
needs ofof the
the
economy; and
economy; and also
also taking
taking intointo account
account the
the need
need to protect
protect public
public land,
land, and
and
the applicable
the applicable law,
law, the
the Commission
Commission is is of
of the
the opinion
opinion that:
that:
1. Where
Where the the land
land isis an
an undeveloped
undeveloped public
public utility
utility plot,
plot, and
and although
although
title thereto held
title thereto is held by a bank as security, the title should be revoked
bank as security, the title should be revoked
as in
as in earlier
earlier cases
cases discussed
discussed above.
above. TheThe Bank
Bank would
would havehave to
to
explore other avenues
explore other avenues ofof recovering
recovering its loan.
loan.
2. Where
Where the the land
land has
has been substantially developed,
been substantially developed, using using the
the loan
loan
received
received from
from the bank or
the bank or other
other lender,
lender, andand thethe land
land is is no
no longer
longer
required for
required for the
the original
original public
public purpose,
purpose, thethe title
title thereto
thereto should
should still
still
be revoked, given
be revoked, given itsits inherent
inherent illegality.
illegality. The
The Government
Government may may
consider,
consider, in principle, the
in principle, the issue
issue of new title
of a new title to to the
the borrower,
borrower,
subject the Bank
subject to the Bank Charge,
Charge, on on condition
condition thatthat the
the borrower
borrower pays pays the
the
full net unimproved
full net unimproved site site value
value of the
the land
land to the
the Government.
Government.
The
The recommendations
recommendations made at
made at the
the end
end of this
this Report
Report were
were influenced
influenced by
by
these and other relevant legal considerations.
these and other relevant legal considerations.
9. THE
9. THE ESTABLISHMENT
ESTABLISHMENT OF
OF AALAND
LAND TITLES
TITLES TRIBUNAL
TRIBUNAL
The
The foregoing
foregoing discussions indicate the
discussions indicate the possibility
possibility ofof aa massive
massive titletitle
revocation and rectification
revocation and process as
rectification process as an
an end
end product
product ofof this
this inquiry.
inquiry. YetYet
current law
current law and
and procedure
procedure of rectification
rectification and
and revocation
revocation of titles
titles -to land
to land
does
does not facilitate an expeditious
not facilitate expeditious undertaking
undertaking of of such
such aa gigantic
gigantic exercise.
exercise.
As a result
As result of serious
serious abuses
abuses and
and criminal
criminal acts
acts within
within thethe Ministry
Ministry ofof Lands
Lands
. and
and Settlement
Settlement andand other
other Government
Ministries and
and Departments
Departments over over the
the
past two
past two or three
three decades,
decades, aa very
very large
large number
number of of illegal
illegal and
and irregular
irregular titles
titles
to
to land
land have
have been
been created
created throughout
throughout Kenya.
Kenya. There
There areare perhaps
perhaps more
more than
than
200,000 such
200,000 such titles
titles —- many
many in thethe more
more recently
recently developed
developed settlement
settlement
67
67
Sichangi Adv
schemes
schemes andand forest
forest excisions
excisions -- and
and to
to review
review them
them all
all under
under the
the present
present law
law
and
and practice 'would take
practice 'would take many,
many, many
many years.
years. Most
Most of of these
these invalid
invalid titles
titles
have
have been
been created
created in in the
the past
past 12-15
12-15 years.
years. These
These invalid
invalid titles
titles exist
exist onon
Government Land,
Government Land, Trust
Trust Land,- private
Land; pri land (( including
vate land including substantial
substantial areas
areas of
of
land
land owned
owned by by State
State Corporations)
Corporations) and and land
land adjudicated
adjudicated under
under thethe Land
Land
Adjudication
Adjudication Act,Act, Settlement
Settlement Schemes,
Schemes, Land
Land within
within Municipalities,
Municipalities, LandLand
in
in the
the rural
rural areas,
areas, Pastoral
Pastoral Land,
Land, Forest
Forest Land,
Land, Water
Water Catchments,
Catchments, Riparian
Riparian
Land,
Land, indeed
indeed everywhere
everywhere in in Kenya.
Kenya.
Many
Many ofof these
these invalid
invalid titles
titles have
have been
been traded
traded and
and sold
sold and
and many
maTlYhave~ave been
been
charged
charged asas collateral
collateral by
by banks
banks to secure
secure the
the repayment
repayment ofof substantial
substantial loan
loan
finance.
finance. .
The
The present
present law
law onon the
the rectification
rectification of of invalid
invalid titles
titles obtained
obtained fraudulently
fraudulently
or by criminal acts or by mistake can only
or by criminal acts or by mistake can only be implemented by thebe implemented by the High
High
Court. This
Court. This makes
makes rectification
rectification. . difficult,
difficult, time
time consuming
consuming and and very
very
expensive
expensive for for the
the ordinary
ordinary man man to to pursue
pursue to to obtain
obtain justice.
justice. Further,
Further, the
the
officials in
officials in the
the Lands
Lands Department
Department whose whose dutyduty itit 'is
is to
to seek
seek rectification
rectification ofof
titles that
titles that have
have been
been improperly
improperly createdcreated are are often
often thethe same
same officials
officials - or
or
their
their close
close associates
associates -- as as those
those who who were
were involved
involved in in, the
the creation
creation and
and
registration
registration of thethe improper
improper titlestitles in
in the
the first
first place.
place.
Actions
Actions before
before the
the High
High Court
Court are
are prone
prone to
to delays,
delays, postponements,
postponements, obscure
obscure
legal argument
legal argument andand all
all manner
manner ofof procedures
procedures that
that are
are incomprehensible
incomprehensible toto
the non-professional
the non-professional and
and even
even to
to many
many professionals.
professionals. i!
I I
• ~I
What is needed
What needed is
is aa simple,
simple, readily
readily accessible
accessible forum
forum that
that can
can dispense
dispense with
with
some
some of the more
more arcane
arcane rules
rules of
of evidence
evidence and reach
reach aa decision
decision within
within aa
matter of days or less.
matter less.
Provided that
Provided that the
the forum
forum is working full
is working full time
time on the one
on the one subject
subject of
of
rectification of titles,
rectification titles, the huge number of titles
number titles to be checked could be dealt
checked could be dealt
with in a reasonably
with reasonably short
short time
time frame.
frame.
It is
It is essential
essential that
that any person with
anY"person with an
an interest
interest in
in aa title
title however
however remote
remote
could apply
could apply toto have 'thetitle
have the titleinvestigated
investigated andand rectified,
rectified, revoked
revoked or
or
confirmed as
confirmed as valid.
valid.
68
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Sichangi Adv
The following
The following proposal
proposal forfor the
the establishment
establishment of of a-
a- Tribunal
Tribunal of of experts
experts toto
provide
provide a first
first step inin the
the revocation
revocation and and rectification
rectification process
process prior
prior to any
any
reference
reference to to the
the High
High Court
Court could
could solve
solve this
this problem
problem and and could
could also
also
provide
provide a method
method whereby
whereby interested
interested members
members of of the
the public
public including
including
financial institutions could
financial institutions could forfor a small
small fee
fee establish
establish thethe validity
validity ofof any
any
particular
particular title
title or titles. Furthermore,
Furthermore, such such aa Tribunal
Tribunal could
could also
also investigate
investigate
improper allocations or
improper allocations or sales
sales ofof government,
government, local local authority
authority or or State
State
Corporation
Corporation land land before
before anyany title
title came
came on on the
theregister
register — - something
something the the
High
High Court
Court cannot
cannot do without
without some
some kind
kind of prerogative writ
or-prerogative writ being
being issued.
issued.
It is proposed
proposed thatthat byby amending
amending the the Government
Government Lands
Lands Act,
Act, aa:Tribunal
Tribunal isis
established that will
established that will have
have several
several separate
separate divisions
divisions each
each of of which
which will
will
constitute
constitute a sitting
sitting Tribunal
Tribunal withwith power
power to
to declare
declare any
any registered
registered title
title to
to
land either
land either valid,
valid, illegal
illegal or irregular.
irregular. Such
Such Tribunals
Tribunals will alsoalso have
have power
power
to
to rectify
rectify any
any title
title onon conditions
conditions itit may
may impose
impose toto ensure
ensure thethe State
State in
inits
its
role
role as trustee
trustee forfor the
the people
people of of Kenya
Kenya receives
receives the
the full
full benefit
benefit ofof any
any
disposition
disposition of of any
any of of its
its land.
land. Such
Such conditions
conditions would
would alsoalso enable
enable thethe
Tribunal
Tribunal in appropriate
appropriate cases cases to to protect
protect any
any bona
bona fide
fide purchaser
purchaser or orchargee
chargee
of such
such title from thethe loss
loss of
of his
his investment.
investment.
It
It would
would bebe aa condition
condition of
of the
the establishment
establishment of of the
the Tribunal
Tribunal that that while
while
appeals to the High
appeals to High Court
Court against
against its
its decisions
decisions would
would bebe available
available to to any
any
aggrieved party, the
aggrieved party, the High
High Court
Court would not be aa court
would not court of
of first
first instance
instance inin
any question
any question on the
the validity
validity of
of any
any registered
registered title.
title. This
This would
would be be the
the sole
sole
preserve of the Tribunal.
preserve Tribunal.
The Chairman
The Chairman and his his Deputy
Deputy and and all
all support
support staff
staff of
of the
the Tribunal
Tribunal would
would
be employed
be employed on aa full
full time
time basis.
basis. The
The Chairman
Chairman would
would be be responsible
responsible for for
establishing "sitting
establishing "sitting Tribunals"
Tribunals" fromfrom among
among thethe membership
membership which which would
would
meet full
meet time and
full time and would
would be be based
based in
in different
different parts
parts of
of Kenya.
Kenya. Each
Each sitting
sitting
Tribunal
Tribunal would have its
would have its own
own chairman
chairman whowho would
would need
need to to be
be legally
legally
qualified.
qualified.
The
The sitting
sitting Tribunals
Tribunals would
would be be responsible
responsible for
for the
the actual
actual decisions
decisions of
ofthe
the
Tribunal and
Tribunal and their
their decisions
decisions should
should bebe consistent.
consistent. It It would
would be be the
the
responsibility of the Chairman
responsibility Chairman andand his
his staff
staff to
to ensure
ensure this
this consistency.
consistency. The
The
Chairman would
Chairman would also
also be
be responsible
responsible for for training
training members
members of of sitting
sitting
tribunals and monitoring
tribunals monitoring their
their performance.
performance.
69
Sichangi Adv
The Land
The Land Registry
Registry staff
staff would
would have
have to
to be
be increased
increased toto cope
cope with
with additional
additional
work
work and
and the
the Ministry
Ministry correspondence
correspondence files files and
and all
all other
other records
records would
would
have to be made
have made available
available ifif needed
needed by
by the
the Tribunal.
Tribunal.
would be
It would be the
the.intention to make
intention to make thethe Tribunal
Tribunal aa temporary
temporary expedient
expedient to to be
be
replaced by a formal "Rectification Court" established
replaced by a formal "Rectification Court" established along the lines ofalong the lines of
the Industrial
the Industrial Court.
Court. However,
However, by by creating
creating aa Tribunal
Tribunal and and making
making the the
consequential
consequential amendments
amendments to to existing
existing legislation,
legislation, thethe urgent
urgent need
need toto begin
begin
to rectify the
to rectify the tens
tens of
of thousands
thousands of of illegal
illegal and
and irregular
irregular titles
titles could
could begin
begin
~.
raftelt,
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Sichangi Adv
PART FOUR
PART FOUR
FINDINGS
FINDINGS AND RECOMMENDATIONS
AND RECOMMENDATIONS
1.
1. INTRODUCTION
INTRODUCTION
In
In this
this Part,
Part, wewe embark
embark uponupon aa situational
situational analysis
analysis of of the
the circumstances
circumstances
under which public land has been illegally allocated over the years.
under which public land has been illegally allocated over the years. We We
highlight
highlight the the main
main Findings
Findings of of our
our inquiry.
inquiry. The
The Commission
COIDm~si..Qn had had toto deal
deal
with the various categories of public land which were subject to iire•tat Or
with the various categories of public land which were subject fOITreg:-ar
irregular
allocations. WhileWhile the
the broad
broad categories
categories of of public
public Trlafid
aii wmailTas as
discussed in
discussed in Part Three -of
Three of this Report, the Commission hYs used certain
this Report, the Commission as used certain
typologies in
typologies in this
this part
part which
which were
were found
found necessary
necessary for clearclear analysis.
analysis. InIn
this regard, the following broad categorization of public land has been
this regard, the following broad categorization of public land has been
adopted:
adopted:
• Urban, State
Urban, State Corporations
Corporations and
and Ministries
Ministries Lands
Lands
• Settlement Schemes
Settlement Schemes and
and Trust Land
Land
• Forestlands,
Forestlands, National
National Parks,
Parks, Game
Game Reserves,
Reserves, Wetlands,
Wetlands, Riparian
Riparian
Reserves/ Sites,
Reserves/ Sites, Protected
Protected Areas,
Areas, Museums
Museums and and Historical
Historical
Monuments
Monuments
2. URBAN,
URBAN, STATE
STATE CORPORATIONS
CORPORATIONS AND
AND MINISTRIES'
MINISTRIES' LANDS
LANDS
(a)
(a) Urban
Urban Lands
Lands
The
The phrase
phrase "Urban
"Urban Lands"
Lands" is usedused inin this
this Report
Report toto denote
denote allall those
those lands
lands
situated in Cities,
situated Cities, Municipalities
Municipalities and Townships.
Townships. These These lands
lands include
include "un-"un-
alienated Government Lands", "alienated Government Lands", "Lands
alienated Government Lands", "alienated Government Lands", or "Lands
in former
former trust
trust land areas
areas which
which have
have been
been set
set apart
apart for
for aa public
public purpose
purpose inin
municipalities or townships".
municipalities townships". The term "VI-ban" is therefore
term "Vrban" therefore generic
generic in in the
the
sense that
sense that it refers
refers to to areas
areas that
that are
are mapped
mapped totoencompass
encompass all allurban
urban
development activities;
development activities; presently and in
presently and in the
the future.
future. There
There are 44 44 municipal
municipal
councils
councils and 11 city
city council
council inin Kenya.
Kenya. The
The councils
councils were
were required
required totosubmit
submit
information to the Commission upon Summons. They were to submit
information to the Commission upon Summons. They were to submit
comprehensive
comprehensive lists lists of
of all public
public utility
utility lands
lands inin their
their jurisdiction.
jurisdiction. They They
were then
were then to indicate
indicate allall allocations
allocations of such such lands
lands to to individuals
individuals and and
companies. While
companies. While 39 councils
councils responded
responded to the the Summons,
Summons, the the information
information
received from these
received from these councils
councils waswas hardly
hardly adequate
adequate for for the
the purposes
purposes of of the
the
inquiry.
inquiry.
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Sichangi Adv
Un-alienated Government Lands Lands areare those
those lands
lands presently
presently vested
vested in in the
the
Government.
Government. They do
They do not
not belong
belong to to individuals
individuals or or companies
companies in in their
their
private
private capacities; hence, they
capacities; hence, they are
are not private lands.
not private They are
lands. They are not Trust
not Trust
lands
lands in in that
that they
they are
are not
not held
held byby respective
respective county
county councils
councils on on behalf
behalf ofof
specific communities as
specific communities as discussed
discussed elsewhere
elsewhere in in this
this Report.
Report. They
They also
also are
are
not
not local
local authority lands in
authority lands in that
that they
they have
have not
not been
been acquired
acquired byby specific
specific
local authorities
local authorities either
either through
through purchase,
purchase, allocation
allocation by by Government
Government or or
setting apart.
setting apart. This
This category
category of of Government
Government land land isis available
available for
for allocation
allocation
to
to individuals
companies by by thethe President
President in in accordance
accordance withwith thethe
provisions of
provisions of Section
Section 3 of the the Government
Government Lands Lands Act,Act, Cap
Cap 280
280 Laws
Laws of of
Kenya.
Kenya.
Alienated Government lands

Alienated Government lands include those lands
include those lands that
that were
were formerly
formerly un- un-
alienated but
alienated but have
have since
since been
been setset aside
aside for
for aa public
public purpose
purpose oror lands
lands leased
leased
to individuals
10 individuals and
and companies
companies through
through the the Commissioner
Lands. TheyThey
also include
also include lands,
lands, which
which were
were formerly
formerly privately
privately owned
owned but
but have
have since
since
been compulsorily
been compulsorily acquired
acquired by the Government
Government for a publicpublic purpose
purpose under
under
the
the Land
Land Acquisition
Acquisition Act,Act, CapCap 295 295 of of the
the Laws
Laws ofofKenya.
Kenya. Finally,
Finally,
alienated lands
alienated lands are also
also those
those lands
lands that
that have
have been
been surrendered
surrendered to to aalocal
local
authority of the area
authority area for
for use
use asas public
public utility
utility byby an
anindividual
individual ororcompany
company
as a condition
as condition for
for consent
consent to to subdivide
subdivide the the land.
land. Usually,
Usually, 10%
10% of of the
the total
total
acreage is surrendered
acreage surrendered forfor public
public purposes
purposes in in such
such circumstances.
circumstances.
All
All lands
lands which
which have
have been
been set
set aside
aside for
for aapublic
public purpose
purpose ororcompulsorily
compulsorily
acquired for
acquired for aa public
public purpose
purpose (public
(public utility),
utility), or
or surrendered
surrendered for for public
public
purposes as aa condition
purposes condition for
for subdivision;
subdivision; are are not
not available
available for
for allocation
allocation toto
individuals
individuals or companies
companies unless
unless the public
public purpose
purpose is nono longer
longer required
required
and
and the
the necessary
necessary change
change of of use
use has
hasbeen
beenformally
formally approved
approved underunder
planning
planning and
and environment
environment legislation.
legislation. All
All lands
lands which
which have
have been
been leased
leased by
by
the
the Government
Government to individuals
individuals andand companies
companies may may not
not be
be transferred
transferred ifif
they are
they are undeveloped
undeveloped and and without
without permission
permission for for change
change ofof user
user by the
the
Commissioner of
Commissioner of Lands.
Lands.
Lands set aside

Lands aside for
for aa public
public purpose
purpose ininmunicipalities
municipalities and
and townships
townships are are
those
those lands
lands which
which maymay have
have been
been allocated
allocated by
by the
the Government
Government to to such
such
local authorities
local authorities for a specific
specific public
public purpose;
purpose; or former
former trust
trust lands
lands which
which
were
were set
set apart
apart for
for aa public
public purpose.
purpose. These
These are
are also
also not
not available
available forfor
allocation,
allocation, except
except asas mentioned
mentioned above.
above.
72
Sichangi Adv
(i)
(i) Urban Lands
Urban Lands as
as Public Land
Public Land
It
It is
is immediately
immediately evidentevident that
that these
these lands
lands are
are public
public lands
lands inin the
the classical
classical
sense
sense usedused inin this
this Report.
Report. Whether
Whether alienated
alienated or or un-alienated,
un-alienated, the the lands
lands in in
question
question are meant
are meant to to serve
serve and and enhance
enhance the the public
public interest.
interest. TheyThey
constitute what
constitute what isis usually
usually referred
referred to to as
as "Public
"Public Tenure".
Tenure". The The entire
entire
physical development
physical developmentofof the the country
country depends
depends on on these
these lands.
land's. Thus,
Thus,
facilities
facilities such as
such as public
public roadsroads and andhighways,
highways, recreational
recreational parks, parks,
playgrounds,
playgrounds, stadia,
stadia, public
public schools,
schools, hospitals,
hospitals, markets,
markets, firefire stations,
stations, police
police
stations,
stations, toilets,
toilets, cemeteries,
cemeteries, theatres,
theatres, monuments,
monuments, historical
historical sites,
sites, social
social
halls,
halls, housing
housing estates,
estates, research
research institutions,
institutions, and and many
many other
other public
public utilities
utilities
are excised and
are excised and developed
developed out out of
of these
these lands.
lands.
No country
No country can can develop
develop without
without aa carefully
carefully planned
planned public
public tenure
tenure system.
system.
Lands must
Lands must be be set
set aside
aside' for
for present
present and and future
future development.
development. The The public
public
interest in these lands is therefore not only inherent, but always
interest in these lands is therefore not only inherent, but always
pronounced. This
pronounced. This is why why thethe law
law regulates
regulates the the manner
manner in in which
which such such lands
lands
are to be transferred to individuals (if at all) or to be used. All authorities
are to be transferred to individuals (if at all) or to be used. All authorities
and
and institutions
institutions havinghaving jurisdiction
jurisdiction over theselands
over these lands areare supposed
supposed to to hold
hold
them in trust for the public. Thus, the President, Commissioner of Lands,
them in trust for the public. Thus, the President, Commissioner of Lands,
and the
and the respective
respective LocalLocal Authorities
Authorities must must exercise
exercise whatever
whatever powerspowers theythey
have under
have underthethe law law in respect
respect of of public
public landland in in the
the interest
interest ofof the
the public.
public.
(ii)
(ii) Findings
Findings
The
The Commission
Commission found
found that
that many
many methods
methods were
were used
used to
to grab
grab public
public land.
land.
A
A few
few are
are summarized
summarized here
here below:
below:
1. Direct
1. Direct allocations
allocations byby the
the President
President and/or
and/or thethe Commissioner
Commissioner of of
*..'
Lands contrary
Lands contrary to the
the law
law
,2.
2. Illegal
Illegal Surrenders
Surrenders of Ministries
Ministries and
and State
State Corporation
Corporation land
land and
and
subsequent
subsequent illegal allocations
allocations
Invasion of Government
3. Invasion Government and TrustTrust lands and subsequent
subsequent acquisition
acquisition
title thereto
of title thereto contrary
contrary to the law
4. Allocations
Allocations of of land
land reserved
reserved for the
the use
use ofof State
State Corporations
Corporations or or
Ministries
Ministries
5. Allocation
Allocation of of Trust
Trust land
land contrary
contrary to
to the
the Constitution
Constitution and
and related
'related
laws
6. Allocation
Allocation of lands
lands reserved
reserved for public
public purposes
purposes
73
Sichangi Adv
7. Allocation
Allocation of
of riparian
riparian reserves
reserves and
and sites
sites
8. Allocation
Allocation ofof land
land compulsorily
acquired by by Government
Government for
for aa
public
public purpose
purpose to individuals
companies
9. Alteration
Alteration and
and destruction
destruction of of records
records at thethe Ministry
Ministry of
of Lands
Lands and
and' .
Settlement
Settlement to facilitate
facilitate double
double allocations.
allocations.
With regard
With regard to urban
urban lands,
lands, the
the Commission
Commission made
made the
the following
following specific
specific
findings:
findings:
Abuse
Abuse of
of Presidential
Presidential Discretion
Discretion - in
in the
the allocation
allocation ofof un-alienated
un-alienated
Government land
Government land
The Commission
The Commission found found that
that while
while thethe President
President has
has powers
powers to to make
make grants
grants
of freehold
of freehold andand leasehold
leasehold of of un-alienated
Government landland to to individuals
individuals
and companies, these
and companies, these powers
powers were were exercised
exercised contrary
contrary toto' the
the relevant
relevant laws
laws
and the
and the public
public interest
interest inin aa manner
manner amounting
amounting to to abuse
abuse ofof discretion.
discretion. The The
President made
President made grants
grants of land land toto individuals
individuals without
without any
any consideration
consideration as as
to whether such
to whether such allocations
allocations would would further
further the
the public
public interest.
interest. The The
Commission concluded that
Commission concluded that many
many of of these
these presidential
presidential allocations
allocations werewere
illegal since
illegal since they
they were
were made
made for for -political
'political patronage.
patronage. ButBut more
more critically,
critically,
the Commission
the Commission found found that
that many
many presidential
presidential allocations
public land
land
were
were illegal two additional
illegal on two additional grounds:
grounds: i.e.i.e.
1. In
1. In many
many instances
instances where
where thethe President
President allocated
allocated Government
Government land land
pursuant to
pursuant to the
the exercise
exercise of of powers
powers conferred
conferred upon upon him him by by the
the
Government Lands
Government Lands Act,
Act, thethe legal
legal procedures
procedures necessary
necessary for for
completing such
completing such allocations
allocations werewere never
never followed
followed through
through by by the
the
Commissioner of
Lands. A A grant
grant ofof title
title was
was issued
issued to to the
the allottee
allottee
sometimes
sometimes without
withoutquestion
questionononthe the basis
basis of letter from
of a letter from the the
President.
President. InIn many
many instances,
instances, consent
consent of of the
the President
President for for a grant
grant of
public
public land
land was
was not
not conveyed
conveyed in the the form
form of of aa letter
letter but
but inin the
the form
form
of
of an
an endorsement
endorsement on on thethe Application
Application for for allocation
allocation by by thethe
Applicant. Thus
Applicant. Thus aa mere
mere sighature
signature following
following the the words
words "approved"
"approved"
by
by the
the President
President waswas enough
enough for for the
the Commissioner
Lands to to
make an allocation
make allocation ofof public
public land.
land.
2. The
The second
second scenario
scenario involved
involved instances
instances where
where the
the President
President
purported to exercise
purported exercise powers
powers toto allocate
allocate Government
Government land
land when
when inin
fact;
fact; he
he did
did not
not have
have such
such powers.
powers. For For example,
example, under
under the
the
74
Sichangi Adv
Government Lands
Government Lands Act,
Act, the
the President
President cancan only
only allocate
allocate "un-
"un-
alienated Government land" land" and
and cannot
cannot allocate
allocate government
govern merit land
land
which is
which is "already
"already alienated". Thus, the
alienated". .Thus, the President
President cannot
cannot legally
legally
allocate land
allocate land reserved
reserved or or set
set aside
aside for
for aa public
public purpose
purpose such
such as
as aa
Gazetted national
Gazetted national forest
forest or
or aa road
road reserve.
reserve.
Usurpation
Usurpation of
of Presidential
Presidential Powers
Powers by
by the
the Commissioner
Commissioner of
of Lands
Lands
Often the
Often the Commissioner
Lands on on his
his own
own initiative
initiative made
made direct
direct grants
grants
of un-alienated
of un-alienated Government
Government land land to individuals
companies without
without anyany
kind of
kind of written
written authority
authority from
from the the President.
President. InIn making
making these these allocations,
allocations,
the Commissioner
the Commissioner purported
purported to to bebe exercising
exercising powers
powers delegated
delegated to to him
him byby
the President.
the President. The The Commission
Commission found
found that
that the
the direct
direct allocations
allocations of of
Government land
Government land inin this
this manner
manner were were illegal
illegal since
since under
under the the Government
Government
Lands
Lands Act,Act, the
the Commissioner
of Lands cancan only
only makemake grants
grants of of un-
un-
alienated Government land land in in those
those limited
limited circumstances
circumstances where where the the
President has
President has delegated
delegatedpowerspowerstoto him him under
under section
section 33 of of the
the Act
Act as as
itemized in Part One of this Report. Other instances where the
itemized in Part One of this Report. Other instances where the
Commissioner
Commissioner can make
can make grants
grants of of un-alienated
Government land land areare
highlighted
highlighted in Part
in Part three
three of of this
this Report.
Report. On On numerous
numerous occasions
occasions the the
Commissioner
Commissioner exceededexceeded hishis powers.
powers.
Use of
Use of forged
forged letters
letters and
and documents
documents as
as authority
authority to
to allocate
allocate Government
Government
Land
Land
It was
It was found
found by by thethe Commission
Commission that that ininmany
-many instances,
instances, presidential
presidential
authority to make
authority make dispositions
dispositions of Government
Government land and and effect
effect conveyances
conveyances
of
of direct
direct allocations
allocations was was communicated
communicated to the the Commissioner
Lands
through forged
through forged letters
letters or otherother documents.
documents. The The resultant
resultant allocations
allocations of of
Government land
Government land werewere therefore
therefore illegal.
illegal. The
The incidences
incidences of of forgery
forgery
extended beyond
extended beyond letters
letters of allotment.
allotment. They
They even
even went
went totothe
thedestruction,
destruction,
and
and backdating
backdating of of records
records at the the Ministry
Settlement by by
unscrupulous officials
unscrupulous officials andand their
their accomplices.
accomplices. The The crudest
crudest forms
forms involved
involved
the printing
the printing and
and issuance
issuance of of fake
fake title
title deeds
deeds to to allottees
allottees ofof-public
'public land.
land.
Other forms
Other forms involved
involved the presentation
presentation of of fake
fake presidential
presidential approvals
approvals by the the
Applicants to
Applicants to the
the Commissioner
Lands. The The consequence
consequence isis thatthat there
there
are many
are many forged
forged titles
titles in
in private
private hands.
hands.
75
Sichangi Adv
Illegal transfers
Illegal transfers of
of undeveloped leasehold land
undeveloped leasehold land
All leases
All' leases of of Government
Government land land are
are made
made uponupon certain
certain development
development
conditions which
conditions which thethe grantee
grantee must
must always
always comply
comply with. with. Most
Most of of these
these
conditions are
conditions are standard
standard and and are
are contained
contained in in the
the Letter
Allotment and and
Grant of
Grant of Title
Title (lease).
(lease). One
One such
such condition
condition isis that
that a,a.grantee
grantee must
must develop
develop
the land
the land within
within twenty
twenty four
four months
months following
following the the grant.
grant. Failure
failure toto develop
develop~
the land
the land within
within the
the specified
specified period
period entitles
entitles the
the Commissioner
Commissioner of Lands Lands to to
re-enter the
re-enter the premises
premises and and take
take possession.
possession. Moreover,
Moreover, aa grantee grantee is is not
not
allowed to
allowed to transfer
transfer his
his undeveloped
undeveloped leasehold
leasehold land
land without
without written
written consent
consent
by the
by the Commissioner
Commissioner of Lands. Lands. TheThe Commissioner
Lands in turn
turn has
has nono
powers to
powers to give
give blanket
blanket consents
consents to to proposed
proposed transfers
transfers of of undeveloped
undeveloped land. land.
The Commissioner
The Commissioner may may for
for example,
example, give give consent
consent to to charge
charge thethe land
land soso as
as
to raise
to raise money
money for its its development.
development.
It was
It was however
however found
found that
that transfers
transfers of of undeveloped
undeveloped leasehold
leasehold land land were
were
made on
made on aaroutine
routine basis.
basis. TheThepractice
practice ofoftransferring
transferring undeveloped
undeveloped
leaseholds contrary
leaseholds contrary to thethe law
law waswas most
most prevalent
prevalent between
between 1988 1988 and and 2002.
2002.
These
These transfers were not
transfers were not mere
mere aberrations
aberrations of of procedure;
procedure; they they werewere aa
deliberate mechanism
deliberate mechanism of of facilitating
facilitating thethe illegal
illegal and
and irregular
allocation of of
public land.
public land. Many
Many of of the
the transfers
transfers were
were illegal
illegal inin themselves
themselves since since the the
Commissioner not
Commissioner not infrequently
infrequently gave gave illegal
illegal consents
consents to to transfer
transfer the the land.
land.
An individual
An individual would
would be be allocated
allocated land
land onon leasehold,
leasehold, often
often in in circumstances
circumstances
that
that were
were highly
highly dubious,
dubious, andand then
then proceed
proceed to to obtain
obtain consent
consent to to transfer
transfer the the
same from
same from thethe Commissioner
Lands in in a couple
couple of of months,
months, weeks weeks or or
even days.
even days. Through
Through these
these malpractices,
malpractices, many many illegal
illegal titles
titles toto public
public landland
were transferred
were transferred to third
third parties,
parties, often
often State
State Corporations,
Corporations, atat colossal
colossal sumssums
of
of money.
money.
Illegal allocation
Illegal allocation of
of land
land compulsorily
acquired/orfor public
public purposes
purposes
The Commission
The Commission found that
found that one
one of of the
the most
most brazen
brazen forms
forms of of illegal
illegal
allocations
public land
land in
in this
this category
category affected
affected lands
lands which
which hadhad been
been
compulsorily acquired forfor the
the purpose
purpose of of constructing road by
constructing road by passes.
passes. TheThe
government applied the
government applied the Land
Land Acquisition
Acquisition Act, Act, Cap
Cap 295295 ofof the
the laws
laws of of
Kenya,
Kenya, to to various
various swathes
swathes of landland inin Nairobi,
Nairobi, Mombasa
Mombasa and and other
other towns
towns
for
for the
the purpose
purpose ofof constructing
constructing roadroad by-passes
by-passes so so as
as to
to ease
ease the
the traffic
traffic
congestionon
congestion on the
the main
main roads.
roads. The The people
people whose
whose. landland had
had been been
compulsorily acquired werewere fully
fully compensated
compensated by the
by the Governfnent
Government in in
76
76
Sichangi Adv
accordance with
accordance with the
the Constitution
Constitution and and the
the Land
Land Acquisition
Acquisition Act.Act. Later,
Later,
some of the same land was allocated to individuals
some of the same land was allocated to individuals and companies and companies
notwithstanding
riotwithstanding the the fact
fact that
that such
such lands
lands were
were notnot available
available for
for allocation.
allocation.
The allottees then sold the land to third parties some of whom proceeded to
The allottees then sold the land to third parties some of whom proceeded to
construct buildings on
construct buildings on thethe same.
same. These
These illegal
illegal allocations
allocations were
were made
made onon
lands
lands acquired
acquired for for the
the construction
construction of of by-passes
by-passes in in Nairobi
Nairobi and and other
other
towns. For
towns. For aa list
list of
of the
the allocations
allocations of of by-pass
by-pass landlaud made
made toto individuals
indjl'iduals
or companies
or companies in Nairobi
Nairobi see AnnexAnnex 3 in Vol.Vol.]1 of the Annexes.
Annexes.
Illegal
Illegal Allocation
Allocation ofof land
land reserved for public
reserved for public purposes
purposes by
by the
the
Commissioner Lands
Another
Another related
related finding
finding waswas totothe
theeffect
effectthatthatlands
landswhich
which14.,ad~d been
been
reserved for public purposes such as schools, playgrounds,
reserved for public purposes such as schools, playgrounds, hospitals, Jiospitals,
sewage etc
sewage etc were
were later
later allocated
individuals and and companies
companies in in total
total
disregard
disregard of of the
the law
law and
and the
the public
public interest
interest for
for which
which theythey hadhad been
been
reserved. These
reserved. lands were
These lands were allocated
allocated following
following the the submission
submission of of Part
Part
DevelopmentPlans
Development Plans(PDPs)
(PDPs)toto the the Commissioner
Commissioner of lands
of lands who who
indiscriminately issued
indiscriminately issued consents
consents for
for change
change of of user.
user. These
These lands
lands were
were also
also
in many
many instances
instances sold
sold by the
the original
original allottees
allottees to to third
third parties.
parties. TheThe most
most
prominent category of
prominent category of lands
lands that
that were
were illegally
illegally allocated
allocated in in this
this manner
manner
was Roads
was Roads and RoadRoad Reserves
Reserves throughout
throughout the the Country.
Country. The The City
City Council
Council
approved developmentplans
approved development plansforfor areas
areas that
that were
were clearly
clearly setset aside
aside forfor
construction of roads. Similarly, officials in the Ministry of
construction of roads. Similarly, officials in the Ministry of Roads, Public Roads, Public
Works and
Works Housing and
and Housing the Nairobi
and the Nairobi CityCity Council
Council wrote wrote letters
letters of no no
objection
objection to the proposed
proposed developments.
developments. NeitherNeither the approvals
approvals nor nor the
the nono
objection letters constituted
objection letters constituted aa change
change of of user.
user. They
They couldcould therefore
therefore not not
make these
make these allocations
allocationsor or acquisitions
acquisitionslegal.legal.For
Foraa list list of some
some of of the
the
Road Reserves
Road Reserves that encroached upon
that have been encroachecl upon see Annex Annex 44 in in Vol.
Vol. 1I
of the Annexes.
Annexes.
For
For a list
list of
of allocations
allocations of lands
lands reserved
reserved for Roads
Roads and
and other
other public
public
purposes, see Annexes
purposes, 5-J8 in
Annexes 5-18 in Vol.
Yol.T1 of the Annexes.
Annexes.
Illegal Allocation
Illegal Allocation of lands reserved for public
reserved for public purposes
purposes by
by local
local authorities
authorities
The Commission
The Commission foundfound that
that local
local authorities
authorities also
also allocated
allocated lands
lands falling
falling
within their jurisdictions
within their jurisdictions and which had been reserved for public purposes
which had been reserved for public purposes
to individuals
individuals and
and companies
companies in totaltotal disregard
disregard of law
law and
and procedures.
procedures. In In
this
this regard,
regard, county,
county, town,
town, and andmunicipal
municipal councils
councils indiscriminately
indiscriminately
77
Sichangi Adv
allocated public
allocated public utility
utility lands
lands within
within their
their jurisdictions.
jurisdictions. The The allocations
allocations
were
were at at times
times mademade following
following council
council meetings
meetings whilewhile at at other
other times
times thethe
allocations
allocations werewere mademade without
without any any approvals
approvals by by the
the full
full council
counciloror specific
specific
plot allocation
plot allocation committees.
committees. MinutesMinutes of some of
of some of the
the council
council meetings
meetings
indicate that the
indicate that the allocations
public utility
utility lands
lands were-made
were -rnade to to the
the then
then
serving councilors, chief officers, the provincial administration,
serving councilors, chief officers, the provincial administration, politicians politicians
from the
from the area,
area, andand other
other "politically
correct" personalities
personalities and ana companies.
companies.
In fact, some council minutes indicate that meetings
In fact, some council minutes indicate that meetings would be convened would be convened
-for the
-for the sole
sole purpose
purpose of of allocating
allocating public
public utility
utility lands
lands toto the
the councillors.
councillors.
This rampant allocation of lands reserved forpublic
This rampant allocation of lands reserved for public purposes took place purposes took place inin
almost all
almost all local
local authorities
authorities in the the country.
country. Some
Some of of the
the plots
plots have
have since
since
been sold off third parties while others have been developed.
been sold off to third parties whi Ie others have been developed.
The City
The City Council
Council and and other
other various
various local
local authorities
authorities lost lost property
property suchsuch as as
council
council houses
houses to to grabbers
grabbers in in this
this manner.
manner. ForFor example,
.exarnple, public
public utility
utility land
land
within
within WOODLEY
WOODLEY ESTATE ESTATE IN IN NAIROBI
NAIROBI was was illegally
illegally allocated
this
manner.
manner. The estate was
The estate was planned
planned and and deVeloped
developed as as aa housing
housing facility
facility
complete with
complete with aa primary
primary school,
schooi, playing
playing grounds,
grounds, public
public gardens
gardens and and
shopping centre.
shopping centre. In In September
September 1992, 1992, the
the then
then Director
Director of of City
City Planning,
Planning,
KURIA
KURIA WA W A GATHONI
GATHONI prepared prepared aa PartPart Development
Development Plan Plan changing
changing the the
user of the
user of the open
open public
public spaces
spaces into
into residential
residential and
and other
other private
private purposes
purposes of of
aa commercial
commercial nature.
nature. TheThe Part
Part Development
Development Plan Plan waswas approved
approved by by the
the
Commissioner of
Commissioner of Lands,
Lands, WILSON
WILSON GACHANJA.
GACHANJA. Title Title deeds
deeds forfor each
each subsub
plot
plot were
were issued
issued in in the
the name
name of of the
the Nairobi
Nairobi City
City Council
Counci Iin in 1993.
1993. In In 1994,
1994,
the
the then
then Town
Town ClerkClerk Mrs.
Mrs. ZIPPORAH
ZIPPORAH WANDERA W ANDERA prepared prepared and and signed
signed
documents transferringsome
documents transferring someofof these
these public
public plots
plots to to KURIA
KURIA WA WA
GATHONI
GATHONI and and companies
companies and arid individuals
individuals related
related to to him.
him. For detailed
For a detailed
list
list of
of such allocations, see
such allocations, see Annexes
Annexes 5-18 in Vol. Vol. 1I of
of the Annexes.
the Annexes.
Illegal
Illegal Allocation
Allocation of private lands
of private lands surrendered
surrendered to
to Government
Government and
and Local
Local
Authorities
Authorities
The
The Commission
Commission also also' found
found that
that lands
lands which
which had
had been
been surrendered
surrendered to to the
the
Government
Government or or local
local authorities
authorities especially
especially the
the Nairobi
Nairobi City
City Council
Council by by
private owners
private owners as as aa condition
condition forfor subdivision
subdivision and/
and/ or
or development
development werewere
later illegally allocated to individuals or companies who in turn
later illegally allocated to individuals or companies who in turn sold them sold them
off to
off to third
third parties.
parties.
The pattern of allocation

The pattern allocation was
was the
the same
same as
as above.
above. For
For example,
example, aa housing
housing or or
home development company
home development cOJ:npany would
would propose
propose to
to develop
develop its land
land to
to the
the city
city
78
Sichangi Adv
council. The
council. The council
council would
would require
require that
that the
the company
company surrenders
surrenders 10% 10% of of the
the
land to be
land to be developed
developed for for public
public purposes
purposes as aa condition
condition for for the
the grant
grant ofof
permission. The
permission. The company
company wouldwould then
then duly
duly surrender
surrender the the acreage
acreage ofof land
land toto
the Government
the Government to holdhold on
on trust
trust for
for public
public purposes.
purposes. Once
Once surrendered,
surrendered, the the
plot would
plot would not
not be
be used
used for
for the
the purpose
which itit had
had been
been surrendered.
surrendered.
Instead, certain
Instead, certain individuals
companies wouldwould immediately
immediately apply apply toto the
the
Commissioner of
Lands to to be
be allocated
allocated the
the surrendered
surrendered land!land!
A Part
A Part Development
Development Plan Plan would
would be be prepared
prepared in in respect
respect ofof the
the land
land and
and
submitted
submitted to the the Commissioner
Lands forfor approval.
approval. TheThe approval
approval would
would
be granted
be granted almost
almost as a matter
matter of course.
course. A Letter
Letter of Allotment
Allotment would
would then
then
be issued
be issued to the
the applicant(s),
applicant(s), upon
upon payment
payment or or promise
promise to to pay
pay aatoken
token sum
sum
as
as Stand
Stand Premium.
Premium. The The letter
letter ofof allotment
allotment wouldwould be be informally
informally used used toto
transfer the
transfer the unsurveyed
unsurveyed plotplot to aa third
third party
party for
for millions
millions ofof shillings
shillings by by the
the
allottee. The plot(s)
allottee. The plot(s) would
would be be subsequently
subsequently surveyed
surveyed and and aa Grant
Grant of of Lease
Lease
made
made to to the
the third
third party.
party. The
The entire
entire process,
process, fromfrom the
the surrender
surrender of of the
the plot
plot
to the
to the grant
grant ofof lease
lease over
over the
the plot
plot toto the
the third
third party,
party, would
would taketake aa few
few
months,
months, andand at times
times aa number
number of of days.
days.
Many complaints
Many complaints received
received by by the the Commission
Commission from from estate
estate residents
residents
through their
through their Resident
Resident Associations
Associations revealed revealed that that many
many lands
lands which
which had had
been reserved
been reserved as as open
open spaces
spaces for for public
public utility
utility inin the
the estates
estates have
have beenbeen
illegally allocated
illegally allocated. . In manymany urban
urban centres,
centres, the the concept
concept of of "Open
"Open Space"Space"
for the
for the public
public no no longer
longer exists.
exists. InIn Nairobi,
Nairobi, therethere isis hardly
hardly any
any open
open space.
space.
Such space
Such space is is automatically
automatically regarded regarded as as property
property for for allocation
allocation to to
individuals. The
individuals. The Master
Master Plan Plan for for the
the CityCity of of Nairobi
Nairobi was was completely
completely
ignored in the
ignored the preparation
preparation of Part Part Development
Development Plans Plans so so as
as to
to facilitate
facilitate the the
illegal allocation
illegal allocation of of land
land reserved
reserved for for public
public utility.
utility. For
For example,
example, land land
surrendered by
surrendered by the
the developers
developers of of LAKE
LAKE VIEW VIEW ESTATE
ESTATE in in Nairobi
Nairobi was was
illegally allocated
illegally allocated to fourfour individuals
individuals in in this
this manner.
manner. The The original
original title
title L.R
L.R
2951/80 was
2951180 was held
held by NewNew HomesHomes Development
Development Ltd. Ltd. The
The company
company appliedapplied
to the
to the City
City Council
Council forfor consent
consent to to develop
develop an an Estate.
Estate. Consent
Consent was was granted
granted
but on
but on condition
condition thatthat the
the company
company surrenders
surrenders a percentage
percentage of of the
the land
land to to
the Government
the Government to to be
be used
used as as public
public utility.
utility. Consequently,
Consequently, the the company
company
surrendered plot
surrendered plot L.R2951/89
L.R2951/89 toto be be used
used as as public
public openopen space.
space. In In 1992,
1992,
Messrs.
Messrs. J.K J.K CHEPKWONY,
CHEPKWONY, GEOFREY GEOFREY KOSKEY, KOSKEY, PETER PETER KOSKEY KOSKEY
and J.
and J. CHERUIYOT
CHERUIYOT of P.O
of P.O BOX BOX 47419 47419 Nairobi
Nairobi applied
applied to to thethe
Commissioner
Commissioner ofofLands
Landstoto be be allocated
allocated this this plot
plot which
which had had beenbeen
surrendered
surrendered for public
for public purposes.
purposes. AA Part
Part Development
Development Plan
Plan was was
subsequently prepared and
subsequently prepared and thethe land
land in question
question subdivided
subdivided into into three
three plots
plots
79
Sichangi Adv
A,B,C.
A,B,C. Letters
Allotment were were issued
issued toto the
the applicants
applicants who who paid
paid aa Stand
Stand
Premium of
Premium of 97,
97, 470
470 shillings
shillings for
for each
each plot.
plot. The
The allottees
allottees then
then transferred
transferred
the unsurveyed
the unsurveyed plotsplots toto JITESH
JITESH SHAH SHAH and and HIGHLAND
mGRLAND TEXTILE TEXTILE
LIMITED as
LIMITED as co-owners
co-owners for
for 1.7
1.7 million
million shillings
shillings each.
each. Titles
Titles were
were
subsequently
subsequently issued
issued to
to the
the purchaser.
purchaser.
For list of
For a list of suspect allocations of
suspec:t allocations of public
public utility land as
utility land as prepared
prepared from
from
the complaints received
the complaints received from
from the
the public,
,public, see
see Annex Vol. II of
Annex 19 in Vol. of the
the
Annexes.
Annexes.
Double allocations
Double allocations of public land
of public land under
under different
different statutes
statutes
The Commission
found that as
as part
part of of an'an elaborate
elaborate scheme
scheme of of land
land
grabbing
grabbing andand given
given the
the multiplicity
multiplicity of of land
land registration
registration laws,
laws, different
different titles
titles
would
would be be issued
issued to the the same
same piece
piece ofof land.
land. Thus
Thus one one title
title to
to land
land would
would be be
issued
issued under
under thethe Registration
Registration of Titles
Titles Act,
Act, while
while another
another title
title to
to the
the same
same
piece of
piece of land
land would
would be be issued
issued under
under the
the Registered
Registered LandLand Act.Act. TheThe double
double
issuance of
issuance of titles
titles was
was meant
meant to to facilitate
facilitate the the illegal
illegal allocation
public
land.
land. The
The Commission
Commission found found that
that surveyors
surveyors at at the
the Ministry
Lands andand
Settlement would
Settlement would conduct
conduct surveys
surveys from
from theirtheir desks
desks without
without visiting
visiting thethe
site. Two
site. Two Survey
Survey PlansPlans would
would then
then be
be' . produced
produced for for the
the same
same parcel
parcel of
of land
land
leading
leading to thethe issuance
issuance ofof two
two different
different titles.
titles.
Conclusions
Conclusions
From the
From the foregoing,
foregoing, the
the Commission
Commission arrived
arrived at
at the
the following
following Conclusions:
Conclusions:
Abuse
Abuse of Powers
of Powers
The powers
The powers vested
vested in in the
the President
President to to make
make grants
grants of
of freehold
freehold or or leasehold
leasehold
on un-alienated
on un-alienated government
government land land have
have been
been grossly
grossly abused
abused over
over thethe years
years
both by
both by the
the President
President and and successive
Commissioners of Lands
of Lands and and their
their
deputies. Due
deputies. Due to to such
such abuse
abuse of of discretion,
discretion, aa substantial
substantial amount
amount of of public
public
land (un-alienated
land (un-alienated Government
Government Land)
Land) has been unjustly
has been unjustly allocated
allocated to to'
individuals and
companies. This This practice
practice has
has in turn
turn cost
cost the
the country
country dearly
dearly
in economic,
in economic, social
social and
and political
political terms.
terms. TheThe abuse
abuse ofof discretion
discretion in in this
this
regard occurred
regard occurred during
during both
both the
the regimes
regimes of of former
former Presidents
Presidents Kenyatta
Kenyatta and and
Moi. Most
Moi. Most ofof the
the illegal
illegal and
and irregular
public land
land took
took place
place
during the
during the tenure
tenure of of Messrs.
Messrs. WILSON
WILSON GACHANJAGACHANJA AND AND SAMMY SAMMY
SILAS KOMEN
SILAS KOMEN MWAITA MW AIT A as as Commissioners
Commissioners of Lands,
of Lands, whilewhile Mr. Mr.
80
80
Sichangi Adv
JOSIAl:l
JOSIAI4 SANGSANG served
served as the Permanent
as the Permanent Secretary
Secretary of the Ministry
of the Ministry of of
Lands
Lands andand Settlement,
Settlement, and seemingly
and seemingly interfered" with
interfered the duties
with the duties ofof the
the
Commissioner of
Lands.
Illegal allocation
of land
land reserved
reserved for
for public
public purposes
purposes
While
While itit can
can be
be argued
argued both both inin law
law and
and logic,
logic, that
that the
the allocations
allocations of of un-
un-
alienated Government land
alienated Government land inin the
the exercise
exercise of of powers
powers conferred
conferred upon upon thethe
President by Section 3 of the Government Lands Act was done in a manner
President by Section 3 of the Government Lands Act was done in a manner
that
that constituted many irregularities
constituted many irregularities as opposed
as opposed to to illegalities;
illegalities; allocation
allocation of of
lands reserved
lands reserved forfor public
public purposes
purposes by by the
the President,
President, Commissioners
Commissioners of
of
Lands, Local authorities,
Lands, Local authorities, and and others
others constituted
constituted outright
outright illegalities which
illegalities which
are incurable
are incurable in law.
law.
Breach of Public
Breach Public Trust
Trust by
by Local
Local Authorities
Authorities
In the face
face of unbridled
unbridled plunder
plunder of of public
public land
land byby unscrupulous
unscrupulous individuals
individuals
and officials,
and officials, it would
would have
have been
been expected
expected that that various
various local
local authorities
authorities in in
whose jurisdiction
whose jurisdiction this
this land was located
located would
would have
have stood
stood up in in defence
defence of
the same.
the same. YetYet through
through thethe activities
activities and and omissions
omissions of of their
their organs,
organs,
councilors
councilors arid chief officers;
and chief officers; they
they actively
actively participated
participated in in the
the illegal
illegal
allocation of
public land.
land. This
This waswas aa dismal
dismal failure
failure on
on the
the part
part of
oflocal
local
authorities. They
authorities. They acted
acted in
in total
total breach
breach of trust trust asas custodians
custodians of of land
land on on
behalf
behalf of thethe local
local residents.
residents. TheThe Nairobi
Nairobi City CityCouncil/Commission
Council/Commission inin
particular and
particular and other
other major
major councils
councils in in Mombasa,
Mombasa, Nakuru,Nakuru, Kisumu
Kisumu and and
Eldoret
Eldoret were seriously culpable
were seriously culpable in in this
this respect.
respect. ForFor example,
example, certified
certified
nd
copies
copies of of the
the Minutes
Minutes of of the 462nd
the 462 budget meeting
budget meeting of of the
the Mombasa
Mombasa
Municipal Council
Municipal Council indicate
indicate that
that one
one of the main
of the main items
items of
of the
the agenda
agenda was was
the
the allocation
public utility
utility plots
plots toto councilors
councilors and and civil
civil servants.
servants. Large
Large
sections of
sections of Shimanzi
Shimanzi Road
Road were
were allocated
allocated following
following this
this meeting.
meeting. Mama Mama
Ngina Drive Block
Ngina Drive Block 2626 which
which was was aa public
public utility
utility land
land was
was allocated
allocated to to
indi viduals and
individuals and companies
companies in in this
this manner.
manner.
Complicity of
Complicity of Professionals
Professionals in
in the
the illegal
illegal allocations
allocations
Individuals
Individuals and firms
firms from
from various
various professions
professions actively
actively participated
participated inin and
and
facilitated the illegal
facilitated the illegal allocations of public
allocations of public land.
land. The
The practice
illegal
allocations would
allocations would not have been
not have been perfected
perfected without
without the
the complicity
complicity of of
professionals in
professionals the land
in the land and
and property
property market.
market. Worthy
Worthy ofof mention
mention in in this
this
81
81
Sichangi Adv
regard are
regard are lawyers,
lawyers, surveyors,
surveyors, valuers,
valuers, physical
physical planners,
planners, engineers,
engineers,
architects,
architects, land
land registrars,
registrars, estate
estate agents
agents and
and bankers.
bankers. These
These professionals
professionals
rendered services
rendered services which
which made
made thethe practice
illegal allocations
public
land
land lucrative
lucrative and
and from
from which
which they
they benefited.
benefited.
The use of
The use of Letters
Letters of
of Allotment
Allotment and
and Part
Part Development
Development Plans
Plans
It
It was
was found
found thatthat the
the illegal
public land land werewere
actualized through the
actualized through the useuse ofof letters
letters of of allotment
allotment and and part
partdevelopment
development
plans.
plans. While
While letters
letters of
of allotment
allotment are are written
written contractual
contractual offers offers of of un-
un-
alienated
Government land land upon
upon certain
certain conditions
conditions statedstated therein,
therein, they they
were recognized and
were recognized and used
used as if they they were
were interests
interests in land land or or titles
titles to to land.
land.
Thus the
Thus the people
people to to whom
whom they they werewere addressed
addressed transferred
transferred them them to to third
third
parties
parties or or used
used themthem asas aa basis
basis forfor informal
informal transfers
transfers of of public
public land. land. The The
use
use ofof such
such letters
letters was
was not not just
just illegal
illegal but but criminal
criminal especially
especially in in cases
cases
where the
where the letters
letters had
had expired
expired or or were
were backdated.
backdated. Letters
Allotment are are
offers and
offers and not
not interests
interests inin oror titles
titles toto land.
land. Where
Where letters
letters ofof allotment
allotment have have
expired, they
expired, they areare nothing
nothing other
other than
than pieces
pieces of paperpaper in the the eyes
eyes of of the
the law.
law.
Backdating aa Letter
Backdating Letter ofof Allotment
Allotment rendersrenders the the resultant
resultant titletitle to to the
the land
land
revocable on
revocable on grounds
grounds of of fraud
fraud under
under the the Registration
Titles Act: Act and and the
the
Registered Land
Registered Land ActAct (taking
(taking intointo account
account the the Provisions
Provisions of of section
section 143).143).
Part Development
Part Development Planswere
Plans were on on the
the other
other handhand prepared
prepared by by thethe
departments of
departments of physical
physical planning
planning at at the
the Ministry
Ministry or or City
City Council
Council to to re-plan
re-plan
lands that
lands that had
had been
been reserved
reserved for forpublic
public purposes.
-purposes, Specific
Specific physical
physical
planners were used to prepare these part development plans. The plans
planners were used to prepare these part development plans. The plans soso
prepared opened
prepared opened the the door
door for for the
the Commissioner
Lands to to allocate
allocate
public land illegally, or to grant consents for the transfer of undeveloped
public land illegally, or to grant consents for the transfer of undeveloped
leasehold land
leasehold land contrary
contrary to the the provisions
provisions ofof the
the Physical
Physical Planning
Planning Act Act 1996
1996
and the
and the Governme!1t
Government Lands Lands Act, Act, Cap
Cap 280
280 of
of the
the Laws
Laws of of Kenya.
Kenya.
Coincidence of
Coincidence of Illegal
Illegal Allocations
Allocations of Public Land
of Public Land with
with General
General Elections
Elections
Records examined by
Records examined by the
the Commission
Commission reveal
reveal that
that most
most illegal
illegal allocations
'allocations
of public
of public land
land took
took place
place just
just before
before or
or soon
soon after
after the
the multiparty
multiparty general
general
elections
elections of of 1992,
1992, 1997
1997 andand 2002.
2002. Some
Some high
high profile
profile allocations
public
land
land took
took place
place during
during this
this time.
time. Most
Most of the
the lists
lists of
of illegal
illegal allocations
allocations of of
public
public land
land annexed
annexed to thisthis Report
Report point
point the
the fact
fact that
that allocations
allocations coincided
coincided
with
with thethe General
General elections.
elections. One One such
such allocation
allocation was was made made to to S.K
S.K
MACHARIA and
MACHARIA and JOSEPH
JOSEPH GILBERTGILBERT KIBE. KIBE. The The third
third allottee
allottee waswas
82
Sichangi Adv
NGENGI MUIGAI.
NGENGI MUIGAI. However, However, the
the first
first two
two almost
almost immediately
immediately sold
sold the
the
land in question, namely, L.R NO.216/8 KARURA for 550 million
land in question, namely, L.R NO.216/8 KARURA for 550 million
shillings
shillings to
to the
the KENYA
KENYA RE-INSURANCE
RE-INSURANCE CORPORATION.
CPRPORATION. The
The salesale
was effected notwithstanding
was effected notwithstanding the
the fact
fact that
that NGENGI
NGE}'JGI MUIGAI
MUIGAI had had placed
placed aa
CAVEAT
CA against the
VEAT against the title
title seeking
seeking to to protect
protect hishis part
part ofof the
the booty
booty in in the
the
land.
land. ItIt should
should be be noted
noted thatthat Messrs.
Messrs. Macharia
Macharia and and Kibe
Kibe were
were part
part ofof what
what
was
was known
known at at the
the time
time asasCentral
Central Province
Province Development
Development Co-ordinating
Co-ordinating
Group. This
Group. This coincidence
coincidence of
of allocations
allocations of
of public
public landland with
with thethe general
general
elections reinforced
elections reinforced the the Commission's
Commission's conclusion
conclusion to to the
the effect
effect that
that public
public
land
land was
was allocated
allocated as as political
political reward
reward or or patronage.
patronage.
The use
The use of
of Companies
Companies as
as conduits
conduits for
for Illegal
Illegal Allocations of Public
Allocations of Land
Public Land
Records reveal
Records reveal that that some
some of of the
the most
most highhigh profile
profile allocations
public land lard
were made
were made to to companies
companies incorporated
incorporated apparently
apparently for
for that
that purpose.
purpose. The The
Commission had
Commission had to to conduct
conduct searchessearches at at the
the Registrar
Registrar of of Companies
Companies in
in
order to
order to establish
establish the
the identity
identity of of the
the shareholders
shareholders and
and directors
directors of of thethe
companies to
companies to which
which publicpublic land land hadhad been
been illegally
allocated. As As already
already
stated in
stated in PART
PART TWO TWO of of this
this Report,
Report, the the company
company searches searches were were time time
consuming due
consuming due to to the
the fact
fact thethe details
details sought
sought were were notnot readily
readily available.
available. At At
the end of its Inquiry, the Commission had not succeeded in establishing
the end of its Inquiry, the Commission had not succeeded in establishing
the identities
the identities of
of some
some of of thethe directors
directors and and shareholders
shareholders behind
behind these these
companies.
companies. Notwithstandingthethe full
Notwithstanding full cooperation
cooperation extended to
extended to the the
Commission by
Commission by thethe Registrar
Registrar of
of Companies,
Companies, the
the particulars
particulars of
of these
these
companies
companies could
could not not be be located.
located. The The inquiry
inquiry established
established the the possibility
possibility that that
individuals
individuals could
could have have been been obtaining
obtaining blank blank Certificates
Certificates ofof Incorporation
Incorporation
from
from the the Company
Company Registry Registry which which they they would
would then then- fill
fill and
and useuse toto illegally
illegally
acquire public land.
acquire public land. Some Some of of these
these certificates
certificates were were obtained
obtained from from otherother
non official
non official sources.
sources. The The Commission
Commission concluded
concluded that
that some
some of of these
these
companies
companies to which
to which public public land land was was illegally
illegally allocated
allocated could could very very wellwell
have
have been been non-existent.
non-existent. For
For a a detailed
detailed list
list and
and particulars
particulars ofof thethe
companies
companies to which
to which land land was was allocated,
allocated, see Annex
see Annex 11in in Vol.
Vol. 1I of of the
the
Annexes.
-Annexes.
(iii)
Recommendations
The Commission
The Commission hereby
hereby makes
makes the
the following
following recommendations:
recommendations:
1.
1. All
All allocations of public
allocations of public utility
utility land
land are
are illegal
illegal and
and should
should bebe
nullified.
nullified. Such
Such lands
lands should
should bebe repossessed
repossessed and and restored
restored to
to the
the
purpose
which they
they had
had been
been reserved.
reserved.
83
Sichangi Adv
2. Where
Where thethe land
land in
in question
question isis aa road
road reserve;
reserve; the
the consequences
consequences in in .
1 above
above should
should ensue
ensue notwithstanding
notwithstanding the the fact
fact that
that the
the land
land has
has
been
been developed.
developed. Any Any building
building ororother
other construction
construction erected
erected onon
the
the said
said land
land should
should be
be demolished
demolished without
without exception.
exception.
3. Where
Where the the land
land in in question
question was was reserved
reserved for for aa public
public purpose
purpose
other
other than
than aa roadroad reserve,
reserve, and and has has since
since beenbeen substantially
substantially
developed
developed whether
whether by by thethe original
original allottee
allottee or aa thirdthird party;
party; and
and if if
after
after consultation
consultation with with the the local
local community
community of of the
the area,
area, itit isis
established
established that that the
the area
area is no no longer
longer required
required for for the
the purpose
purpose for for
which
which it it had
had been
been reserved,
reserved, the the title
title should
should nonetheless
nonetheless be be
revoked
revoked (given(given itsits inherent
inherent illegality).
illegality). The The Government
Government may may
however
however issueissue a new
new titletitle to
to the
the current
current registered
registered proprietor
proprietor uponupon
new
new terms
terms and and conditions.
conditions. Such
Such terms terms shall shall include
include· the the
requirement
requirement to to the
the effect
effect thatthat the
the current
current registered
registered proprietor
proprietor
pays
pays to thethe Government
Government the the net
net unimproved
unimproved site site value
value ofof the
the land.
land.
Provided
Provided that that in
in issuing
issuing aa new new title,
title, all
all requirements
requirements of of Planning
Planning
and
and Environmental
Legislation shall shall be strictly
strictly complied
complied with.with,
4. All
All current
current Letters
Altotment whichwhich have
have been
been issued
issued as as aa
consequence
consequence of of an
an illegal
illegal allocation
public land
land should
should be be
revoked. In
revoked. In cases
cases where
where thethe letters
letters have
have expired,
expired, they
they should
should
stand expired
stand expired andand therefore
therefore not not capable
capable of
of being
being used
used asas aa basis
basis
for any
for any transaction
transaction in in land.
land.
5.
5. In future,
In future, Letters
Letters of Of Allotment
Allotment should
should strictly
strictly operate
operate as as
originally intended
originally intended i.e.
i.e. as offers
offers for
for the
the purchase
purchase of of un-alienated
un-alienated
Government land
Government land and
and nothing
nothing more.
more. The
The letters
letters should
should expire
expire
exactly after
exactly after the
the prescribed
prescribed period
period stated
stated therein.
therein. A A Letter
Letter ofof
Allotment should
Allotment should neither
neither be
be transferable
transferable nor nor be
be used
used as
as aa basis
basis
for the
for the inforMal transfer of
inforinal transfer of an
an interest
interest in
in land.
land.
6.
6. Where land
Where land has
has been
been reserved
reserved for
for a public
public purpose,
purpose, no no consent
consent toto
an application
an application forfor change
change ofof user
user with
with respect
respect to that
that land
land shall
shall be
be
granted by
granted by the
the Commissioner
of Lands unless
unless the
the proposed
proposed
change
change ofof user
user is in the
the public
public interest.
interest.
7.
7. All public
All public officials
officials who
who facilitated
facilitated oror participated
participated inin the
the illegal
illegal
allocation of
public land
land should
should be be investigated
investigated andand prosecuted
prosecuted in
84
84
Sichangi Adv
accordance
accordance with the
with the applicable
applicable penal law
penal law such
such asas the
the Anti-
Anti-
Corruption and
Corruption and Economic
Economic Crimes
Crimes Act
Act and
and the
the Penal
Penal Code.
Code. Such
Such
officials may
officials may also
also be
be considered
considered for
for retirement
retirement in
in the
the public
public
interest.
interest.
8.
8. All persons
All persons whowho not not being
being! public
public officials
officials participated
participated in
in oror
facilitated the
facilitated the illegal
illegal allocation
of public land
land (in(in whatever
whatever
capacity, whether
capacity, whether as as professionals,
professionals, original
original allottees,
allottees, brokers
brokers or or
speculators), should
speculators), should be be investigated
investigated andand prosecuted
prosecuted in accordance
accordance
with the
with the applicable
applicable penal
penal law.
law.
9.
9. All professionals
All professionals who
who participated
participated, in in the
toe -- illegal
illegal allocation
allocation of of
public land
public land inin addition
addition toto being
being investigated
investigated as as in
in 88 above,
above, should
should
be
be investigated
investigated by
by the
the police
police inin the
the first
first instance
instance and and thereafter,
thereafter,
by their
by their professional
professional bodies with
bodies with aa view
view to to being
being disciplined
disciplined in in
accordancewith
accordance with their
their Codes
Codes of of Conduct
Conduct and and punished
punished in in
accordance with
accordance with the
the applicable
applicable penal
penal law.
law.
10.
10. All monies
All monies and and other
other proceeds
proceeds unjustly
unjustly acquired
acquired as as aa result
result ofof the
the
illegal allocation
illegal allocation and and sale
sale of
of public
public land
land (whether
(whether by by thethe original
original
allottees,
allottees, brokers, speculators
brokers, speculators or professionals),
or professionals), should
should be be
recovered
recovered by by the
the Government
Government in in accordance
accordance withwith thethe law.
law.
11.
11. Given
Given the the fact
fact that
that companies
companies have
have been
been usedused asas the
the main
main
vehicles fer
<vehicles for illegal
illegal allocations
allocations of
of public
public land,
land, such
such companies
companies as as
were
were allocated -public land illegally,
allocated public illegally, should
should bebe investigated.
investigated.
85
Sichangi Adv
(b) State
(b) State Corporations
Corporations Land
Land
(i)
(i) Background
Background
State Corporations
State Corporations are also referred
are also referred to inin Kenya
Kenya as as Parastatals.
Parastatals. They
They areare
established
established under
under specific
specific Acts
Acts of
of Parliament.
Parliament. Some
Some ofof their
their activities
activities are
are
also
also regulated
regulated by by the
the State
State Corporations
Corporations Act Act unless
unless exempted
exempted by by
legislation
legislation establishing
establishing a specific
specific Corporation.
Corporation. These
These Corporations
Corporations are are in
in
essence public companies
essence public companies or or enterprises. They became
enterprises. They became a feature
feature ofof the
the
management
management of of public
public affairs
affairs in Kenya
Kenya in thethe early
early days
days ofof independence.
independence.
However,
However, thethe establishment
establishment of of state
state corporations
corporations as institutions
institutions forfor the
the
management of
management of public
public resources
resources picked
picked up up in the late
in the late 1970's
1970's andand early
early
1980's. This
1980's. This was
was the
the period
period when
when Governments
Governments was was heavily
heavily involved
involved in in
the fields
fields of agriculture,
agriculture, industrialization
industrialization and
and commerce.
commerce.
The preference of corporations

The preference corporations to ministries
ministries as as organs
organs of of management
management by by
the
the Government stemmed from
Government stemmed from the
the fact
fact that
that certain
certain matters
matters were
were soso
complex or specialized
complex specialized that
that they
they required
required bodies
bodies which
which were
were professionally
professionally
organized
organized to manage
manage them.
them. ItIt was
was expected
expected that
that such
such bodies
bodies would
would recruit
recruit
and appropriately
and appropriately remunerate
remunerate skilled
skilled personnel
personnel who would use
who would use their
their
expertise to
expertise to help
help the
the Government
Government address
address specific
specific development
development issues
issues in
in
their areas
their areas ofof competence.
competence. However,
However, since
since suchsuch corporations
corporations werewere
established
established by Government, they
by the Government, they were
were only
only semi-
semi- independent.
independent. TheThe
Government retained a heavy
Government retained heavy presence
presence inin the
the administrative
administrative and and financial
financial
structure of the corporations.
structure of corporations. Each
Each state
state corporation
corporation fallsfalls under
under aa specific
specific
ministry while the Government
ministry while Government retains
retains the authority
authority to appoint
appoint members
members of
the management boards
the management boards and and the
the chief
chief executives
executives ofofrespective
respective
corporations
corporations..:
Being bodies
Being bodies corporate,
corporate, the state
state corporations
corporations have have powers
powers under
under thethe law
law
to acquire
to acquire andand dispose
dispose ofof both
both movable
movable and and immovable
immovable propertyproperty (land).
(land).
For the corporations
For the corporations to to operate,
operate, they
they require
require land
land forfor specific
specific purposes.
purposes.
Some corporations may only require land for
Some corporations may only require land for purposes of physical purposes of physical
infrastructure
infrastructure such as as offices
offices and
and housing
ho.using for
for their
their staff.
staff. Other
Other corporations
corporations
require a substantial
require substantial amount
amount of landland given
given the
the nature
nature of of their
their mandate
mandate and and
activities.
activities. In fact, some
In fact, some corporations
corporations (such(such asasagricultural
agricultural institutions,
institutions,
research institutions, communication
research institutions, communication institutions
institutions etc.)
etc.) depend
depend on on land
land for
for
their operations. Because
their operations. Because of this, the
of this, the Government
Government allocates allocates land
land to to
corporations
corporations in different proportions
in different proportions to enable them
to enable them commence
commence and and atat
times continue operations.
times continue operations. InIn certain
certain situations,
situations, thethe Government
Government allocates
allocates
funds from the exchequer
funds from exchequer to to corporations
corporations so so that
that they
they may
may purchase
purchase land.
land.
This
This is why state
state corporations
corporations hold
hold and
and manage
manage aa lot lot of
of land.
land.
86
Sichangi Adv
•
StateCorporations
(ii) State
(ii) Corporations Land
Land as
as Public
Public Land
Land
The Government
The Government allocates
allocates land
land to to state
state corporations
corporations to to enable
enable them
themcarry
carry
out their
out their mandate.
mandate. ThisThis land
land may may be be excised
excised outout ofofun-alienated
un-alienated
Government Land,
Government Land, oror be set
set apart
apart from
from trust
trust land.
land. The
The Government
Government may may
also
also compulsorily acquire land
compulsorily acquire land forfor the
the purpose
purpose of of aastate
statecorporation.
corporation.
Finally, the Government
Finally, Government can can and
and does
does allocate
allocate funds
funds from
from the
the exchequer
exchequer to to
corporations so
corporations so that
that they
they may
may purchase
purchase landland among
among other
other purposes.
purposes . It
It is
is
therefore
therefore quite
quite clear that all land
clear that land held
held or
or owned
owned byby aastate
state corporation
corporation isis
public land
public land in the sense
sense that
that itit was
was either
either excised
excised off
off Government
Government or or Trust
Trust
land, or the
land, the funds used to purchase
funds used purchase suchsuch.land were tax payers'
land were payers' money.
money.
The corporation therefore

The corporation therefore holds
holds the
the land
land on
on trust
trust for
for thethe people
people of ofKenya.
Kenya.
Where
Where the corporation
corporation land was was acquired
acquired in in the
the manner
manner aforesaid,
aforesaid, itit cannot
cannot
legally
legally be allocated
allocated to an an individual
individual oror company;
company; because
because itit isis reserved
reserved forfor
the use of the
the the corporation.
corporation. Where
Where aa corporation
corporation no no longer
longer needs
needs thethe land
land
earlier allocated
earlier allocated to to it, the
the ideal
ideal situation
situation would
would be be for
for itittotosurrender
surrender the the
land back
land back to thethe Government
Government which which should
should hold
hold itit for
for future
future public
public uses.
uses.
The land
The land should
should not not be
be surrendered
surrendered to to be
be allocated
allocated to an an individual
individual or or
company. Where
company. Where the the corporation
corporation acquired
acquired land
land through
through purchase,
purchase, not notfrom
from
public exchequer
public exchequer funds,funds, but from funds
but from funds generated
generated as profit profit from
from its its
business,
business, it can sell, exchange
can sell, exchange or dispose
dispose of such
such land
rand to to anan individual
individual or or
company
company at market
market value.
value. It can also
also use
use such
such profit
profit to to purchase
purchase land.
land. But
But
even
even in this instance,
instance, thethe corporation
corporation must
must exercise
exercise duedue diligence
diligence and andcare.
care.
The sale, exchange,
The exchange, disposition
disposition or or purchase
purchase ofof land
land must
must always
always be be for
for the
the
good of the corporation,
good corporation, hence
hence the
the public.
public.
An
An important point worthy
important point worthy of note note for
for the
the purposes
purposes of of this
this Report
Report isis the
the
fact
fact that
that each
each state
state corporation
corporation isis set set up
up for for aaspecific
specific purpose.
purpose. AA
corporation has
corporation core business
has its core business as stated
stated in the legislation
legislation under
under which
which itit
is established. Its functions
established. Its functions will havehave been
been set out out in
in law
law and
and other
other policy
policy
documents.
documents. It is not the the business
business of of state
state corporations
corporations to to buy
buy andand sell
sell land,
land,
let alone speculate in land. State corporations are not land buying
let alone speculate in land. State corporations are not land buying
companies. The
companies. purchase and
The purchase and disposition
disposition of of land
land by by aastate
statecorporation
corporation 'is'is
simply incidental
simply incidental to itsits core
core business.
business. YetYet manymany statestate corporations
corporations have have
acted as
acted as if they
they were
were set up up to
to deal
deal in
in land.
land. ItIt is
is as
as aaresult
result of
ofthis
thisthat
thatstate
state
corporations have
corporations have been
been used
used as as conduits
conduits for for land
landgrabbing
grabbing schemes
schemes
through which the public
through which public has
has lost
lost colossal
colossal amounts
amounts of of money.
money.
87
Sichangi Adv
The directors
The directors of of state
state corporations
corporations are bound
are bound by by the
the general
general law law that
that
governs directors of
governs directors of other
other companies;
companies; even ifif not
even not inin every
every material
material
particular.
particular. In In this
this regard,
regard, the
the directors
directors of of state
state corporations
corporations have have duties
duties andand
responsibilities
responsibilities which they
which they owe
owe to to the
the public.
public. They
They havehave aa duty
duty ofof care
care in
in
that they must
that they must always
always act
act in the
the best
best interests
interests of of the
the corporation.
corporation. TheyThey must
must
not
not put
put themselves
themselves in aa position
position where
where their
their interests
interests conflict
conflict with
with those
those ofof
the
the corporation.
corporation. TheyThey are
are under
under aa duty
duty to to protect
protect company
company property.
property. TheyThey
must
must notnot use
use their
their positions
positions as as directors
directors to to make
make private
private profit
profit oror financial
financial
gain over
.gain over and
and above
above that
that which
which they
they are
are paid for performing
paid for performing their their duties.
duties. IfIf
directors take decisions
directors take decisions inin a reckless
reckless andand imprudent
imprudent manner manner such
such as as to
to cost
cost
the corporation
the money, they
corporation money, they cancan be
be called
called upon
upon to to account
account under
under the the law.
law.
The
The directors
directors can
can also
also be
be held
held personally
personally liable
liable in in criminal
criminal law law for
for abuse
abuse
office.
office.
(iii) Findings
(iii) Findings
There are
There are over
over one
one hundred
hundred and and forty
forty (140)
(140) state
state corporations
corporations (this (this figure
figure
includes institutions such as universities, pension schemes and the Central
includes institutions such as universities, pension schemes and the Central
Bank of
Bank of Kenya).
Kenya). In In addition,
addition, there
there are
are one
one hundred
hundred and and thirteen
thirteen (113)
(113)
public companies
public companies in in which
which the the Government
Government had had shares
shares but but which
which havehave
been sold through
been sold through pre-emptive
pre-emptive rights
rights offer.
offer. Summons
Summons for for the
the production
production of
records and information were dispatched to all
records and information were dispatched to all the state corporations. the state corporations.
Summons was
Summons was also
also sent
sent to
to the
the Investment
Investment Secretary
Secretary to to provide
provide details
details ofof
information relating to to the
the lands
lands held
held by
by the
the Government
Government in in companies
companies in in
which it had
which had shares.
shares.
Only ninety-five (95)

Only ninety-five (95) state
state corporations
corporations sentsent in
in the
the information
information as as per
per the
the
summons. Many
summons. Many however
however either
either sent
sent incomplete
incomplete or or irrelevant
irrelevant information.
information.
The Retums submitted
The Returns Submitted exclude
exclude crucial
crucial information
relating toto lands
lands that
that
had been
had been illegally
illegally allocated
allocated or irregularly
irregularly purchased
purchased by by the
the corporations.
corporations.
For
For aa list
list ofofstate
state corporations
corporations which
which furnished
furnished information
information toto the
the
Commission
Commission and and those
those which
which did
did not.
not. Please
Please see
see Annexes 19 and
Annexes 19 20 in
and 20
Vol. II of
Vol. of the Annexes.
the Annexes.
Information received
Information received from
from thethe Investment
Investment Secretary
Secretary also
also had
had key
key gaps
gaps inin
the areas
the areas that
that were
were of of interest
interest toto this
this Commission., While itit is
Commission., While is a fact
fact that
that
these companies
these companies held held large
large portions
portions of land
land as
as part
part of
of Government
Government shares,
shares,
yet this land element did not come out of the Records provided to
yet this' land element did not come out of the Records provided to the
the
88
Sichangi Adv
Commission. The
Commission. The Investment
Investment Secretary however-informed the
Secretary however-informed the Commission
Commission
that the
that the records
records available
available atat the
the ministry
ministry did
did not
not have
have some
some of of the
the details
details
required
required by by the
the Commission.
Commission. ItIt was
was however
however noted
noted thatthat most
most of of the
the
companies in this category were sold through pre-emptive rights or
companies in this category were sold through pre-emptive rights or
divestiture. This
divestiture. This means
means that
that the
the offers
offers were
were not
not available
available to to the
the public.
public. In
In
fact, some
fact, some of of these
these companies
companies werewere bought
bought byby politically
politically influential
influential andand
powerful personalities
powerful personalities at at the time.
the time.
For list of
For a list of all
all the
the companies
companies inin which
which the
the Government
Government previously
previously
held
held shares,
shares, but
but which
which itit has
has since
since sold. Please see
sold. Please see Annex 21 in
Annex 21 in Vol.
Vol. 1I
of the
of the Annexes.
Annexes.
Not withstanding
Not withstanding the
the difficulties
difficulties cited
cited above,
above, the
the Commission
Commission was
was able
able to
to
analyze the
analyze the information
received and
and make the following
make the following findings.
findings.
Illegal Allocations
Illegal Allocations of
of lands
lands reserved for use
reserved for use of
of State
State Corporations.
Corporations.
As
As already
already indicated
indicated in the
the foregoing
foregoing remarks,
remarks, the the Government
Government through
through thethe
Commissioner of
Lands periodically
periodically reserves
reserves or or sets
sets aside
aside un-alienated
un-alienated
Governmentland
Government land for
for the
the use
use ofofState
State Corporations.
Corporations. Some Some statestate
corporationsare
corporations are allocated
allocatedaa lotlot of
of land
land duedue to to the
the nature
nature ofof their
their core
core
functions. Once
functions. Once land
land has
has been
been allocated
allocated to to or
or reserved
the use
use of
of aastate
state
corporation, it becomes
corporation, "alienated Government
becomes "alienated Government land". land".
The Commission
The Commission found found thatthat state
state corporations
corporations land land was
was illegally
illegally allocated
allocated
to individuals
to individuals or or companies
companies in in total
total disregard
disregard of of the
the lawlaw and and public
public
interest. The
interest. The allocation
allocation of of corporation
corporation land land was was made
made in in favour
favour of of
"politically correct" individuals
individuals in the the former
former regimes.
regimes. No No justification
justification for for
the allocation
the allocation ofof land
land reserved
the use
use ofof state
state corporations
corporations is is available
available
from the
from the records
records so so far
far examined
examined .by by thethe Commission.
Commission. The The lands
lands so so
allocated were
allocated were then
then sold
sold by by the
the allottees
allottees to to other
other state
state corporations
corporations for for
colossal
colossal amounts
amounts of of money
money far far in
in excess
excess of of the
the prevailing
prevailing market
market valuevalue ofof
the. land.
the land. The
The manner
manner and and speed
speed with
with which
which the the transactions
transactions were were effected
effected
leave no
leave no doubt
doubt that
that the
the allocation
land was
was aimed
aimed at enabling
enabling the the allottee
allottee
to speculate
to speculate with
with corporation
corporation land. land. This
This way,way, manymany individuals
individuals were were
unjustly enriched
unjustly enrichedatat great great expense
expense ofof the the people
people of of Kenya.
Kenya. The The
development
development objectivesfor
objectives for which
which the the state
state corporation
corporation had had been
been
established were
established were severely
severely compromised
compromised thus thus costing
costing thethe taxpayer
taxpayer dearly.
dearly.
On
On most
most occasions,
occasions, the
the loss
loss of
of corporation
corporation land
land was
was triggered
triggered by by the
the
actions of
actions of the
the Commissioner
Lands without
without involving
involving thethe corporation
corporation
89
Sichangi Adv
management. After
management. After specially
specially designed
designed correspondences,a a letter
correspondences, letter of of
allotment would
allotment would be be issued
issued by by the
the Commissioner
Commissioner of
of Lands
Lands to to an
an individual
individual
or company
or company for for land
land belonging
belonging to to the
the corporation.
corporation. AA grant
grant of of title
title would
would
subsequently be
subsequently be made
made toto the
the same
same individual
individual or or to
to aa third
third party
party to to whom
whom
the land
the land would
would have
have been
been sold
sold through
through an an informal
informal transfer
transfer of of a letter
letter of
of
allotment. The
allotment. The corporation
corporation management
management would
would wake
wake up up toto aa rude
rude fact
fact that
that
their land
their land had
had been
been acquired
acquired and and title
title issued
issued thereto
thereto without
without their their
knowledge.
knowledge.
At other
At other times,
times, thethe illegal
illegal allocation
allocation of of state
state corporations
corporations land
land was
was usually
usually
triggered by
triggered by irregular
irregular surrenders
surrenders of of corporation
corporation land.
land. A A letter
letter of
of surrender
surrender
would be
would be written by either
written 'by either thethe corporation
corporation board
board of of management
management or
or the
the
chief executive
chief executive of of the
the corporation
corporation (managing
(managing director,
director, managing
managing trustee,
trustee,
director etc).
director etc). The
The letter
letter would
would be be addressed
addressed to to the
the Commissioner
Lands
stating that
stating that the
the corporation
corporation no
no longer
longer needed
needed aa specified
specified parcel
parcel of of land.
land.
Almost immediately,
Almost immediately,anan individual individualoror company company would would applyapply to to be be
Alocated the
.illocated the land
land inin question.
question. The The Commissioner
Commissioner of
of Lands
Lands would
would then then
make an
make an allocation
allocation of of the
the land
land toto the
the applicant
applicant by by issuing
issuing aa respective
respective letter
letter
(c ff allotment.
allotment. IfIf the the land
land waswas large
large in in size,
size, the
the allottee
allottee would
would applyapply for for
consent to
consent to subdivide
subdivide the the same
same into into different
different units.
units. TheThe Commissioner
Commissioner
would again
would again grant
grant the
the consent
subdivide the the land.
land.
Next, the
Next, the allottees
allottees would
would sell
sell the
the land
land so so illegally
illegally acquired
acquired to to one
one oror
different purchasers
different purchasers for for millions
millions ofof shillings! Thus in
shillings! Thus in a space
space ofof say
say three
three
months, aa civil
months, civil servant,
servant, aa politician,
politician, aa political
political operative,
operative, etc etc would
would
transform from
transform from an an ordinary
ordinary Kenyan,
Kenyan, financially
financially struggling
struggling like
like many
many
others into
others into aa multi-
multi- millionaire.
millionaire. Thanks
Thanks to to the
the rampant
rampant illegal
illegal allocation
allocation
and sale
and sale of state
state corporation
corporation land.
land.
The
The state
state corporations
corporations that that lost
lost lands
lands allocated
allocated toto them
them in
in this
this manner
manner werewere
usually strategic
usually strategic enterprises which required
enterprises which required huge
huge chunks
chunks of of lands
lands toto be
be
able to
able to carry
carry out
out their
their mandate.
mandate. Thus,
Thus, state
state corporations
corporations such such as as Kenya
Kenya
Railways Corporation,
Railways Corporation, Kenya
Kenya Agricultural
Agricultural Research
Research Institute
Institute (KARI),
(KARl),
Kenya Power
Kenya Power & & .Lighting
Lighting Company
Company Ltd, Ltd, various
various Development
Development Authorities,
Authorities,
Kenya Airports
Kenya Airports Authority,
Authority, KenyaKenya Industrial Estates Ltd,
Industrial Estates Ltd, etc,
etc, lost
lost huge
huge
chunks
chunks of their
their land
land in
in these
these circumstances.
circumstances.
The
The Commission
Commission also
also found
found that
that other
other state
state corporations
corporations would
would be be
mismanaged and
mismanaged and end
end upup in
in receivership
receivership oror liquidation,
liquidation, following
following which
which the
the
corporations'
corporations' assets
assets, , including
including land,
land, would
would be be sold
sold at
at throw away prices,
throwaway prices,
90
90
Sichangi Adv
or the
or the land
land would
would simply
simply be be allocated
allocated by by the
the Commissioner
Lands toto
favouredindividuals.
favoured individuals. OneOne suchsuch case
case isis that
that of
of the
the Kenya
Kenya FoodFood and and
Chemical
Chemical Corporation
Corporation Limited
Limited of of Kisumu,
Kisumu, commonly
commonly known known as as the
the
"Molasses Project".
"Molasses Project". This
This energy
energy saving
saving project
project was
was conceived
conceived by by the
the
Government in
Government in the
the 1970's
1970's andand was
was intended
intended to to manufacture
manufacture gasohol
gasohol from
from
sugar cane molasses
sugar cane molasses which
which was was produced
produced by by the
the sugar
sugar factories
factories inin Nyanza
Nyanza
and
and Western
Western Provinces.
Provinces. Land
Land for for the
the project
project was
was compulsorily
acquired by by
the Government
the Government in in 1976
1976 at
at 44 million
million shillings.
shillings.
Although hundreds of
Although hundreds of millions
millions of of tax
tax payers'
payers' funds
funds were
were invested
invested in in the
the
project,
project, itit stalled
stalled in in the
the 1980's
1980's and and thethe Company
Company was was put put under
under
receivership
receivership andand remains
remains as as such
such to to this
this day.
day. Land
Land forfor the
the project
project waswas
offered to the
offered to the company
company by by a letter
letter of allotment
allotment butbut this
this was
was never
never formally
formally
accepted
accepted or or paid
paid for
for and
and no no title
title was
was issued.
issued. However,
However, in in 2001
2001 the the
Commissioner
Lands S. S. S. K.
K. Mwaita,
Mwaita, allocated
allocated the
the land
land toto aacompany
company
known
known as as Spectre
Spectre International
International Limited Limited for for 3.7
3.7 million
million shillings
shillings or or
KShs.
KShs. 33,000
33,000 per
per hectare.
hectare. TheThe land
land measures
measures approximately
approximately 112 112 hectares
hectares
and comprises of seven
and comprises seven blocks
blocks thethe particulars
particulars of of which
which areare as
as follows:
follows:
1.
1. L.R No. 26453,
L.R No. 26453, area
area 26.10
26.10 ha,
ha, user,
user, horticultural
horticultural
2.
2. L.R No. 26454,
L.R No. 26454, area
area 39.00
39.00 ha, user, industrial
ha, user, industrial
3. L.R No. 26455,
L.R No. 26455, area
area 13.40
13.40 ha,
ha, user,
user, residential
residential
4.
4. L.R No. 26456,
L.R No. 26456, area
area 21.23
21.23 ha,
ha, user,
user, residential
residential
5. L.R No.
L.R No. 26457,
26457, area
area 3.50
3.50 ha,
ha, user,
user, recreational
recreational
6.
6. L.R No.
L.R No. 26458,
26458, area
area 2.20
2.20 ha,
ha, user,
user, health
health clinic
clinic
7.
7. L.R No.
L.R No. 26459,
26459, area
area 6.50
6.50 ha,
ha, user,
user, educational
educational
The direct
The direct allocation
allocation ofof alienated
Government land land to
to the
the company
company by by the
the
Commissioner
Lands was was illegal.
illegal. It was
was not
not clear
clear how
how the
the Government
Government
then
then intended,
intended, if at all,
all, to
to revive
revive oror sell
sell the
the project
project having
having already
already allocated
allocated
the
the seven
seven blocks
blocks ofof land
land totoSpectre'
Spectre'International
International Limited,
Limited, aa private
private
company.
company.
The Commission
The Commission further
further found
found that
that the
the Government
Government would would incorporate
incorporate aa
company ostensibly
company ostensibly for for noble
noble development
development purposes
purposes and and proceed
proceed to to
allocate itit public
allocate public land.
land. Instead
Instead of of carrying out the
carrying out the objects
objects for
for which
which it had
had
been incorporated,
been incorporated, the company
the company would would concentrate
concentrate on on selling
selling the
the land
land
allocated to
allocated to it
it to
to other
other state
state corporations.
corporations. A A classic
classic example
example is thethe case
case of
of
the Numerical Machining Complex Limited which was incorporated on
_ the Numerical Machining Complex Limited which was incorporated on
th -
- 44th January
January 1994
1994 toto take
take over
over the
the whole
whole oror part
part of
of the
the undertaking
undertaking and and the
the
business, property
business, property andand liabilities
liabilities of the Nyayo Motor
the Nyayo Motor Corporation.
Corporation.
91
Sichangi Adv
There are
There are only
only two
two shareholders
shareholders of of this
this company,
company, thethe Kenya
Kenya Railways
Railways
Corporation
Corporation and and the
the University
University ofof Nairobi both of
Nairobi both of whom
whom ownown the
the entire
entire
authorized and
authorized and issued
issued share
share capital
capital of
of KSh.
KSh. 750
750 million
million but
but who
who have
have not
not
paid for
paid for any
any of the
the shares.
shares.
On 24th June
On June 1994,
1994, the
the company
company was was allocated
allocated 839.7
839.7 Hectares
Hectares of of land
land inin
Mavoko Municipality
Mavoko Municipality which was
which was part
part ofof the
the Kenya
Kenya MeatMeat Commission
Commission
holding ground. The
holding ground. The company
company was was allocated
allocated this this land
iand forfor"industrial
"industrial
research purposes".
research purposes". Within
Within a few few weeks,
weeks, thethe then
then Head
Head of of Public
Public Service
Service
and Secretary
and Secretary to to the Cabinet Professor
the Cabinet Professor Philip Mbithi who
Philip Mblthl who waswas an an ex
officio Director of
officio Director of the
the company,
company, wrotewrote to Samuel Muindi
to Samuel Muindi the the then
then
Managing Trustee
Managing Trustee ofof the
the NSSF
NSSF informing
informing him him that
that the
the President
President had had
suggested that
suggested that the
the NSSF
NSSF be "requested"
"requested" to to purchase
purchase landland atat market
market value
value
from the
from Numerical Machining
the Numerical Machining Complex Limited, so
Complex Limited, so as to assist
assist inin the
the
national project.
national project. In February
February 1995, 1995, NSSF
NSSF bought
bought 136.07
136.07 Hectares
Hectares of of the
the
land from
land from the
the company
company at a cost of 268 268 million
million shillings
shillings which
which is 8.5
8.5 times
more than
more than the professionally
professionally assessed
assessed value. Todate, the
value. Todate, the land
land bought
bought by by
NSSF remains
NSSF remains mostly
mostly undeveloped,
undeveloped, whilewhile the Numerical Machining
the Numerical Machining
Complex has wholly
Complex wholly failed
failed to
to develop
develop thethe remainder
remainder of of the
the land.
land.
While Kenya Airports
While Kenya Airports Authority
Authority claimclaim to have
have lost a lot ofof land,
land, the
the loss
loss
could
could have
have been
been engineered
engineered from from within.
within. TheThe matter
matter requires
requires thorough
thorough
investigation. In
investigation. In addition,
addition, all
all Airport
Airport land
land across
across the
the country
country should
should bebe the
the
subject matter
subject matter ofof serious
serious investigations.
investigations. To To start
start with,
with, all
all allocations
allocations of of
airport land
airport land and
and land
land along
along flight
flight paths
paths should
should bebe revoked
revoked particularly
particularly at at
JKIA,
JKIA, MoiMoi International
International Airport
Airport (Mombasa),
(Mombasa), Malindi
Malindi Airport,
Airport, Ukunda,
Ukunda,
Lamu
Lamu Airstrip,
Airstrip, Lokichogio,
Lokichogio, Kisumu,
Kisumu, Eldoret
Eldoret and
and Garissa.
Garissa.
For a detailed
For detailed list
list of
of the
the state
state corporations
corporations that
that lost
lost their
their lands
lands
through such
through such illegal
illegal allocations,
allocations, andand the
the particulars
particulars thereto,
thereto, see
Annexes 22-37
Annexes in Vol.
22-37 in Vol.1I of the Annexes.
Purchases
Purchases of
of Illegally
Illegally acquired
acquired Public
Public Lands
Lands by
by State
State Corporations
Corporations
State Corporations
State Corporations diddid not just
just lose
lose land
land entrusted
entrusted to
to them
them through
through illegal
illegal
allocations of the
allocations of the same;
same; they
they were
were also
also pressurized
pressurized toto purchase
purchase illegally
illegally
acquired public land.
acquired public land. They
They became
became captive
captive buyers
buyers of land fromfrom politically
politically
connected allottees.
connected allottees. An
An individual
individual would
would bebe allocated
allocated public
public land
land illegally,
illegally,
obtain consent
obtain consent from
from the
the Commissioner
Commissioner of of Lands,
Lands, and
and then
then proceed
proceed to tosell
sell
the land
the land to
to a aspecific
specific state
statecorporation
corporation for for millions
millions ofofshillings.
shillings.
Corporations such
Corporations such as thethe NSSF,
NSSF, Kenya
Kenya Ports
Ports Authority,
Authority, Kenya
Kenya Pipeline
Pipeline
Corporation, Kenya
Corporation, Kenya Reinsurance
Reinsurance Corporation
Corporation etcetc were
were forced
forced toto purchase
purchase
92
Sichangi Adv
such
such land
land at
at exorbitant
exorbitant prices.
prices. Within
Within thethe relatively
relatively short
short period
period ofof somesome
five
five years,
years, from
from 19901990 toto 1995,
1995, the
the NSSF
NSSF inin particular
particular spent
spent up up totothirty
thirty
billion
billion (30 (30 Billion)
Billion) shillings
shillings on on purchasing
purchasing both both developed
developed and and
undeveloped
undeveloped plots plots inin various
various major
major urban
urban centres
centres throughout
throughout the the country.
country.
In
In many
many cases,
cases, thethe Fund
Fund purchased
purchased either
either illegally
illegally allocated
allocated public
public land land
such
such as as plots
plots in Karura
Karura and and Ngong
Ngong Forests,
Forests, or or lands
lands which
which werewere of of little
little or
or
no
no value
value atat exorbitant
exorbitant prices.
prices. No
No prudent
prudent management
management principles
principles were were
applied
applied by by thethe Trustees
Trustees in in making
making thesethese purchases.
purchases. (See
(See Numerical
Numerical
Machining Complex
Machining Complex above).
above). '
In 2001,
In 2001, land
land which
which was was partpart of
of Ngong
Ngong Forest
Forest was
was illegally
illegally excised,
excised,
subdivided into thirty two (32) plots, and allocated to thirteen (13)
subdivided into thirty two (32) plots, and allocated to thirteen (-13)
th t1i
companies.
companies. Between
Between 28 28 th and 29 August
and 29th August 2001,
2001, the
the thirteen
thirteen companies
companies
sold
sold thethe plots
plots totoKENYA KENY A PIPELINE PIPELINE COMPANY
COMPANY for KShs
for KShs
262,388,478.00.
262,388,478.00. BelowBelow is is aa Table
Table showing
showing details
details ofof the
the transactions:
transactions:
Company
Company L.R. No
L.R. Size
Vendor
Vendor Date
Date of
of sale
sale Price
Price
Directors
Directors Location
Location (Ha)
(Ha)
1.Redate
1.Redate 1.David
I.David 22473
22473 Ngong
Ngong 29th
29th August
August 1.0
1.0 5,683,000.00
5,683,000,00
Investment
Investment Kutwa
Kutwa Road
Road 2001
Limited
Limited 2.Daniel
2.Daniel
Karoki
Karoki
22474
22474 Ngong
Ngong 29th
29th August
August 1.0
1.0 5,683,000.00
5,683,000.00
Road
Road 2001
22481 Ngong
22481 Ngong 29th
29th August
August 1.0
1.0 5,683,000.00
5,683,000.00
Road
Road 2001
22499
22499 29th August
29th August 1.290 7,240,000.00
7,240,000.00
2001
22503
22503 29th August
29th August 1.0
1.0 5,683,000.00
5,683,000.00
22502
22502 2001
2.Tairo
2.Tairo I.Dan
1.Dan 22449
22449 28th August
28'" August 1.0
1.0 5,683,000.00
5,683,000.00
Investment
Investment Wekesa
Wekesa - 22500
·22500 2001
Ltd
Ltd 2.Peter
2.Peter 22455
22455
Wafula
Wafula
22450
22450 28t
28th• August
August 1.0
1.0 5,683,000.00
5,683,000.00
2001
22452
22452 28t August
28"'August 1.0
1.0 5,683,000.00
5,683,000.00
2001
2001
22453
22453 29th August
29'" August 1.0
1.0 5,683,000.00
5,683,000.00
2001
2001
-Th
22454
22454 29
~9'" August
August 1.198
1.198 6,808,234.00
6,808,234.00
,,:~jh 2001
2001
3.Velvet
3.Velvet 1.Gordon
l.Gordon 9778
9778 29\n August
29th August 0.5683
0.5683 3,229,648.00
3,229,648.00
Safaris
Safaris Okumu
Okumu 2001
2001
Limited
Limited Wayumba
Wayumba
2.Alice
2.Alice
Achieng
Achieng
Okumu
Okumu
9826
9826 294' August
29'" August 4,599,820.00
4,599,820.00
2001
2001
93
Sichangi Adv
Company
Company L.R. No
L.R. No Size
Size
Price
Vendor
Vendor Date
Date of
of sale
sale
(Ha) Price
Directors
Directors Location
Location (lIa)
4.Celtic
4.Celtic II.Catherine
.Catherine 9779
9779 0.5914
0.5914 3,360,926.00
3,360,926.00
Multisystems
Multisystems Chepchumba
Chepchumha
Ltd
Ltd 2.Silas
2.Silas
Simatwo
Simatwo
5.Somog
5.Somog Records
Records 9823
9823
Limited
Limited Missing
Missing
6.Linto
6.Linto I.Patrick
(.Patrick 22509
22509 29'h
29
9 th August
August 2.00
2.00 11,366,000.00
I 1,366,000.00
Limited
Limited Mungasia
Mungasia 2001
2001
2.Jane Nduku
2.Jane Nduku
22504
22504 29'hAugust
29'h August 1.0 5,683.000.00
5,683,000.00
2001
2001
22505
22505 29,n'August
29th August 2.09
2.09 11,877,470.00
11,877,470.00
2001
2001
22508
22508 29' August
29Th August 2.0
2.0 11,366,000.00
I 1,366,000.00
22506
22506 2001
2001
22509
22509
22510
22510 29'hh August
29' August 1.14
1.14 6,472,937.00
6,472,937.00
2001
2001
22511
2251 J 29,nAugust
29Th August 2.870
2.870 14,491,650.00
14,491,650.00
2001
7.Tanabell
7.Tanabell File Missing
File Missing 22451 28'h
28 Th August
August 1.0 5,683,000.00
5,683,000.00
Ent. Co.
Ent. Co. Ltd 2001
22480
22480 29'h
29 th August
August 1.0 5,683,000.00
5,683,000.00
2001
8.Roseco
8.Roseco I.Fredrick
1.Fredrick 22498
22498 29'h
29Th August
August 1.350
1.350' 7,978,932.00
7,978,932.00
Investment
Investment Onyango
Onyango 2001
Ltd 2.Williall)
2.Williarn
Mtinda
Mtinda
22501
22501 29'h
29th August
August 1.0 5,683,000.00
5,683,000.00
'" ..
2001
.,.;A1.B.erke..
...9.,B•rke • • ,,,....,.'..".,
~':. .
" LWilli,lun
I-William .9826
.9826 29'h
29Th August
August 1.745 9,916855.00
9,916855.00
. .i,C"9mmercial
commercial Ruto
Ruto 9824
9824 2001
Agencies
Agencies Kipchjrchir
Kipchjrchir
2.0avjd
2.Davjd
Kernel Kibet
Kernel Kibet
Bett
3.WiIly Bett
3.Willy
Kipkorir
Kipkorir
4.James
4.James Bett
Bett
Kiprop
Kiprop
10.Grevsoil
10.Grevsoil 9926
9926 3.426
3.426 19,400,000.00
19,400,000.00
Investments
Investments
Ltd
Ltd
II.Priority
11.Priority I.Pau\
1.Paul 25525
25525 29'n
29th August
August 5.086
5.086 28,903,738.00
28,903,738.00
Ltd
Ltd Chirchir
Chirchir 2001
2.Matthew
2.Matthew
Otieno
Otieno
.•
12.Rama
12.Rama 25526
25526 4.0
4.0 22,732,000.00
22,732,000.00
Limited
Limited
13.Makori
13.Makori 22512
22512 29,n
29th August
August 2.341
2.341 13,303,903.00
13,303,903.00
Investments
Investments 2001
2001
Ltd
Ltd
94
94
Sichangi Adv
Kenya
Kenya Ports Authority
Ports Authority is yet
is yet another
another example
example oc 0+ the
the many
many state
state
corporations which
corporations which bought
bought land
land from
from politically
politically connected
connected individuals
individuals and
and
companies
companies for millions of
for millions of shillings.
shillings. The
The following
following few
few examples
examples will
will
suffice:
l.
1. Undeveloped plot L.R No.
Undeveloped No. 9093,
9093, Malindi-Kilifi
Malindi-Kilifi (7.0
(7.0 Ha)
Ha) bought
bought from
from
HARRY
HARRY MUTUMA
MUTUMA KATHURIMA
KATHURIMA for 12 12 million
million shillings
shillings
2. Undeveloped plot
Undeveloped L.R 16121
plot L.R 16121 Shimoni,
Shimoni, Kwale
Kwale (2.516
(2.516 Ha)
Ha) bought
bought
from ALI
from ALl KORANE
KORANE (former
(fqrmer D.C in the
D.0 in the KANU
l(ANU Government
Government andand later
later
Permanent Secretary
Permanent Secretary in the NARC
in the NARC Government)
Government) through
through Rahole
Rahole
Enterprises 1~92 for 88 million
Enterprises in 1992 million shillings
shillings
3. Title No. Mombasa/Block
Title Mornbasa/Block 1/ 111682,
1682, Main
Main land
land South,
South, Mtongwe
Mtongwe creek
creek
(2.78 Ha)
(2.78 Ha) undeveloped.
undeveloped. Bought
Bought from
from SHARIFF
SHARlFF NASSIR
NASSIR (former
(former
Minister) for
Minister) for 10
10 million
million shillings.
shillings. Also
Also bought
bought from
from the
the same
same
politician was
politician was Title
Title No.
No. Mombasa/Block
MombasaIBlock V/1614,
V/1614, Mainland
Mainland North
North
Kimbarani,
Kimbarani, for 6 million
million shillings.
shillings.
Title No. MombasaIBlock 111/528
1111528 Mainland
Mainland North
North Kilifi/Takaungu
KilifilTakaungu
(173.6 Ha)
(173.6 Ha) undeveloped
undeveloped land
land bought
bought from
from Winworld
Winworld Ltd
Ltd (company
(company
records could
records could not be traced)
traced) for 150
150 million
million shillings.
shillings.
5. Undeveloped
Undeveloped plot L.R No.
plot L.R No. 209/10212, Bellevue, Nairobi
209/10212, Bellevue, Nairobi (1.6
(l.6 Ha)
Ha)
bought from MICAH CHESEREM, JOSHUA KULEI and DAVID
bought from MICAH CHESEREM, JOSHUA KULEI and DAVID
KOMEN 2.6 million
KOMEN million in
in 1985.
1985.
Title No. MombasaIBlock 1/46,
1146, Mainland
Mainland South
South (11.4
(11.4 Ha)
Ha) bought
bought
from KAYUMALI
from KA YUMALI ABBASHIS
ABBASHIS ANJARWALLA
ANJARWALLA for for 99 million
million
shillings
shillings
7. Mombasa/Block V/1683
MombasaIBlock VIl683 Mainland
Mainland North,
North, undeveloped
undeveloped plot
plot bought
bought
from ERASTUS
from ERASTUS MUTHAMIA KIARA for 1.2
MUTHAMIA KJARA 1.2 million.
million.
National Social Security
National Social Security Fund
Fund (N.S.S.F.)
(N.S.S.F.)
The most
The most abused
abused State
State Corporation
Corporation by by way
way of of buying
buying either
either illegally
illegally
allocated public land or purchasing land from individuals at exorbitant
allocated public land or purchasing land from individuals at exorbitant
prices far
prices far beyond
beyond thethe market
market value
value was
was the
the NSSF,
NSSF, aacorporation
corporation charged
charged
with the duty of mobilizing, and safeguarding
with the duty of mobilizing, and safeguarding the savingsthe savings by the toiling
the toiling
workers of
workers Kenya. The
of Kenya. The Corporation's
Corporation's Board
Board of of Trustees
Trustees areare supposed
supposed to to
manage the contributions
manage the contributions to and payments benefits
payments of benefits out of the Fund. The
of the Fund. The
NSSF Act stipulates
NSSF stipulates that
that all moneys
moneys inin the
the Fund
Fund which
which areare not
not required
required to to
be applied for purposes
be applied purposes of the
the Fund
Fund must
must bebe invested
invested inin such
such investments
investments
95
Sichangi Adv
in
in which
which anyany trust
trust fund
fund (or
(or part
part thereof)
thereof) isis permitted
permitted byby the
the Trustee
Trustee Act
Act to
to
be invested,
be invested, as as may
may be be determined
determined by by the
the Board
Board of of Trustees
Trustees with
with the
the
approval of
approval of the
the Minister
Minister and
and the
the Minister
Minister forfor the
the time
time being
being responsible
responsible forfor
matters relating
matters relating to
to finance.
finance. There
There is nono doubt
doubt that
that aa heavy
heavy responsibility
responsibility isis
placed upon the
placed upon the Board
Board ofof Trustee].
Trustee.
Yet
Yet the
the Commission's
Commission's interview
interview with
with the
the current
current Managing
Managing Trustee,
Trustee, Mr.
Mr.
N.
N. Mogere,
Mogere, established
established that
that the
the Fund
Fund had
had between
between 19901990 and
and 1995,
1995, spent
spent
up
up toto 30 Billion Shillings
30 Billion buying both
Shillings buying both developed
developed and and undeveloped
undeveloped plots
plots
throughout the
throughout the country.
country. The
The Trustees'
Trustees' main
main preoccupation
preoccupation was was to
to purchase
purchase
land in
land ill highly
highly suspect
suspect circumstances.
circumstances. SomeSome ofof the
the lands
lands were
were purchased
purchased asas
follows:
follows:
Size Purchase Price
Purchase Price Date
Date VendorlPrevious
Vendor/Previous
Item
Item LR.NO
LR.NO Location
Location
(Ha)
(Ha) (Kshs)
(Kshs) Purchased
Purchased Owner
Owner
11 NRB 40.05 Tassia Estate,
Tassia Estate. 159,275,000.00
159,275,000.00 30/08/95
30108/95 Tassia Coffee
Tassia Coffee
97/(409)
97/(409) Embakasi
Embakasi off Estates
Estates Ltd
plots Outering
Outering
Road
2 NBI 91.02 975,275,000.00
975,275,000.00 30/08/95
30108/95 Nokin Holdings
Nokin Holdings
97/(902)
97/(902) Ltd
3 209112340
209/12340 2.988
2.988 New Likoni 22,812,500.00
22,812,500.00 25/5/95
25/5/95 Sharjah Trading
Sharjah Trading
209112341
209/12341 19.36 Road, 60,500,000.00
60,500,000.00 25/5/95
25/5/95 Co. Ltd
209/12500
209/12500 0.8095 Nairobi
Nairobi 6,250,858.00
6,250,858.00 25/5/95
25/5/95
4 Block
Block 12.63 Eldoret
Eldoret 22,500,000.00
22,500,000.00 Jun-95
Jun-95 Soyonin Farm
Soyonin
101167
10/167
5 209/11642
209/11642 0.21 Municipalitj,
Municipality'.; 20,307,750
20,307,750 23/03/95
23/03/95 Lekuna Ltd
Lekuna
Community
Community
Area
Area -
Nairobi
Nairobi
6 209/10666
209/10666 0.3204
0.3204 Ngong
Ngong Road, 32,080,386.45
32,080,386.45 7/6/1989
7/6/1989 Siwaka Enterprises
Siwaka Enterprises
Opp.
National
National
Library,
Library,
Nairobi
7 209/11305
209/11305 0.3054
0.3054 Eigon Road.
Elgon Road, 50,101,250.00
50,101,250.00 1410211991
14/02/1991 Kingorani
Kingorani
Nairobi
Nairobi Investment Ltd.
Investment Ltd.
8 209/11331
209/11331 0.12 Kenyatta
Kenyatta 69,911,875.00
69,911,875.00 30112193
30/12/93 Fedha Investment
Fedha Investment
Avenue,
Avenue, Ltd
Nairobi
Nairobi '.
9 18486 6.031 Ngong Road,
Ngong 70,000,000.00
70,000,000.00 16/5/94
1615/94 Ankhan Holdings
Ankhan Holdings
Nairobi ua.
Ltd•
10
10 20919727
209/9727 8.2 Langata
Langata .,'i 382,385,133.35
382,385,133.35 8/8/1994
8/8/1994 Gamu Ltd
Gamu
Road Nairo~1
Road Nairoiii
11
11 209111314
209/11314 4.582
4.582 Outering
Outering 126,949,750.00
126,949,750.00 25/01/95
25/01195 Multi Purpose Co-
Multi Purpose Co-
RoadlJogod
Road/Jogoo Development
op Development
Road, Centre Ltd
Centre
Nairobi
Nairobi
96
96
Sichangi Adv
Size
Size Purchase Price
Purchase Price Date
Date Vendor/Previous
VendorlPrevious
Item
Item LR.NO
LR.NO Location
Location
Owner
(Ha)
(Ha) (Kshs)
(Kshs) Purchased
Purchased Owner
12
12 12715/430
12715/430 2.021
2.021 ~.
13 12715/431
12715/431 2.021
2.021 .~
14 12715/432
12715/432 2.021
2.021
15 12715/545
12715/545 2.664
2.664 r, -...-
;;0",
16 12715/407
12715/407 2,028
2,028 All in
Mavoko
Mavoko
17 12715/408
12715/408 4.049
4.049 Municipality
Municipality
Athi River
Athi River
18 12715/26
12715126 2.024
2.024
320,000,000.00 25/01/95
25/01195
19 12715/530
12715/530 2.023
2.023 l 320,090,000.00
.,
20 12715/529
127151529 2.023
2.023 ,
21 12715/579
12715/579 2.023
2.023 0'I
22 13302/5
1330215 2.021
2.021
23 18064
18064 30 ../
24 17645
17645 2.389
2.389 Kingorani
Kingorani
Investment Ltd.
Investment Ltd.
25 209/11463
209/11463 0.2056
0.2056 Upper Hill,
Upper 22,277,246.50
22,277.246.50 Oct.1995
Oct.1995 Sumein
Sumein Ltd
Nairobi
Nairobi
26 209/11881
209/11881 1.383
1.383 South 'B'
South 32,814,735.00
32,811,735.00 24/5/95
2415/95 Hamco Kenya
Hamco Kenya Ltd
Ltd
Nairobi
Nairobi ..
27 209!297
209!297 0.8066
0.8066 Bishops
Bishops 225,~! ~,937 .50
225,I,937.50 25/5/95
2515/95 Newman
Newman
Road,
Road, Investment
Investment Ltd
Lid
Nairobi
Nairobi
28 21189
21189 16.21 Embakasi,
Embakasi, 752,4)0,000.00
752,<4/P,OOO.00 16/10/95
16110195 North Field
North Field
Nairobi
Nairobi International Ltd
International Lid
....
29 21190
21190 59.87
59.87 Embakasi,
Embakasi,
Nairobi
Nairobi
30 20840
20840 3.893
3.893 Forest Edge,
Forest Edge, 40,54800.00
40,5~Voo.00 5/12/1995
5/1211995 Kerio
Kerio Farms
Farms Ltd
Lid
Langata,
Langata,
Nairobi
Nairobi
31 20841
20841 3.969
3.969 Forest Edge,
Forest Edge,
Langata,
Langata,
Nairobi
Nairobi
32 2535/UMN
25351UMN 2.695
2.695 43,290,000.00
43,290,000.00
33 2537/I/MN
2537/I1MN 0.4002
0.4002 Bamburi
Bamburi 6,500,000.00
6,5oo,qoO.00 29/03/95
29/03/95
Mombasa,
Mombasa,
Mainland
Mainland \
North
North
34 2538/I/MN
2538/UMN 0.4
0.4 6,500,000.00
6,5oo,poO.00
35 2539/UMN
25391UMN 0.4
0.4 6,500,000.00
6,5oo,QOO.00 Topaz Properties
Topaz Properties
- Ltd
Lid
36
36 2540/1/MN
2540lUMN 0.3997
0.3997 6,500,000.00
6,500,000.00
37 982/I/MN
982/I1MN 1.538
1.538 Near
Near 79,000,000.00
79,ooq,poo.00 29/03/95
29/03/95 Mandarin Beach
Mandarin Beach
Bamburi
Bamburi Hotel Ltd
Hotel Lid
Beach Hotel,
Bei£h Hotel,
Mombasa
Mombasa
97
Sichangi Adv
LR.NO
Size
Size Purchase
Purchase Price
Price Date
VendorlPrevious
Item
Item LR.NO Location
Location
(Ha)
(Ha) (Kshs)
(Kshs) Purchased
Purchased Owner
Owner
38 4981/I/MN
4981/1/MN 20.02
20.02 Nyali,
Nyali, 125,743,329.00
125,743,329.00 14/12/93
14112/93 Turnkey
Turnkey Projects
Projects
Mombasa
Mombasa Ltd
Ltd
39 1088/III/MN
1088/1ll/MN 8.758
8.758 Mtwapa,
Mtwapa, 229,248,176.00
229,248,176.00 16/05/94
16/05/94 Sun
Sun Trap
Trap Beach
Beach
Mombasa
Mombasa Hotel
Hotel Ltd
Ltd
40 1075/III/MN
1075/IlI/MN 8.169
8.169 Mtwapa,
Mtwapa, 101,986,606.00
101,986,606.00 16/5/94
16/5/94 Jimbim
Jimbirn Investment
Investment
Mombasa
Mombasa Ltd
Ltd
41 1089/III/MN
1089/IlI/MN 8.754
8.754 Mtwapa,
Mtwapa, 219,444,836.00
219,444,836.00 18/05/94
18/05/94 Sea
Sea View
View
Mombasa
Mombasa Investment
Investment Ltd
42 Kajiado/Kap
Kajiado/Kap 21.23
21.23 Kitengela
Kitengela 107,084,931.00
107,084,931.00 16/05/94
16/05/94 Soito
Soito Investments
Investments
utei opp. EPZ
opp. EPZ Ltd
North/3005
Northl3005
43 Kajiado/Kap
Kajiado/Kap 12.7 Kitengela
Kitengela
utei opp. EPZ
opp. EPZ
North/3006
Northl3006
44 Kajiado/Kap
Kajiado/Kap 46.69
46.69 Kitengela
Kitengela
utei opp. EPZ
opp. EPZ
North/ 1372
Northll372
45 Eld.
Municipality
Municipality
46 Block
Block 10 Michael
Michael Terrik
Terrik
10/176
101176
47
47 Block
Block 10 Eldoret
Eldoret 50,906,036.00
50,906,036.00 27/05/94
27/05/94 Manjan Holdings
Manjan Holdings
10/177
101177 Municipality
Municipality Ltd
48 Block
Block 10 Benjamin
Benjamin
10/178
10/178 Kipchirchir
Kipchirchir
49
49 Block
Block 10 Wilson Maina
Wilson Maina
10/179
10/179
50 KTL
KTL Unsur-
Unsur- Kitale
Kitale GK Allocation
GK Allocation 1995
Municipality
Municipality veyed
veyed Municipality
Municipality
51 11895/19
11895119 136 Mavoko
Mavoko
Municipality
Municipality 272,909,235.00
272,909,235.00 14/02/95
14/02/95 Numerical
Numerical
Machining
Machining Ltd
Ltd
52 209/10662
209/10662 1.071 Hospital Hill
Hospital 32,080,386.45
32,080,386.45 1989 Raju
Raju Investment
Investment
Road,
Road, Ltd
Nairobi
Nairobi
53 209/11412
209111412 0.432
0.432 Kenyatta
Kenyatta 126,038,628.20
126,038,628.20 12/4/1991
12/4/1991 KCB Ltd
KCB
Avenue,
Avenue,
Nairobi
Nairobi
54 209/12219
209112219 0.0799
0.0799 Kenyatta
Kenyatta 75,000,000.00
75,000,000.00 18/08/94
18/08/94 Jackie's Travel
Jackie's Travel
Avenue,
Avenue, Centre Inter
Centre Inter Africa
Africa
Nairobi
Nairobi Trading Co.Ltd
Trading Co.Ltd
55 209/12220
209/12220 0.0868
0.0868 Kenyatta
Kenyatta 82,000,000.00
82,000,000.00
'.- Avenue,
Avenue,
Nairobi
Nairobi
56 209/12287
209/12287 1.197 Kenyatta
Kenyatta 543,492,466.55
543,492,466.55 7/6/1980
7/611980 Corum Ltd
Corum Ltd
Avenue,
Avenue,
Nairobi
Nairobi
57 209/11609/2-
209/1160912- 1/2
112 ac Kileleshwa,
Kileleshwa, 42,250,005.00
42,250,005.00 11/8/1994
1118/1994 Akamba
Akamba
17(15
17(15 No. plot
plot Nairobi
Nairobi Investments
Investments Ltd
Ltd
plots)
plots)
98
Sichangi Adv
Size
Size Purchase Price
Purchase Price Date
Date VendorfPrevious
Vendor/Previous
Item
Item LR.NO
LR.NO Location
Location
(Ha)
(Ha) (Kshs)
(Kshs) Purchased
Purchased Owner
Owner
58 209112274
209/12274'. 18.41
18.41 MuthaigaiSpr
Muthaiga/Spr 296,550.687.50
296,550,687.50 28/09/95
28/09/95 Kitisuru Limited
Kitisuru Limited
ing Valley,
Valley,
Nairobi
59 20589
20589 49.86
49.86 Machakos
Machakos 50,517,055.00
50,517,055.00 22103/95
22/03/95 A.l.C Machakos
A.I.0 Machakos
Town
Town
60 20587
20587 20.5 Karen, 202,268,759.80
202,268,759.80 26/04/95
26/04/95 David Cyril
David
Nairobi Bowden
Bowden
61 NBIIBLK.98
NB1/BLK.98 6.07 Bellevue,
Bellevue, 150,000,000.00
150,000,000.00 1994 Reality Brokers
Reality Brokers
173
/73 Nairobi LId
Ltd
62 19187 5 Kagika Limited

Kagika Limited
63 19188 10 Gemwi Ltd
Gemwi Ltd
64 20305
20305 3.991 Mavoko
Mavoko 223,000,000.00
223,000.000.00 1995 Tetete Company
Tetete Company
Municipality
Municipality
65 20355
20355 58.73 Athi
Athi River Changa Ltd
Changa LId
66 33711921
337/1921 4 Japhet Okidor
Japhet Okidor
67 20181 4 Boaz
Boaz Keino
68 20183
20183 4 Johnstone Makau
Johnstone Makau
69 20184
20184 4 Muska Holdings
Muska Holdings
LId
Ltd
70 20185
20185 4 Margaret Mutinda
Margaret Mutinda
71 20199
20199 4 Antony Ndilinge
Antony Ndilinge
72 20200
20200 4 Milka Kithiga
Milka Kithiga
73 20201 4 Grace Nthamba
Grace Nthamba
74 20204
20204 4 Isaac
Isaac Muoki
75 20205
20205 4 Mavoko
Mavoko 91,410,00000
91,410,000.00 1995 Winfred Nyiva
Winfred Nyiva
Municipality
Municipality
76 20206
20206 4 Athi
Athi River Mutinda
Mutinda
Ndambuki
Ndambuki
77 20207
20207 4 Peter Ka visi
Peter Kavisi
78 20208
20208 4 Richard Kiluta
Richard Kiluta
79 20219
20219 4 George Nduta
George Nduta
80 20432
20432 30 Gideon Mutiso
Gideon Mutiso
81 20315
20315 4
82 20316
20316 4
83 20324
20324 4
84 20325
20325 4
85 20326
20326 4 Mulimo
Mulimo
Enterprises
Enterprises
86 20327
20327 4
87 30328 4
88 20329
20329 4
89 20330
20330 4 Mavoko
Mavoko 61,396,962.25
61,396,962.25 1995
Municipality
Municipality
90 20334
20334 4 Athi
Athi River Athi
Athi River
99
99
Sichangi Adv
Size Purchase Price

Purchase Price Date
VendorlPrevious
Item
Item LR.NO
LR.NO Location
Location
(Ha) (Kshs)
(Kshs) Purchased
Purchased Owner
Owner
91
91 24574
24574 20
92
92 20577 15.97
15.97
93
93 20578 233 Mavoko
Municipality
Municipality
94
94 26~72
26472 20 River
Athi River 576,028,000.00
576,028,000.00 1995 Kenya Cargo
Cargo
Handling
Handling Services
Services
Ltd (Trustees)
(Trustees)
9S
95 20579 60.6
60.6
Other
Other examples
examples where
where state
state corporations
corporations bought
bought public
public landland which
which hadhad
been acquired
been acquired illegally
illegally and
and which
which land
land was
was ofof no
noororlittle
littlevalue
valuetotothem
themare:
are:
• Central
Central Bank of of Kenya
Kenya which
which purchased
purchased aa plotplot reserved
reserved as asaapublic
public
parking
parking off Haile
Haile Selassie
Selassie Avenue
Avenue from
from aa company
company associated
associated with
with
an MP in in the
the former
former KANU
KANU regime
regime and and an-AssisrInt
~ssisrnnt Minister in
Minister in
current NARC
the current NARC Government
Government for 300 300 million
million shillings.
shillings.
Kenya Power
• Kenya Power and and Lighting
Lighting Company/
Company/ RetirementRetirement Benefits
Benefits
Scheme which purchased'
Scheme which purchasedrnarsh
marsh land Loresho (L.R
land in Loresho (L.R 21080,
21080,
6.837
6.837 Ba)Ha) at 78 million
at 78 million shillings
shillings fromfrom LIBRALIBRA SETTING
SETTING
LIMITED in 1999.
LIMITED 1999.
Kenya Power
• Kenya Power and and Lighting/
Lighting/ Retirement
Retirement Benefit
Benefit Scheme
Scheme which
which
bought Acre plot
bought a 58 Acre plot from
from RAPSEL
RAPSEL LTD LTD at 250 million shillings
250 million shillings
and many others.
and many others,
In many
many instances,
instances, there waswas agreement
agreement between
between the prime movers
movers of of these
these
transactions as
transactions as to change
change of user
user to
to facilitate
facilitate quick
quick sales
sales of
of land
land at
at public
public
expense. No
expense. No objections were raised
objections were raised atat the
the Ministry
Lands and and
Settlement
Settlementtoto applications
applications forfor change
change of user despite
of user despite thethe glaring
glaring
irregularities in
irregularities in many
many of the proposed
proposed salessales and purchases.
purchases. These
These activities
activities
included illegal
included illegal surrenders
surrenders of state
state corporation
corporation land
land to
to the
the Commissioner
Commissioner
of Lands
of Lands by the the respective
respective directors
directors in in collusion
collusion with
with ministry
ministry officials
officials inin
breach of the directors'
breach the directors' mandate.mandate.
The Commission
The Commission also also found
found that
that in
in quite
quite aa number
number of of instances,
instances, aa
particular parpel
particular parcel ofof land
[and would
would be be grabbed
grabbed from
from a state
state corporation
corporation and and
almost immediately
almost immediately soldsold to
to another
another state
state corporation
corporation forfor millions
millions of
of
shillings. These
shillings. These activities cost the
activities cost the public
public colossal
colossal amounts
amounts of of money
money
because the 1Qss
because loss ininsueh
suchaasituation
situation was
was double;
double; affecting
affecting two
two oror even
even more
more
state corporations.
state corporations.
100
Sichangi Adv
Kenya Veterinary
Kenya Veterinary Vaccines
Vaccines Production
Production Institute
Institute (KEVEVAPI)
(KEVEVAPI)
Sometime in
Sometime in the
the early
early 1990's
1990's sixty-three
sixty-three out out of
of ninety-three
ninety-three hectares
hectares of of
land belonging
land belonging to
tq the
the Kenya
Kenya Veterinary
Veterinary Vaccines
Vaccines Production
Production Institute
Institute
(KEVEVAPI)
(KEVEV API) in in Industrial
Industrial Area
Area Nairobi
Nairobi was was systematically
systematically subdivided
subdivided
and
and illegally
illegally allocated
allocated to
to aa number
number of of companies.
companies. One One suchsuch company
company
namely, SHARJAH
namely, SHARJAH TRADING
TRADING COMPANY COMPANY was
was allocated
allocated two two Plots
plots hived
hived
from KEVEVAPI
from KEVEVAPI in in January
January 1995.
1995. TheThe company
company then then sold
sold those
those two
two plots
plots
the-
to the NSSF for 500 million shillings in May 1995. Below a table
to NSSF for 500 million shillings in May 1995. Below is a table
showing an example
showing example of of these transactions.
these transactions:
~~, Land
Land Reserved/
Reserved! Current
Current Use
Use Original
Original
.'~ Ref.
Ref. Intended
Intended /1 Land
Land Allottee and
Allottee and
Current
Current
Area
Area Allocating
Allocating owner &
Owner &
,~'" NoJTitle
Noffitle Use
Use Category
Category
in (Ha)
in (Ha)
Date of
Date of
Authority
Authority Address
Address
"
1>.
No.
No.
"1
. ;~.;;'2 -z: c , . '3
't.F"
.~ !'!'r~_ , •..~.
Allocation
Allocation
—
.!J 5""'" ~.;'" • •• ·:?.:''It.'l
0( () . ,~:; .f'::-' •.••• 7-~ ..
··~·~··7~~$
• ,,,.,-.,
I1 LR.
L~. Research
Research Residential
Residential 2.988
2.988 Sharjah
Sharjah trading
trading Commis-
Commis- NSSF
NSSF Board
Board
209,/1233
209/1233 Co.Ltd.,
Co. Ltd .• P.
P. o.
o. sioner of
sioner of of Trustees
of Trustees
9, IR.
9.IR. Box 94118,
Box 94118. Lands
Lands Pricp
Price Ksh.
Ksh,
64874
64874 Nairobi, 1/9/95.
Nairobi. 1/9/95. 225m.
225m.
Premium Ksh.
Premium Ksh. 2615/95.
26/5/95.
I.6m
1.6m
2 LR.
~R. Research
Residential 2.988
2.988 Sharjah [radii*
Sharjah trading Cornmis-
Commis- NSSF
NSSF Board
Board
209/1234
20911234 Co.Ltd.,.• P.
Co.Ltd P. o.
o. sioner of
Trustees
0, IR.
O.IR. Box 94118,
Box·94 I 18. Lands
Lands Price Ksh.
Price
161980
161980 Nairobi 1/9/95.
Nairobi 1/9/95. 225m.
225m.
Premium
Premium Ksh.Ksh. 2615/95.
26/5/95.
1.6m
1.6m
3 LR. Research
Residential 2.988
2.988 Sharjah
Sharjah trading
trading Cornrnis-
Commis- NSSF
NSSF Board
Board
209/1234
20911234 Co.Ltd.,
Co. Ltd .• P.
P.o,o. sioner of
Trustees
2, IR.
2.IR. Box 94118,
Box 94118, Lands
Lands Price Ksh.
Price Ksh.
64873
64873 Nairobi, 1/9/95,
Nairobi. 119/95. 225m.
225m.
Premium Ks11.
Ks~. 2615/95.
26/5/95.
1.6m
I.(im
4 LR. Research
Research Light
Light 0.4069
0.4069 Rielco Co.Ltd.,
Rielco Co. Ltd .• Commis-
Commis- Jaspar Singh
Jaspar Singh
209/1234
209/1234 Industrial
Industrial P. o. Box sioner of
sioner of Birdi, P.
Birdi. P. O.
0.
441R
IR..:• 25932, Nairobi
25932. Nairobi Lands
Lands Box
Box 44893,
44893.
73692
73692 1/8/95. Nairobi.
Nairobi.
Premium Ksh.
PremiUI11Ksh.
1.6m
5 LR.
LIt. Research
Research Light
Light 0.4069
0.4069 Rielco Co.Ltd.,
Rielco Co.Ltd .• Commis-
Commis-
209/1250
209/1250 Industrial
Industrial P. o. Box
BOil sioner of
sioner of
1; IR.
I; 25932, Nairobi
25932. Nair~bi Lands
Lands
67266
67266 1/8/95.
Premium Ksh.
Premium Ksh.
1.6m
1.6m
101
101
Sichangi Adv
Land
Land Reserved/
Reserved! Current Use
Current Use Original
Original
Current
Current
Ref.
Ref. Intended
Intended //Land
Land Allottee and
Allottee and
Allocating
Area
Area Allocating Owner &
Owner &
No /Title
No.ffitle Use
Use Category
Category Date
Date ofof Authority
in (Ha)
in (Hal Authority Address
Address
No.
No. Allocation
Allocation
-. ..
6 LR. Rpsearch
Rj;search Light
Light 2.024
2.024 Rielco
Rielco Cornmis-
Commis- Rielco
Rielco
20911324"
209/132' Industrial
Industrial Co.Ltd.& A.
Co.Ltd.&A. sioner of
sioner of Co.Ltd.,
Co.Ltd., P.
P. o.
o.
4 Mbugua,
Mbugua, P.
P. o.
o. Lands
Lands Box
Box 1494,
1494,
Box
Box 25932,
25932, Kericho
Kericho
Nairobi
Nairobi
1/11/1996
111111996
7 LR. 209
LR.209 Research
Research Light
Light 6.07 Samu Ltd.,
Samu Ltd., P.
P. Commis-
Cornmis- Samu
Samu Ltd.,
Ltd.,
/13295
/13295 Industrial
Industrial 0. Box
O. Box 80326,
80326, sioner of
sioner of P. O. Box
P.O.
Mombasa.
Mombasa. Lands
Lands 80326,
80326,
1/11/96
1111196 Mombasa.
Mombasa.
1/11/96
1111196
Fraudulent Exchanges
Fraudulent Exchanges
In yet other
other instances,
instances, aa state
state corporation
corporation would
would be be forced
forced to
to exchange
exchange land
land
belonging to
belonging to it with
with non-existent land in
non-existent land in favour
favour of of an
an individual
individual or
or
company for speculative
company speculative purposes
purposes by
by the
the latter.
latter. Such
Such exchanges
exchanges werewere made
made
and even
and even facilitated
facilitated by the
the personal
personal intervention
intervention of the the Commissioner
Commissioner of of
Lands.
Lands.
Sales of
Sales of State
State Corporation
Corporation Land
Land to
to individuals
individuals and
and companies
companies at
at throw
throw
away prices
away prices
The
The Commission
that state
state corporations
corporations sold sold some
some of of their
their prime
prime
land to
land to individual's
companies at atscandalously
scandalously low low prices.
prices. TheThe
"purchasers" such lands ended up selling the same parcels at very high
"purchasers" of such lands ended up selling the same parcels at very high
prices to
prices to other
other statestate corporations.
corporations. For For example,
example, the the Kenya
Kenya Railways
Railways
Corporation sold its prime plot
Corporation sold its prime plot on Ojijo Road (L.R No. 209/6439 on
Ojijo Road (L.R No. 209/6439 on 3131stst
January
January 19961996 to Guardian
Guardian International
International Ltd Ltd for 77 million
for 77 million shillings.
shillings. A few
th
days later on 8th February, Guardian International sold the plot
days later on 8 February, Guardian International sold the NSSF
plot to NSSF
for
for 178 million
million shillings.
shillings. TheThe Kenya
Kenya Power
Power & Lighting
Lighting Company
Company is one one
other such
other such state
state corporation
corporation that that sold
sold aa number
number of of its
its prime
prime properties
properties at at
throw away prices
throwaway prices only for for the
the purchasers
purchasers to to make
make super
super profits
profits the
the "next
"next
day". If the
day". the intention
intention was was not
not toto defraud
defraud thethe country
country of of taxpayers'
taxpayers' money,
money,
why did the directors
why directors of respective
respective corporations
corporations not not buy
buy and sell land land from
from
their
their corporations
corporations directly directly instead
instead of of going
going through
through individuals
individuals whc, whc hadhad
acquired these
acquired these lands
lands illegally?
illegally? Kenya
Kenya Railways
Railways Corporation
Corporation is supposedsupposed
to have
have surrendered
surrendered land land to thethe Government
Government and yet yet the
the same
same land
land ended
ended
private hands
up in private hands and was later sold to other other state
state corporations.
corporations. Thorough
Thorough
102
Sichangi Adv
investigations into
investigations into the
the corporation's
corporation's affairs
affairs relating
relating to
to land
land are
are necessary.
necessary.
For
For aa detailed
detailed list
list and
and particulars
particulars of Railway's
Railway's land
land that
that was
was sold
sold' off
ofT
in
in this see Annex
manner, see
this manner, Annex 24 in Vol.
Vol. I of
of the
the Annexes.
Annexes.
The
The Use
Use of
of Brokers
Brokers
The Commission
The Commission found
found that
that the
the management
management of of State
State Corporations
Corporations mademade
no attempt
no attempt toto apply
apply forfor allocation
land toto the
the respective
respective corporations
corporations
directly to
directly to the
the Commissioner
Commissioner of
of Lands.
Lands. In In' most
most cases,
cases, corporations
corporations
purchased land
purchased land through
through brokers.
brokers. This ,This' practice
'practice augmented
augmented the
the
Commission's conclusion
Commission's conclusion to to the
the effect
effect that
that State
State Corporations
Corporations were were looted
looted
through suspect
through suspect and
and illegal
illegal land
land transactions.
transactions.
Lack of
Lack of knowledge
knowledge of
of the
the extent
extent ofofspecific
specificstate
statecorporation
corporation land
land
During interviews
During interviews withwith the
the Commission,
Commission, some
some chief
chief executives
executives of of State
slate
corporations confessed
corporations confessed ignorance
ignorance ofof thethe extent
extent ofof land
land owned
owned or or held
held byby
the state
the state corporation
corporation under
under their
their management.
management. This This lack
lack of
of knowledge
knowledge on on
the part
the part ofof corporation
corporation officials
officials paved
paved the
the way
way forfor "surveys"
"surveys" allegedly
allegedly
authorized
authorized from
from above.
above. State
State Corporations
Corporations lost
lost land
land following
following such
such surveys
surveys
which under-estimated
which under-estimated the acreage
the acreageofof land
land reserved
reserved for
for aa specific
specific
corporation.
corporation.
Loss of
Loss of corporation
corporation land
land during
during legal
legal splits
splits of
of the
the same
same
During the
During the legal
legal split
split ofof some
some state
state corporations
corporations in in different
different entities,
entities, some
some
land which
land which wouldwould have have beenbeen transferred
transferred to to the
the new
new entities
entities was was illegally
illegally
allocated to
allocated to individuals
individuals or or companies.
companies. For For example
example whenwhen the the giant
giant Kenya
Kenya
Posts and
Posts and Telecommunication
Telecommunication Corporation
Corporation KP&TC was
KP&TC was splitsplit into
into three
three
independent entities,
independent entities, somesome assets
assets including
in~~~ng houses
houses werewere vestedvested in in the
the
TelePosta Pension
TelePosta Pension Scheme Through,Legal
Schernezhrough Legal Notices
Notices Numbers
Numbers 154 154 of of 55th
th
November, 1999,and
November, 1999,and 131 131 of
of 14th September
September 2001.
2001. Some
Some of of these
these properties
properties
had not
had not been
been transferred
transferred to to the
the Pension
Pension Scheme
Scheme at the the time
time of of writing
writing this
this
Report. The
, Report. The Pension
Pension Scheme provided the
Scheme provided the Commission
Commission with with aa list
list of
of
properties that
properties that were
were illegally
illegally allocated
allocated to individuals. (See
to individuals. table below)
(See table below)
103
103
Sichangi Adv
PROPERTIES FOR WHICH
PROPERTIES FOR WHICH TELPOSTA
TELPOSTA PENSION
PENSION SCHEME
SCHEME TRUSTEES
TRUSTEES FACE
FACE
DIFFICULTIES
DIFFICULTIES ININ TITLE
TITLE ACQUISITION
ACQUISITION
Valuation
Valuation at
SI
S/ Plot General
General
1,R No.
LRNo. Location
Location Vesting Remarks
Remarks
No (Acres) Description
Description (Kshs)
1 KSMMUNI
KSM MUN/ Milimani Estate 1.276
Milimani Estate Condemned old b,800,OOO
Condemned 3,800,000
BLOCK 12137
BLOCK 12137 Awuor
off Awuor residential
residential
Otjeno
Otieno house
house
Road. Kisumu
Road. Kisumu redevelopment
redevelopment
site)
2 KSMMUNI
KSMMUN/ 0.57Q
Milimani Estate ~.579
Milimani Vacant
Vacant site 1,800,000
1,800,000
BLOCK 121153
BLOCK 121153 off Awuor
Awuor
Otieno
Otjeno
Road,
Road, Kisumu
3 209/3154
209/3154.' Mwingi
Mwingi Road P.484
0.484 Bungalow
Bungalow with 9,500,000
9,500,000
Upper
Upper bedrooms
four beqrnoms
Kileleshwa
Kileleshwa attached staff
attached staff
Nairobi
Nairobi quarters
quarters and
double g¥age
double garage
Main House
~l\in House--
1~78
1¢78 sq ft
/:
Verandah.
Verandah.
118sqft Staff
118sqft Staff
quarters — - 330
sq ft Garage
Garfge -
170 sa
sq ft
"
4 209 Mohammed p.115

On Mohammed 0.115 Two 1.400,QQO
1,400,0 0 Occupied
Occupied
XXII/2
XXU/2 Ali Road.
Road. Off
Off. bedroomed
bedroomed by
New LR.l3L~
New I.R. BLK Konza Road,
Konza bungalow with
bungalow TelKom
TelKom
11/373
111373 Eastleigh area,
Eastleigh area, a Kenya
Kenya
Machakos
Machakos staff quarters.
staff quarters, Ltd Staff
town. Built
Built upup ¥~IMl'
area
936
936so.ftso.ft ,ji
5 (909/258)
(909~Z58) trIuthini
In Muthini 0.064
0.064 Three
Three 800,000
800,000 Occupied
Occupied
Machakos
Machakos estate
estate bedroomed
bedroomed by
Municipality
Municipality off Konza road, bungalow.
bungalow. TelKom
TelKom
Block 11127
Block 1/127 Machakos
Machakos Built-up
Built-up Kenya
Town.
Town. area — 604 sq..
- 604.SQ., LId Staff
Ltd Staff
6 Kikuyu Staff
Kikuyu Staff Kikuyu
Kikuyu One residential
residential 2,100,000
2,100,000 -
Quarters, Kikuyu- Township'
Quarters, Kikuyu-
Tawf\ship/229
Tawriship/229
Township block
block with 2 .
units
units each with
with
-. -Occupied
Occupied
by
2 rooms
rooms & a Postal Corp
kitchen
kitchen served Kenya
of Kenya
shower-
by 2 shower- Staff
rooms
rooms & 2 pit
latrines
latrines
Main block
block-—
700 sq ft
WC Block,
52s(l
52sq ft
104
Sichangi Adv
Valuation
Valuation at
at
SI
Si Plot
Plot General
General
LR No.
LRNo. Location
Location Vesting
Vesting Remarks
Remarks
No (Acres)
(Acres) Description
Description
(Kshs),
(Kshs)
7 Thika
Thika Lagos Road
Lagos Road 0.500
0.500 Two residential ~,()OO,OOO
Two residential 4,000,000 Occupied
pccupied
Staff Houses
Staff Houses Thika
Thlkii Munici
Munici blocks each
blocks iy
by
BLK 9/301.9/302,
BLK 9/301.9/302, pality
pfility with
with (2) units
units TelKom
[relKom
9/303,9/304
9/303,9/304 of 2 bedrooms
bedrooms Kenya
Kenya
and Ltd Staff
~td Staff
outbuildings
outbuildings
4 units-2904
units-2904 sq. sq.
ft
4 S/Q-582
S/Q-582 sq. ft
Ablutions,
Ablutions, 271 271
sq. ft.
SQ.
8 209/2397
209/2397 Mucai
Mucai Drive
Drive 1.930 Two-
Tw6' ~O,OOO,OOO Occupied
40,000,000 ~ccupied
off Ngong
off Ngong compounds
compounds by
~y
Road,
Rbad, Nairobi
Nairobi each with
each Staff of
~taff of
double storey
a double storey Telkom
rrelkom
four
four bed- Kenya Ltd
lKenya
room
room house
house andand &
outbuildings
outbuildings ~
~.C.K.
C.C.K.
2 main
main Houses
Houses
<
",' — 4739 sq ft
- 4739
verandahs.
verandahs. 700 71>0
sq ft
2 s/Q-1239sqft
slQ-1239sclft
9 MSA/XXV1/210
MSA/XXV1/210 Kizingo
Kizingh 0.565
0.565 Double
Double storey
storey 9,300000
9,300 000 - Occupied
Occupied
Marsabit
Marsablf residential
residential by
Road,
Road, house with
house TelKom
TelKom
Mombasa
MOfil6asa three
three bedrooMs
bedrooms Kenya
lKenya
living
living room,
room, , lid
id Staff
Staff
of . .,...• ~ ~ •.."~
..•. -,- ,-
dining recesl'
dining recess
----- bathroom,
bathroom,
W.C.,
W.C., lock
lock up
garage
garage & staffstaff
quarters
quarters
Mainbuilding-
Mainbuilding-
1891sqft
1891 sqft
Staff Quarters
Quarters-—
, 344
344 so ft
10 MSA/XXV1/211
MSAlXXV1/21 Kizingo
Kizingo
I 0.717
0.717 Double
Double storey
storey , Occupied
pccupied
Marsabit
Marsabit residential
residential 11,300,000
11,300,000 by
~y
Road,
Road, house with
house with [r'elKom
TelKom
Mombasa
M:ombasa three bedrooms
three bedroonis Kenya
ikenya
living
living room,
room, Ltd Staff
~td Staff
dining recess
dining recess
bathroom,
bathroom,
W.C., lock
W.C., lock up
garage & staff
garage staff
quarters _
quarters
Mainbuilding-
Mainbuilding-
1891
1891sqftsq ft
Staff quarters
quarters — -
344 sq
344 SQ ft
105
Sichangi Adv
Valuation at
Valuation at
WftI Plot
Plot General
General Remarks
Remarks
LRNo.
LR No. Location
Location Vesting
Vesting
f'It(1
NO (Acres)
(Acres) Description
Description
(Kshs)
(Kshs)
II
II 209112531
209/12531 Matumbato
Matumbato 0.764
0.764 A
A three
three 13,700,000
13,700,000 Occupied
Occupied
Close
Close bedroomed
bed roomed by
~y
Nairobi bungalow
bungalow TelKom
~elKom
with Kenya
outbuildings
outbuildings Ltd
~td Staff
Staff
Main
Main house
house--
1472 sq ftft
Porch
Porch -160
-160 sq sq ftft
Staff Quarters
Quarters —-
269 sqsq ft
ft
Garage-
Garage- 200 sq sq
ft
12
12 209112532
209/12532 Matumbato
Matumbato 0.580
0.580 A
A four 11,400,000 Occupied
11,400,000 Occupied
Close
Close bedroomed
bed roomed by
Nairobi
Nairobi bungalow
bungalow TelKom
TelKom
with Kenya
Kenya
outbuildings
outbuildings lid Staff
Staff
Main
Main househouse —-
1764 sq ft
1764 ft
Staff Quarters
Staff Quarters
244
244 sq ft ft
Garage 163sqlt
Garage 163salt
13
13 209112533
209/12533 Matumbato
Matumbato 0.753
0.753 A
A three
three 13,800,000
13,800,000 Occupied
Occupied
Close
Close bedroomed
bedroomed by
Nairobi
Nairobi bungalow
bungalow TelKom
TelKom
with Kenya
Kenya
outbuildings
outbuildings lid Staff
lid Staff
Main
Main House
House
1644 sq It
1644
Staff Quarters
Staff Quarters — -
328 sq ft
328
Garage .196sq
Garage .196sq
ft
14 Nyeri
Nyeri town
town Nyeri-Othaya
Nyeri-Othaya 2.000
2.000 Vacant plot
Vacant plot 2,000,000
2,000,000
Block 11219.
Block 1/219. road
road junction,
junction,
_
-
Nyeri.
Nveri.
15 209/3335
209/3335 Mandera Road
Mandera Road 0.944
0.944 Three
Three 16,200,000
16,200,000
Kileleshwa
Kileleshwa bedroomed
bed roomed
Nairobi
Nairobi bungalow
bungalow
(master
(master en-
en-
suite)
suite) &
outbuildings
outbuildings
Main
Main house-
house-
1677 sq
1677 sq It
StaffQuarters-
Staff Quarters-
261sqft
261sqft
16
16 Unsurveyed
Unsurveyed Londiani
Londiani Not
Not Developments
Developments 75,000
75,000
plo
plo Londiani
Londiani town
town Surve-
Surve- comprise a
comprise
senior
senior staff
staff opposite
opposite yed
yed condemned
condemned
house
house Post Office
Post Office semi-permanent
semi-permanent
106
106
Sichangi Adv
-, Valuation
Valuation at
at
SI
' S/ Plot
Plot General
General
LRNo.
LR No. Location
Location Vesting
Vesting Remarks
Remarks
No
No (Acres)
(Acres) Description
Description
(Kshs)
(Kshs)
building
building
17
17 KSMMUNI
KSMMUN/ Milimani
Milimani 0.479
0.479 Vacant
Vacant site
site 1,800,000
1,800,000
BLOCK 121/48
BLOCK 121148 Estate
Estate off
off
Awuor
Awuor Otieno
Otieno
Road,
Road, Kisumu
Kisumu
18
18 KSMMUNI
KSMMUN/ Milimani
Milimani 0.493 Vacant
Vacant site
site 1,800,000
1,800,000
BLOCK 121/49
BLOCK 121/49 Estate
Estate off
off
Awuor Otieno
Otieno
Road,
Road, Kisumu
Kisumu
19
19 KSM MUN/
KSM MUNI Milimani
Milimani 0.509 Vacant
Vacant site
site 1,800,000
1,800,000
BLOCK 121/45
BLOCK 121/45 Estate
Estate off
Awuor
Awuor Otieno
Otieno
Road, Kisumu
Road, Kisumu
20 Muranga staff
Muranga staff Muranga
Muranga 0.500
0.500 Single
Single storey 570,000 Occupied
570,000 Occupied
quarters
quarters block of
block of two 25,500,000 by
25,500,000
one TelKom
TelKom
bedroomcd
bedroomcd Kenya
units.
units. Further
Further lid
lid&&
sirrillar
similar Postal
block
block but but due Corp.
to condition
condition is is of Kenya
of Kenya
disregarded.
disregarded. Staff
Staff
21
21 MSA/XXVII20
MSA/XXVI/20 II Kizingo Area
Kizingo Area 1.435 Six
Six identical
identical
MSA/XXVI/666
MSA/XXVI/666 David Kayanda
David Kayanda maisonettes
maisonettes
Road.
Road. each with two
each with two
Mombasa
Mombasa bedrooms
bedrooms
living
living room.
room.
Kitchen, store,
Kitchen, store,
ballroom .... &
ballroom .-
separate w.e.f.
separate w.e.f.
Staff quarters
Staff quarters &
garage
garage I
Maisonettes -
Mais6ri~u~s —
'.- ;.:~18;~-"i;
, 8344 ft .
__ ..... fl.ft
....
.',
Staff quarters
-Staff quarters — -
),' J,.
---. -f-
3108 sa
3108 sq li
Ii
\';,'622 Unsurveyed
2 ... . ;;Y~suiveyed In
In Narok
Narok Details
Details Developments
Developments 650,000
650,000
plot
plot Narok
Narok District
District n comprise
comprise
Staff
Staff Houses
Houses Hospital
Hospital availabl
availabl HouseNo. I1 -
HouseNo. —
Compound on
Compound on ee 530 sq.
530 sq. fl.
Narok-Mau
Narok-Mau House No.2
House No.2 — -
Narok
Narok Road
Road 602 sa
602 sq ft
23
23 209/870/9
209/870/9 Ring
Ring Road
Road 0.935
0.935 Seven
Seven three-
three- 35.000.000 Occupied
35.000.000 Occupied
City Park
City Park bedroomed
bed roomed by
by
West lands
West lands maisonettes in
maisonettes in TelKom
TelKom
Nairobi
Nairobi two blocks
two blocks of of Kenya
Kenya
3&4 and
3&4 and aa Staff
Staff lid &
lid &
qnarter block7
anarter block? Postal
Postal
107
107
Sichangi Adv
"
Valuation
Valuation at
at
SI -
St Piot
~t General
-
LRNo.
LR No. Location Vesting Remarks
Remarks
Nf
N9 1A-cres)
#q~) Description
(Kshs)
Maisonettes
Maisonettes —- Corp.
sq.ft.S/Qtr
0027 sq.ft.S/Qtr of Kenya
of Kenya
block — 881 sq.
- 881 sq. Staff
Staff
ft.
ft.
24
24 330/124
3301124 Kingarg goad
Kihgar.'l ~il,ad 1.32t Eight
Eight (8)(8) three
three 38,500,000 Occupied
38,500,000 Occupied
Lavington
Lavirigton bedroomed
bedroomed by
Nairobi
Nairobi maisonettes
maisonettes TelKom
TelKom
with Kenya
Kenya
outbuildings
outbuildings lid
lid&&
Each
Each unit Postal
Postal
measures:
measures: -- Corp.
Mainhouse-
Mainhouse- of Kenya
of Kenya
1400sq ft.ft. Staff
Staff
Staff-quarters
Staff-quarters — -
- 280 5<1 itit
2805<1
Invasion
Invasion of State
State Corporation
Corporation Land
Land by Private Cartels
by Private Cartels
In the course
course of of its
its inquiry,
inquiry, the
the Commission
that aanumber
number of ofstate
state
corporations
corporations lostlost their
their land
land toto private
private individuals
companies through
through
the
the activities
activities of private
private cartels.
cartels. These
These cartels
cartels have
have established
established an illicit land
market
market in' in the
the country.
country. In In some
some of of the
the most
most bizarre
bizarre abuses
abuses ofof state
state
corporation lands
corporation lands by private persons, individuals would form companies
private persons, individuals would form Companies
and fenc~,.9Jt..i;lnyop~n.}pac~
and fence off any open space claiming clairnigg it as as their
their legally
legally owned land. They
owneq}?nd. They
would then
would then subdivide
subdivide the fenced
fenced land land into
into many
many units.
units. Next,
Next, they
they would
would
advertise the
advertise plots . for
the plots for sale.
sale. Unsuspecting
Unsuspecting membersmembers of the the public
public would
would
purchase the
purchase the plots
plots and acquire
acquire titles
titles to
to them.
them. The
The cartels
cartels managed
managed to to get
get
the plots
the plots surveyed
surveyed and and consent
subdivide granted
granted by by the
the Commissioner
Commissioner
of Lands.
of Lands. In in certain
certain instances,
instances, the the cartels
cartels. used
used forged
forged documents
documents to to
transact business.
transact business. Land
Land belonging
belonging to NSSF, NSSF, UCHUMI
UCHUMI SUPERMARKETS
SUPERMARKETS
AND KENYA
AND KENYA AIRPORTS
AIRPORTS AUTHORITY AUTHORITY in in Embakasi
Embakasi was was lost
lost in
in this
this
manner.
manner.
These illegal
These illegal invasions
invasions of of corporation
corporation land land have
have led
led to
to informal
informal and
and
unplanned settlements
unplanned settlements in many parts in the City City of
of Nairobi.
Nairobi. They
They have
have also
also
resulted in
resulted in unplanned
unplanned urbanurban satellites. The loss
satellites. The loss ofof Kenya
Kenya Airports
Airports
Authority Land
Authority Land has
has meant structures have
that structures
meant that have been
been erected
erected on Flight Paths
Paths
thus endangering
thus endangering aircraft,
aircraft, passengers
passengers and residents
residents in the area.
area.
108
Sichangi Adv
Conclusions
Conclusions
From
From the
the foregoing
foregoing analysis
analysis and
and findings,
findings, the
the Commission
Commission has has drawn
drawn the the
following conclusions:
following conclusions: Before
Before addressing
addressing specific
specific conclusions,
conclusions, itit isis worth
worth
noting
noting that
that almost
almost all
all state
state corporations
corporations presented
presented scanty
scanty information
information to to the
the
Commission
Commission and and further
investigations will
will be
be necessary
necessary to to establish
establish an an
accurate picture.
accurate picture.
Plunder
Plunder of
of State
State Corporation
Corporation Lands
Lands and
and Properties
Properties
State corporations
State corporations have
have been
been prime
prime victims/
victims/ targets
targets of
of the
the illegal
illegal allocation
allocation
of public
of public land.
land. Many
Many of of the
the corporations
corporations have
have lost
lost prime
prime lands
lands andand
properties to
properties to unscrupulous
unscrupulous individuals
individuals through
through the
the connivance
connivance and and active
active
participation of
participation of successive
Commissioners of Lands,
of Lands, Ministry
Lands
Officials, and other Government officers. Currently, there no central
Officials, and other Government officers. Currently, there is no central
authority charged
authority charged with
with the
the duty
duty of
of ensuring
ensuring thethe prudent
prudent management
management of of
state corporations.
state corporations.
Imprudent
Imprudent Management
Management of State
State Corporations
Corporations
The
The state
state corporations'
corporations' management
management (Directors
(Directors and and Trustees)
Trustees) either
either
abdicated or
abdicated or out
out rightly
rightly abused
abused their
their responsibilities
responsibilities as as custodians
custodians and and
trustees
trustees of
of public
public land
land under
under their
their control
control andand management.
management. The The imprudent
imprudent
management
management of state
of state corporation affairs as
corporation affairs as epitomized
epitomized by by the
the illegal
illegal
dealings
dealings in in land
land reflects
reflects the the general
general failure
failure of of directors
directors of of state
state
corporations
corporations to to abide
abide byby the
the laws
laws under
under which
which theythey were
were established.
established. The The
directors have .almost
directors have almost invariably acted in
invariably acted in breach
breach of of their
their duties
duties asas spelt
spelt out
in
in an
an earlier
earlier section
section ofof this
this part.
part.
Unjust enrichment
Unjust enrichment of
of individuals
individuals
The illegal
The illegal allocation
public lands
lands has
has served
served as
as an
an avenue
avenue for
for the
the unjust
unjust
enrichment
enrichment of of individuals
individuals atat the
the expense
expense ofof the
the people
people ofof Kenya.
Kenya. In In this
this
way,
way, individuals
companies have
have made
made millions
millions from
from public
public landland
without
without performing
performing any any public
public duty
duty or paying
paying any
any taxes
taxes to the
the Exchequer.
Exchequer.
109
Sichangi Adv
(iv)
Recommendations
1. All
1. state corporations
All state corporations lands
lands which
which have
have been
been illegally
illegally allocated
allocated
should
should be be repossessed
repossessed by by the
the Government.
Government. All
All titles
titles acquired
acquired asas aa
result of the illegal allocation should be revoked.
result of the illegal allocation should be revoked.
2. Where
Where the the lands
lands in
in 1 above have been
above have been substantially
substantially developed,
developed, the the
titles
titles thereto
thereto should
should nonetheless
nonetheless bebe revoked
revoked (given
(given their
their inherent
inherent
illegality). The
illegality). The Government
Government may may however
however issue
issue new
new titles
titles to
to the
the
current registered
current registered proprietor upon new
proprietor upon new terms
terms and
andconditions.
conditions.
Provided
Provided thatthat before
before a new
new title
title is issued,
issued, the
the requirements
requirements of of the
the
applicable Planning
applicable Planning andand Environmental
Legislation should
should be be
strictly complied
strictly complied with.
All public
3. All public utility
utility lands
lands which
which were
were illegally
illegally acquired
acquired andand later
later
purchased by
purchased by state
state corporations should be
corporations should be repossessed
repossessed by by the
the
Government and restored to their proper purpose. Titles
Government and restored to their proper purpose. Titles to such to such
lands held
lands held by the state
state corporations
corporations should
should be
be revoked.
revoked.
Where the
4. Where the lands
lands inin 3 above
above have been substantially
have been substantially developed
developed byby
the state corporations,
the state corporations, the titles thereto
the titles thereto should
should still
still be
be revoked
revoked
(given their
(given their inherent
illegality). The
The Government
Government should
should however
however
issue new title
issue new title provided
provided thatthat the
the requirements
requirements of
of Planning
Planning and
and
Environmental legislation
Environmental legislation are
are strictly
strictly complied
complied with.
with.
5. Where
Where a state
state corporation
corporation has
has sold
sold land
land at
at below
below market
market value,
value, the
the
prime movers
prime movers of such
such sale
sale (be
(be they
they the
the directors
directors of
of the
the corporation,
corporation,
original allottees,
original allottees, other public officials,
other public officials, oror brokers
brokers and and
professionals) should
professionals) should be investigated
investigated and and prosecuted.
prosecuted.
Where a state
6. Where state corporation
corporation has
has purchased
purchased land
land at
at an
an exorbitant
exorbitant price,
price,
purchased public
or has purchased public land
land which
which had
had been
been illegally
illegally acquired,
acquired, the
the
prime movers of
prime movers of such
such transaction
transaction asas inin 55 above
above should
should be be
investigated
investigatedand and prosecuted.
prosecuted.The Themoney
moneylost lost by the state
by the state
110
Sichangi Adv
corporation
corporation as a result
result of
of such
such purchase
purchase should
should be
be recovered
recovered from
from
those who were unjustly
those unjustly enriched
enriched by
by the
the purchase.
purchase.
LandsReserved
(c) Lands
(c) Reservedfor
forthe
theuse
useof
ofMinistries
Ministries and
and Departments
Departments
(i) Background
(i) Background
Ministries are
Ministries are the
the main
main administrative
administrative organs
organs through
through which
which the the
Government executes
Government executes its
its policies
policies and
and implements
implementslaws laws on
on aa day
day toto day
day
basis. Ministries are therefore the basic institutional form of government.
basis. Ministries are therefore the basic institutional form of government.
Ministries hold
Ministries hold and
and manage
manage a substantial
substantial amount
amount of land land to
to enable
enable them
them
carry
carry out
out their
their mandate.
mandate. For
For the
the purposes
purposes of of this
this Inquiry,
Inquiry, the
the following
following
ministries were
ministries were considered
considered relevant
relevant toto the
the Commission's
Commission's investigations
investigations
because they
because they control
control and
and manage
manage substantial
substantial public
public land.
land.
1. Ministry
Ministry of
of Lands
Lands and
and Settlement: which is in
Settlement: which in charge
charge of
of all
all land
land
administration
administration and management
management in the country
country
2. Ministry
Ministry of Roads,
Roads, Public
Public Works
Works and
and Housing:
Housing:
3. Ministry
Ministry of Local
Local Government
Government under
under which
which fall all
all local
local authorities
authorities
that,
that, administer
administer large
large chunks
chunks of
of land
land in
in the
the public
public interest
interest including
including
trust land.
trust
Ministry of Home
4. Ministry Home Affairs,
Affairs,
Ministry of Agriculture
5. Ministry Agriculture
Ministry of Livestock
6. Ministry Livestock Development
Development and Fisheries
Fisheries
Ministry of Environment,
7. Ministry Environment, Natural
Natural Resources
Resources and
and Wildlife
Wildlife
8. Office
Office of the President.
President.
Apart from
Apart from the
the above
above mentioned,
mentioned, the
the Commission
Commission also
also inquired
inquired into
into the
the
land related
land related affairs
affairs of other ministries.
ministries.
Most of the Ministries

Most Ministries which
which responded
responded provided
provided whatwhat can bebe termed
termed as
as aa
"clean return
"clean return of findings",
findings", meaning
meaning that
that as
as far
far as
as they were
were concerned,
concerned, they
they
had not
had not lost
lost any
any of
of their
their lands
lands totoillegal
illegal ororirregular
allocations. Some
Some
"'111
'111
Sichangi Adv
ministries which
ministries which are
are reputed
reputed to to hold
hold a lot
lot of
of land
land did
did not
not send
send in
in details
details of
of
any lands
any lands they
they may
may have
have lost
lost through
through illegal
illegal allocations.
allocations.
For example,
For example, the Ministryof -of Livestock
the Ministry Livestock andand Fisheries
Fisheries Development
Development sent sent inin
Returns showing that
Returns showing that it had
had lostlost small
small fisheries
fisheries land
land while
while information
information
from the
from the public
public indicated
indicated that that the
the Ministry
Ministry had had lost
lost large
large tracts
tracts of of its
its
livestock holding grounds
livestock holding grounds to to grabbers.
grabbers. Another
Another example
example is is the
the National
National
Youth Service
Yo~th Service which
which sent
sent inin Returns
Returns indicating
indicating that
that all
all its
its land
land waswas intact.
intact.
Yet, the
Yet, the Commission
Commission received
received complaints
complaints fromfrom members
members of of the
the Public
Public to to
the
the effect
effect that
that land
land belonging
belonging to to the
the Service
Service had had been
been illegally
illegally allocated
allocated to to
prominent
prominent politicians.The
politicians. The Service
Service waswas said
said to
to have
have lost lost thousands
thousands of of
Acres
Acres of of its
its land
land in in Yatta
Yatta Machakos,
Machakos, Naivasha,
Naivasha, Mombasa
Mombasa and and Mathare
Mathare
valley.
valley.
Kenyatta
Kenyatta International
International Conference
Conference Centre
Centre
The return
The return which
which was
was sent
sent by
by the
the Ministry
Ministry of of Tourism
Tourism andand Information
Information did
did
not
not include
include the
the Kenyatta
Kenyatta International
International Conference
Conference CentreCentre (KICC)
(KICC) which
which isis
registered
registered as LR. No.
as LR. No. 209/11157.
209111157, The The Commission,
Commission, nevertheless
nevertheless proceeded
proceeded
to
to investigate
investigate it following
following allegations
allegations that
that itit had
had been
been grabbed
grabbed byby KANU.
KANU.
The Commission
The Commission examined
examined the relevant
the relevant records
records and and found
found that
that even
even
though an offer
though an offer of
of the
the plot
plot was
was made
made onon 66thth May,
May, 19691969 toto Kenya
Kenya African
Afric~h
National Union Investment
National Union Investment TrustTrust Co.
Co. Ltd.,
Ltd., it waswas not not accepted
accepted within
within 30
30
days.
days. The time forfor acceptance
acceptance was was extended
extended to 31stst July,
to31 July, 1969
1969 and
and again
again itit
was
was not accepted
accepted and
and itit lapsed.
lapsed.
The KICC
The KICC was
was then
then built
built by
by Government
Government inintwo
two phases
phases between
between 1967/68
1967/68
and 1973/4
and 1973/4 financial
financial years
years and
and cost
cost KSh.
KSh. 79,747,000
79,747,000 toto the
the taxpayer.
taxpayer. The
The
funds
funds were
were provided
provided in the
the Ministry
Ministry of
of Roads
Roads and
and Public
Public Works
Works budgetary
budgetary
vote. The centre
vote. The centre was subsequently
subsequently managed
managed by
by Ministry
Ministry ofof Tourism.
Tourism.
KANU
KANU only returned
returned on thethe scene
scene in
in 1985
1985 and
and arranged
arranged for for aa new
new offer
offer of
of
the
the land
land to be
be made
made to
to it,
it, disregarding
disregarding the
the development.
development. A A new
new Letter
Letter of
of
Allotment
Allotment waswas prepared
preparedoffering
offeringa aTerm
Termof of 99
99 years
years w.e.f. from l1stst:
w.e.f. from
December, 1989
December, 1989 at aa peppercorn
peppercorn rentrent (if
(ifdemanded).
demanded). KANU,KANU, through
through
David Pius
David Pius Mugambi,
Mugambi, accepted
accepted the offer
offer and
and paid
paid KSh.
KSh. 1,680
1,680 which
which was
was
demanded by
demanded by the
the Commissioner
Lands. A A·title
title was
was then
then prepared
prepared in in
favour of Daniel
favour Daniel Toroitich
Toroitich arap
arap Moi
Moi and
and Peter
Peter Oloo
0100 Aringo
Aringo forfor 99
99 years
years
from
from 1I"st December,
December, 1969.
1969. Since
Since the
the grant
grant waswas at at peppercorn
peppercorn rent,
rent, no
no
arrears
arrears in annual
annual rent was
was recovered
recovered from
from KANU.
KANU.
112
Sichangi Adv
In 1991
In 1991 the
the issue
issue ofof the
the development
development on on the
the land
land came
came up up and
and the
the Ministry
Ministry
of Tourism
of Tourism sought
sought to to know
know what
what waswas the
the current
current value
va1ue of thethe land
land and
and also
also
the Government buildings on LR. No. 209/11157. This was because the
the Government buildings on LR. No. 209/11157. This was because the
Financial Regulations
Financial Regulations required
required that
that if the
the value
value of of the
the buildings
buildings was was more
more
than KSh. 200,000, a Sessional Paper had to be prepared for Parliament toto
than KSh. 200,000, a Sessional Paper had to be prepared for Parliament
sanction
sanction thethe transfer
transfer to to KANU.
KANU. There
There is no evidence
evidence that that the
the valuation
valuation was
was
even done or that a iSessional Paper was ever presented
even done that a 'Sessional Paper was ever presented to Parliament. In to Parliament. In
the meantime,
the meantime, KANU KANU enteredentered the
the Centre,
Centre, assumed
assumed the the role
role ofof Landlord
Landlord by by
collecting rents until February, 2003 when the new NARC administration
collecting rents until February, 2003 when the new NARC administration
took over
took over the
the KICC
KICC on on behalf
behalf of
of the
the Government.
Government.
The Commission appreciates

The Commission appreciates that
that itit cannot
cannot make
make aafirm
firm recommendation
recommendation
on
on the
the ownership
ownership of of KICC,
KICC, since
since there
there is an an existing
existing court
court case
case between
between
KANU and
KANU and the
the Government.
Government. However,
However, becausebecause ofof the
the high
high profile
profile nature
nature
of this
of this property,
property, the
the Commission
Commission considered
considered itit necessary
necessary to to include
include this
this
information
relating to
to the
the property
property in in this
this Report.
Report.
Other
Other Ministries,
Ministries, Departments
Departments and public
and public institutions
institutions which
which sent
sent inin
Returns indicating that
Returns indicating that their
their lands
lands were
were intact
intact are:
are:
l.1. Ministry
Ministry of Planning
Planning and
and National
National Development
Development
2.
2. Ministry of Labour
Ministry Labour and
and Human
Human Resource
Resource Development
Development
3.
3. Public Service
Public Service Commission
Commission
4.
4. Department Police
Department of Police
5.
5. The National Assembly
The National Assembly
From the
From the information
received by by way
way ofof public
public memoranda
memoranda the the
Commission
Commission has has reason
reason to
to believe
believe that
that some
some ofof the
the ministries
ministries mentioned
mentioned
above lost
above lost large
large tracts
tracts of
of both
both rural
rural and
and urban
urban land
land which
which had
had been
been
reserved for
reserved for their
their use.
use.
It should
It should also
also be
be noted
noted thatthat although
although manymany ministries
ministries sent sent inin Returns
Returns
indicating that
indicating that their
their lands
lands were
were intact,
intact, they
they did
did not
not take
take into
into account
account the the
fact that
fact that many
many of of the
the state
state corporations
corporations which
which lostlost their
their lands
lands through
through
illegal
illegal and
and irregular
allocations fellfell under
under some
some of of those
those ministries.
ministries. The The
permanent secretaries
permanent secretariesofof respective'
respectiveministries
ministriessitsiton on the
the Boards
Boards of of
Managementi of these'
Managementof state corporations.
these state corporations. In this
In this regard,
regard, thethe individual
individual
ministers
ministers andand-pelm3:hent secretMes in
permanent secretaries in charge
charge of such
such ministries
ministries at at the
the time
time
the,&t~i¢ccrporations
the, stge corporations lost theirtheir lands
lands are
are culpable
culpable to to aa degree.
degree •
. . "
113
Sichangi Adv
(ii) Ministries' Land

(ii) Ministries' Land as
as Public
Public Land
Land
All
All land
land which
which is is set
set aside
aside forfor thethe use
use ofofany
any Government
Government Ministry Ministry isis
"alienated
"alienated government
government land" land" itit is
is therefore
therefore notnot available
available forfor allocation.
.allocation. Just
Just
as
as in
in the
the case
case ofof state
state corporations,
corporations, the the ministries
ministries holdhold such
such landland for
for the
the
purpose
purpose of carrying out
of carrying out their
their mandate.
mandate. They They hold
hold the
the land
land onon behalf
behalf ofof and
and
in
in trust
trust for the public.
for the public. The
The people
people expectexpect that such land
thatsuch land will
will bebe used
used for
for the
the
public interest.
public interest. They
They would
would notnot expect
expect thatland
that land setset aside
aside forfor the
the use
use of aa
Government Ministry or
Government Ministry or Department
Department can can be
be allocated
allocated to to an
an individual
individual for for
any
any other
other reason
reason than
than the
the said
said individual's
individual's enrichment.
enrichment. Since
Since ministries
ministries areare
the basic
the basic institutional forms" . of
institutional forms of government,
government, any any property
property thatthat belongs
belongs to to
them is
them automatically the
is automatically the people's
people's property
property both
both in
in perception
perception and and reality.
reality.
(iii) Findings
(iii) Findings
The Commission
The Commission made
made the
the following
following" findings:
findings:
Illegal allocation Ministries' Land
of Ministries' Land through
through surrenders
surrenders
The
The Commission
Commission found found that that aa number
number of of Government
Ministries lostlost their
their
land through illegal
land through illegal and
and irregular
the same.
same. TheThe consultative
consultative
workshop
workshop held held between
between the the Commission
Commission and and thethe officials
officials ofof key
key ministries
ministries
revealed that
revealed that the
the grabbing
grabbing of ministry ministry land land waswas usually
usually triggered
triggered by by aa letter
letter
written
written by by anan official
official of of thethe target
target ministry
ministry and and addressed
addressed to to thethe
Commissionerofof Lands.
Commissioner Lands. In In the
the letter,
letter, the the writer
writer would
would inform
inform the the
Commissioner that
Commissioner that the
the ministry
ministry no no Ionger
longer required
required aa specified
specified piece
piece of of
land
land andand would
would have have no no objection
objection if if the
the landland waswas allocated
allocated for for other
other
"development
"development purposes".
purposes". Part Part Development
Development Plans Plans would
would be be approved
approved by by
the relevant
the relevant departments
departments in in the
the Ministry
Lands and and Settlement
Settlement and and City
City
Council
Councilor or other
other local
local authority
authority as as the
the casecase may may be. be. AnAn individual
individual or or
company
company wouldwould simultaneously
simultaneously apply apply to the the Commissioner
Lands for for
the
the allocation
the land.
land. The The Commissioner
Commissioner would would thenthen allocate
allocate thethe land
land
to the
to the applicant
applicant through
through a Letter Letter of of Allotment
Allotment in in excess
excess of of his
his authority.
authority.
Soon, the
Soon, the allottee
allottee would
would transfer transfer the the land
land to third party
to a third party oror even
even state
state
corporation for
corporation for millions
millions of of shillings.
shillings. The The "third
third party
party would
would proceed
proceed toto
develop such
develop such land
land as as ifif itit never
never belonged
belonged to to the
the public.
public.
Interviews of
Interviews of some
some past
past and
and present
present officials
officials of
of the
the Ministry
Ministry of
of Lands
Lands
indicated that
indicated that this
this is what
what happened
happened inin the
the case
case of
of land
land which
which had
had been
been
114
Sichangi Adv
compulsorily acquired by by the
the Government
Government for for the
the building
building of of the
the Nairobi
Nairobi
by- passes.
by- The Ministry
passes. The Ministry of Roads,Roads, Public
Public Works
Works andand Housing
Housing was was said
said to
to
have
have written
written toto the
the Commissioner
Lands advising
advising that
that the
the Government
Government
no
no longer
longer intended
intended to construct
construct thethe by-passes.
by-passes. Officials
Officials atat the
the City
City Council
Council
were prime
were prime movers
movers of of the
the illegal
illegal allocation
allocation ofof land
land reserved
the by-
by-
passes. The procedures
passes. The procedures for for change
change ofof user
user were
were not
not followed.
followed. OtherOther lands
lands
reserved
reserved for for roads
roads and
and other
other uses
uses country
country wide
wide are
are reported
reported to to have
have been
been
illegally
illegally allocated
this manner.
manner.
Illegal
Illegal allocation
allocation of
of Government
Government land
land without
without reference
reference to
to the
the respective
respective
Ministries
Ministries
It
It was
was also
also found
found by by the
the Commission
Commission that that land
land belonging
belonging toto specific
specific
ministries
ministries would
would be be allocated
allocated by by the
the Commissioner
Commissioner of Lands Lands to to individuals
individuals
or companies
or companies at at the
the behest
behest of of the
the applicants
applicants without
without reference
reference to to the
the
ministries concerned. However,
ministries concerned. However, the the main
main officials
officials inin the
the ministries
ministries knew knew
what
what waswas happening.
happening. The The Prisons
Prisons Department
Department of of the
the Ministry
Ministry of of Home
Home
Affairs and the Ministry of Agriculture for example, lost large tracts of
Affairs and the Ministry of Agriculture for example, lost large tracts of
their land
their land toto individuals
companies in in this
this manner.
manner. The The Judiciary
Judiciary also also
lost its land
lost its land including
including law courts in
law courts in this
this manner.
manner. For For example,
example, the the Eldoret
Eldoret
Law
Law Courts
Courts werewere allocated
allocated to LIMALIMA LIMITED
LIMITED in in this
this manner.
manner. Similarly,
Similarly,
ARDHI
ARDHI HOUSE HOUSE in in Mombasa
Mombasa was was alsoalso allocated
this manner.
manner. The The
allottees either sold
allottees either sold the
the land
land toto third
third parties
parties or or charged
charged it to to Banks
Banks for for
colossal
colossal amounts
amounts of money. For
of money. For a detailed
detailed list list and
and particulars
particulars of of lands
lands
reserved for
reserved ministries and
for ministries and other
other departments
departments and and lost
lost in
in this
this manner,
manner,
see
see Annexes
Annexes 38-4938-49 in Vol.Vol. I of
of the
the Annexes.
Annexes.
Illegal allocation
of Government
Government Houses and Properties
Houses and Properties
On
On the
the basis
basis ofof aa Report
Report submitted
submitted to to the
the Commission
the Ministry
Ministry of of
Roads,
Roads, Public
Public WorksWorks and and Housing
Housing to to investigate
investigate the the allocation
allocation of of
Government
Government houses and
houses and properties;
properties;and and onon the
the basis
basis ofof its
its own
own further
further
investigations,
investigations, the Commission
the Commission found
found thatthat thousands
thousands of of Government
Government
houses were
houses were illegally
illegally allocated
individuals and and companies.
companies. The The
allocations
allocations wereeither
were either mademade by by way
way of of gifts
gifts oror asas"un-alienated
"un-alienated
government
government land". Some
land". Some of of the
the allottees then sold
allottees then sold the
the houses
houses to to state
state
corporations.
corporations. Many
Many otherother houses
houses belonging
belonging to to local
local authorities
authorities were
were also
also
allocated
allocated toto individuals.
individuals. The The Commission
Commission couldcould however
however not not make
make specific
specific
115
Sichangi Adv
findings
findings onon local
local authority
authority houses
houses due
due to
to the
the inadequate
inadequate information
information sent
sent in
in
by respective
by respective councils.
councils.
There
There areare Rules
Rules and and Regulations
Regulations for for the
the allocation
Government Houses Houses
either through sale
either through sale oror other
other disposition
disposition to to individuals
individuals oror companies.
companies.
According
According to to the
the Government
Government Financial
Financial Regulations
Regulations and and Board
Board of of Survey
Survey
Procedures,
Procedures, the Government may
the Government may onlyonly offer
offer aa gift
gift of
of government
government property
property
if the
if the value
value of of such
such property
property is is 200,000
200,000 shillings
shillings or or less.
less. If
If the
the value
value isis
more than
more than 200,000
200,000 shillings,
shillings, thenthen prior
prior approval
approval by by the
the Treasury
Treasury and and
Parliament through
Parliament through a Sessional
Sessional PaperPaper is is required.
required. Government
Government houses houses fall
fall
in
in the
the category
category of land land which
which isis already
already alienated.
alienated. SuchSuch houses
houses cannot
cannot be be
categorized
categorized as un-alienated Government
as un-alienated Government Land. Land. TheyThey cannot
cannot therefore
therefore be be
allocated
individuals sincesince they
they are
are not
not available
allocation. IfIf they
they
are however
are however to to be
be sold
sold off
off toto individuals
companies due due toto the
the dictates
dictates
of the
,of the economy
economy or or any
any other
other exigency,
exigency, the the proper
proper procedure
procedure is is for
for the
the
Government
Government to to seek
seek the
the authority
authority of of parliament
parliament through
through aa Sessional
Sessional Paper.
Paper.
Once parliament
Once parliament approves
approves the the sale,
sale, the
the houses
houses should
should then
then bebe advertised
advertised in in
accordance
accordance with with the provisions of
the provisions the Government
of the Government Lands Lands Act. Act. This
This
procedure
procedure was followed. For
never followed.
was never detailed list
For a detailed list and
and particulars
particulars of of the
the
illegal allocations of Government
illegal allocations Government houses, houses, see Annexes 50
see Annexes 50 and
and 51 in
51 in Vol.
Vol.
I of
of the
the Annexes.
Annexes.
Irregular Purchase
Irregular Purchase ofofContinental
Continental House
House by
by the
the National
National Assembly
Assembly
The
The Commission
Commission found found that that the theNational
National Assembly
Assembly purchased
purchased
CONTINENTAL
CONTINENTAL HOUSE, HOUSE, L.R L.R NO NO 209/9677,
209/9677, in in aahighly
highly suspect
suspect manner,
manner,
which
which cost Exchequer hundreds
cost the Exchequer hundreds of millions millions of shillings.
shillings. The The property
property
was advertised
was advertised for for sale
sale by by the the Official
Official Receiver
Receiver from from the theAttorney
Attorney
General's Chambers
General's Chambers on on 31 31 stst March
March 1995 1995 in
in the
the KENYA
KENYA TIMES. TIMES. We We
understand one
understand one of
of the bidders
bidders was was the the National
National Assembly.
Assembly. However,
However, the the
building was
building was sold
sold to one
one of the bidders, bidders, ARCHWAYS
ARCHWAYS HOLDINGS HOLDINGS LTD LTD
for 225
for million 'shillings
225 million shillings on on 19th 19th June
June 1996.
1996. On On 12 Ith th September
September 1996 1996
(barely three months
(barely three months after
after the thepurchase),
purchase), ARCHWAYS
ARCHWAYS HOLDINGS HOLDINGS
received a letter
received letter from
from thethe Attorney
Attorney General's
General's Chambers
Chambers inquiring
inquiring ifif the
the
property was
property was upup for sale
sale and
and ifif so,so, atat what
what price!
price! The
The letter
letter further
further stated
stated
that
that the "The Speakers
the "The Speakers Committee
Committee of the National National Assembly
Assembly had had requested
requested
the
the Attorney
Attorney General
General to to initiate
initiate negotiations
negotiations for for the
the acquisition
acquisition of of the
the said
said
house by
house Parliament which
by Parliament which was was in in dire
dire need
need of ofadditional
additional space"
space"
ARCHWAYS HOLDINGS
ARCHWAYS HOLDINGSresponded respondedtotothe the letter
letter on the same
on the same day day
indicating
indicating that it was willing
willing to to sell
sell the
the house
house for 580 million shillings.
for 580
116
Sichangi Adv
After a series
After series ofofcorrespondences,
correspondences, the
the National
National Assembly,
Assembly, eventually
eventually
bought
bought CONTINENTAL
CONTlNENTAL HOUSE
HOUSE fromfrom ARCHWAY
ARCHWAY HOLDINGSHOLDINGS LTD LTD
for 465 million
for 465 million shillings
shillings on 8th October
on 8th October 1997.
1997. The
The facts
facts indicate
indicate serious
serious
irregularities. The Commission
irregularities. The Commission was was unable
unable to find
find out
out why
why thetheNational
National
Assembly did not buy the
Assembly the property
property directly
directly from
from the
the official
official receiver.
receiver.
Conclusions
The Commission
Commission arrived
arrived at
at the
the following
conclusions:
Abuse of Office
Abuse Office by Government
Government Officials
Officials
Ministries' - lands
A lot of Ministries lands were
were illegally
illegally allocated
allocated through
through the activities
activities of
Government officialswhich
Government officials whichamounted
amountedtoto abuse
abuse of of office.
office. The
The re-re-
introduction
introduction of multiparty
multiparty politics
politics in 1992
1992 fuelled
fuelled the
the land
land grabbing
grabbing mania
mania
on
on the
the part
part of
of the
the ruling
ruling elite.
elite. The
The scramble
scramble for
for land
land became
became one
one ofof the
the
main preoccupationsof
main preoccupations of political
politicaloperatives
operativesseeking
seekingfavours.
favours.. This
This period
period
also
also witnessed
witnessed thethe emergence
emergence of of many
many cenires
centres of
of power
power regarding
regarding land
land
allocations. This was
allocations. This was during
during the
the tenures
tenures of
of Messrs
Messrs WILSON
WILSON GACHANJA.
GACHANJA
and SAMMY MWAITA
and SAMMY MW AIT A as Commissioners
Commissioners of of Lands.
Lands.
The Commission
The Commission makes
makes the
the following
following recommendations:
recommendations:
1. All
All lands
lands reserved
reserved forfor the
the use
use oror purposes
purposes of of a aMinistry,
Ministry,
Department, or any
Department, any other
other Government
Government Institutions
Institutions which
which have
have since
since
been illegally
been illegally allocated
allocated to
to individuals
individuals oror companies;
companies; should
should be be
repossessedand
repossessed and restored
restoredtoto their
their original
original purpose
purpose by by the
the
Government. Titles
Government. Titles acquired
acquired pursuant
pursuant toto the
the illegal
illegal allocations
allocations
should be revoked.
should revoked.
All allocations
2. All allocations of Government
Government andand local
local authority
authority houses
houses to
to
individuals and
individuals and companies
companies should
should be
be revoked.
revoked.
3. Where
Where thethe lands
lands in in 11and
and2 2above
abovehave
havebeen
beensubstantially
substantially
developed, titles
developed, titles thereto
thereto should
should still
still be
be revoked
revoked (given
(given their
their
inherent
inherent illegality). However, the Government
illegality). However, Government may
may issue
issue new
new titles
titles
117
Sichangi Adv
to
to the
the current
current registered
registered proprietors
proprietors onon new
new terms
terms and
and conditions
conditions
including the
including the requirement
requirement that that they
they pay
pay the
the market
market value
value of
of the
the
land. In
land. In addition,
addition, all
all requirements
Planning andand Environmental
Environmental
legislation must
legislation must bebe strictly
strictly complied
complied with.
with.
All public
4. All
4. public officials
officials and
and others
others (brokers,
(brokers, professionals,
professionals, allottees,
allottees, etc)
etc)
who participated
who participated inin the
the illegal
illegal allocations
allocations of land
of land should
should be be
investigated
investigated with with aa view
view toto being
being prosecuted,
prosecuted, and/or
and/or retired
retired from
from
the
the Public
Public Service
Service in in the
the public
public interest.
interest.
5. The
5. The Government
Government should
should institute
institute measures
measures toto recover
recover unjustly
unjustly
acquired monies
acquired monies from
from the
the illegal
illegal allocation
allocation and
and sale
sale of
of Ministries,
Ministries,
and Government
and Government Department
Department land.
land.
(d) TheImpact
(d) The Impact ofofIllegal
Illegal Allocations
Allocations ofofUrban,
Urban, Ministries
Ministries and
and State
State
Corporations Land
Corporations Land
(i)
(i) Urban Lands
Urban Lands
The Disappearance
The Disappearance of
of Urban
Urban Planning
Planning and
and Administration
Administration
The
The illegal
allocation ofof lands
lands in in the
the urban
urban areas
areas has
has led
led to
to the
the
loss of
loss of many
many public
public utility
utility lands
lands toto private
private interests.
interests. Lands
Lands meant
meant for for
public
public development
development havehave been
been lost
lost in this
this manner.
manner. Instead
Instead ofof being
being the the
basis
basis for development,
development, landland has
has been
been the
the subject
subject ofof speculation.
speculation. By By far
farthethe
most
most negative
negative consequence
consequence of the the wanton
wanton illegal
illegal allocation
public land
land
is
is the
the disappearance
disappearance of Planning and Administration
of Planning Administration in in the
the country's
country's
municipalities
municipalities and and would-be cities. Public
would-be cities. Public landland has
has been
been allocated
allocated toto
individuals
companies in total total disregard
disregard ofofplanning
planning legislation
legislation
especially the
especially the Physical Planning Act
Physical Planning Act 1996.
1996. The The abandonment
abandonment of of planning
planning
has
has occasioned
occasioned a crisis
crisis in Kenya's
Kenya's public
public tenure
tenure system.
system.
In many
many major
major towns,
towns, buildings
buildings andand other
other constructions
constructions have
have been
been erected
erected
haphazardly without
haphazardly without attention
attention to future
future development
development or or expansion.
expansion. Thus
Thus
for example,
example, residential
residential estates
estates have been
been put up inin the
the middle
middle ofof industrial
industrial
areas. The result
areas. The result is
is the
the uneasy
uneasy ififnotnotconflictual
conflictual coexistence
coexistence between
between
manufacturing concerns and
manufacturing concerns and the dictates
dictates of urban
urban or
or residential
residential dwelling.
dwelling.
In the same
same vein,
vein, residential
residential houses
houses areare springing
springing up
up within
within the
the vicinity
vicinity ofof
Military
Military Barracks
Barracks and installations.
installations. The dangers
dangers posed
posed to to urban
urban residents
residents
118
Sichangi Adv
in such
in such circumstances
circumstances cannot
cannot be
be underestimated.
underestimated. The The reality
reality ofof aa"disaster
"disaster
waiting
waiting to to happen"
happen" continues
continues to to haunt
haunt the
the Kenyan
Kenyan public.
public. TheThe aesthetic
aesthetic
and other
and other benefits
benefits of of Town
Town Planning
Planning have have all
all but
but disappeared
disappeared in in thig
thrs.
country.
country. Areas
Areas which
which werewere originally
originally planned
planned for
for residential
residential estates
estates have
have
been
been allocated
allocated andand putput to
to other
other uses
uses such
such as
as office
office blocks
blocks without
without aa
concomitant change
concomitant change in in other
other facilities
facilities such
such roads,
roads, sewage
sewage systems,
systems, water
water
supply and
supply and other
other services. Nairobi which
services. Nairobi which was
was once
once hailed
hailed asas the "Green
the "Green
City the Sun"
City in the Sun" isisincreasingly
increasingly becoming
becoming one one big
big jungle
jungle of of concrete.
concrete.
The Disappearance
The Disappearance of
of Public
Public Tenure
Tenure
With
With the the intensification
intensification of illegal
illegal allocations
public land,
land, thethe problem
problem of of
public tenure
public tenure hashas moved
moved fromfrom "crisis
"crisis proportions"
proportions" to the the "extinction"
"extinction" of of
such tenure altogether.
such tenure altogether. TheThe grabbing
grabbing of public
public utility
utility lands
lands hashas occasioned
occasioned
the disappearance
the disappearance of
of important
important publicpublic amenities
amenities and and facilities.
facilities. School
School
playgrounds have
playgrounds have been
been allocated
companies inincomplete
complete
disregard to
disregard to the
the playing
playing needs
needs ofof children.
children. The
The majority
majority of of school
school children
children
either
either don't
don't play
play or or play
play under
under dangerous
dangerous environments
environments (for (for example,
example,
under electric
under electric lines,
lines, or even
even on on public
public highways
highways such such as as roads
roads andand railway
railway
lines). Public
lines). Public parking,
parking, public
public toilets,
toilets, public
public playgrounds,
playgrounds, public public
cemeteries,
cemeteries, road road reserves,
reserves, social
social halls,
halls, and
and other
other open
open spaces
spaces havehave all
all but
but
disappeared.
disappeared. A A major
major casualty
casualty of this this phenomenon
phenomenon is is the
the public
public transport
transport
system
system which which has has witnessed
witnessed debilitating
debilitating traffic
traffic congestion
congestion with with thethe
attendant effects
attendant effects to the
the economy
economy as as aa whole.
whole.
The Rise
The Rise of
of Informal
Informal Settlements
Settlements
Another negative
Another negative effect
effect occasioned
occasioned by by the
the illegal
illegal allocation
public land
land
is
is the
the spread
spread of
of informal
informal settlements
settlements in in mdst
mdst municipalities,
municipalities, townstowns and and the
the
Nairobi City. Many
Nairobi City. Many allottees
allottees of of public
public land land either
either reallocate
reallocate them them to to
members
members of of the
the public
public or or "develop"
"develop" them them for for onward
onward renting
renting to to urban
urban
dwellers. The
dwellers'. The so
so called
called slums
slums andand kiosks
kiosks havehave sprung
sprung up up in
in most
most parts
parts of
of
Nairobi and
Nairobi and other
other towns
towns in in this manner. ItIt is
this manner. fact that
is a fact that most,
most, if notnot all
all of
of
the
the inhabitants
inhabitants in in the
the slums
slums and and the
the proprietors
proprietors of of the
the kiosks
kiosks actually
actually paypay
rent to
rent to some
some landlord.
landlord. TheThe real
real beneficiaries
beneficiaries of of these
these informal
settlements
are the
are the grabbers
grabbers and
and not
not the
the dwellers.
dwellers. If If the
the responsibility
responsibility of of establishing
establishing
settlement areas were
settlement areas were to to be
be left
left to
to the
the Government
Government and and local
local authorities,
authorities,
the
the slums
slums andand kiosks
kiosks phenomena
phenomena would would be be better
better handled.
handled. It It must
must be be
emphasized that
emphasized such settlements
that such settlements and and commercial
commercial enterprises
enterprises must must be be
planned.
planned.
119
Sichangi Adv
Kenyans
Kenyans live
live inin these
these informal
settlements in
in squalid
squalid conditions
conditions due
due to
to
congestion and
congestion and lack
lack ofof basic
basic amenities.
amenities. This in
This in turn
turn leads
leads toto aa culture
culture ofof
existential struggle which negates human decency and solidarity. The
existential struggle which negates human decency and solidarity. The
spiraling crime
spiraling crime in in many
many urban
urban centres
centres is is one
one of
of the
the negative
negative consequences
consequences
of these
of these developments.
developments.
General Environmental
General Environmental Degradation
Degradation
The
The illegal
illegal allocation
allocation of
of public
public health
health facilities
facilities and and sanitary
sanitary areas areas hashas
grossly interfered
grossly interfered: with with any
any efforts
efforts ofof maintaining
maintaining aa public
public health
health system.
system.
Both solid
Both solid andand other
other waste
waste disposal
disposal processes
processes by members
by members of
of thethe public
'public
have been
have been seriously
seriously undermined.
undermined. The situation
The situation has
has been been further
further
compounded by
compounded by the
the encroachment
encroachment upon
upon or allocation of
or -allocation of riparian
riparian areas areas
within -municipalities,
within municipalities, townships
townships and and Nairobi.
Nairobi. RiversRivers andand other
other Wetland
Wetland
areas have
areas have beenbeen turned
turned intointo sewage
sewage disposal
disposal and and dumping
dumping sites sites causing
causing
serious environmental
serious environmental pollution. Huge
pollution. Huge commercial
commercial and religious
and religious or
or
community centres
.community centres likelike Nakumatt
Nakumatt Ukay, and
Ukay, and the the Visa
Visa Oshwal
Oshwal Centre Centre off off
Ring Road,
Ring Road, Westlands
Westlands are
are constructed
constructed on
on river
river andand wetland
wetland systems systems
without any
without any regard
regard to to the
the consequences.
consequences.
General Moral
General Moral Decay
Decay
The illegal
allocation and
and grabbing
grabbing of of public
public landland isis symptomatic
symptomatic of
of the
the
general moral
general moral decay
decay in in our
our society.
society. When
When landland that
that belongs
belongs to to the
the public
public isis
allocated so
allocated so as
as to
to satisfy
satisfy private
private interests
interests at at the
the expense
expense of of the
the majority,
majority,
then public
then public morality
morality suffers.
suffers. Public
Public interest
interest disappears
disappears altogether
altogether and and the
the
syndrome of
syndrome of "every
"every one one for
for himself
himself and and God
God for for usus all"
all" takes
takes root.
root. This
This isis
what has
what has happened
happened in in Kenya.
Kenya.
(ii) State
(ii) Stgte Corporations
Corporations and
and Ministries
Ministries Land
Land
The
The loss
loss ofof land
land bybystate
statecorporations
corporations and andministries
ministries through
through illegal
illegal
allocations not
allocations not only
only affects
affects the
the operations
operations of suchsuch institutions,
institutions, but
but the
the
country's
country's economy
economy as as aawhole.
whole. State
State corporations
corporations ininparticular
particular suffer
suffer huge
huge
financial
financial losses
losses through
through land
land related
related scams.
scams. When
When aastate
state corporation
corporation loses
loses
land, it means
land, means it hashas to
to make
make financial
financial adjustments
adjustments in its budget
b~dget to to acquire
acquire . .
other
other land. This costs the exchequer
land. This exchequer money
money and increases
increases the tax'tax burden
burden on
the
the public.
public. On thethe other
other hand,
hand, when
when aastate
state corporation
COrpRr~~!9JIpurchases
purchases illegally
illegally
acquired land,
acquired land, it means
means it has spent
spent money on laild wtlich it cannot
money onl~:wl'H~h cannot own
,awn inin
120
Sichangi Adv
law.
law. Such
Such expenditure
expenditure leads
leads to
to the the de-capitalization
de-capitalization of of the
the corporation.
corporation.
Such
Such transactions
transactions hhave
ave aa negative
negative effect
ef ect on
on the the economy
economy because
because they
they
ddistort
istort mamarket
rket ffundamentals
undamentals and
and weaken
weaken tthe
he ccountry's
ountry's currency.
cur ency.
121
121
I
Sichangi Adv
3. SETTLEMENT
3. SETTLEMENT SCHEMES
SCHEMES AND
AND TRUST
TRUST LANDS
LANDS
(a)
(a) Background
Background
Settlement Schemes
Settlement Schemes have.
have.been
been anan integral
integral part
part of
of Kenya's
Kenya's land
land tenure
tenure
system.
system. At At independence,
independence, one one ofof the
the main
main preoccupations
preoccupations of of the the
Government was
Government was to to settle
settle the citizens
citizens who
who had been
been displaced
displaced from
from their
their
lands
lands through
through the the discriminatory
discriminatory colonial
colonial policies
policies ofof land
landalienation.
alienation.
Indeed
Indeed thethe struggle
struggle forfor independence
independence had had been
been fuelled
fuelled byby widespread
widespread
discontent among
discontent among the the people
people about
about the
the colonial
colonial occupation
occupation of of their
their land
land
and
and their displacement from
their displacement from the same.
same. Matters
Matters had not been helpedhelped byby thethe
fact the
fact the African
African reserves
reserves to which
which the
the "natives"
"natives" had
had been
been consigned
consigned could
could
not sustain
not sustain their
their ways of life.
life.
Both
Both thethe colonial
colonial authorities
authorities and
and the
theindependence
independence Government
Government had had
realized
realized that large agricultural
that the large agricultural farms
farms in the
the so
so called
called white
white highlands
highlands
could not coexist
could coexist alongside
alongside overcrowded
overcrowded reserves. The peoples'
reserves. The peoples' hunger
hunger for
for
their
their land had to bebe addressed
addressed asas aa matter
matter of
of urgency.
urgency.
The issue of
The issue of resettlement
resettlement however,
however, became
became even
even more
more pertinent
pertinent given
given the
the
fact that the
fact that the economic
economic blueprint
blueprint forfor the
the newly
newly independent
independent nation
nation had
had
identified
identified agriculture
agricultureasas the basis of
the basis of the
the economy.
economy. ItIt waswastherefore
therefore
important that
important that the
the larger
larger majority
majority of thethe population
population be be allocated
allocated plots
plots of
of
land which
land which could
could. support
support agricultural
agricultural production.
production. ThisThis meant
meant that
that the
the
"white highlands"
"white highlands" would
would be
be the
the most
most natural
natural target
target for
for such
such aa programme.
programme.
The Government
The Government had two two options
options in in trying
trying to
to resettle
resettle the
the displaced
displaced people.
people.
It could
could simply
simply have
have retaken
retaken all
all the
the land
land for
for the
the resettlement
resettlement of of the
the landless
landless
on
on the basis
basis of
of the
the doctrine
doctrine of of state
state sovereignty.
sovereignty. The The other
other option
option waswas for
for
the Government to
the Government tread the
to tread the path
path of of aamarket
market based
based land
landredistribution
redistribution
strategy. The
strategy. The political
political realities
realities surrounding
surrounding the the negotiations
negotiations for for
independence at
independence at the
the Lancaster
Lancaster HouseHouse Conferences
Conferences favoured
favoured the the second
second
option.
option. This
This could
could address
address the the resettlement
resettlement question
question peacefully
peacefully without
without
radically interfering
radically interfering with
with the "rights of the
the "rights the settler
settler community
community over over their
their
farmlands".
farmlands". Herein
Herein lies
lies the
the genesis
genesis of of the
the policy
policy andand national
national programme
programme
of settlement
settlement schemes
schemes in in Kenya.
Kenya.
122
122
Sichangi Adv
The Government
The Government gave gave priority
priority toto aa policy
policy which
which would
would enable
enable the
the African
African
farmers to
farmers to purchase
purchase European
European ownedowned land.land. Towards
Towards thisthis end,
end, agreement
agreement
was reached
was reached between
between the the Kenya
Kenya and and British
British Governments
Governments whereby
whereby the the
latter agreed
latter agreed to to finance
finance through
through loans
loans and
and grants
grants the
the purchase
purchase of 11 million
million
acres of
acres of European
European Settler
Settler farms
farms adjacent
adjacent to to densely
densely populated
populated African
African
areas. These
areas. These lands
lands were
were to to be
be then
then subdivided
subdivided into into what
what were
were considered
considered
economic units
economic units and
and allocated
allocated to to African
African farmers.
farmers.
Parallel with
Parallel with smallholder
smallholder settlements
settlements in the the former
former scheduled
scheduled areas,
areas, several
several
other programmes
other programmes to to assist
assist Africans
Africans take take over
over large
large scale
scale European
European farmsfarms
in their
in their original
original state
state were
were initiated.
initiated. These
These. takeovers
takeovers were were financed
financed by by
loans
loans from
from thethe British
British Government,
Government, the the World
World Bank,
Bank,andand other
other Agencies.
Agencies.
As at
As 31 st December
at 31't December 1965, 1965, approximately
approximately 550, 550, 000
000 acres
acres inin the
the former
former
scheduled
scheduled areas areas hadhad come
come into into African
African ownership
ownership under under thesethese
programmes. A
programmes. A total
total ofof 24,000
24,000 smallholders
smallholders and and 750
750 large
large scale
scale farmers
farmers
had
had acquired
acquired landland either
either as
as individuals
individuals or or collectives
collectives such
such asascompanies,
companies,
partnerships
partnershi or cooperati
ps or &operatives.ves.
The loans
The loans andand grants
grants received
received for for this
this purpose
purpose byby the
theGovernment
Government. werewere
credited by
credited by Parliament
Parliament to an an agricultural
agricultural Fund
Fund managed
managed by by Settlement
Settlement
Fund Trustees
Fund Trustees (SFT).
(SFT). The
The Trustees
Trustees werewere established
established under
under the
the Agriculture
Agriculture
Act, cap
Act, cap 318,
318, Laws
Laws of of Kenya
Kenya mandated
mandated to to manage
manage the the Fund
Fund andand to
to
purchase any
purchase any land
land for resale
resale purposes.
purposes. The Settlement
Settlement FundFund Trustees
Trustees was
was
therefore the
therefore the statutory
statutory organ
organ established
established forfor the
the purpose
purpose of of executing
executing thethe
settlement programme.
settlement programme. The The arrangement
arrangement between
between thethe Fund
Fund andand the
the people
people
to be
to be settled,
settled, was
was something
something akin akin toto aa"land
"landpurchase
purchase on on·mortgage",
mortgage",
whereby the
whereby the farmers
farmers were
were regarded
regarded to have bought
bought the land
land from
from the
the Fund
Fund
through
through monies
monies loaned
loaned toto them
them byby the
the Fund.
Fund. The
The farmers
farmers were
were supposed
supposed toto
make periodic
make periodic repayments
repayments of the the loan
loan to the Fund until
the Fund until the whole
whole purchase
purchase
price had
price had been
been paid.
paid. Only
Only thenthen would
would they
they discharge
discharge their
their obligations
obligations and
and
9
acquire title
acquire title to the land. 9
Through these programmes,

Through these programmes, the the Government
Governmentwas was able
able to
to establish
establish aa
number of settlement
number settlement schemes;
schemes; a process
process which
which has
has continued
continued to
to this
this day.
day.
Schemes such
Schemes such as the
the 1Million
IMillion Acre,
Acre, the
the Shirika
Shirika and
and Haraka
Haraka programmes
programmes
9 See the SECOND

SECOND DEVELOPMENT
DEVELOPMENT PLAN-1970-1974
PLAN-1970-1974
123
123
Sichangi Adv
were designed
were along the
designed along the objectives
objectives-dtseussed above. Due
-discussed above. Due to the continuing
continuing
pressure for land
pressure for land after
after independence
-independence the the Government
Government was was forced
forced toto start
start
creating settlement schemes
creating settlement schemes in in areas
areas which
which were
were not not necessarily
necessarily of of high
high
agricultural potential.
agricultural potential. LandLand hashas remained
remained the the main
main source
source ofof economic
economic
activity and
activity and hence
hence a meansmeans of of survival
survival for
for the
the majority.
majority. Consequently
Consequently
finding
finding land
land toto settle
settle the
the landless
landless hashas been
been aamajor
major preoccupation
preoccupation of of
successive post
successive post independence
independence Governments.
Governments. Settlement
Settlement schemes
schemes havehave had
had
to be
to be carved
carved out
out of
of both
both unalienated
unalienated andand alienated
Government land land (such
(such
as Gazetted
as National Forests)
Gazetted National Forests) andand Trust
Trust land
land to settle
settle the
the "landless".
"landless".
The
The creation
creation ofof latter
latter day
day settlement
settlement schemes
schemes has has been
been operationalised
operationalised
through the
through the Ministry
Lands andand Settlement.
Settlement. Although
Although the the S.F.T.
S.F.T. remains
remains
technically responsible
technically responsible for for such
such schemes,
schemes, the the Provincial
Administration
has also
has also had
had a hand
hand in in the
the actual
actual identification
identification of the the people
people to to be
be settled
settled
and the
and the acreages
acreages toto be
be allotted
allotted to each
each individual.
individual. This
This has
has been
been occasioned
occasioned
by the
by the fact
fact that
that the
the District
District isis the
the focal
focal point
point ofof the
the implementation
implementation of of
Government policies. Thus,
Government policies. Thus., where
where landland isis identified
identified forfor settlement,
settlement, it it is
is
almost automatic
almost automatic thatthat a district
district based
based plotplot allocation
allocation committee
committee will will bebe
charged with the
charged with the responsibility
responsibility of of settling
settling the
the people.
people. The
The committee
committee isis
chaired
chaired by the District
Commissioner of of the
the area.
area.
(i)
(i) Settlement
Settlement Schemes
Schemes as
as Public
Public Land
Land
The
The history,
history, rationale
rationale and
and policies
policies regarding
regarding settlement
settlement schemes
schemes leave
leave no
no -
doubt
doubt that
that such
such lands
lands are
are "public
"public lands"
lands" within
within the
the meaning
meaning and and context of
context of
this
this inquiry.
inquiry. Although
Although thethe Government
Government long long adopted
adopted the the free
free market
market
system
system of development,
development, it it pursued
pursued aa deliberate
deliberate policy
policy ofof maintaining
maintaining somesome
form of public
form public control
control of
of the
the process
process of of settling
settling people
people either
either to
to stimulate
stimulate
agricultural productionoror to
agricultural production to establish
establish human
human settlements
settlements so so as
as toto
constantly address
constantly address the problem
problem of of landlessness.
landlessness. Settlement
Settlement schemes
schemes werewere
considered appropriate
considered appropriate forms
forms of of public
public tenure
tenure toto deal
deal with
with these
these twin
twin
objectives.
objectives. TheThe schemes
schemes were
were created
created through
through loans
loans toto the
the Government
Government
which would
which would have
have to be repaid
repaid byby aa charge
charge on on the
the Exchequer.
Exchequer. The The more
more
recent
recent schemes
schemes werewere created
created from
from lands
lands that
that were
were either
either unalienated
unalienated
Government
Government land land or
or Trust
Trust land.
land.
The public
The public interest
interest in
in these
these schemes
schemes therefore
therefore remains
remains paramount.
paramount. In In
particular, members
particular, members of the public
public would
would be
be justified
justified to
to expect
expect and
and demand
demand
124
Sichangi Adv
that
that the
the settlement
settlement scheme
scheme lands
lands are
are allocated
allocated in in aa manner
manner thatthat conforms
conforms to to
the
the purpose
purpose for for which
which theythey were
were established.
established. These These purposes
purposes are are toto
stimulate agricultural
stimulate production or
agricultural production or to
to settle
settle thethe landless.
landless. They
They would
would notnot
expect that such
expect that such schemes
schemes are are used
used to to allocate
allocate land land to to people
people whowho are are
neither landless
neither landless or don't deserve
or don't deserve to to be
be allocated
allocated such such lands
lands for
for one
one reason
reason
or another. They
or another. They would
would not not expect
expect such
such schemes
schemes to to provide
provide aa mechanism
mechanism
and an
and an opportunity
opportunity for for land
land grabbing
grabbing and and speculation
speculation as as has
has happened
happened in in
many areas. They
many areas. would expect
They would expect that
that all
all the
the institutions
institutions and and public
public officers
officers
would deal
would deal with
with such
such lands
lands onon trust
trust for
for the
the people
people of Kenya.
Kenya. ThatThat isis why
why itit
was _no
was no _accident that the
.accident that the statutory organ charged
statutory organ charged with with the
the funding
funding and and
management
management of of these schemes was
these schemes called the
was called the Settlement
Settlement Fund Fund Trustees.
Trustees.
Yet
Yet in the course
in the course of this
this inquiry,
inquiry, the
the Commission
that the
the manner
manner1~in
which settlement
which settlement schemes
schemes have have been
been established
established and and allocated
allocated falls
falls far
far
below
below the
the public
public trust
trust interest
interest inherent
inherent in in them.
them. Settlement
Settlement schemes
schemes have
have
repeatedly been
repeatedly been used
used asas conduits
conduits for
for land
land grabbing.
grabbing.
(ii) Findings
(ii) Findings
General Deviation
General from Original
Deviation from Original Intent
Intent
The
The Commission
that while
while thethe establishment
establishment of of settlement
settlement schemes
schemes
and their
and their subsequent
subsequent allocation
allocation in in the
the early
early years
years ofofindependence
independence
generally conformed
generally conformed to to the
the original
original objectives, there has
objectives, there has been
been aa general
general
deviation from
deviation from these
these objectives
objectives in in the" years after.
the years after. Land
Land in in the
the areas
areas set
set
aside or
aside or acquired
acquired by by the
the Government
Government as as settlement
settlement schemes
schemes has has been
been
allocated for
allocated for purposes
purposes other
other than
than settlement
settlement or or agricultural
production.
Extraneous or
Extraneous or irrelevant
irrelevant factors
factors have
have been
been taken
taken into
into account
account by thosethose in
in
charge
charge of allocating lands
of allocating lands inin settlement
settlement schemes.
schemes. The The irregularities
irregularities that
that
have characterized the
have characterized the land allocation
allocation process
process in newly
newly created
created settlement
settlement
schemes country
schemes wide have
country wide have elicited
elicited widespread
widespread outcryoutcry andand protest
protest from
from
would be beneficiaries.
would beneficiaries. Written
Written memoranda
memoranda received
received by by the
the Commission
Commission
from
from members
members of of the
the public
public and
and official
official records
records at the the Ministry
Lands
and Settlement
and Settlement revealreveal many
many malpractices,
malpractices, irregularities
irregularities and and even
even
illegalities in the establishment
illegalities establishment and creation
creation of settlement
settlement schemes.
schemes.
In total,
In total, there
there are
are four
four hundred
hundred and
and eighteen
eighteen (418)
(418) settlement
settlement schemes
schemes in in
Kenya. This
Kenya. This number
number comprises
comprises of high
high potential
potential and
and low
low potential
potential areas.
areas.
(See Annex
(See Annex 52 52 in
in Vol.
Vol. I of
of the
the Annexes).
Annexes). The establishment of
The establishment of these
these
125
125
Sichangi Adv
schemes has
schemes has been
been aa continuous
continuous one one since
since the
the early
early days
days of of independence.
independence.
While
While the the S.F.T.
S.F.T. waswas in in total
total control
control ofof the
the allocation
allocation andand management
management of of
the schemes
the schemes in the the immediate
immediate post post independence
independence period,period, itsits role
role has
has been
been
diversified among
diversified among the the Ministry
Ministry and and provincial
provincial administration
administration over over thethe
years. The current
years. The current practice
practice is such such that
that once
once thethe Government
Government has has set
set apart
apart
land for
land for settlement;
settlement; the the land
land technically
technically fallsfalls under
under thetheadministrative
administrative
jurisdiction
jurisdiction ofof the
the Settlement
Settlement Fund
Fund Trustees
Trustees while
while the the actual
actual
implementation
implementation of the
of the settlement
settlement programme
programme is is taken
taken up up by
by a District
District Plot
Plot
Allocation
Allocation Committee.
Committee. The The Committee
Committee comprises
comprises of of six
six persons,
persons, namely,
namely,
the
the District
Commissioner as chairman, chairman, the the District
District Settlement
Settlement Officer
Officer as as
secretary, the
secretary, area Member
the area Member of of Parliament
Parliament (MP),(MP), the the District
District Agricultural
Agricultural
Officer,
Officer, thethe Chairman
Chairman of of the
the County
County Council
Council of of the
the area
area and
and thethe Clerk
Clerk toto
Council.
Council. ThisThis Committee
Committee wields enormous - powers
wields enormous powers in in the
the land
land allocation
allocation
process. The
process. The Settlement
Settlement Fund Fund Trustees
Trustees does does notnot appear
appear to to have
have anyany
supervisory
supervisory powerspowers over over these
these committees.
committees. This This absence
absence of of accountability
accountability
on the
on the part
part of district
district plot
plot allocation
allocation committees
committees has has occasioned
occasioned the the abuses
abuses
recounted below.
recounted below.
Allocation
Allocation of
of Land
Land in
in Settlement
Settlement Schemes
Schemes to Undeserving
Undeserving People
People
The
The most
most glaring
glaring finding
finding byby the
the Commission
Commission with with regard
regard to to settlement
settlement
schemes
schemes is that land
is that land was
was allocated
allocated to to personalities
personalities who who werewere entirely
entirely
undeserving.This
undeserving. This waswas due
due to to the
the fact
fact that
that the
the allottees
allottees werewere neither
neither
"landless" nor
"landless" nor in
in possession
possession of of any
any unique
unique skills
skills and
and facilities
facilities toto be
be able
able toto
use the land
use the land in
in an
an agriculturally
agriculturally productive
productive manner
manner for for the
the benefit
benefit of of the
the
country's
country's economy.
economy.
Interviews of
Interviews of ministry
ministry officials
officials revealed
revealed thatthat according
according to to the
the official
official
policy
policy of of land
land allocation
allocation inin settlement
settlement schemes,
schemes, the the plotplot allocation
allocation
committees
committees are are supposed
supposed to to reserve
reserve 60%60% of of the
the land
land for
for local
local residents
residents of of
the
the area
area and
and 40%
40% for
for deserving
deserving people
people fromfrom other
other parts
parts ofof the
the country.
country. TheThe
intention
intention was give priority
was to give priority toto the
the landless
landless from
from the
the region
region in in which
which thethe
settlement scheme
settlement scheme had had beenbeen established
establishedwhile whileatat thethe same
same time time notnot
excluding
excluding thethe landless
landless from
from other
other parts
parts ofof the
the Republic.
Republic. ThisThis would
would attain
attain
the twin
the twin objectives
objectives of of settlement
settlement andand national
national integration.
integration.
Many
Many schemes
schemes however
however show
show that
that this
this policy
policy was
was blatantly
blatantly ignored
ignored byby the
the
committees.
committees. District officials, their
District officials, their relatives,
relatives, members
members of of parliament,
parliament,
126
Sichangi Adv
councilors and
councilors and prominent
prominent politicians
politicians from
from the
the area,
area, Ministry
Lands andand
Settlement officials,
Settlement officials, other
other civil
civil servants
servants andand the
the so
so called
called "politically
"politically
correct" individuals
correct" individuals in in the
the former
former government
government were were allocated
allocated lands
lands inin
settlement schemes
settlement schemesatat the the expense
expense of of the
the deserving
deserving poorpoor from
from the the
respective areas.
respective areas.
The
The KINALE
KIN ALE SETTLEMENT
SETTLEMENT SCHEME SCHEME in in KIAMBU
KIAMBU isis an an illustration
illustration of of
some of
some of these
these misdeeds.
misdeeds. A A Report
Report by by an anInter-Ministerial
Inter-Ministerial Task Task Force
Force
appointed to
appointed to inquire
inquire intointo the
the goings
goings on on in in the
the Scheme
Scheme established
established that that the
the
original list
original list of
of allottees
allottees showed
showed the the total
total number
number of plots plots to have
have been
been 1427
1427
while a second
while second list
list had
had the
the total
total number
number of plots plots asas 1526.
1526. The
The total
total number
number
of plots
of plots which
which hadhad been
been created
created at thethe time
time of of the
the Task
Task Force
Force waswas 3,503.
3,503.
These discrepancies
These discrepancies could not
could not bebe explained.
explained. The The problem
problem was was further
further
compoundedbyby the
compounded the fact
fact that
that thethe original
original list list ofofgenuine
genuine allottees
allottees
mysteriously disappeared
mysteriously disappearedfrom fromthe the records
records atat the the office
office ofof the
the District
District
Commissioner- Kiambu.
Commissioner- Kiambu. The The Task
Task Force
Force concluded
concluded that that many
many undeserving
undeserving
people were
people were allocated
allocated plots
plots inin the
the settlement
settlement scheme
scheme while while the the genuine
genuine
landless
landless were
were struck
struck off
off from
from the
the list.
list.
The Commission
The Commission also also established
established thatthat the
the Ministry
Lands also
also made
made
direct allocations
direct allocations of
of land
land in
in settlement
settlement schemes
schemes to to certain
certain applicants.
applicants. There
There
was no
was no clear
clear policy
policy oror criterion
criterion forfor direct
direct allocations
allocations of of settlement
settlement scheme
scheme
land
land toto selected
selected applicants
applicants by the the Ministry
Ministry officials.
officials. Large
Large acreages
acreages ofof land
land
were allocated
were allocated in this
this manner.
manner.
As aa direct
As direct consequence
consequence of of the
the above
above malpractices,
malpractices, many many people
people whowho
would otherwise
would otherwise have have been
been entitled
entitled to lands
lands forfor settlement
settlement and and subsistence
subsistence
purposes were
purposes were left
left out.
out. Others
Others who who applied
applied forfor allocation
allocation werewere short
short listed
listed
and even
and even paid
paid thethe requisite
requisite fees;
fees; butbut when
when the the actual
actual allocations
allocations werewere
effected, their
effected, their names
names and and other
other particulars
particulars werewere omitted
omitted fromfrom the
the list
list of
of
allottees altogether.
allottees Their complaints
altogether. Their complaints and and protestations
protestations were were not
not addressed
addressed
by the
by the relevant
relevant authorities.
authorities. Written
Written memoranda
memoranda from from members
members of of the
the
public indicate
public indicate that
that those
those who
who protested
protested havehave variously
variously beenbeen subjected
subjected to to
harassment by
harassment by thethe Provincial
Administration while
while others
others have
have been
been
charged in
charged in courts
courts of of law
law with
with trumped
trumped up up charges.
charges. ThisThis situation
situation was
was still
still
persisting in many
persisting many settlement
settlement schemes
schemes at at the
the time
time of of writing
writing this
this Report.
Report.
Allocation
Allocation of
of Above Average Acreages
Above Average Acreages of Land to Undeserving
of Land Undeserving People
People
Closely related
Closely related to the
the malpractice
malpractice of of allocating
allocating land
land to
to people
people who
who did
did not
not
deserve was the
deserve was the deliberate
deliberate practice
practice of of making
making allocations of land
allocations of land inin
127
Sichangi Adv
proportions that
proportions that went
went far
far beyond
beyond thethe average
average acreages
acreages recommended.
recommended.
Examples abound
Examples abound where
where thethe majority
majority ofof the
the allottees
allottees got
got land
land in in the
the area
area of
of
between 22 and
between and 55 acres
acres while
while some
some individuals
individuals got got land
land between
between 10 10 and
and
over
over 100100 acres
acres ininthe
the same
same scheme!
scheme! No No reasons
reasons or or justification
justification for for this
this
kind of
kind of disparity
disparity isis available.
available. TheThe Commission
Commission concludedconcluded -that -that the
the
difference can
difference can only
only be be explained
explained as as aafurtherance
furtherance of of the
themalpractices
malpractices
already
already alluded
alluded to to since
since those
those who
who received
received the the above
above average
average allocations
allocations
were not
were entitled to
not entitled to any
any allocation
allocation inin the
the first
first place. For an
place. For an illustration
illustration of of
allocations
allocations to to undeserving
undeserving people people andand above
above average allocations See
average allocations See
Annex 53 in Vol.
Annex Vol. I ofof the
the Annexes.
Annexes.
No Standard
No Criterion for
Standard Criterion for Reserving
Reserving Public
Public Utility
Utility Plots
Plots
Another finding
Another finding by by the
the Commission
Commission Was that decisions
was that decisions on on what
what ratio
ratio of
of
scheme land to
scheme land to reserve
reserve as as public
public utility
utility plots
plots were
were left
left to
to Planners
Planners without
without
any guiding
any guiding or or set
set criteria.
criteria. TheThe percentages
percentages to to be bereserved
reserved varied
varied
enormously. In
enormously. In aa few schemes; no land
few schemes,. land was
was reserved
public purposes,
purposes,
while in
while in others;
others; there
there waswas aa variance
variance of between
between 2 and and 5%.5%. There
There waswas
hardly any uniform
hardly uniform standard.
standard. Because
Because of of these
these anomalies,
anomalies, plots plots which
which had
had
been reserved
been reserved for for public
public purposes
purposes in in aanumber
number ofofsettlement
settlement schemes
schemes
ended being allocated
ended up being allocated to to individuals.
individuals. The The Kinale
Kinale Settlement
Settlement Scheme
Scheme isis
again an illustration
again illustration of this kind kind ofof illegality.
illegality. Many public
public utility
utility lands
lands and
and
marshy areas
marshy areas which
which should
should havehave been been conserved
conserved were were allocated
allocated to to
individuals
individuals on orders
orders of of the
the Provincial
Provincial Commissioners
Commissioners in in Central
Central Province
Province
between
between 19921992 and 1996. Below
and 1996. Below is a list list and
and particulars
particulars of of public
public utility
utility
lands in the scheme
lands scheme allocated
allocated to to individuals.
individuals.
LAND
LAND RESERVED
RESERVED FOR
FOR PUBLIC
PUBLIC UTILITIES
UTILITIES BUT
BUT HAS
HAS BEEN
BEEN SUBDIVIDED
SUBDIVIDED
AND ALLOCATED
AND ALLOCA TED
Plot
Plot Date
Date of
No. From
From To Transfer
Transfer
No.
No .
1.
1. 1468 Government
Government Maria
Maria Wangari
Wanzari Wangombe
Wanzombe 14/10/96.
14/10/96
2. 1503 " Lucy Waniiru Wainaina
Lucy Wanjiru Wainaina 20/6/2000
20/6/2900
3. 1504 „
" Jeremiah
Jeremiah Kihara
Kihara Mihari
Mihari 17/3/97
4. 1506 "
73
James
James Mugane.
Mugane 24/2/97
24/2/97
5. 1518 " Samuel
Samuel Ababu
Ababu Ángote
Anzote 11/6/92
11/6/92
,
6. 1521 "
11
Eunice Wanjiku
Eunice Waniiku Mungai
Mungai 11/6/92
11/6/92
7. 1522 ,," Peter
Peter Njoroge
Nioroze Ndungu
Ndunzu 3/4/92
3/4/92
4
8. 1507 " George Kiiru
George Kiiru Kamau
Kamau
,1
9. 1523 - " Mburu Njoroge
Mburu Njoroge 5/2/98
5/2/98
10. 1525 „" Joseph
Joseph Karanja
Karanja Kibe 27/10/97
27/10/97
128
Sichangi Adv
Plot
Plot Date of
Date of
No.
No. From
From To
To Transfer
Transfer
No..
No
II.
11. 1643 ." Rose
Rose Kaari 18/3/93
12. 1683 „" Michael Maina
Michael Maina Ndirangu
Ndirangu 21/12/92
21112/92
13.
13. 1683 Michael
Michael Esther
Esther Wanjiru
Wanjiru Gitahi
Gitahi 27110/97
27/10/97
Maina
Maina
Ndirangu
Ndirangu
14. 1688 Government
Government Catherine
Catherine Njeri 21/12/92
21112/92
15. 1689 Government
Government Geneover Wairimu
Geneover Wairimu Mwangi
Mwangi 21/12/92
21112/92
16. 1687 " David
David Wayui
Wayui Mwangi
Mwangi 21/12/92
21112/92
9f
17. 1698 " Thuku
Thuku Ikigu 21/12/92
21112/92
If
18. 16990
16990 " Jedida Martha
Jedida Martha 21112/92
21/12192
19. 1691 „
" Kiambaa Kawaida Co.
Kiambaa Kawaida Co. Ltd.
Ltd. 21/12/92
21112/92
20. 1692- "
If
Kiambaa Kawaida
Kiambaa Kawaida Co.
Co. Ltd.
Ltd. 21/12/92
21112/92
1697
21.
21. 1703- " Kiambaa Kawaida
Kiambaa Kawaida Co.
Co. Ltd.
Ltd. 21112/92
21/12/92
1707
. 22.
22. 1699 f9
" Samuel Muriithi
Samuel Muriithi Muthinga
Muthinga 21112/92
21/12/92
If
23. 1700 " Ndumberi General
Ndumberi General Mechants
Mechants 21/12/92
21112/92
24. 1708 " Timothy
Timothy Kiega
Kiega Mwihia
Mwihia 21/12/92
21112/92
25. 1709 " Patricia Wawire
Patricia Wawire 21/12/92
21112/92
26. 1710 "
)9
Salome Njeri
Salome Njeri Ng'ang'a
Ng'ang'a 21112/92
21/12/92
David
David Njogu
Niogu Mwai
Mwai
27. 1703- „" Kiambaa Kawaida
Kawaida Co.
Co. Ltd.
Ltd.
Kiambaa 21/12/92
21112/92
1707
28. 1715 „
" Kiambaa Kawaida Co.
Kiambaa Kawaida Co. Ltd.
Ltd. 21/12/92
21112/92
29. 1718 "
If
Peter Mururi Kagecha
Peter Mururi Kagecha 21/12/92
21/12/92
30. 1719 "
I)
Timothy
Timothy Kiega
Kiega Mwihia
Mwihia 21112/92
21/12/92
3l.
31. 1702 " Sebastian Njiraini
Sebastian Njiraini Mwangi
Mwangi 21/12/92
21112/92
32. 1722 " Jeremiah
Jeremiah Kahara
Kahara Mihari
Mihari and 21/12/92
21112/92
Mary Irungu
Mary W. Irungu
33. 1723 "
f1
Elizabeth Wanjiru
Elizabeth Wanjiru Njoroge
Njoroge 21112/92
21/12/92
91
34. 1724 " Dunk
Dunk Investment
Investment Ltd. 21112/92
21/12/92
35. 1725 " Elizabeth
Elizabeth Wairimu
Wairimu 21/12/92
21112/92
36. 1726 "
79
Margaret
Margaret Muthoni
Muthoni Kanake
Kanake 20/8/96
20/8/96
37. 1740 "
79
Margaret Wanjiru
Margaret Wanjiru and
and 19/9/2000
19/9/2000
George Njuguna
George Njuguna Ngugi
Ngugi
38. 1721 " Damaris
Damaris W.W. Ng'ang'a
Ng'ang'a and
and
James Mwangi
James Mwangi
39. 1727 " John
John Gikonyo
Gikonyo Gitahi
Gitahi 21/12/92
21112/92
40. 1728 " Augustine
Augustine Mughcuru
Mughcuru 21/12/92
21112/92
41.
41. 1741 If
" Geoffrey Lukuudi
Geoffrey Lukuudi 21/12/92
21112/92
42. 1742 "
If
Mary
Mary Jutaa
Jutaa To 21/12/92
21112/92
Fredrick Antony
Fredrick Antony Nderu
43. 1743 "
If
Jackson Kariuki
Jackson Kariuki Ndegwa
Ndegwa nd 21/12/92
21112/92
129
Sichangi Adv
Plot
Plot Date of
Date of
No.
No. From
From To
To Transfer
Transfer
No..
No
Stephen Wainaina
Stephen Wainaina Ndegwa
Ndegwa
44.
44. 1744
1744 Government
Government David
David K.K. Kihiu
Kihiu 21/12/92
21112/92
45.
45. 1745
.1745 " Attamay Nyanjuga
Attamay Nyanjuga 21/12/92
21112/92
46.
46. 1746 ,
" Samuel Mwangi Ngoima
Samuel Mwangi Ngoima 21/12/92
21112/92
47.
47. 1747 " Njenga Kimiti
Njenga Kimiti 21/12/92
21112/92
48.
48. 1748 "
" Njenga Kimiti
Njenga Kimiti 21/12/92
21112/92
49.
49. 1749 "
l,
Evanson
Evanson Kimanga
Kimanga Mungai
Mungai 21/12/92
21112/92
50.
50. 1750 73
" Ndumberi Merchants
Ndumberi Merchants Ltd. 21/12/92
21112/92
51.
51. 1751 " Ndumberi
Ndumberi Merchants
Merchants Ltd.
Ltd. 21/12/92
21112/92
52.
52. 1720 7>
" Franial
Franial nyambura
nyambura Chege
Chege 21/12/92
21112/92
George Ng'ang'a Njoroge
George Ng'anga Njoroge
53.
53. 1752
>7
" Peterson
Peterson Muriuki
Muriuki 21/12/92
21112/92
54.
54. 1753 " Joseph Boinet
Joseph Boinet 21/12/92
21112/92
55.
55. 1754 " Esther Njeri
Esther Njeri Muluto
Muluto 21/12/92
21112/92
56.
56. 1755 I,
" Leah
Leah Menia
Menia and Asaph
Asaph 21/12/92
21112/92
Njoroge Ngigi
Njoroge Ngigi (Double)
(Double)
57.
57. 1756
„" Jacob
Jacob Ngigi
Ngigi Kanini
Kanini 21/12/92
21112/92
58.
58. 1757
7>
" Rebecca
Rebecca Muthuri
Muthuri 21/12/92
21112/92
59.
59. 1758 "
" Wilson M. Kamau
Wilson Kamau and 21/12/92
21112/92
Cyrus Ng'ang'a
Cyrus Ngana'a
60.
60. 1759 " Muthiora
S. Muthiora 21/12/92
21112/92
61.
61. 1760
1760
"" Mwaura Kamau
Mwaura Kamau 21/12/92
21112/92
62.
62. 1761 " Samuel Maingi Ngugi
Samuel Maingi Ngugi 21/12/92
21112/92
63.
63. 1763
1763- /5
" Ndumberi General
Ndumberi General Merchants
Merchants 21/12/92
21112/92
64.
64. 1764 " Hannah Wanjiru
Hannah Wanjiru Ndung'u
Ndung'u 21/12/192
21112/192
65.
65. 1729 " Nahashon Mwaura
Nahashon Mwaura Njuguna
Njuguna 21/6/92
2116/92
66.
66. 1730 " John Karuga
John K. Karuga 21/12/92
21112/92
67.
67. 1730 " Zaverio Kinyua
Zaverio Kinyua Gitonga
Gitonga 21/12/92
21112/92
68.
68. 1731
If
" P. M. G. Kamau
P. Kamau To Geoffrey
Geoffrey 21/12/92
21112/92
Gakure Mwangi
Gakure Mwangi on 14/3/97
14/3/97
69.
69. 1734 " John Njoroge
John Njoroge Karuga
Karuga 21/12/92
21112/92
70.
70. 1735 " Fredrick Munyua
Fredrick Munyua Kariuki
Kariuki 21/12/92
21112/92
71.
71. 1736 " Peter Ngigi
Peter Ngigi Karanja
Karanja 21/12/92
21112/92
Stephen Gitau
Stephen Gitau Waira
Waira David
David
72.
72. 1737
I,
" Chege Thiga
Chege Thiga (on 26/9/96)
26/9/96) and
and 21/6/92
2116/92
Njoroge Ngwaro
Njoroge Ngwaro (on 2/8/99)
2/8/99)
73.
73. 1738 " Loice Nyokabi
Loice Nyokabi Karuga
Karuga 21/12/92
21112/92
74.
74. 1738
,
" John Njoroge
John Njoroge Karuga
Karuga 21/12/92
21112/92
75.
75. 1422 " John Ndungu
John Ndungu Njoroge
Njoroge 20/8/96
20/8/96
76.
76. 1432 " Lydia Murugi
Lydia Murugi 27/10/96
27/10/96
77.
77. 1468 " Maria Wangari
Maria Wangari Wangombe
Wangombe 24/2/97
24/2/97
78.
78. "
" Maria Wangari
Maria Wangari Wangombe
Wangombe 24/2/97
24/2/97
130
Sichangi Adv
Plot
Plot Date
Date of
of
No.
No. From
From To
To Tram;(er
Transfer
No
No. .
To Perer
To Perer Muchai
Muchai Njihia
Niihia
79.
79. 1472
1472 Government
Government James
James K.K. Kamaru
Kamaru 24/2/93
24/2/93
80.
80. 1429
1429 " John Njoroge
John Njoroge Matanga
Matanga 16/2/93
81.
81. 1516 " Francis Wainaina
Francis Wainaina Nyanjui
Nyanjui 17/12/97
17112/97
93
82. 1710 " Salome Njeri Ng'
Salome arrg'a
Ng'ang'a 20/8/96
20/8/96
83. 1711 " Kiambaa Kawaida
Kiambaa Kawaida Co.Co. Ltd.
Ltd. 21/12/92
21112/92
84. 1712 "
fl
Thaiya Obadiah
Thaiya Obadiah 21/12/92
21112/92
85. 1713 " Wairimu Ngugi
Wairimu Ngugi and 21/12/92
21112/92
George M. Kagiri
George Kaairi
86. 1714 " Margaret Wambui
Margaret Wambui 21/12/92
21112/92
87. 1844 "
)1
James Nioroze
James Njoroge Kimani
Kimani 20/8/96
20/8/96
88. 2348
2348
31
" Alex
Alex Muteti
Muteti 2/10/93
2110/93
89. 2349
2349 " Michael M. Munene
Michael Munene 2/10/93
2110/93
90. 2350
2350 " Susan
Susan Wanjiru Wanjiru 1/12/95
1112/95
91. „" -
91. 2351 Solomon
Solomon Muriithi
Muriithi
92. 2352
2352 " Jeniffer Ngendo
Jeniffer Ngengo 1/12/95
1112/95
93. 2353
2353 " Winiie
Winiie Ngendo
Ngendo Kangethe
Kangethe 2/10/93
2110/93
94. 2354
2354 " Stephen Ayoo
Stephen Ayoo 2/10/93
2110/93
95. 2346
2346 " Damaris Wangari
Damaris Wangari and
Peter Mwangi
Peter Mwangi
96. 2463
2463 " Yusuf Kimutai
Yusuf Kimutai 2/7/96
2/7/96
97. 2464
2464 " John Njoroge Karuga
John Njoroge Karuga 23/4/96
23/4/96
2465 „
"
98. 2465 Joseph
Joseph Mburu
Mburu Karanja
Karania
99. 2466
2466 " Yusuf
Yusuf Kimutai
Kimutai 10/3/96
10/3/96
100.
100. 2467
2467 ."
.9,
Milton
Milton Njoroge
Njoroge and
and 10/3/96
10/3/96
Paul Kariuki
Paul Kariuki
101. 2468
2468. " Yusuf
Yusuf Kimutai
Kimutai 23/4/96
23/4/96
102. 2468
2468 " Yusuf Kimutai
Yusuf Kimutai 23/4/96
23/4/96
103.
103. 2469
2469 " Silas Kiptui
Silas Kiptui Kipchilat
Kipchilat 23/4/96
23/4/96
104. 2565
2565 " Mary Wanjiru Mwangi
Mary Wanjiru Mwangi
105. 2566
2566 " Peter Mbuthia
Peter Mbuthia 20/8/96
20/8/96
106. 2567
2567 "" Jane Susy Njue
Jane Niue 10/8/97
107. 2568
2568 " Joyce Wambui
Joyce Wambui Njenga
Njenga 20/8/96
20/8/96
108.
108. 2570
2570 " Samuel Mwaura
Samuel Mwaura Njihia
Niihia 20/8/96
20/8/96
109.
109. 2571 " Elizabeth Wairimu
Elizabeth Wairimu Chege
Chege 20/8/96
20/8/96
110. 2572
2572 "
I,
Margaret Wangui
Margaret Wanzui Jason 27/8/96
27/8/96
Ill.
111. 2573
2573 " Josphat Mwaura
Josphat Mwaura 27/8/96
27/8/96
112.
112. 2574
2574 "
,
Naftali
Naftali Kahunyuro
Kahunvuro 27/8/96
27/8/96
113. 1702 "
I,
Sebastian Njiraini Mwanzi
Sebastian Niiraini Mwangi 24/2/92
24/2/92
"
I,
114. 1642 James Ngungu
James Ngungu Mburu
Mburu 11/8/97
1118/97
Johnson Kibe
Johnson Kibe Mbugwa
Mbugwa
131
131
Sichangi Adv
Plot
Plot Date
Date of
of
No.
No. From
From To
To Transfer
Transfer
No
No.
115.
115. 406
406 " David
David Muiruri
Muiruri Kiarie
Kiarie 1/3/96
113/96
116. 1718 " Peter Wamuhuri
Peter Wamuhuri Kagecha
Kagecha 21/12/92
21112/92
117. 1719 „" Timothy Kiega Mwihia
Timothy Kiega Mwihia 21/12/92
21112/92
(Loans
(Loans Shs.
Shs. I million)
million)
Settlement Schemes established

Settlement Schemes established and
and Administered by the Office
Administered by Office of
of the
the
President
President
The Commission
The Commission found found that
that the Office
Office ofof the
the President
President hadhad established
established
settlement schemes outside the framework of established procedures. This
settlement schemes outside the framework of established procedures. This
was done
was done through
through the personal
personal initiative
initiative of thethe past
past two
two Presidents.
Presidents. TheThe
mechanism
mechanism used used waswas aa presidential
presidential directive
directive to to the
theprovincial
provincial
administration to
administration to settle
settle specific
specific groups
groups of people
people in in designated
designated areas.
areas. The
The
Commission's
Commission's efforts
efforts to
to get
get full
full and
andaccurate
accurate information
information regarding
regarding this
this
category
category of schemes
schemes werewere not
not successful.
successful. No No official
official records
records detailing
detailing the
the
goings on in these schemes were kept and if they were, the Commission
goings on in these schemes were kept and if they were, the Commission
simply
simply could
could not
not access
access them.
them. However,
However, the the Commission
able toto
establish that
establish that twenty
twenty two (22)(22) ofof these
these schemes
schemes were were established
established in in forest
forest
areas before
areas degazettement. For
before degazettement. For a listlist of
ofschemes
schemes established
established in in this
this
manner, see Annex
manner, 54 in Vol.
Annex 54 Vol. I of
of the
the Annexes.
Annexes.
Full details and

Full details and legal status
status of these schemes
schemes are
are to be found
found in
in the
the
section dealing with Forestlands.
Illegal establishment
Illegal of Settlement
establishment of Schemesinin farms
Settlement Schemes farms owned
owned by
by the
the
Agricultural
Agricultural Development
Development Corporation
Corporation (ADC)
(ADC)
The Agricultural
The Agricultural Development
Corporation was was established
established under
under the the
Agricultural Development Corporation
Corporation Act,
Act, cap
cap 444
444 of
of the
the Laws,
Laws, ofofKenya
Kenya
in 1965.
in 1965. The
The Corporation
Corporation waswas meant
meant to provide
provide an important
important linklink toto the
the
agricultural industry
agricultural industry through
through specialized
specialized services
services and
and activities.
activities. Its
Its main
main
objective was
objective was to
to promote
promote thethe production
production of of the
the Country's
Country's "essential
"essential
agricultural inputs".
agricultural inputs". In particular,
particular, the Corporation
Corporation was
was established:
established:
• ToToproduce
produceseeds
seedsandandpedigree
pedigreeand
andhigh
highgrade
gradelivestock
livestock including
including
hybrid maize
hybrid maize seed,
seed, cereal
cereal seed,
seed, potato
potato seed,
seed, pasture
pasture seed,
seed, pedigree
pedigree
and grade
and grade cattle,
cattle, sheep,
sheep, goats,
goats, pigs,
pigs, poultry
poultry and bees
132
134
Sichangi Adv
• To
To undertake
undertake such
such activities
activities as as the
the Corporation
Corporation may may decide
decide from
from
time to
time to time
time for
for the
the purpose
purpose of of developing
developing agricultural
agricultural production
production
in specific
in specific areas
areas or specific
specific fields
fields ofof production;
production; andand
• To
To participate
participate in in activities
activities in in agricultural
production which
which areare the
the
primary and
primary and secondary
secondary functions
functions of of the
the Corporation
Corporation andand which
which in in
the view
the view of the the Corporation
Corporation are are commercially
commercially viable.
viable.
• To
To provide
provide and and finance
finance by by means
means of of loans,
loans, share
share capital
capital or or
otherwise
otherwise approved
approved agricultural
agricultural undertakings.
undertakings.
• To borrow
To borrow money
money on on such
such terms
terms andand for
for such
such .purposes
.purposes as as may
may be be
approved by the Minister for Finance
approved by the Minister for Finance
• To purchase,
To purchase, lease,
lease, acquire
acquire or or dispose
dispose of of any
any movable
movable and and
immovable
immovable property
property of of all
all kinds
kinds andand
• Do all
Do all such
such things
things whether
whether agricultural
agricultural or or of
of other
other nature
nature which
which
may
may be be conducive
conducive to to the
the proper
proper discharge
discharge of of functions
functions of of the
the
Corporation.
Corporation.
The
The primary
primary and and core
core function
function of of thethe Corporation
Corporation was was therefore
therefore to to
undertakeand
undertake and sustain
sustain the the production
production ofof aa variety
variety of of high
high quality
quality
agricultural inputs
agricultural inputs and produce so
and produce so as as to to help
help the
the Country
Country attainattain self
self
sufficiency inin food
sufficiency food and
and effectively
effectively competecompete on on the
the export
export market.
market. The The
Corporation
Corporation discharged these
discharged these functions
functions for for nearly
nearly twenty
twenty. six six (26)
(26) years;
years;
helping
helping the the Country
Country to to feed
feed its its rising
rising population
population and and economically
economically
participate
participate in trade
in trade in in ananevereverincreasingly
increasingly competitive
competitive international
international
market.
market. TheThe Government
Government set set aside
aside and and allocated
allocated landland toto the
the Corporation
Corporation toto
discharge these essential
discharge these essential, functions.
functions. The The supervisory
supervisory authority
authority over over the the
Corporation
Corporation was was vested
vested in in the
the Ministry
Ministry of of Agriculture.
Agriculture. However,
However, later later in in
the 1980's,
the 1980's, the
the supervisory
supervisory authority
authority was was taken
taken over
over by by the
the Office
Office of of the
the
President which
President which office
office was,
was. increasingly
increasingly taking over
taking over allall strategic
strategic state
state
corporations.
corporations.
With the
With the passage
passage of of time,
time, thethe need
need. for
forthe theCorporation's
Corporation's services services
intensified. ItIt would
intensified. would have
have been
been expected
expected that
that the
the Government
Government would would have have
increased its
increased its fiscal
fiscal and
and logistical
logistical support
support to to the
the Corporation.
Corporation. On On itsits part,
part,
the Corporation
the Corporation was expected
was expectedtoto doubledouble or or even
even triple
triple itsits efforts
efforts in in
rendering scientific
rendering scientific andand productive
productive support
support toto thethe industry
industry that that hadhad long
long
been
been recognized
recognized as as Kenya's
Kenya's economic
economic backbone.
backbone. RatherRather than
than dispose
dispose of of its
its
land, the
land, the Corporation
Corporation was was expected
expected to acquire
acquire moremore land
land forfor its
its activities.
activities.
At
At any
any rate,
rate, it had
had nono authority
authority to to dispose
dispose ofof Government
Government land. land.
133
133
Sichangi Adv
Yet
Yet against
against allall these
these rational
rational expectations,
expectations, the the Agricultural
Development
Corporation fell
Corporation fell victim
victim toto the
the public
public land
land grabbing
grabbing mania
mania that
that had
had afflicted
afflicted
many
many other
other sectors
sectors in in the
the Country.
Country. For For reasons
reasons which
which were
were notnot clearly
clearly
spelt
spelt out
out oror discussed
discussed publicly,
publicly, the the ADC
ADC Act Act was
was amended
amended in in 1991
1991
changing the specific mandates of the Corporation to something more
changing the specific mandates of the Corporation to something more
general.
general. In this
this regard,
regard, aa new
new section
section 12 12 was
was inserted
inserted to
to read
read as
as follows:
follows:
"The
"The functions
functions of the the Corporation
Corporation shall shall be to promote
promote andand execute
execute schemes
schemes
for
for agricultural
agricultural development
development and and reconstruction
reconstruction in Kenya
Kenya by by the
the initiation,
initiation,
assistance or
assistance or expansion
expansion of of agricultural
agricultural undertakings
undertakings or or enterprises."
enterprises."
This
This must
must have
have been
been aa prelude
prelude to to the
the Order
Order issued
issued in in 1994
1994 directing
directing the the
allocation
allocation of of eight
eight (8)(8) ADC
ADC farmsfarms to to individuals
individuals underunder the
the guise
guise of of
settlement schemes to
settlement schemes to be
be later
later financed
financed by by the
the Settlement
Settlement Fund
Fund Trustees.
Trustees.
The
The Corporation's
Corporation's land
land was
was then
then illegally
illegally allocated
individuals and and
companies
companies as political
political reward
reward or or patronage.
patronage. In In addition,
addition, aa number
number of of ADC
ADC
farms
farms were
were irregularly
irregularly soldsold to some
some favoured
favoured individuals.
individuals. Below
Below is is aa table
table
of the irregular sales:
of the irregular sales:
ADC
ADC FARMS
FARMS SOLD
SOLD IRREGULARLY
IRREGULARLY
Sale
Sale Price,
Price,
Farm
Farm Name
Name Sold To
Sold To Acreage
Acreage Locality/Area
Locality/Area LR.No.
LR.No.
KSh.
KSh.
ASTRA ADC
ASTRAADC Prof.
Prof. Mbithi
Mbithi 5518
5518 Machakos
Machakos 9917/9
9917/9 3,310,920
3,310,920
Farm
Farm
ASTRA
ASTRA ADC
ADC Charles
Charles 5516
5516 Machakos
Machakos 9917/9
9917/9 3,309,720
3,309,720
Farm
Farm Mbindyo
Mbindyo
ASTRA
ASTRA ADC
ADC AIC Church
AIC Church 3851
3851 Machakos
Machakos 9917/8
9917/8 Nil
Nil
Farm
Farm
Edge
Edze '. Mwisho
Mwisho 2490
2490 Trans
Trans Nzoia
Nzoia 7581.112
7581.1/2 286,000
286,000
Edge
Edge Karuna Units
Karuna 893 Uasin Gishu
Uasin Gishu·. 8466
8466 240,000
240,000
Edge
Edge SummerHills
SummerHills 2315 Nakuru
Nakuru 8324/3
8324/3 526,290
526,290
Lusiru
Lusiru Ndeffo
Ndeffo 2820
2820 Nakuru
Nakuru 9955
9955 405,000
405,000
Lusiru
Lusiru Kimoso P.G.
Kimoso P.G. 1000 Uasin Gishu
Uasin Gishu 324,400
324,400
Mogero
Mogero
Waterfalls
Waterfalls v.
V. arap
aran Too
Too 795 Trans
Trans Nzoia
Nzoia 4486
4486 96,000
96,000
S&B
S&B Nyakiambi
Nyakiambi 961 Nakuru
Nakuru 290,770
290,770
S&B
S&B Arnagherry
Amazherrv 1756 Trans Nzoia
Trans Nzoia 6136, 5712
6136,5712 620800
620800
Quintin
Quintin Abdul Aziz
Abdul Aziz 787 Trans Nzoia
Trans Nzoia 7076/1/2
7076/1/2 866,800
866,800
Kanji
Kanji
Quintin
Quintin Ndoinet
Ndoinet 1127 Nakuru
Nakuru 8323
8323 248,683
248,683
Avondale
Avondale Subukia
Subukia 3712
3712 Nakuru
Nakuru 10480
10480 2,655,320
2,655,320
134
Sichangi Adv
ADC
ADC FARMS
FARMS SOLD
SOLD IRREGULARLY
IRREGULARLY
Sale
Sale Price,
Price,
Farm Name
Farm Name Sold
Sold To
To Acreage
Acreage Locality/Area
Locality/Area LR.No.
LR.No.
KSh.
KSh.
Avondale
Avondale Njenga
Njenga 149.33
149.33 Nakuru
Nakuru 9069, 9062
9069,9062 397,000
397,000
Karume
Karume
Fensbo
Fensbo Baringo
Baringo 1221 Nakuru
Nakuru 10006,
10006, 9635/3
9635/3 401,841
Farmers
Farmers
Tarkwet
Tarkwet G.K Kariithi
Kariithi 1238 Nakuru •
Nakuru 10372,
10372, 11286,
11286, 1,700,000
9370, 8543/1
854311
Kiboko
Kiboko Kimiti 800
~OO Nakuru 9674 188,680
Farmers
Farmers
Lelechwet
Lelechwet Haraka
Haraka 1895 Nakuru
Nakuru 8020 516,286
Farmers
Farmers
Pele
Pete Elijah
Eliiah Minot
Minot 358 Nakuru
Nakuru 7606
7606 125,000
Murten
Murten Bridge
Bridze 242 Nakuru
Nakuru 9242
9242 142,000
Hizh Over
High Over Belsoi
Belsoi E.K
E.K 741 Nakuru
Nakuru 11369 500,000
500,000
Garbutt
Garbutt Njenga
Nienza 737 Nakuru
Nakuru 10829 310,000
310,000
Baraka
Baraka Catholic
Catholic 1040 Nakuru
Nakuru 9867
9867 13,000
Church
Church
Broatich
Broatich B.N Hinga
B.N Hinaa 1112 Nakuru
Nakuru 9216,
9216, 11420
11420 640,000
640,000
Broatich
Broatich Naao
Ngao 6899
6899 Trans Nzoia
Trans Nzoia 6991, 6992/1
6991, 699211 340,000
340,000
Broatich
Broatich Boma
Boma 1380 Trans Nzoia
Trans Nzoia 5558/2
555812 310,000
310,000
Kibomet
Kibomet Naisabu &
Naisabu & 5053 Trans Nzoia
Trans Nzoia 1839, 3709
1839,3709 2,451,000
2,451,000
Kibomet
Kibomet
Kabovwa
Kaboywa Gitwamba
Gitwamba 1235 Trans Nzoia
Trans Nzoia 6439/4
6439/4 327,000
327,000
Kabovwa
Kaboywa Mutwot
Mutwot 1031
1031 Uasin Gishu
Uasin Gishu 8409/2
8409/2 300,000
300,000
An examination
An examination of of the
the records
records by by the
the Commission
Commission revealed
revealed that that the
the
allocations were made to the then "politically correct"
allocations were made to the then "politically correct" persons in the persons in the
former regime
former regime along
along similar
similar lines
lines as
as the
the allocation
allocation ofof other
other public
public land
land and
and
settlement scheme
settlement scheme land.
land. The
The intrusions
intrusions by by the
the executive
executive into
into the
themandate
mandate
and operations
and operations of of the
the ADC
ADC werewere aa subject
subject of of examination
examination by by thethe
Parliamentary Investment
Parliamentary Investment Committee
Committeefollowing
followingthe the audit
audit of its its annual
annual
accounts for
accounts for the
the year
year ending
ending 30 so"th June
June 1997.
1997. TheThe findings
findings of of this
this
Committee
Committee werewere published
published in Eleventh Report
in its Eleventh Report ofof 2001.
2001. InIn the
the Report,
Report,
the Committee heavily
the Committee heavily criticized
criticizedthe the allocation
allocationof of the ADC farms
the ADC farms to to
individuals.
individuals. This
This criticism
criticism was very well
was very founded in our view.
well founded view. Just
Just as as the
the
Committee observed,
Committee observed, this
this Commission
Commission is of the opinion opinion that
that the
the allocation
allocation
of ADC
of ADC land
land is not intended
intended to be usedused either
either for
for settling
settling the
the landless
landless or or for
for
distribution
distribution among
amongthe better-off. For
the better-off. For aa list of some of of the
the high
high profile
profile
allocations
allocations of
of the
the ADC
ADC Farms, see Annex
Farms, see Annex 55 in Vol.
Vol. I of
of the
the Annexes.
Annexes.
135
135
Sichangi Adv
Conclusions
Conclusions
• The establishment
The establishment of
of Settlement
Settlement Schemes
Schemes and and subsequent
subsequent
allocation
land for
for the
the said
said purpose
purpose hashas been
operationalized in
an
an environment
environment lacking
lacking a clear clear legal,
legal, policy,
policy, and
and regulatory
regulatory
framework.
framework. This scenario
This scenario' hashas provided
provided opportunities
opportunities for
for civil
civil
servants, politicians,
servants, politicians, andand other
other individuals
individuals toto acquire
acquire public
public land
land
illegally
illegally andand irregularly
irregularly in in these
these areas.
areas. .
• All
All the
the malpractices
malpractices in in the
the allocation
allocation ofof settlement
settlement scheme
scheme lands
lands as
as
highlighted
highlighted above constitute
above constitute illegal
illegal or
or irregular
allocations inin
favour
favour ofof the
the individuals
indi viduals and
and companies
companies to to whom
whom theythey were
were made.
made.
• The
The allocation
allocation of of ADC
ADC farms
farms to to individuals
companies under under
the
the guise
guise of of settlement
settlement schemes
schemes was was outrightly illegal as
outrightly illegal as itit was
was
done
done contrary
contrary to to the
the Agricultural
Corporation Act Act
and other
and other relevant
relevant lawslaws notwithstanding
notwithstanding the
the amendment
amendment of 'of 1991.
1991.
This
This amendment
amendment may may have
have been
been a prelude
prelude to to what
what happened
happened to to the
the
Corporation
Corporation in in 1994
1994 when
when it waswas compelled
compelled to to allocate
allocate itsits land
land toto
individuals.
individuals. However,
However, the the amendment
amendment does does notnot in
in our
our view
view provide
provide
the
the legal
legal basis
basis forfor the
the allocations
the Corporation
Corporation land land toto
individuals.
individuals. The The legislature could not
legislature could not have
have intended
intended to to amend
amend the the
Act
Act so
so as to
to facilitate
facilitate the
the allocation
public assets
assets toto individuals.
individuals.
(iii)
Recommendations
1. All land
All land allocations
allocations in in Settlement
Settlement Schemes
Schemes which
which were
were made
made toto
people who
people who were
were at
at the
the time
time public
public officers,
officers, members
members of of parliament,
parliament,
area councilors,
area councilors, political
political operatives,
operatives, and
arid other
other undeserving
undeserving people,
people, at
at
inc expense
.he expense of thethe landless
landless and and contrary
contrary toto established
established policy
policy and
and
procedures: should be
procedures: should be revoked.
revoked. The The lands
lands in question
question should
should bebe
repossessed and
repossessed and allocated
allocatedtoto the the landless
landless onon the
the basis
basis of 60%60% in in
favour of
favour of local
local inhabitants
inhabitants and and 40%
40% in favour
favour of the
the landless
landless from
from
other parts
other parts of the Country.
Country.
2. All land
All land in
in Settlement
Settlement Schemes
Schemes which
which was
was allocated
allocated to
to individuals
individuals
and companies
and companies substantially
substantially in
in excess
excess of
of the
the recommended
recommended economic
economic
unit should be repossessed by the Government. The excess
unit should be repossessed by the Government. The excess
allocations so
allocations so repossessed should be
repossessed should be .reallocared
reallocated to to the
the landless
landless on
on
the
the basis
basis of
of the
the formula
formula suggested
suggested in
in 11above
above (These
(These reallocations
reallocations
136
Sichangi Adv
should
should however
however only
only be
be made
made where
where the
the land
land in
in question
question isis not
not forest
forest
land
land or
or other
other ecologically
ecologically fragile
fragile area).
area).
3.
3. All public
All public officials
officials especially
especially those
those inin the
the Department
Department of of Settlement,
Settlement,
who
who facilitated
facilitated thethe illegal
illegal allocations
allocations in in settlement
settlement schemes,
schemes, should
should
be investigated
be investigated and
and prosecuted
prosecuted where
where offences
offences may may have
have been
been
committed by
committed by them
them inin the
the process
process ofof such
such allocations.
allocations.
4.
4. To the
To the extent
extent that that thethe objectives
objectives for for which
which the theAgricultural
Agricultural
Development Corporation was was established
established are are still
still valid
valid today
today as as
they were
they were in 1965;
1965; allall allocations/sales
allocations/sales of of Agricultural
Development
Corporation (ADC)
Corporation (ADC) lands lands to to individuals
individuals throughout
throughout the the Country
Country
should
should be be revoked.
revoked. All All such
such lands
lands andand farms
farms should
should revert
revert toto the
the
Corporation. The
Corporation. The Corporation
Corporation may may in in cases
cases where
where it is is proved
proved that
that
certain of
certain of its
its lands
lands have
have beenbeen occupied
occupied by by thethe genuinely
genuinely landless,
landless,
formalize such settlements
formalize such settlements in in consultation
consultation withwith thethe Settlement
Settlement FundFund
Trustees. New
Trustees. New titles
titles should
should be be issued
issued toto the
the landless
landless allottees.
allottees.
5.
5. Land that
Land that was
was reserved
reserved as as aa public
public utility
utility in in aasettlement
settlement scheme
scheme
(including conservation areas) and later irregularly allocated should
(including conservation areas) and later irregularly allocated should
be repossessed.
be repossessed. TheThe land
land soso repossessed
repossessed shouldshould revert
revert back
back to
to the
the
original purpose
original purpose for
for which
which itit was
was reserved.
reserved.
6.
6. The
The Government
Government should
should prepare
prepare a a Sessional
Sessional Paper
Paper setting
setting out
out the
the
objectives and
objectives and policy
policy guidelines
guidelines for
for the
the establishment,
establishment, allocation
allocation and
and
managementofof Settlement
management Settlement Schemesinin the
Schemes the Country.
Country. AA
comprehensive
comprehensive law governing
law governing the the establishment,
establishment, allocation
allocation and and
management of
management of Settlement. Schemes based
Settlement. Schemes based onon the
the Sessional
Sessional Paper
Paper
should be
should be enacted
enacted by by Parliament.
Parliament. All All proposed
proposed settlement
settlement schemes
schemes
should
should reserve
reserve a percentage
percentage of land
land for
for public
public purposes.
purposes.
(b) Trust
(b) Trust Lands
Lands
(i)
(i) Background
Background
The
The meaning
meaning of Trust
Trust land
land has
has already
already been
been discussed
discussed inin the
thedefinition
definition
section of
section of Part Three of this Report.
Part Three Report. Here,
Here, we discuss
discuss briefly,
briefly, the
the origin
origin of
of
Trust
Trust lands
lands as
as a form
form ofof land
land tenure
tenure in
in this
this Country.
Country. Trust
Trust lands
lands were
were aa
creation
creation ofof the
the dual
dual policy
policy ofof land
land ownership
ownership and and tenure
tenure which
which waswas
137
Sichangi Adv
introduced
introduced in in the
the country
country by by the
the colonial
colonial authorities.
authorities. TheThe Crown
Crown LandsLands
Ordinanceofof 1915
Ordinance 1915 declared
declared all all land
land inin Kenya
Kenya to to bebe "Crown
"Crown Land"Land"
meaning that
meaning that all
all land
land was
was nownow thethe property
property of of the
the British
British monarchy
monarchy (or (or
Crown). The
Crown). The land
land was
was to to be
be held
held andand administered
administered by
by the
the colonial
colonial
Governor on
Governor on behalf
behalf of of the
the Crown.
Crown. This This Ordinance
Ordinance and and the
the earlier
earlier one
one of
of
1902 empowered
1902 empowered the the Governor
Governor to to make
make grants
grants ofof freehold
freehold andand leasehold
leasehold to to
individuals and
companies. The The individuals
individuals in in question
question were were thethe white
white
settlers
settlers while
while the
the companies
companies werewere British
British and
and South
South African
African Syndicates.
Syndicates.
The grants
The grants of of freehold
freehold and and leasehold
leasehold made
made to to the
the settlers
settlers were
were situated
situated inin
areas which
areas which came came to to bebe known
known as as "the
"the white
white highlands".
highlands". This This phrase
phrase
denoted the
denoted the climatic
climatic andand agricultural
agricultural suitability
suitability of of the
the lands
lands toto the
the needs
needs ofof
the
the settlers.
settlers. As As for
for the
the Africans,
Africans, since
since they
they werewere considered
considered incapable
incapable of of
"owning land"
"owning land" within
within thethe meaning
meaning of of English
English law,law, land
land had
had toto be
be reserved
reserved
for them
for them in in specially
specially designated
designated areas
areas away
away from from the the 'white
'white highlands
highlands
called the
called the "Native
"Native Reserves",
Reserves", "Special
"Special Reserves"
Reserves" or or "African
"African Reserves".
Reserves".
These reserves
These reserves were,were then
then held
held on
on trust
trust for
for the
the Africans
Africans by by thethe Native
Native
Lands Trust
Lands Trust Board.
Board. The The white
white highlands
highlands had had a aseparate
separate administration
administration
from that
from that of
of the
the reserves.
reserves. The The law
law applicable
the reserves
reserves was was African
African
customary law,
customary law, while
while that
that applicable
the white
white highlands
highlands was was English
English
land law.
land law.
The
The effect
effect of of these
these discriminatory
discriminatory colonial colonial land
land policies
policies waswas soon
soon to to be
be felt
felt
in
in the
the reserves.
reserves. The The lands
lands set set aside
aside for
for the
the use
use of
of the
the Africans
Africans could
could not not
sustain their
sustain their communal
communal lifestyles
lifestyles and and culture.
culture. This
This led
led to political
political agitation
agitation
by the
by the African
African peoples
peoples for for the
the recovery
recovery of of their
their lands
lands of of which
which theythey had had
been dispossessed.
been dispossessed. The The response
response of of the
the colonial
colonial government
government was was toto appoint
appoint
aa Commission
Commission to look
to look intointo thethe problems
problems in in the
the reserves
reserves and and advise
advise the the
government on
government on the
the way
way forward.
forward. Consequently,
Consequently, itit was was argued
argued that
that the
the best
best
way
way to to address
address the the discontent
discontent of of the
the Africans
Africans was was toto radically
radically change
change theirtheir
land
land tenure
tenure fromfrom communal
communal to to individual
individual tenure.
tenure. This
This would
would involve
involve three
three
stages
stages that that is;
is; consolidation,
consolidation, adjudication
adjudication and and registration.
registration. At At the
the end
end of of the
the
exercise, the
exercise, the Africans
Africans would would own. own land
land individually
individually and and would
would havehave title
title
deeds to
deeds to their
their parcels
parcels of of land.
land.
The
The process
process of individualization
individualization of
of tenure
tenure in
in the
the reserves
reserves started
started in
in earnest
earnest
in the
in the 1950's
1950's through
through thethe enactment
enactment and and passage
passage of of various
various Ordinances
Ordinances
and Rules.
and Rules. By
By 1963
1963 however,
however, itit was
was obvious
obvious that
that the
the process
process could
could not
not be
be
completed as
completed as large
large areas
areas inin the
the reserves
reserves remained
remained un- un- adjudicated.
adjudicated. All All
138
Sichangi Adv
those areas
those areas in in the
the reserves
reserves that that were
wereun-adjudicated
un-adjudicated atatindependence
independence
became
became knownknown as as Trust lands. Before
Trust lands. Before independence,
independence, these
these lands
lands (then
(then
called Native reserves or lands) were held by the Native Land Trust Board.
called Native reserves or lands) were held by the Native Land Trust Board.
Under the
Under the Constitution
Constitution the the title
title to
to Trust
Trust lands
lands isis vested
vested inin the
the County
County
Councils of the area in which they are situated. The county councils hold
Councils of the area in which they are situated. The county councils hold
the land
the land on
on trust
trust and
and for
for the
the benefit
benefit of thethe people
people ordinarily
ordinarily resident
resident onon the
the
land
land inin the
the area.
area. The
The locallocal residents
residents derive
derive their
their rights,
rights, interests
interests and
and
benefits in
benefits in respect
respect ofof trust
trust land
land under
under thethe applicable
applicable African
African Customary
Customary
law.
law.
(ii)
(ii) Trust
TrustLands
Lands as
asPublic
Public Land
Land
Trust lands
Trust lands are not strictly
strictly speaking
speaking "public
"public lands"
lands" because
because as as can
can be
be seen
seen
from the
from the foregoing
discussion, they
they are vested
vested in the local local communities
communities of of
the areas
the areas in which
which they
they are
are situated.
situated. Ideally,
Ideally, they
they should
should be be referred
referred toto as
as
"Community Lands".
"Community Lands". Under
Under both
both thethe Constitution
Constitution and and the
the Trust
Trust Lands
Lands Act,
Act,
trust lands
trust lands areare neither
neither owned
owned by the the Government
Government nor nor by
by the
the County
County
Council. The
Council. The county
county councils
councils simply
simply hold the titletitle to such
such lands
lands onon behalf
behalf
of the
of the local
local inhabitants
inhabitants of the
the area.
area. For asas long
long as as trust
trust land
land remains
remains un- un-
adjudicated and
adjudicated and un-registered,
un-registered, itit belongs
belongs to to the
the local
local tribes,
tribes, groups,
groups,
families and
families and individuals
individuals inin the
the area
area in
in accordance
accordance with with the
theapplicable
applicable
African Customary
African Customary Law. Law. Once
Once registered,
registered, trust
trust land
land isis transformed
transformed into into
private land.
private land. It then
then becomes
becomes the sole sole property
property of the the individual
individual or or group
group
(not more
(not more than five people)
people) inin favour
favour ofof whom
whom itit isis registered.
registered.
The
The only
only ways
ways in
in which
which trust
trust land
land can
can bebe legally
legally removed
removed from from the
the
communal ownershipofofthe
communal ownership the people
people is is through adjudication and
through adjudication and
registration or
registration or Setting Apart. Adjudication
Setting Apart. Adjudication andand registration
registration removes
removes the the
particular lands from
particular lands from the
the purview
purview of of community
community ownership
places
them
them under
under individual
individual ownership.
ownership. Setting
Setting apart
apart removes
removes the the trust
trust lands
lands
from
from the
the dominion
dominion of of community
community ownership
places them
them under
under the
the
dominion
dominion of public
public ownership.
ownership.
In
In the
the course
course ofofitsitsinquiry
inquiryhowever,
however, thisthisCommission
Commission encountered
encountered
allegations from
allegations from public
public memoranda
memoranda to to the
the effect
effect that,
that, trust
trust lands
lands in
in some
some
areas had been allocated individuals contrary to
areas had been allocated to individuals contrary to the provisions of the
provisions of the
Constitution, the
Constitution, the Trust land Act
Trust land Act and
and the Land Adjudication
the Land Adjudication Act.Act. In other
other
words, even
words, even trust
trust lands
lands had
had been
been targeted
targeted for
for land
land grabbing
grabbing through
through these
these
139
Sichangi Adv
illegal and
illegal and irregular allocations.To
irregular allocations. To be be able
able toto extend
extend its its inquiry
inquiry and and
dragnet to these lands, the Commission made decision regard all those
dragnet to these lands, the Commission made a decision to regard all those
trust lands
trust lands that
that had
had been
been allocated
allocated toto individuals
companies contrary
contrary toto
the provisions of law and in total disregard of the interests of
the provisions of law and in total disregard of the interests of local
local
communities; as
communities; as public
public land.
land. The
The Commission
concluded that that the
the interests
interests
of local communities in their trust lands were sufficient enough to
of local communities in their trust lands were .sufficient enough to be
be
regarded as
regarded as a "public
"public interest"
interest" within
within the
the context
context of of this
this inquiry.
inquiry.
(iii) Findings
(iii) Findings
Allocations
Allocations ofof Trust
Trust land
land contrary
contrary to
to the
the Constitution
Constitution and
and the
the Land
Land
Adjudication
Adjudication Act
Act
The Commission
found that in
in County
County Councils
Councils where
where trust
trust land
land still
still
exists, (i.e.
exists, (i.e. where
where the the adjudication
adjudication process
process has
has yet
yet to
to take
take place
place or or where
where as as
was usually
was usually the the case,
case, local
local communities
communities contributed
contributed somesome landland for
for public
public
purposes to the Council which then was to hold them on trust for the
purposes to the Council which then was to hold them on trust for the
community), illegal
community), illegal allocations
allocations ofof the
the same
same were
were made
made to to individuals
individuals and and
companies through
companies through the the connivance
connivance of of either
either the
the county
county councils
councils or or the
the
Commissioner of
Lands.
In this
In this regard,
regard, land
land which
which hadhad neither
neither been
been adjudicated
adjudicated nornor set
set apart
apart was
was
allocated to individuals.
allocated individuals. Letters
Letters ofof Al1Qtrnent
Allotment or or Grants
Grants ofof Title
Title were
were made
made
to the
to the individuals
companies concerned.
concerned. Councillors
Councillors were
were the
the main
main
beneficiaries
beneflciaries of the
of the illegal
illegal allocations
allocations ofof Trust
Trust land.
land. Minutes
Minutes of of Council
Council
meetings indicate
meetings indicate that
that at times,
times, the
the only
only item
item onon the
the agenda
agenda was
was allocation
allocation
of land
of hind to
to the
the Councillors.
Councillors.
Trust- landswhich
TfUS!:' lands whichhad had been
been set
set apart
apart for
for aa public
public purpose
purpose or or for
for use
use asas
public
p-ubfic utilities
utilities were
were later
later allocated
individuals and "and companies
companies through
through
the
the county
county councils.
councils. TheThe local
local authorities
authorities failed
failed inin their
their responsibility
responsibility of of
holding
holding land
land within
within their
their jurisdiction
jurisdiction on on trust
trust for
for the
the people
people of of the
the area.
area.
There were
There were cases
cases of
of double
double allocation
land toto some
some people.
people. (Details
(Details of of
this
this category
category of of allocations
allocations are are found
found in in Annex
Annex 56 56 in Vol. II of
in Vol. of the
the
Annexes.
Annexes.
The Commission
The Commission was however
was however hampered
hampered in in its
its efforts
efforts to to establish
establish thethe
particulars of
particulars of these
these allocations
allocations duedue toto the
the fact
fact that
that the
the affected
affected county
county
councils either
councils either failed
failed oror refused
refused toto submit
submit relevant
information in in this
this
regard
regard toto the
the Commission.
Commission. In In other
other instances,
instances, the
the Commission
that
certain allocations
certain allocations had had already
already been
been challenged
challenged in in courts
courts ofof law
law and
and could
could
140
140
Sichangi Adv
not
not therefore
therefore investigate
investigate them.
them. Although
Although thethe Commission
Commission had
had no
no time
time to
to
investigate
investigate these
these complaints,
complaints, the
the facts
facts reveal-
reveal· serious
serious breaches
breaches ofof the
the law
law
relating
relating to to Trust
Trust land.
land.
Some of
Some of the
the most
most glaring
glaring allocations
allocations of of Trust
Trust land
land inin aamanner
manner that
that goes
goes
against the intent
against the intent and
and spirit
spirit of of the
the Constitution,
Constitution, Trust
Trust Land
Land Act
Act and
and the
the
Land Adjudication Act are as follows:
Land Adjudication Act are as follows:
• Iloodo-Ariak and
Iloodo-Ariak and Mosiro
Mosiro Adjudication
Adjudication Sections
Sections
• Kiamura "A"
Kiamura "A" Adjudication
Adjudication Section
Section
• Fourteen Falls
Fourteen Falls Integrated
Integrated Programme;
Programme; Thika
Thika
• Hill Farm Kamwenja, Mathari, Nyeri
Hill Farm Kamwenja, Mathari, Nyeri
ILOODO·ARIAK AND MOSIRO

ILOODO-ARIAK AND MOSIRO ADJUDICATION
ADJUDICATION SECTIONS
SECTIONS
The two
The two Adjudication
Adjudication Sections
Sections are are situated
situated in in Kajiado
Kajiado District,.
District, and and are
are
good
good examples
examples of of the
the abuse
abuse of of the
the adjudication
adjudication processes
processes by by ignoring
ignoring the the
rights of
rights of the
the local
local people
people underunder customary
customary law. law. TheThe Iloodo-Ariak
Iloodo-Ariak land
land isis
situated south-westofof Nairobi
situated south-west Nairobi in in Kajiado
Kajiado District.
District. It It is
is occupied
occupied by by over
over
6,000 indigenous
6,000 indigenous Maasai Kenyans.
Maasai Kenyans. The The land
land waswas by by all all accounts,
accounts, Trust Trust
land. It
land. It belongs
belongs to to the
the local
local residents
residents of of the
the area.
area. ByBy virtue
virtue of of section
section 114114
of the
of the Constitution
Constitution of
of Kenya,
Kenya, the the land
land was
was vested
vested in in the
the Olkajuado
Olkajuado County County
Council toto hold
Council hold in in trust
trust for for thethe Ilkeekonyokie
Ilkeekonyokie clan
clan of of thethe Maasai
Maasai
community. InIn or
community. or about
about 1979,1979, the the Iloodo-
Iloodo- AriakAriak area area was was declared
declared an an
AdjudicationSection
Adjudication Sectionwithin withinthe the meaning
meaningofof section section 55 of of the the Land
Land
Adjudication Act. Subsequently, the Adjudication officials were appointed
Adjudication Act. Subsequently, the Adjudication officials were appointed
and posted to
and posted to the
the area.
area. The
The process
process of of adjudication
adjudication was
was completed
completed in in 1989.
1989.
The Adjudication
The Adjudication Register
Register was was published
published for for inspection
inspection and and objections
objections
invited
invited within
within sixty
sixty (60)
(60) days.
days.
After
After investigations
investigations and interviews
and interviews with the
with the local
local community,
community, the
the
Commission
Commission found that
found that the the adjudication
adjudication process
process was was fraudulent.
fraudulent. The
The
names
names of of many
many Government
Government officials
officials including
including thosethose of of their
their relatives
relatives and and
friends
friends werewere entered
entered on on thethe register
register as as owners
owners of of land.
land. A A total
total of of 362
362
persons
persons who who were
were notnot local
local residents
residents of of the
the area
area were
were recorded
recorded as as owners
owners
of
of land
land and
and issued
issued with
with title
title deeds.
deeds. Many
Many rightful
rightful inhabitants
inhabitants of of the
the area
area
were omitted
were' omitted from
from thethe register
register and and disinherited
disinherited from
from their
their ancestral
ancestral land.land.
This process
This process violated
violated thethe Constitution
Constitution of
of the
the Republic.
Republic. Attempts
Attempts by by thethe
affected inhabitants toto seek
affected inhabitants seek legal
legal redress
redress werewere frustrated
frustrated by the
by barriers
the barriers
141
141
Sichangi Adv
erected by
erected by section
section 143(1)
143(1) ofof the
the Registered
Registered Land Act,
Land Act, Cap
Cap 300.
300. ItIt is
is the
the
Commission's argument
Commission's argument thatthat where
where this this section
section violates
violates the
the Constitution,
Constitution,
the latter
the latter should
should prevail.
prevail. Trust
Trust landland belongs
belongs to to the
the people
people ordinarily
ordinarily
resident in
resident in the
the area
area in
in which
which it it is
is situated.
situated. The
The local
local people
people own
own that
that land
land
in accordance
in accordance with
with the
the applicable
applicable customary
customary law.
law. The
The rights
rights ofof the
the local
local
people should
people should notnot be
be defeated.
defeated.
The Commission
The Commission also
also found
found that
that similar
similar frauds
frauds were
were perpetrated
perpetrated by
by the
the
government officials
government officials during
during thethe adjudication
adjudication in MOSIRO
in MOSIRO also also inin Kajiado
Kajiado
District. This
District. This faulty
faulty adjudication
adjudication excluded
excluded overover 1000
1000 people
people whowho areare the
the
rightful owners
rightful owners of of the
the land
land in
in the
the area.
area.
KIMURI
KIMURI "A"
"A" ADJUDICATION
ADJUDICATION SECTION,
SECTION, MERU
MERU
The Commission
The Commission also received
also received a
a complaint
complaint from
from members
members of
of thethe
Kagwanja Clan
Kagwanja Clan about
aboutthe theKIAMURI
KIAMURI "A" "A" ADJUDICATION
ADJUDICATION SECTION. SECTION.
The Complainants
The Complainants argue
argue that that the
the adjudication
adjudication of
of this
this area
area waswas not
not carried
carried
out in
out in accordance
accordance with
with thethe requirements
requirements ofof the
the Land
Land Adjudication
Adjudication Act.
Act. The
The
land adjudication
land adjudication officials
officials in in charge
charge of of the
the area
area are
are said
said toto have
have allocated
allocated
land to
land to themselves
themselves and
and their
their friends
friends andand relatives.
relatives. Furthermore,
Furthermore, members
members
of the
of the clan
clan who
who are
are entitled
entitled to to the
the land
land were
were denied
denied their
their rights
rights iniri favour
favour of of
outsiders.
outsiders.
FOURTEEN FALLS
FOURTEEN FALLS LAND,
LAND, THIKA
THIKA
Another report
Another report waswas received
recei ved from
from the
the Trustees
Trustees of
of the
the Fourteen
Fourteen Falls Falls
Integrated Programme
Integrated Programme in
in Thika.
Thika. They
They sought
sought assistance
assistance to to regain
regain L.RL.R NO. NO.
22425 measuring
22425 measuring 11.6 Hectares.
11.6 Hectares. The land
The land which
which is is inin Thika
Thika County
County
Council forms
Council forms part
part ofof the
the 01
01 Donyo
Donyo Sabuk
Sabuk Wetland
Wetland Ecosystem.
Ecosystem. ItIt has
has
however been
however been allocated
individuals despite
despite the
the fact
fact that
that it it is
is Trust
Trust land.
land.
Similar illegalities
Similar illegalities and
and irregularities
irregularities are to
are to be
be found
found in
in other
other adjudication
adjudication
areas in
areas in Makueni,
Makueni, Narok,
Narok, Homa
Homa Bay, Bay, Machakos,
Machakos, Lamu,
Lamu, etc.
etc.
HILL
HILL FARM
FARM KAMWENJA
KAMWENJA MATHARI
MATHARI IN
IN NYERI
NYERI DISTRICT
DISTRICT
The Commission
The Commission received
received aa complaint
complaint from
from the
the area
area residents
residents to to the
the effect
effect
that
that their
their ancestral
ancestral land
land in
in Mathari
Mathari Sub
Sub location
location hadhad been
been grabbed
grabbed by by the
the
Catholic
Catholic Church-
Church- Consolata
Consolata Mission.
Mission. They
They acknowledged
acknowledged that
that the
the Church
Church
purchased
purchased 1,054
1,054 Acres
Acres of of land
land from
from their
their ancestors
ancestors in in 1912.
1912. The
The residents
residents
142
Sichangi Adv
have
have no no quarrel
quarrel with
with this
this particular
particular purchase.
purchase. But But they
they complained
complained that that the
the
Church
Church wentwent ahead
ahead to to acquire
acquire aa 2,577
2,577 moremore acres
acres from
from them.
them. The The Church
Church
acquired
acquired paripart of
of this
this land
land during
during thethe emergency
emergency period
period whenwhen the the residents
residents
had
had been
been moved
moved to to emergency
emergency villages
villages in 1955.
in 1955. ThisThis parcel
parcel is is now
now
registered as L.R. No. 9464 and comprises 1089 Acres. The rest of the land
registered as L.R. No. 9464 and comprises 1089 Acres. The rest of the land
was obtained
was obtained by
by the
the Church
Church in in 1965
1965 andand registered
registered as as two
two titles
titles namely
namely
L.R.
L.R. No.No. 1356
1356 comprising
comprising 584
584 Acres
Acres andand L.R.
L.R. No.No. 4166
4166 comprising
comprising 904 904
Acres.
Acres. AllAll this
this land
land (Being
(Being TrustTrust Land),
Land), belonged
belonged to to the
the residents
residents and and their
their
ancestors
ancestors before the
before the Emergency.
Emergency. They
They requested
requested the
the Commission
Commission to
to
recommend
recommend that
that the
the three
three parcels
parcels with
with aa total
total ofof 2,577
2,577 Acres
Acres be be restored
restored to to
them
them by by carrying
carrying Land
Land Adjudication
Adjudication in
in the
the area.
area.
HOLDING
HOLDING GROUNDS
GROUNDS AND
AND LIVESTOCK
LIVESTOCK ROUTES
ROUTES IN
IN NAROK,
NAROK, KAJIADO
KAJIADO AND
AND
LAIKIPIA
LAIKIPIA DISTRICTS
DISTRICTS
The Commission
The Commission established
established that large
that large chunks
chunks of of Trust
Trust land
land inin Narok,
Narok,
Kajiado and
Kajiado and Laikipia
Laikipia Districts
Districts which
which had had been
been setset apart
apart asas holding
holding grounds
grounds
and
and livestock
livestock routes
routes for for thethe use
use ofof locallocal communities
communities were
were illegally
illegally
allocated
allocated toto individuals
individuals by the
by the county
county councils
councils of the
of the areas.
areas. No No de- de-
gazettment
gazettment or adjudication
or adjudication took
took place.
place. For For example,
example, aa Complaint
Complaint was was
received by
received by the the Commission
Commission to
to the
the effect
effect thatthat thethe BISSIL
BISSIL LIVESTOCK
LIVESTOCK
HOLDING GROUND
HOLDING GROUND inin Kajiado Kajiado was
was allocated
allocated to
to some
some powerful
powerful
individuals
individuals in the
in the area.
area. TheThe complainants
complainants requested
requested the the Commission
Commission toto
recommend that
recommend that the
the allocations
allocations are
are revoked
revoked so so that
that the
the land
land could
could revert
revert to to
the Group
the Group Ranch Ranch whichwhich provided
provided it
it in
in the
the first
first place.
place. TheThe Commission
Commission
noted that
noted that thousands
thousands of
of Acres
Acres of of Trust
Trust land
land which
which had had been
been designated
designated as as
holding grounds
holding grounds in in Narok
Narok were were also
also allocated
allocated to to aa few
few individuals.
individuals. Below
Below
IS a Table
is Table showing
showing the the list
list and
and particulars
particulars of of these
these allocations.
allocations.
143
Sichangi Adv
COUNCIL OF
COUNTY COUNCIL
COUNTY OF NAROK
NAROK
Original Allocating
AUocating
Reserved!
Original Authority/
Authorityl Current
Current
Land Ref.
Land Ref. No.
No. Reserved/ Current
Current
Allottee and
AUottee and
FileNo.
File No. Intended
Intended Use /Land
UselLand Area
Area Legal
Legal Owner
Owner and
and Remarks
Remarks
Date
Date of
of
/Gazettee
lGazettee Address
Address
Location
Location Use
Use Category
Category
Allocation
AUocation
Notice
Notice
Narok
Narok Holding
Holding Trustland
Trustland 300 Amos County
County Not
300
Nkorkori
Nkorkori Ground
Ground Ntimama.
Ntimarna. . Council
Council Indicated
Indicated
Acres
2611111980
26/11/1980 Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 200 Ole Saitotok.
Saitotok. County
County Not
200
Nkorkori
Nkorkori Ground
Ground 26/11/1980
2611111980 Council
Council Indicated
Indicated
Acres
Acres
Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300 Amos
Amos County
County Not
300 Indicated
Nkorkori
Nkorkori Ground
Ground Ntimama.
Ntimama. Council
Council Indicated
Acres
Acres
2611111980
26/11/1980 Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300 Ole County
County Not
300 Indicated
Nkorkori
Nkorkori Ground
Ground Nampaso.
Nampaso. Council
Council Indicated
Acres
Acres
2611111980
26/11/1980 Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300 Ole Karia.
Karia. County
County Not
300 Indicated
Ololulunga
Ololulunga Ground
Ground 26/11/1980
2611111980 Council
Council Indicated
Acres
Acres
Nkorkori
Nkorkori . Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland Ole County
County Not
Not
100 Indicated
Nkorkori
Nkorkori Ground
Ground Kimursoi.
Kimursoi. Council
Council Indicated
Acres
Acres
2611111980
26/11/1980 Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300 Ole
Ole Nalku.
Nalku. County
County Not
Not
300
Nkorkori
Nkorkori Ground
Ground 2611111980
26/11/1980 Council
Council Indicated
Indicated
Acres
Acres
Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300 Ole
Ole County
County Not
Not
300
Nkorkori
Nkorkori Ground
Ground Nampaso.
Nampaso. Council
Council Indicated
Indicated
Acres
Acres
26/11/1980
2611111980 Narok
Narok
Narok
Narok Holding
Holding Trustland
Trustland 300es Raen
Raen County
County Not
Not
300
Nkorkori
Nkorkori Ground
Ground Ololoigero.
Ololoigero. Council
Council Indicated
Indicated
Acr
Acres
26/11/1980
2611111980 Narok
Narok
Other Officially Sanctioned

Other Officially Breaches of
Sanctioned Breaches of Trust
Trust
MAZRUI TRUST
MAZRUI TRUST LAND,
LAND, TAKAUNGU,
TAKAUNGU, KILIFI
KILIFI
Breaches of
Breaches of trust
trust were
were not
not restricted only to
restricted only to trust
trust land
land within
within the
the meaning
meaning
of the
of the Trust
Trust Land
Land Act.
Act. There
There have
have occurred
occurred similar
similar abuses
abuses affecting
affecting land
land
owners by
owners by private
private trusts
trusts and wakfs,
wakfs, which
which are Islamic
Islamic trusts.
trusts. One such'case
suchcase
is the
is the Mazrui
Mazrui wakf
wakf land at at Takaungu.
Takaungu. The The trust
trust was
was established
established under
under thethe
Wakf Commissioners
Wakf CommissionersAct Act Cap.
Cap. 109
109 ofof the
the Laws
Laws of Kenya.
Kenya. TheThe land
land is is
registered as
registered as title
title No.
No. 409
409 under
under the
the Land
Land Titles
Titles Act
Act and
and measures
measures 2,741
2,741
acres. The
acres. The wakf
wakf was was established
established for for the
the benefit
benefit ofof certain
certain known
known
beneficiaries. In
beneficiaries. In 1989,
1989, Parliament
Parliament enacted
enacted the Mazrui
Mazrui Trust
Trust Repeal
Repeal Act,
Act,
which purported
which purported to to convert
convert the
the land
land into
into either
either Government
Government or trust trust land.
land.
144
144
Sichangi Adv
The area
The area was
was subsequently
subsequently declared
declared anan adjudication
adjudication area.
area. The
The adjudication
adjudication
was illegal
was illegal since
since the
the wakf
wakf was
was private
private land.
land. The
The beneficiaries
beneficiaries of
of the
the
Mazrui
Mazrui wakf wakf urged
urged the
the Commission
Commission to
to recommend
recommend that
that this
this matter
matter be be
resolved urgently.They
resolved urgently. Theyare are prepared
preparedtotocede cedeupup toto 500
500 acres
acres toto the
the
squatters or
squatters or to
to sell
sell part
part of the
the land
land Government,
Government, ifif itit so
so requires.
requires.
1. allocations of
All allocations
1. All of Trust
Trust lands
lands to
to individuals
companies contrary
contrary
to
to the
the provisions
provisions of the Constitution,
of-the Constitution, Trust land
Trust land ActAct and
and the
the Land
Land
AdjudicationAct
Adjudication Act should
should bebe revoked.
revoked. In In particular,
particular, thethe cases
cases
highlighted
highlighted in in the
the foregoing
foregoing section
section (to(to the
the extent
extent to to which
which they
they are
are
no longer
no longer pending
pending in courts)
courts) should
should be be revisited
revisited by by the
the Ministry
Ministry of of
Lands and
Settlement with
with a view
view to to being
being nullified.
nullified.
2. All
2. All allocations
allocations of trust
of trust lands
lands set
set apart
apart under
under Section
Section 117117 of
of the
the
Constitution for
Constitution for public
public purposes
purposes to
to private
private individuals
individuals and and
companies
companies should
should bebe revoked.
revoked. The
The lands
lands in
in question
question should
should revert
revert
to their
to their original
original purpose.
purpose.
3. The Ministries
3. The Ministries of
of Lands
Lands and
and Settlement
Settlement and
and Local
Local Government
Government
should
should compile
compile aa complete
complete andand comprehensive
comprehensive Register
Register of
of Trust
Trust
Lands that
Lands have been
that "have been set
set apart
apart for
for public
public purposes.
purposes.
4. The
4. The entire
entire management
management structureofof Trust
structure Trust land
land should
should be
be re-
re-
examined and
examined and reformed.
reformed. The
The Ministry
Ministry ofof Local
Local Government
Government should
should
be more vigilant the supervision and monitoring of Trust Land.
be more vigilant in the supervision and monitoring of Trust Land.
"(c) TheImpact
(c) The Impact ofofIllegal
Illegal Allocations
Allocations ofofSettlement
Settlement Scheme
Scheme Land
Land and
and
Trust Land
Trust Land
(i) Settlement
(i) Settlement Schemes
Schemes
The Agrarian "Revolution"

The Agrarian "Revolution"
The principle
The principle objective
objective of of Settlement
Settlement Schemes
Schemes waswas toto re-distribute
re-distribute land land
that
that had
had been
been alienated
alienated by by the the colonial
colonial government
government to
to the
the hitherto
hitherto
disinherited landless
disinherited landless peasants.
peasants. TheThe settlement
settlement programme
programme and and the
the creation
creation
of ADC
of ADC was was also
also meant
meant toto enable
enable thethe Africans
Africans take
take over
over the
the large
large scale
scale
145
145
Sichangi Adv
white settler
white settler· farms
farms andand continue
continue withwith agricultural
production. The The
settlement scheme programme
settlement scheme programme was was therefore
therefore not
not just
just aa political
political expedient.
expedient.
It was
It was meant
meant totostimulate
stimulate anan_Agrarian
.Agrarian Revolution
Revolution which
which alone
alone could
could
guarantee
guarantee economic prosperity for
economic prosperity for the
the majority.
majority.
Originally, the
Originally, the schemes
schemeswere wereplanned
plannedininsuch such aa manner
manner as as to be self
to be self
sufficient
sufficient in terms of infrastructure
in terms infrastructure andand basic
basic social
social amenities.
amenities. Agricultural
Agricultural
Extension
Extension Services
Services and
and other
other farm inputs were
farm inputs were made
made available
available to to the
the
settled populations at
settled populations at affordable
affordable prices.
prices. These
These interventions,
interventions, coupled
coupled with
with
a vibrant
vibrant Cooperative
Cooperative Movement
Movement aimed aimed at at providing
providing market
market avenues
avenues forfor
agricultural
agricultural produce and harnessing
produce and harnessing savings,
savings, account
account forfor the
the agricultural
agricultural
success
success story
story in the early
in the early years
years ofof independence.
independence. It was was around
around thethe mid-
mid-
eighties that the
eighties that the scenario
scenario began
began toto degenerate.
degenerate.
General Decline
General Decline in
ill Agriculture:
Agriculture: Failure
Failure of
of the
the Revolution
Revolution
Events
Events on the international
on the international market
market began
began to to have
have aa negative
negative impact
impact on on the
the
country's agricultural
country's agricultural industry.
industry. But
But the
the situation
situation was
was compounded
compounded by by the
the
policies
policies ofof Government
Government which which had
had aa very
very adverse
adverse impact
impact onon agricultural
agricultural
production. The
production. official disorientation
The official disorientation of of the
the settlement
settlement schemes
schemes recounted
recounted
above
above detracted from the
detracted from the original
original objectives
objectives ofof the
the settlement
settlement programmes.
programmes.
By moving away
By moving away from
from thethe redistributive
redistributive and and productive
productive strategies
strategies of of
settlement schemes,
settlement schemes, andand replacing
replacing them
them with
with land
land accumulation
accumulation through
through
illegal allocations
illegal allocations of land, it did
of land, did not
not take
take long
long before
before agriculture
agriculture began
began toto
decline.
decline.
Land was no
Land was no longer
longer available
available for for those
those whowho needed
needed itit most,
most, instead
instead itit was
was
allocated to
allocated to those
those who who had
had no no immediate
immediate use use for
for it.
it. The
The emergence
emergence of of
"absentee landlords" on the one hand and "squatters" on the other hand, isis
"absentee landlords" on the one hand and "squatters" on the other hand,
partly
partly ifif not
not largely
largely attributable
attributable to to the
the land
land grabbing
grabbing policies
policies within
within
settlement schemes.
settlement schemes. The illegal allocation
The illegal allocation of of ADC
ADC Farms
Farms totoindividuals
individuals
and companies
and companies at the expense
at the expense of of the
the landless
landless and
and the
the dictates
dictates ofof sound
sound
agricultural
agricultural husbandry
husbandrymeant meantthat thatlandlandwas
was no longer a
no longer a factor
factor ofof
production
production but but of speculation.
of speculation.
Artificial Landlessness, General

Artificial Landlessness, General Poverty
Poverty and Environmental
Envi ronmental Degradation
Degradation
\
The illegal
The illegal and
and irregular
allocations in in the
the schemes
schemes havehave led
led to
to aa serious
serious
decline
decline inin agriculture
agriculture andand anan artificial
artificial state
state of
of landlessness
landlessness inin the
the country.
country.
These have
These have in
in turn
turn led
led to
to informal
settlements andand low
low productivity
productivity among
among
146
Sichangi Adv
the peasant
the peasant population.
population. The
The overall
overall consequence
consequence is
is escalating
escalating poverty
poverty in in
the country.
the country. Also
Also worthy
worthy of
of note
note isis the
the general
general environmental
environmental degradation
degradation
resultant from settlements created in fragile ecosystems.
resultant from settlements created in fragile ecosystems.
(ii) Trust Lands

(ii) Trust Lands
The illegal
The illegal allocations
allocations of Trust
of Trust lands
lands havehave hadhad aa similar
similar effect
effect to to the
the
economy as
economy as the
the one
one discussed
discussed above.
above. These
These lands
lands are
are meant
meant for for the
the use
use and
and
benefit of
benefit of the
the local
local communities
communities who
who havehave resided
resided there
there forfor generations.
generations. In In
these areas
these areas are are to to bebe found
found somesome ofof the theCountry's
Country's most most treasured
treasured
biodiversity. These lands are not to be allocated to individuals without
biodiversity. These lands are not to be allocated to individuals without
reference
reference to to the
the interests
interests of of the
the local
local community
community and and thethe country
country atatlarge.
large.
The use and management of these lands should contribute to the local
The use and management of these lands should contribute to the local
economies as
economies as well
well asas the
the national
national wealth.
wealth.
Breach
Breach of of Trust
Trust and
and Failure
Failure of
of Governance
Governance on the
on the Part
Part ofof Local
Local
Authorities
Authorities
The illegal
allocation of of Trust
Trust land
land andand other
other lands
lands reserved
the use
use ofof
communities is
communities is a sad
sad testimony
testimony of of the
the dismal
dismal failure
failure ofof local
local authorities
authorities in in
terms of governance. Instead of playing their role as custodians of local
terms of governance. Instead of playing their role as custodians of local
resources
resources including land,
including land, county
county and and municipal
municipal councils
councils have have posed
posed the the
greatest danger to these resources. Records reveal that most illegal
greatest danger to these resources. Records reveal that most illegal
allocations of
allocations of lands
lands within
within their
their jurisdictions
jurisdictions were
were sanctioned
sanctioned by
by the the
councils. In fact, the most pronounced land grabbers in these areas were
councils. In fact, the most pronounced land grabbers in these areas were
the Councillors
the Councillors themselves.
themselves.
Corruption
Corruption at the
the Grassroots
Grassroots
Land grabbing
Land grabbing is one one of
of the
the most
most common
common forms forms of of corruption
corruption ininKenyan
Kenyan
society. It epitomizes the plunder of public property by individuals out
society. It epitomizes the plunder of public property by individuals out toto
enrich themselves
enrich themselves at
at the
the expense
expense of of the
the innocent
innocent majority.
majority. The The corruption
corruption
within central
within central government
government has has been
been replicated
replicated atat the
the local
local level
level through
through the the
activities and
activities and omissions
omissions of
of county
county and and municipal
municipal councils.
councils. The The human
human
conflicts within
conflicts within local
local communities
communities over
over resources
resources are are aa reflection
reflection of of this
this
failure of
failure of local
local government.
government.
147
Sichangi Adv
4. FORESTLANDS,
4. FORESTLANDS, NATIONAL
NATIONAL PARKS,
PARKS, GAME
GAME RESERVES,
RESERVES,
WETLANDS,
WETLANDS, RIPARIAN
RIPARIAN RESERVES
RESERVES AND
AND PROTECTED
PROTECTED
AREAS·
AREAS
(a) Background
section are those described in PART ONE

The category of lands in this section ONE ofof
this REPORT as those lands which, given their ecological
this REPORT as those lands which,• given their ecological integrity, integrity,
cultural relevance
cultural relevance and strategic
strategic location,
location, cannot be allocated
allocated to
toprivate
private
individuals unless the public interest
interestso
sodictates.
dictates. These
These lands
landsare
areregulated
regulated
which sets
by specific legislation which sets out
out the
the procedures
procedures to bebe followed
followed should
should
an allocation, subdivision
subdivision or
or even
even change
change ofof user
user be
be contemplated.
contemplated.
The Commission.
Commission analysed
analysed these
these lands
lands through
through examining
examining data
data from
from
Government
Government departments
departments and agencies' scanty
scanty records,
records, and
and Civil
Civil Society
Society
Organizations' particular importance were data sets
Organizations' records. Of particular sets from
from the
the
Report the Inter-ministerial
Report of the Inter-ministerial Committee
Committee on Forest
Forest Excisions
Excisions of
ofApril,
April,
2001; Records and
2001; Records and Information
Information on National Museums
on National Museums of Kenya
Kenya lands
lands
prepared
prepared and submitted to the
and submitted the Commission
Commission and and on
on November
November 3, 3, 2003;
2003;
Republic of Kenya 2" 2nd Sessional
Sessional Paper
Paper on-
on-National
National Wetlands Conservation
Conservation
and Management
Management of February
February 2002,
2002, Kenya
Kenya Wildlife
Wildlife Service
Service Report
Report on on
KWS Assets presented
KWS Land Assets presented toto the
theCommission
Commission undated;
undated; the
theRamsar
Ramsar
Convention
Convention on Wetlands extract
on Wetlands extract material,
material, the
the Department
Department of of Forest
Forest
Submissions to the Commission.
Commission.
(b) Forestlands
The Commission concluded that that the
the legal
legaland
andadministrqtive
procedures
alteration of
for alteration of the
the forestland
forestland boundaries
boundaries and/or
and/or cessation
cessation ofof forestland
forestland
and precise.
areas are very clear and precise. That
That isis according
according to
to Section
Section 4(1)
4(1) of
ofthe
the
Forests
Forests Act Cap 385 of
Act Cap of the
the Laws
Laws of of Kenya,
Kenya, the
the Minister
Minister inin charge
charge ofof
forests is empowered
empowered to alter
alter forest
forest boundaries to exclude
exclude portions
portions ofof the
the
forest or declare cessation of of aa forest
forest area
area byby publishing
publishing the
the intention
intentiontotododo
so in the Kenya Gazette.
Gazette.
Consequently,
Consequently, before declaration the Minister
before making the declaration Minister under
under Section
Section
4(2) gives 28 days
days notice
notice of
of the
the intention
intention through
through the
the Kenya
Kenya Gazette.
Gazette. TheThe
law also provides that
that before
before the
the area(s)
area(s) intended
intended for excision
excision isis excised
exciseditit
must be surveyed
surveyed and aa boundary
boundary planplan drawn
drawn and
and approved
approved by the the Chief
Chief
148
148
Sichangi Adv
Conservator of
Conservator of Forests.
Forests. Finally
Finally the
the forestland
forestland is is deemed
deemed excised
excised after
after the
the
expiry
expiry of of the
the 28
28 days
days notice.
notice. through
through issuance
issuance of of a Legal
Legal Notice
Notice byby the
the
Minister
Minister as as an
an official
official Government
Government directive
directive or or certification
certification that
that the
the
forestland area has
forestland area has been
been excluded
excluded from
from the
the remaining
remaining forest
forest area
area and
and isis
officially and legally excised.
officially and legally excised.
Therefore, any
Therefore, any allocation
allocation of of forestland
forestland areaarea before
before all all these
these steps
steps are
are
undertaken constitutes an illegal allocation of public land or land dedicated
undertaken constitutes an illegal allocation of public land or land dedicated
or
or reserved
public purposes.
purposes. Accordingly,
Accordingly, the the Minister
Minister for for the
the time
time
being
being in charge
charge of of forests
forests isis bo.und
bound to issue both
to issue both thethe Gazette
Gazette Notice
Notice (as(as an
an
official instrument of
official instrument of declaration
declaration of of intention
intention to to alter
alter or
or to cease
cease to to be
be of
of aa
forest) and a Legal
forest) and Legal Notice
Notice (as (as anan official
official instrument
instrument of of finalizing
finalizing the the
process
process of of excision
excision or alteration
alteration of of aa forest).
forest). Therefore
Therefore no no other
other organ,
organ,
Ministry, Department or
Ministry, Department or Agency
Agency of of Government
Government can can proceed
proceed. to to allocate
allocate
forestland before the
forestland before the outlined
outlined legallegal and
and administrativP
procedures are are
adhered to.
adhered to. The
The procedure
procedure of of degazettement
degazettement presents
presents thethe only
only opportunity
opportunity
to members
to members of of the
the public
public to to challenge
challenge the the proposals
proposals and and prevent
prevent forest
forest
destruction. This
destruction. This isis not
not a mere
mere formality.
formality. It It is
is a most
most important
important step step in the
the
process
process ofof altering
altering thethe forests
forests in Kenya.
Kenya.
The power
The power granted
granted to
to the
the Minister
Minister to declare
declare thethe cessation
cessation of aa forest
forest area
area
is
is not
not absolute.
absolute. The
The power
power must
must be
be exercised
exercised in thethe public
public interest.
interest. Even
Even
where the
where the procedure
procedure in the
the Forests
Forests Act
Act isis followed,
followed, other
other procedures
procedures in in the
the
Government Lands Act
Government Lands Act and
and other
other Planning
Planning and and Environment
Environment Legislation
Legislation
must
must be
be followed.
followed.
(c) Wetlands
(c) Wetlands
The
The Commission
Commission defineddefined wetlands
wetlands as as those
those areas
areas where
where water
water isis the
the
primary factor controlling the environment and the associated plant and
primary factor controllirig the environment and the associated plant and
animal life.
animal life. Wetlands
Wetlands are are found
found where
where the
the water
water table
table is
is at
at or
or near
near the
the
surface of the land, or where the land covered
surface of the land, or where the land is covered by shallow water. Under
shallow water. Under
our terms
our terms ofof reference
reference the the Commission
Commission adopted
adopted thethe Ramsar
Ramsar Convention
Convention
definition wetlands as. "areas of marsh, fen, peatland water, whether
definition of wetlands as "areas of marsh, fen, peatland or water, whether
natural
natural or artificial,
artificial, permanent
permanent or or temporary,
temporary, withwith water that is static
water that static or
or
flowing, fresh, brakish water
flowing, fresh, brakisb water or salt, including areas of marine water the
including areas of marine water the
depth of
depth of which
which at low tide does not exceed exceed sixsix metres".
metres".
This definition
This definition is broad enough
enough as
as to
to incorporate
incorporate riparian
riparian and
and coastal
coastal zones
zones
adjacent to
adjacent to the wetlands,
wetlands, and islands
islands or bodies
bodies of
of marine
marine water
water deeper
deeper than
than
149
Sichangi Adv
six meters
six meters at
at low
low tide
tide lying
lying within
within the
the wetlands.
wetlands. Under
Under this
this broad
broad approach
approach
our
our wetlands
wetlands include
include land
land lying
lying alongside
alongside rivers
rivers and
and lakes,
lakes, coastal
coastal lagoons,
lagoons,
mangroves, peatlands
mangroves, peatlands andand even
even coral
coral reefs.
reefs.
(d)
(d} National Parks and
National and Game
Game Reserves
Reserves
These are
These are areas
areas which
which areare set
set aside
aside oror reserved
reserved as as Wild
Wild life
life habitats.
habitats. Wild
Wild
life is
life is an
an integral
integral part
part of
of Kenya's
Kenya's ecosystem.
ecosystem. The The country
country boasts
boasts aa number
number
of wildlife
of wildlife species
species which
which areare aa big
big tourist
tourist attraction
attraction andand therefore
therefore aamajormajor
foreign exchange
foreign exchange earner
earner andand contributor
contributor to to employment.
employment. The The interaction
interaction
between human
between human beings
beings and
and wildlife
wildlife hashas potential
potential for for conflict
conflict which which ifif not
not
carefully managed
carefully managed can can result
result inin injury
injury and
and extinction
extinction of of the
the latter.
latter. Wildlife
Wildlife
management and
management and protection
protection hashas been
operationalized by by thethe Government
Government
through the
through the creation
creation of of protected
protected areas
areas called
called "National
"National Parks Parks or or Game
Game
Feserves",
F eserves".The The former
former fallfall under
under the the jurisdiction
jurisdiction of
of thethe central
central
Government while
Government while the
the latter
latter fall
fall under
under thethe jurisdiction
jurisdiction of of thethe respective
respective
local authorities.
local authorities. The applicable
The applicable law law to to these
these habitats
habitats is is the
the Wildlife
Wildlife
(Conservation and
(Conservation and Management).
Management) Act. Act. Within
Within the the general
general areaarea covered
covered by by
reserves,
reserves, are
are designated
designated livestock
livestock holding
holding groundsgrounds and and movement
movement
corridors.
corridors.
(e)
(e) Forests, National
Forests, National Parks,
Parks, etc.
etc. as
as Public
Public Land
Land
Thus,
Thus, the
the Commission
Commission is is of
of the
the firm
firm view
view that
that all
all lands
lands set
set apart
apart for for the
the
above outlined
above outlined purposes
purposes are are ideally
ideally suited
suited to
to the
the precautionary
precautionary principle
principle
exercised under
exercised under the
the public
public trust
trust doctrine.
doctrine. TheThe precautionary
precautionary principle
principle
simply means
simply means that
that a country's
country's public
public policy
policy must
must be be aimed
aimed atat avoiding
avoiding
irreparable
irreparable damage to
damage to its
its natural
natural resources.
resources. The The public
public trust
trust doctrine
doctrine
asserts that government
asserts that government has an
has an inalienable
inalienable duty duty (a(a duty
duty that
that cannot
cannot be be
denied
denied or or given
given away)
away) to to protect
protect the the common
common wealthwealth i.e.
i.e. air,
air, water,
water,
wildlife,
wildlife, public
public health,
health, our
our genetic
genetic heritage,
heritage, and
and more,
more, which
which wewe allall inherit
inherit
and
and own
own together
together and
and none
none of of us
us ownown individually.
individually. The The guiding
guiding factorfactor
when
when dealing
dealing with
with these
these resources
resources is is the
the need
need to to ensure
ensure both
both inter-inter-
generational
generational and and intra-
intra- generational
generational equity.
equity.
The Commission's
The Commission's informed
informed position
position holds
holds that
that the
the public
public trust
trust doctrine
doctrine
provides
provides aa legal
legal andand philosophical
philosophical foundation
foundation for
for government
government to
to
steadfastly resist the
steadfastly resist the destruction
destruction ofof public
public lands
lands under
under this
this category.
category. The
The
public trust
public trust doctrine
doctrine casts
casts government
government in in a heroic
heroic role
role as
as guardian
guardian ofof the
the
150
Sichangi Adv
public trust
public trust — - aa trust
trust created
created by by ancient
ancient laws,
laws, requiring
requiring the the sovereign
sovereign to to
protect
protect thethe common
common assets assets thatthat we
we ownown together.
together. As As aa trustee,
trustee, government
government
must
must protect
protect the the trust
trust assets
assets (nature
(nature has has bequeathed
bequeathed us)
us) forfor the
the trust
trust
beneficiaries (present
beneficiaries (present and and future
future generations).
generations). Government
Government even
even has
has aa duty
duty
to protect the trust assets against harmful actions by the beneficiaries
to protect the trust assets against harmful actions by the beneficiaries
themselves,
themselves, and so
and so from
from timetime to to time
time government
government must
must limit
limit some
some of of the
the
prerogatives
prerogatives of
of private
private property
property in in order
order to
to protect
protect thethe common
common wealth wealth for for
the present
the present andand future
future generations.
generations.
From
From information
information analyzed, itit is
analyzed, is generally
generally acknowledged
acknowledged that
that thethe
importance
importance of these
of these lands
lands asas provision
provision of of environmental
environmental utility
utility space,
space,
national security,
national security, utility
utility products,
products, support
support pillars
pillars ofof water
water sources,
sources,
conservation
conservation of biological
of biological diversity,
diversity, carbon
carbon dioxide
dioxide sequestration
sequestration and
and
major
major habitat
habitat for
for wildlife
wildlife hashas been
been compromised.
compromised.
(f)
(0 Findings
Findings
The
The Commission's
Commission's findings
findings are
are summarized below in
summarized below in the
the various
various land
land
blocks singularly as follows:
blocks singularly as follows:
(i) FORESTLANDS
(i) FORESTLANDS
Progressive
Progressive Reduction
Reduction of
of Forest Cover
Cover
An analysis
analysis of
of forestland
forestland since
since 17962 todate reveals
1962 todate reveals that the the country
country hadhad 3%
3%
of the
of the total
total territorial
territorial landmass
landmass of of 582,646
582,646 square
square kilometers
kilometers under
under closed
closed
canopy
canopy gazetted
gazetted forests
forests at
at independence.
independence. This
This hashas progressively
progressively reduced
reduced toto
about 1.7%
about 1.7% presently
presently and thisthis has
has been
been mainly
mainly duedue toto illegal
illegal and
andirregular
irregular
excisions. This disturbing
excisions. This disturbing scenario
scenario compares
compares unfavourably
unfavourably to to the
the
internationally recommended
internationally recommended minimumminimum of of 10%.
10%. Below
Below is aa summary
summary in in
tabular
tabular form
form of forest
forest excisions
excisions from
from 1963
1963 to
to the
the present.
present.
Category
Category of Excision
Excision Area (Ea)
Area (Ra)
Excisions done
Excisions done after
after Boundary
Boundary Plans,
Plans, Gazette
Gazette 141,703.6
141,703.6
Notices and Legal Notices
Notices Notices
Excisions done
Excisions done by way of
of Exchanges
Exchanges 911.4
911.4
Excisions done
Excisions done before
before finalizing
finalizing the
the de- 76,612.2
76,612.2
gazettement process
gazettement process
Proposed Excisions
Proposed Excisions that have
have been challenged
challenged in 67,724.6
67,724.6
Court
Court
151
151
Sichangi Adv
. "-
Proposed
Proposed Excisions
Excisions that
that have
have been
been challenged
challenged in
in 67,724.6
67,724~6
Court
Court
Excisions done to create
Excisions create Nyayo
Nyayo Tea Zones 11,000
Excisions
Excisions from Ngong and and Karura
Karura Forests
Forests 1,125.5
TOTAL
TOTAL 299,077.5
299,077.5
For a brief
For brief historical
historical background
background of thethe Country's
Country's major
major forests, and some
forests, .and some
of the
of the excisions
excisions done
done over
over the
the years,
years, see
see the
the BOXES
BOXES appearing
appearing inin
Appendix
Appendix 9. 9. See also Annexl and 22 in
Annexl and in Vol.
Vol.II 0/the
II of the Annexes.
Annexes.
Excisions carried out
Excisions out without
without any
any Scientific
Scientific Considerations
Considerations
The over-arching
The finding of
over-arching finding of the
the Commission
Commission is is that most excisions
that most excisions of
forestland were
forestland were donedone without
without technical
technical consideration
consideration of of the
the social,
social,
economic and
economic and ecological
ecological implications.
implications. In In aa number
number of of cases,
cases, Boundary
Boundary
Plans were
Plans were not prepared
prepared andand Gazette
Gazette andand Legal
Legal Notices
Notices were
were not
not issued
issued as as
is required
required by by law.
law. Excisions
Excisions continued
continued eveneven without
without application
application of of the
the
precautionaryprinciple
precautionary principlethatthat requires
requiresthe the government
government to to fulfil
fulfil itsits
responsibility to protect
responsibility protect the public
public trust,
trust, to
to anticipate
anticipate and
and avoid
avoid harm,
harm, andand
to foresee
to foresee andand forestall
forestall any
any catastrophic
catastrophic destruction.
destruction. TheThe precautionary
precautionary
principle
principle states
states that,
that, when
when there
there is
is reasonable
reasonable suspicion
suspicion of of harm
harm andand there
there
is scientific
scientific uncertainty, then we
uncertainty, then we all have
have a duty
duty to
to take
take action
action to
to prevent
prevent
harm.
harm. .
The
The nearest
nearest the Government
Government can can bebe said
said to
to have
have evoked
evoked thisthis precautionary
precautionary
principle
principle isis when
when thethe President
President issued
issued a banban onon allocation
public land
land
that
that was
was imposed
imposed in in 1999.
1999,.ButBut that
that notwithstanding,
notwithstanding, excisionsexcisions wentwent on on
even after
even after enactment
enactment of of the
the Environmental
Environmental Management
Management and and Coordination
Coordination
Act
Act (EMCA)
(EMCA) of 19991999 thatthat subjects
subjects anyany proposed
proposed major
major changes
changes in in land
land use
use
to Environmental
to En vironmental Impact Impact Assessment
Assessment(EIA). (EIA).InIn other other cases,
cases, the the·
Commissioner
Commissioner of LandsLands facilitated
facilitated the
the issuance
issuance of of title
title deeds
deeds that
that left
left some
some
forest areas
forest areas outside
outside thethe title.
title. AA case
case in
in point
point isis forest
forest areas
areas left
left out
out ofof the
the
titles
titles issued
issued in regard
regard to Karura
Karura forest
forest and Ngong
Ngong Road forest amounting to
forest amounting
1,
1, 125.5
125.5 HA.
HA. TheThe areas
areas were
were later
later allocated
allocated to to the
the soso called
called "private
"private
developers" illegally. For
developers" illegally. For aa detailed
detailed illustration
illustration of of the
the illegalities
illegalities
perpetrated
perpetrated with regard
with regard to to allocations
allocations of of land
land in in the
the Ngong
Ngong and and
Karura Forests,
Karura Forests, see
see Box Box (a)(a) and
and (b) Appendix 9. See also Annexes
(b) in Appendix Annexes 3
and 4 in Vol.
Vol. II of
of the
th« Annexes.
Annexes.
152
Sichangi Adv
Excisions carried out
Excisionscarried out under
under the
the guise
guise of
of Settlement
Settlement Schemes
Schemes
Another notable
Another notable finding
finding isis thatthat aa lot lot of of forestland
forestland has has been
been excised
excised for for
settlement schemes in circumstances that constitute illegal allocations. It isis
settlement schemes in circumstances that constitute illegal allocations. It
an
an acknowledged
acknowledged fact
fact that
that forestland
forestland excisions
excisions are are not
not aa new
new phenomenon
phenomenon
because at the time of declaration of the present day Kenya as
because at the time of declaration of the present day Kenya as aa British
British
Protectorate inin 1895,
Protectorate forestland stood
1895, forestland stood atat 30%30% to to the
the total
total landmass.
landmass. At At
independence the forestland had been reduced to 3% of the total landmass.
independence the forestland had been reduced to 3% of the total landmass.
Records analyzed
Records analyzed by by the
the Commission
Commission indicate indicate thatthat forestland
forestland has has always
always
been excised and allocated for settlement and other public purposes such asas
been excised and allocated for settlement and other public purposes such
extension of
extension of towns,
towns, research,
research, development
development of
of public
public institutions
institutions and and
infrastructure 10.
infrastructure 10. Whereas
Whereas' it it isis appreciated
appreciatedthatthat settlement
settlement schemesschemes were were
started way
started way back
back in 1961 1961 to to facilitate
facilitate land land redistribution
redistribution programmes
programmes to to
resettle indigenous or native Kenyans whose land had been alienated by
resettle indigenous or native Kenyans whose land had been alienated, by
the colonial
the colonial government,
government, the the latter
latter day
day wanton
wanton destruction
destruction of of forests
forests andand
illegal allocation
illegal allocation of of the
the same
same to to undeserving
undeserving individuals
individuals has has thrown
thrown the the
whole exercise
whole exercise intointo serious
serious doubt.
doubt.
The existing
The existing lawlaw anticipated
anticipated alteration
alteration of of forestland
forestland boundary
boundary either
either in in
form of
form of expansion
expansion or or excision
excision on on prudent
prudent basis.
basis. Our
Our analysis however;
analysis however,
reveals that a lot
reveals that lot of
of excisions
excisions havehave notnot only
only been
been carried
carried'outoutirrationally
irrationally
but to aa great
but great measure,
measure, illegally.
illegally. For instance
instance a lot lot of
of land
land exchanges
exchanges are are
deemed to have
deemed have taken
taken place
place between
between the the forest
forest department
department and and individuals
individuals
when indeed
when indeed there
there was no rationale
rationale of of exchanging
exchanging huge huge forestlands
forestlands forfor far
far
much
much less land which finally finally the
the forest
forest department
department never never got.
got.
The
The major
major anomaly
anomaly found
found in the the received
received information
information is that that most
most of of the
the
settlement schemes
settlement schemes in in forests
forests were
were established
established while while' the samesame were
were still
still
gazetted
gazetted as as forest
forest areas,
areas, which
which amounts
amountstotoan anoutright illegality. For
outrightillegality. For a
detailed
detailed case by case
case discussion
discussion and
and illustration
illustration of
ofsettlement
settlement schemes
schemes
established in forestlands
established forestlands before
before their
their de-gazettement,
de-gazettement, see Annexes
Annexes 5-
15 in Vol.
Vol. II of the Annexes.
11of Annexes.
Illegal Excisions
Illegal of Forests
Excisions of Forests during
during the Adjudication
Adjudication Process
Process
The Commission
The Commission also also found
found that
that aa lot
lot of
offorestland
forestland ininenvironmentally
environmentally
sensitive ecosystems was
sensitive ecosystems was excised
excised during
during the
the adjudication
adjudication of of Trust
Trust land
land inin
many parts
many parts of the
the country.
country. Thus,
Thus, water
water catchment
catchment areas,
areas, steep
steep slopes,
slopes; hills
hills
and marshes
and marshes which
which were
were not
not in
inthe
theoriginal
original adjudication
adjudication section,
section, were
were
hived off
hived off and
and allocated
individuals. According
According to to the
the Report
Report of ofthe
the
Inter-Ministerial
Inter-Ministerial Committee
Committee on Forest
Forest Excisions,
Excisions, 16%
16% ofof the
the,total
total acreage
acreage
t°10 See appendix

appendix one:
one: DoCument
Document prepared
prepared by the Chief Conservator of
Chief'Censervator of Forests.
Forests.
153
Sichangi Adv
of forestland
of forestland in in anan Adjudication
Adjudication Section
Section should
should be be reserved
reserved forfor forest
forest
purposes. If this
purposes. this had
had been
been followed
followed toto the
the letter,
letter, then
then this
this percentage
percentage would
would
have yielded a total of 119, 493 Ha of extra gazetted forest area since 1963.
have yielded a total of 119,493 Ha of extra gazetted forest area since 1963.
. .
-Disinheritance
Disinheritance and and Displacement
Displacement of of Forest
Forest Dependent
Dependent Minorities
Minorities
The-C-ommission
The Commission also also established
established thatthat settlement
settlement schemes
schemes were
were established
established
in forest 'kas ostensibly to resettle indigenous minorities
in forest areas ostensibly to resettle indigenous minorities whose lifestyles whose lifestyles
depend
depend on on forest
forest habitats.
habitats. SuchSuch minorities
minorities have
have been
been systematically
systematically
displaced from their ancestral lands by the government through
displaced from their ancestral lands by the government through
protectionist policies that
protectionist policies that dodo not
not recognize
recognize thethe historical
historical claims
claims of of the
the
people
people the forest areas..A leading example of the displaced minorities isis
to the forest areas. A leading example of the displaced minorities
the OGIEK PEOPLE.
the OGIEK PEOPLE. The The Ogiek
Ogiek have
have struggled
struggled andand continue
continue to to struggle
struggle
to
to make
make successive
successive governments recognize their
governments recognize their way
way ofof life
life as
as aaforest
forest
dwelling community.
dwelling community.
Thus, sometime in
Thus, sometime in 1997,
1997, the
the Government
Government decided
decided to to establish
establish aasettlement
settlement
scheme
scheme in the the NAKURU/OLENGURUONE/
NAKURU/OLENGURUONEI KIPTAGICH KIPTAGICH EXTENSIONEXTENSION
forestt area,
for resettle the OGIEK.
area, to resettle OGIEK. A totaltotal of 1,1, 812
812 HAHA of of forest
forest land
land was
was
set as"de
aside for this purpose.
~r this purpose. The
The requisite
requisite de-gazettement
de-gazetternent was not carried carried outout
by the
by tl\e Minister.
Minister. (However,
(However, interviews
interviews with
with thethe former
former Commissioner
Commissioner of of
Lands by the
Lands the Commission
Commission revealed
revealed that
that the
the real
real reason
reason forfor hiving
hiving offoff this
this
land from
land from the
the forest
forest was
was toto establish
establish anan out-grower
out-grower TEA TEA ZONEZONE for for the
the
Kiptagich
Kiptagich Tea Tea Estates
Estates Limited
Limited which
which stands
stands ma o~ an
an area
area measuring
measuring 937.7937.7
Ha within
Ha within Transmara
Transmara ForestForest Reserve
Reserve and which is owned
and which owned by by former
former
President
President Moi.)
Moi.) TheThe area
area was
was duly
duly surveyed,
surveyed, subdivided
subdivided and and allocated
allocated to to
prominent individuals
prominent individuals and and companies
companies in in the
the forther
former President
President Moi'sMoi's
Government.
Government. Only Only aa small
small number
number of of the
the OGIEK
OGIEK peoplepeople was was allocated
allocated
land area. The
land in the area. The allottees
allottees have
have since
since been
been issued
issued with
with title
title deeds.
deeds. Thethe
forest
forest waswas surveyed
surveyed and and subdivided
subdivided and and allocated
allocated contrary
contrary to to thethe
provisions of the Forests
provisions Forests Act.
Act.
From the list of

From of the
the beneficiaries
beneficiaries of this illegal
illegal allocation,
allocation, the
the Commission
Commission
concluded that the real intention
concluded intention of excising
excising this forest
forest was
was definitely
definitely not
not to
to
resettle
resettle the
the Ogiek
Ogiek community.
community. The The objective
objective waswas to
to allocate
allocate forestland
forestland asas
political reward to influential
political reward influential personalities
personalities in the former
in the former KANU
KANU regime.
regime.
The
The listed
listed allottees
allottees can
can neither
neither be
be described
described as Ogiek
Ogiek or Landless.
Landless. Many
Many of
these
these allottees
allottees got land
land far
far in
in excess
excess of
of what
what would
would bebe recommended
recommended for for an
an
ordinary settlementscheme.
ordinary settlement scheme. ForFor a detailed
detailed list andand particulars
the
people
people to towhomwhomthisthisNAKURU/OLENGURUONE/KIPTAGICH
NAKURU/OLENGURUONEIKIPTAGICH
(EXTENSION)
(EXTENSION) was was allocated, See Annex
allocated, See Annex 15 15 in Vol. of the
Vol. II of the Annexes.
Annexes.
154
Sichangi Adv
Also
Also see
see the annexed MAP
the annexed MAP showing
showing the
the areas and acreages
areas and acreages of
of land
land
allocated to
allocated to the
the individuals in the
individuals in the OLENGURUONE
OLENGURUONE FOREST.
FOREST.
Other Forest
Other Forest lands
lands awaiting
awaiting Excision
Excision
Another important
Another important finding
finding is that
that there
there are
are a number
number of of proposed
proposed excisions
excisions
that are
that are contested
contested andand not
not finalized
finalized duedue toto court
court cases
cases challenging
challenging their
their
legality and
legality and regularity.
regularity. These
These involve
involve thethe Gazette
Gazette Notices
Notices and
and Legal
Legal
Notices
Notices to to excise
excise a total
total of 67, 784.5 HA
67,784.5 HA for
for settlement
settlement purposes
purposes affecting
affecting
the following
the following forests:
forests:
• South Western
South Western MauMau Forest
Forest measuring
measuring 83, 83, 395.5HA
395.5HA —- the the Gazette
Gazette
Notice proposes
Notice proposes the the excision
excision of of 24,
24, 109
109 HA HA to to establish
establish Saino,
Saino,
Ndoinet, Tinet
Ndoinet, Tinet and
and Kiptagich
Kiptagich Settlement
Settlement Schemes.
Schemes. Although
Although thethe
area is
area is proposed
proposed forfor settling
settling the
the landless,
landless, it is already
already taken
taken up
up by
by
wealthy individuals
wealthy individuals such
such as as the
the former
former Permanent
Permanent Secretary
Secretary in in
charge of
charge of Internal
Internal Security,
Security, Mr.Mr. ZAKAYOS
ZAKAYOS CHERUIYOT CHERUIYOT who who
has constructed
has constructed a palatial
palatial home
home on on part
part of
of the
the land.
land.
• Eastern
Eastern MauMau Forest
Forest measuring
measuring 64,970HA-
64,970HA- the the Gazette
Gazette Notice
Notice
proposes
proposes thethe excision
excision of of 35,301
35,301 HA HA totoestablish
establish Sururu/Likia
SururufLikia
Settlement Scheme.
Settlement Scheme. The The area
area appears
appears to
to have
have been
been settled
settled by
by the
the
local community
local community around
around Njoro
Njoro and
and Mau
Mau Narok.
Narok. TheThe average
average
acreage
acreage allocated
allocated toto each
each individual
individual is 2.02
2.02 HA.
HA.
•• Likia
Likia Forest
Forest measuring
measuring 2, 2, 290HA
290HA — the area
- the area isis already
already settled
settled by by
people
people to to whom
whom titles
titles have
have already
already been
been issued
issued notnot withstanding
withstanding
the
the fact
fact that
that the
the matter
matter is still
still pending
pending in Court,
Court, andand that
that the
the forest
forest
is
is yet
yet to
to be
be de-gazetted.
de-gazetted. ThereThere is evidence
evidence of double
double or or even
even triple
triple
allocation
the same
same parcel
parcel of of land
land to to different
different people
people thusthus
raising
raising potential
potential for for conflict.
conflict. One One allottee,
allottee, aa Mr. Mr. KIPRONO
KIPRONO
KERICH, ID
KERICH, ID NO.
NO. 38442220
38442220 of of P.O
P.O BOXBOX 4053040530 Nairobi
Nairobi was was
allocated
allocated 12.14
12.14 HAHA as as opposed
opposed to to the
the average
average acreage
acreage of of 2.02
2.02
HA.
HA. Another
Another interesting
interesting finding
finding withwith regard
regard to to this
this proposed
proposed
settlement
settlement is that
that most
most allottees
allottees share
share the
the same
same postal
postal addresses
addresses in in
Nairobi, Kabarnet,
Nairobi, Kabarnet, BurntBurnt Forest,
Forest, Eldama
Eldama Ravine,
Ravine, Marigat
Marigat and and
Njoro.
Njoro.
I
• Tenet Forest
Tenet Forest measuring
measuring 2117HA
2117HA — which has
- which has already
already been
been fully
fully
surveyed
surveyed and
and titles
titles issued
issued to
to the
the allottees.
allottees. The
The average
average allocation
'allocation
is 2.02 HA. I
155
Sichangi Adv
Sigotik Forest
." Sigotik Forest measuring
measuring 1,1,812HA
812HA — which is not
- which not yet
yet surveyed.
surveyed.
The Commission
The Commission did
did not
not find a list of allottees.
allottees.
• Nessuit Forest
Nessuit Forest measuring
measuring 4,
4, 730HA
730HA —.; the Scheme has
the Scheme has benefited
benefited
1500
1500 individuals already been
individuals who have already been issued
issued with
with title
title deeds.
deeds.
• Marioshoni Forest
Marioshoni Forest measuring
measuring 8,300HA
8,300HA — - whose
whose settlement
settlement
process has
process has been
been highly
highly contested
contested by
by the
the would-be
would-be beneficiaries
beneficiaries
from the Ogiek
from the Ogiek community
community underunder the
the auspices
auspices -of the
the OGIEK
OGIEK
WELFARE
WELFARE COUNCIL.COUNCIL. The area is yet
The area yet to
to be
be surveyed
surveyed and
and titles
titles
issued.
issued. A few few parcels
parcels have
have however
however been
been surveyed
surveyed andand titles
titles
issued
issued toto individuals
individuals from
from Nakuru.
Nakuru. This
This was
was established
established as as aa
settlement
settlement scheme
scheme to compensate victims
to compensate victims of of clashes
clashes from
from
Chepakundi-
Chepakundi- Molo South. South.
• Kapsita Forest measuring
Kapsita Forest measuring 3,300HA
3,300HA — - which duly surveyed,
which is duly surveyed,
registered
registered and titles to the same issued.
titles to the same issued.
• Bararget Forest (Elburgon)
Bararget Forest (Elburgon) measuring
measuring 2800HA-
2800HA- waswas excised
excised
purportedly
purportedly to compensate victims
to compensate victims of 'Clashes _from
of clashes Lari. The
from Lari. The
excision was
excision was partially
partially - halted
halted because' the government
because the government waswas
belatedly prevailed upon
belatedly prevailed upon toto recognize
recognize its importance as the
its importance the only
only
water catchment area
water catchment area in
in the
the region.
region.
• Kapsita Forest
Kapsita Forest (Molo)
(Molo) measuring
measuring901.6HA which-was
901.6HA which surveyed
was surveyed
and allocated
and allocated toto individuals
individuals before
before de-gazettement.
de-gazettement. Titles
Titles have
have
already been
already issued to
been issued allottees. The
to the allottees. The average
average acreage
acreage toto each
each
allottee is 0.01
allottee 0.01 and 0.9 HA HA
• LondianiForest
Londiani_ Forest measuring
measuring 29, 682.4HA —
29, 682.4HA - the Gazette Notice
the Gazette Notice
proposes
proposes the excision of
the excision 124.9 HA
of 124.9 HA for
for the
the establishment
establishment of of aa
settlement scheme
settlement scheme to resettle
resettle people
people displaced
displaced by by the
the expansion
expansion
Mary Mount
of Mary Mount School
School in
in Kibunja
Kibunja Trading
Trading Centre.
Centre.
• Mt. Kenya
Kenya Forest
Forest measuring
measuring200,074HA
200,074HA— - the
the Gazette
Gazette Notices
Notices
propose
propose the excision of 1,825.15
the excision 1,825.15 HA for
for the
the establishment
establishment of
of
Ndathi, Magutu and
Ndathi, Magutu and Sagana
Sagana (Extension
(Extension Hombe)
Hombe) settlement
settlement
schemes,
schemes-.
For the particulars of allocation
allocation which
which have been
been challenged
challenged in
in court
court and
and
not finalized
excisions that are considered regular although the process is not finalized
Annexes 16
see Annexes and 17
16and in Vol.
17in Vol.II
II of
of the
the Annexes.
Annexes.
156
156
Sichangi Adv
Other proposed
Other proposed Excisions
Excisions
• Marmanet Forest
Marmanet Forest measuring
measuring 24,455.5HA
24,45~SHA (proposed
(proposed excision
excision, ofof
2,837 HA)
2,837 HA)
• Kapsaret Forest
Kapsaret Forest measuring
measuring 1,194HA
1;i94HA (proposed
(proposed excision
excision of of the
the
whole area)
whole area)
• Western Mau
Western Mau Forest
Forest measuring
measuring 22,8'85.3HA
22,8'85.3HA (( proposed
proposed excision
excision
of 323.7
of 323.7 HA)
HA) -
• Nabkoi Forest measuring
Nabkoi.Forest measuring 3,015HA
3,015HA (proposed
(proposed excision
excision of
of 74.11
74.11
HA), .
HA),.:
.
• Nakuru-MeriengaiForest
Nakuru-Menengai Forest measuring
measuring 618.9HA
618.9HA (( proposed
proposed
excision of 270.5 HA)
excisiort
• Tinderet Forest
Tinderet Forest measuring
27,869.9HA (proposed
(proposed excision
excision of
of
788.3 HA)
788.3
• South Nandi Forest
South Nandi Forest measuring
17,960.5HA (proposed
(proposed excision
excision of
34.59
34.59 HA)
Other key findings

Other findings are
are as
as follows:
follows:
1. Most
Most illegal
illegal or
or irregular
allocations were
were made
made totoindividuals,
individuals,
schools, Agricultural
schools, Society of
Agricultural Society of Kenya
Kenya (ASK)
(ASK) and
and Nyayo
Nyayo Tea
Tea
Zones Development
Zones Corporation(NTZDC)
Development Corporation (NTZDC)forfor aa variety
variety of
of
purposes.
purposes.
2. Most of
Most of the
the excisions
excisions ofofforestland
forestland were
were processed
processed without
without
technical considerations
technical considerations for the social,
social, economic
economic and and ecological
ecological
implications in addition to being total violation of the
implications in addition to being in total violation of the legal
legal
provisions demanding
provisions demanding the the preparation
preparation of Boundary
Boundary Plans,
Plans,
Gazette and Legal Notices
Gazette and Legal Notices as the procedural means of excising
procedural means of excising
forestlands. Since
forestlands. Since 1962,
1962, 54,000
54,000 hectares
hectares of of proposed
proposed excisions
excisions
had no Legal
had Legal Notices
Notices issued
issued and out of of that
that total
total area
area only
only 6,800
6;800
hectares have
hectares have Boundary
Boundary Plans
Plans implying
implying that
that the
the Boundary
Boundary Plan Plan
survey drawing
survey drawing for 47,200 hectares
47,200 hectares has not been done.
not been done.
3. The
The belated
belated issuance
issuance of selective
selective title
title deeds
deeds toto Karura
Karura and
and Ngong
Ngong
Road Forests
Road Forests deliberately excluded aa total
deliberately excluded total area
area of
of 1,125.5
1,125.5 Ha
Ha
from the
from the titled
titled areas,
areas, which
which subsequently
subsequently were were illegally
illegally and
and
irregularly allocated to the so called
called private
private developers.
developers.
4. In summary
In summary thethe following
following areare the
the major
major beneficiaries
beneficiaries of
of illegal
illegal
and irregular
and irregular allocations
allocations of
of forestlands.
forestlands.
157
Sichangi Adv
(a) Schools —
Schools forestland was
- forestland was allocated
allocated to
to schools
schools ostensibly
ostensibly
for the
for the latter's
latter's expansion only to
expansion only to end
end up inin the
the hands
hands of
of
politically favoured
politically favoured individuals
individuals andand companies.
companies. Kaptagat
Kaptagat
Forest is one
Forest one such
such forest,
forest, part
part of
of which
which waswas ostensibly
ostensibly
excised for
excised for the construction
construction ofof a public
public school
school only
only to
to be
be
allocated to
allocated to a private
private trust
trust known
known as as MARIA
MARIA SOTI SOTI
MEMORIAL TRUST
MEMORIAL TRUST the the trustees
trustees of which
which are are HON.
HON.
NICHOLAS BIWOTT
NICHOLAS BIWOTI AND AND MANUMANU P. P. CHANDARIA.
CHANDARIA.
For
For aa detailed
detailed discussion
discussion of
of the
the irregularities
irregularities in
in the
the
allocation
allocationof of this
this part
part of the forest,
of the forest, see Box (c) (c) in
in
Appendix 9.9.
(b) In many
many instances,
instances, Forestland
Forestland was
was excised
excised and
and allocated
allocated
to individuals
individuals for
for farming
farming and
and residential
residential purposes.
purposes.
(c)
(c) Governmentinstitutions
Government institutionssuch
such as as Prisons,
Prisons, Kenya
Kenya
Broadcasting
Broadcasting Corporation,
Corporation, Meteorological
Meteorological Department
Department
and Kenya
and Kenya Science
Science Teachers
Teachers College
College werewere allocated
allocated land
land
from
from forests.
forests. The
The land
land was
was later
later illegally
illegally allocated
allocated to
to
individuals
individuals and
and companies.
companies.
(d)
(d) Agricultural Society of
Agricultural Society of Kenya
Kenya requested
requested variously
variously forfor
relocation of
relocation of its show
show grounds
grounds from
from its
its original
original locations.
locations.
The society was consequently allocated forestlands in
The society was consequently allocated forestlands in
Nairobi, Kakamega,
Nairobi, Kakamega,Nyeri, Nyeri,Meru
Meru and and Embu.
Embu. More More
forestland than
forestland than ,was
was required
required forfor aa showground
showground was was
allocated to
allocated to the ASK.
A~K. The
The excess
excess land
land was
was later
later illegally
illegally
allocated individuals and
and companies
companies while
while the
the original
original
show ground
show ground was similarly
similarly allocated.
allocated.
(e)
(e) The Forest
The Forest Department lost a lot
Department lost lot of
of forestland
forestland through
through
exchanges with private land
exchanges land owners.
owners.
(f)
(f) Individuals
Individuals and'and companies
companies were were illegally
illegally allocated
allocated
forestland in prime
forestland prime areas in total
total disregard
disregard ofof the
the law.
law. The
The
illegally allocated
illegally allocated land
land was
was almost
almost immediately
immediately sold' sold' to
to
state
state corporations
corporations andand other
other buyers
buyers for
for colossal sums
colossal sums of
money. Illegal titles
money. Illegal titles were
were consequently passed to
consequently passed to the
the
purchasers,
purchasers, while the allottees were unjustly enriched.
the allottees were unjustly enriched.
(g)
(g) Nyayo
Nyayo Tea Zones
Zones — were another
- were another conduit through which
conduit-through which
forestland was
forestland was illegally
allocated. While
While the
the Zones
Zones were
were
158
Sichangi Adv
meant
meant to to extend
extend up up to
to 100
100 meter
meter strip
strip of
of Tea
Tea belt
belt around
around
forests
forests in the
the tea
tea growing
growing areas,
areas, extra
extra acreages
acreages were
were hived
hived
from forests
from under the
forests under the guise
guise ofof Tea
Tea Zones
Zones and
and later
later
allocated
individuals.
(h)
(h) Trustland forests
Trustland forests have
have equally
equally been
been allocated
allocated illegally
illegally
contrary to
contrary to the
the laid
laid down
down procedures
procedures in in the
the Trust
Trust Land
Land
Act, the Land Adjudication Act and the Local
Act, the Land Adjudication Act and the Local
Government
Government Act. Act. Examples
Examples of of the
the illegal
illegal allocations
allocations of of
Trust land forests which were presented to the
Trust land forests which were presented to the
Commission
Commission are: are:
(i)
(i) Enkaroni Group
Enkaroni Group Ranch
Ranch registered
registered as as Narok/Cis-
Narok/Cis-
Mara/Ololulunga/
MaraJOlolulungaJ 118the
118 the initial
initial size
size of
of which
which was
was
1,597.5
1,597.5 HAHAandand whose
whosecurrent
current size
size isis estimated
estimated at at
approximately
approximately over
over 9,000
9,000 HA;
HA;
U)
(j) Enaikishomi Group Ranch
Enaikishomi Group Ranch registered
registered asas Narok/Cis-
Narok/Cis-
Mara/Ololulunga/
MaraJOlolulungaJ 115 the
the initial
initial size
size of
of which
which was
was 844.5
844.5
HA
HA and is estimated
estimated at
at over
over 9,000
9,000 HA HA and
and
(k) Sisiyian Farm,

Sisiyian Farm, owned
owned by CHIEF
CHIEF OLE OLE SANKEI
SANKEI and and
registered as Narok/Cis-Mara/Ilmotik
registered 1375 whose
-Narok/Cis-Mara/Ilmotik /375 whose initial
initial
size
size was
was 300
300 HA
HA and
and whose
whose current
current size
size isis estimated
estimated atat
approximately
approximately 2,700 HA.
The
The excess
excess acreage
acreage of land
land inin these
these group
group ranches
ranches was
was illegally
illegally
hived from
hived from Trust land forests.
land forests.
For
For aa detailed
detailed list
list and
and particulars
particulars ofof forest
forest excisions
excisions considered
considered to
to be
be
illegal see Annex
illegal Annex 18 18 in Vol.
Vol. II of
of the
the Annexes.
Annexes.
(ii) WETLANDS,
(ii) WETLANDS , RIPARIAN
RIPARIAN RESERVES
RESERVES AND
AND SITES
SITES
The
The Commission
Commission was not able able to establish
establish how muchmuch of Kenya's
Kenya's landmass
landmass
is presently
presently composed
composed of of wetlands.
wetlands. ButBut itit did
did establish
establish that
that KWS
KWS is is the
the
designate national governmental agency responsible over riparian sites
designate national governmental agency responsible over riparian sites
under
under the
the Ramsar
Ramsar Convention.
Convention. The The KWS KWSadministrative
administrative authority
authority
mandates it take charge of wetland conservation within Kenya, and
mandates it to take charge of wetland conservation within Kenya, and ofof
individual
individual wetlands
wetlands (riparian
(riparian sites)
sites) of
of international
international importance.
importance. In In essence
essence'
159
Sichangi Adv
KWS isis in
KWS in charge
charge ofof riparian
riparian lands
lands around protected areas
around protected was (National
(National Parks,
Parks,
National Reserves
National Reserves and and Sanctuaries),
Sanctuaries), riparian
riparian lands
lands aibund
~Pound Ramsar
Ramsar SitesSites
(since KwS
(since KWS is thethe custodian
custodian of of Rarnsar
Ramsar Convention
Conventionsuc~~s
suclts lake
lake Naivaisha,
Naivaisha,
Lake Nakuru,
Lake Lake Baringo,
Nakuru, Lake Baringo, and-Lake
angt-LakeBogoria.
Bogoria. ItIt is also
also inin charge
charge of of
riparian lands
riparian lands around
around proposed
proposed Ramsar
Ramsar Sites
Sites such
such asas Lake
Lake Olbollosat,
Olbollosat,
Tana Delta,
Tana Delta, Lake
Lake Victoria
Victoria and
and Lake
Lake Elementaita
Elementaita and
and riparian
riparian land
land around
around
areas
areas of important
important biodiversity.
biodiversity.
The
The Commission's
Commission's further
further observation
observation is is that
that whereas KWS is the
whereas KWS the lead
lead
agency under
agency under Ramsar
Ramsar Convention
Convention on on conservation
conservation and and wise
wise useuse ofof
wetlands on behalf
wetlands behalf of the
the government,
government, there
there are numerous
numerous wetlands
wetlands in in the
the
country,
country, which
which are
are utilized
utilized byby private
private sector,
sector, public
public parastatals
parastatals and
and even
even
communities, which are
communities, which are not
not strictly
strictly committed
committed to to the
the protection
protection and and
conservation
conservation ofof wetlands
wetlands under
under KWSKWS mandate.
mandate. There
There isis no
no national
national
wetlands inventory
wetlands inventory anywhere
anywhere despite
despite the
the fact
fact that
that these
these lands are public
lands are
lands. On
lands. On the
the whole,
whole, the
the Commission concludedthat
Commission concluded thatthere
thereisis aa lot
lot of
of
encroachment
encroachment onon wetlands
wetlands throughout
throughout the
the country
country
Illegal
Illegal Allocation
Allocation of
of Riparian Reserves
Reserves and
and Sites
Sites
The Commission
The Commission foundfound from
from records
records and
and information
information mademade available
available toto itit
that
that there
there are a number
number ofof illegal
illegal allocations
allocations ofof land
land around
around riparian
riparian sites.
sites.
The land affected
The affected by these
these allocations
allocations is is around
around rivers,
rivers, lakes
lakes and
and the
the ocean.
ocean.
In
In Kwale
Kwale District
District a chain
chain of
of islands
islands off
off Shimoni
Shimoni Marine
Marine Park,
Park, which
which are are
under the mandate
under the mandate of KWS
KWS were were illegally
illegally allocated
individuals despite
despite
Restrictions
Restrictions byby the
the Chief
Chief Land
Land Registrar
Registrar on those
those lands
lands onon 313151st March
March
1999: See the Table
See the Table below
below for
for the
the aa list
listand
and particulars
particulars of
of these
these
allocations.
Serial
Serial Name of C
Name urrent
Current
Parcel/Title No.
ParcelfI'itle No. R
Remarks
Remarks
No.. Owner
Owner
I
1 Kwale/Shimbni/479
K wale/Shimoni/d 79 Nassor Juma
Nassar Juma Restriction by Chief
Restriction Chief Land
Land
Mwadzi Kombo
Mwadzi Kombo Registrar
Registrar Vide
Vide
CIGen/A/Ty/37
C/Gen/A/Ty/37 of
of 3131'st
March, 1999
March,1999
2 K waie/Shimoni/480
Kwale/Shimoni/480 Nassor Juma
Nassar Juma -do-
Mwadzi
Mwadzi Kombo
Kombo
3 Kwale/Shimoni/481
K waie/Shimonil481 Nassor Juma
Nassor Juma -do-
-do-
Mwadzi Kombo
Mwadzi Kombo
4 K waie/Shimoni/482
Kwale/Shimoni/482 Nassor Juma
Nassor Juma -do-
-do-
Mwadzi Kombo
Mwadzi Kombo
16Q
160
Sichangi Adv
Serial Name of Current

Parcelffitle No. Remarks
Remarks
No. Owner
5 K wale/Shimonil488 Nassor Juma -do-
Mwadzi Kombo
6 K wale/ShtfOOllil483 Asia Hassan -do-
Bwin
7 K wale/Shimonil484 Mwanawasha -do-
Abdallah Mambo
8 K wale/Shimonil485 Mohammed -do-
Mshee
Mwinyiamri
9 K wale/Shimonil486 Mwanashiti -do-
Mohamed
Nchamamba
10 K wale/Shimoni/493 Mwanashiti -do-
Mohamed
Nchamamba
11 K wale/Shimoni/487 Humphrey Kilei -do-
-do-
12
12 Kwale/Shimoni/489
K wale/Shimoni/489 Kassim Bakari
Kassim Bakari -do-
Mwamzandi
Mwamzandi
13
K wale/Shimonil495 Kassim
Kassim Bakari
Bakari -do--
Mwamzandi
Mwamzandi
14 K wale/Shimonil490 Mwinyi Ali - -
-do-
Mshindo
15
K wale/Shimonil491 Christine
Christine - -
-do-
Mambori
Mambori
16 K wale/Shimonil492 Josan-jeis Ltd -do-
-do-
17 K wale/Shimoni/494 Boy Juma Boy -do-
-do-
18 K wale/Shimoni/496 Sophia
e Rahim -do-
-do-
19 K wale/Shimoni/497 David Mwiti -do-
-do-
20 Title Nos. not available Issac Gathungu -do-
-do-
Waniohi
21
21 -do-
-do- Issac Gathungu
Issac Gathungu - -do--
Wan'ohi
Wanjohi
22 -do- Issac Gathungu -do-
Wanjohi•
23 -do- Isaiah Kirindi -do-
-do-
Wambugu
Mutonyi
24 -do- Isaiah Kirindi
Isaiah Kirindi - -
-do-
Wambugu
Wambugu
Mutonyi
Mutonyi
25 -do- Isaiah Kirindi . -do-
-do-
Wambugu
,
Mutonyi
161
161
Sichangi Adv
Serial
Serial Name Current
Name ofof Current
Parcel!fitIe
Parcel/Title No.
No.. Remarks
Remarks
No,
No. Owner
Ow
Owner
26
26 Title
Title Nos.
Nos. not
not available
available Isaiah Kirindi
Isaiah Kirindi Restriction
Restriction byby Chief
Chief Land
Land
Wambugu
Wambugu Registrar
Registrar Vide
Vide
Mutonyi
Mutonyi C/Gen/ Affy/37
C/Gen/A/Ty/37 of 3151st
of
March, 1999
March,1999
27 -do- Isaiah
Isaiah Kirindi
Kirindi -do-
Wambugu
Wambugu
Mutonyi
Mutonvi
28 -do- Issac
Issac Gathungu
Gathungu -do-
Wanjohi
Waniohi
29 -do- George
George Ngure
Ngure -do-
Kariuk
Kariukii
30 -do- Pwani Holding
Pwani Holding -do-
Resort
Resort Ltd
31 -do- Bantus
Bantus -do-
Investment
Investment Ltd
32 -do- Serious Holding
Serious Holding -do-
Ltd
33 -do- Pangos
Pangos Limited
Limited -do-
34 -do- Andrew Thiane
Andrew Thiane -do-
Imwaiti
Imwaiti
Lake
Lake Naivasha,
Naivasha, which is is an
an important
important national
national water
water body
body and
and aa Wetland
Wetland
of International
International Importance
Importance underunder the Ramsar
Ramsar Convention,
Convention, was was notnot spared
spared
the illegal
the illegal allocations.
allocations. Large
Large areas
areas around
around the lake
lake which
which fallfall within
within the
the
riparian reserve
riparian reserve boundary
boundary werewere illegally
illegally allocated
individuals and and
companies
companies and and titles
titles thereto
thereto issued.
issued. The
The Commission
Commission also also found
found that
that
Public Access
Public Access Corridors
Corridors andand Livestock
Livestock Easements
Easements to to the
the lake
lake were
were
illegally allocated
illegally while others
allocated while others have
have been
been encroached
encroached upon upon and and
consequently blocked.
consequently blocked. The
The uses to which
which the allottees
allottees have put the the lands
lands in
in
question have
question have adversely
adversely affected
affected thethe entire
entire lake
lake ecosystem.
ecosystem. BelowBelow is aa
Table showing
Table showing thethe particulars
particulars of these
these illegal
illegal allocations.
allocations.
162
Sichangi Adv
ANNEX 1.7 ILLEGAL
ANNEX 1.7 ILLEGAL ALLOCATION
ALLOCATION OF
OF RIPARIAN
RIPARIAN SITES
SITES
UNDER THE
UNDER THE CONTROL
CONTROL OF
OF KWS
KWS
Lake
Lake Naivasha
Naivasha Riparian
Riparian Land
Land Allocations
Allocations
Year
Year LR No.
LRNo. Allotee
Allotee Area
Area
11 1995
1995 7426/5
7426/5 La
La Pieve
Pieve Ltd
Ltd
2 7426/4
7426/4 Kongoni
Kongoni Farm
Farm
3 1998
1998 9352/3
9352/3 Sher Agencies
Sher Agencies
4 Pelican Farm
Pelican Farm
5 Kihoto
Kihoto Farm
Farm
6 22957/1
22957/1
7 22957/3
22957/3
8 22957/4
22957/4
9 Corridor
Corridor 12079
12079 Allocated-Name
Allocated-Name not
not
between
between and
and available
available
13202
13202
10 22967/3
22967/3 Lawrence Tony
Lawrence Tony Kuria
Kuria 6.07
6.07 Ha
Ha
11 22967/1
2296711 Duncan Kabethi
Duncan Kabethi 8.094Ha
8.094Ha
Wachira
Wachira
22967/2
2296712 Margaret Wambui
Margaret Wambui 2.023 Ha
2.023 Ha
Kagwe
Kazwe
12 22967/4
22967/4 Geoffrey Muhoro
Geoffrey Muhoro 24.61
24.61 HaHa
13 22967/4
22967/4
14 The Riparian
The Riparian Reserve,
Reserve, such
such as
as the
the Ablution
Ablution Block
Block of
of Safariland
Safariland
Club.
Club.
In
In Malindi
Malindi Robinson
Robinson Island
Island off
off Gongoni,
Gongoni, which which isis recognized
recognized as as one
one ofof the
the
few
few remaining
remaining Turtle Nesting
Turtle Nesting Sites
Sites inin the
the country
country and and aa Corridor
Corridor for for
Migratory
Migratory Water Fowl,
Water Fowl, and and also
also for
for itsits Fish
Fish Nurseries
Nurseries and and Mangrove
Mangrove
Forests, has
Forests, has been
been seriously
seriously encroached
encroached upon upon by by individuals
companies.
Their activities
Their activities threaten
threaten this
this important
important coastal
coastal ecosystem.
ecosystem. For For example,
example, in in
February 1996,
February 1996, 22 22 Hectares
Hectares of of the
the Island
Island werewere allocated
allocated toto SULEIMAN
SULEIMAN
RASHID SHAKOMBO
RASHID SHAKOMBO for for a Stand
Stand Premium
Premium of of 11 million
million shillings.
shillings. The The.
allocation was
allocation was made
made on on behalf
behalf of of the
the Malindi
Malindi County
County Council
Council by by thethe
Commissioner of
Lands. The The Letter
Letter of
of Allotment
Allotment was was signed
signed byby aa Mr.
Mr. G.O.
G.O.
163
163
Sichangi Adv
OCHIENQ
OCHIENQ on on behalf
behalf ofof the
the Commk'sioner
Commissioner of
of Lands.
Lands. The
The purported
purported
creation of a 99
creation of 99 year
year lease
lease on Trust
Trust land
land and
and marine
marine reserve
reserve was
was outrightly
outrightly
illegal.
illegal.
(iii) GAME
GAME RESERVES
RESERVES AND
AND NATIONALPARKS
NATIONAL PARKS
The
The Commission
Commission established
established that
that approximately
approximately 8% 8% of of the
the total
total landmass
landmass
of Kenya is
of Kenya is managed
managed as 26 26 National
National Parks and 30
Parks and 30 National
National Reserves
Reserves under
under
the mandate
the mandate of of Kenya
Kenya Wildlife
Wildlife Service.
Service. TheThe KWS
KWS central
central rolerole isis to
to
conserve,
conserve, protect and sustainably
protect and sustainably manage
manage Kenya's
Kenya's biological
biological resources
resources for for
the Kenyan public
the Kenyan public and
and as aa world
world heritage.
heritage. Apart
Apart from
from National
National ParksParks and
and
National
National Reserves
Reserves the Commission found
the Commission found.out
out that there are
that there are over
over 100100
parcels of
parcels land outside
of land outside protected
protected areas
areas designated
designated asas Game
Game Stations. These
Stations. These
are for
are for the
the purposes
purposes of problematic
problematic animal
animal controls
controls soso asas to
to solve
solve human
human
wildlife conflicts.
wildlife conflicts.
The National
The National Parks,
Parks, National
National Reserves
Reserves and
and Sanctuaries
Sanctuaries are
are conserved
conserved andand
managed under the
managed under the Wildlife
Wildlife (Conservation
(Conservation andand Management)
Management) Act, Act, which
which
clearly spells
clearly spells out
out the
the procedure
procedure for for cessation
cessation of
of the
the same.
same. Under
Under Section
Section 77
(2) subsection
(2) subsection 1(a)lea) and
and (b)
(b) the
the procedure,
procedure, which
which starts
starts with
with the
the Minister
Minister in
in
charge is finalized
charge finalized by by the
the National
National Assembly
Assembly resolution.
resolution. This
This process
process has
has
not been
not been easy
easy toto circumvent
circumvent as as in
in the
the case
case of forestlands.
forestlands.
ILLEGAL ALLOCATIONS
ILLEGAL ALLOCA TIONS WITHIN
WITHIN KWS
KWS PROTECTED
PROTECTED AREAS
AREAS (NATIONAL
(NA TIONAL PARKS,
PARKS, GAME
GAME
RESERVES AND SANCTUARIES)
RESERVES AND SANCTUARIES) .
Area
Area
Asset
Asset Area
Ar£3 Legal
Legal Allocation
Allocation Remarks
Remarks
ffeneficiary
Ifeneficiary (.Km2)
(.Km2)
Description
Description (km2)
(km7) Notice No.
Notice No. Authority
Authority /Comments
IComments
Affected
AlTected
I
I Hell's Gate
Hell's Gate ,68
,(i8 13 of
of Ken-Gen,
Ken-Gen. or 6.98
6.98 Government
Government Revoke
Revoke and issue
issue
National
National. 2/2/84
2/2/84 Power
Power 4 0.6
0.6 new
new titles
titles
Park
Park
2 Kiunga
Kiunga 250
250 291of
2910f Kasim
Kasim Shahare
Shahare Ali
Ali 0.0182
0.0182 Revoke
Revoke
Marine
Marine 26/10/79
26/10179 And
And others
others
National
National
Reserve
Reserve
3 Kisite
Kisite 28 92 of
92 of Title No.
Title No. Kwale/
Kwalel 0.008
0.008 Revoke
Revoke
):,~
Mpunguti
Mpunguti , 9/6/78
9/6178 Shimoni/ 496
Shimoni/496
National
National 1. Sophia
I. Sophia Rahim
Rahim
Park
Park 2. Sophia
2. Sophia Nzunguka
Nzunguka
Kilei
Kilei
164
Sichangi Adv
Area
Area
Asset
Asset Area
Area Legal
Legal Allocation
Allocation Remarks
Remarks
Beneficiary
ficiary
Beneficiary (.Km2)
(.Km2)
Description
Description (km2)
(km2) Notice
Notice No.
No. Authority
Authority /Comments
IComments
Affected
Affected
14 Mpunguti
Mpunguti II
II 91 of
910f Title/Kwale/Shimon
TltlelKwalelShimon 0.05
0.05 Revoke
Revoke Illegal
Illegal
Marine,
Marine. 9/6178
9/6n8 1/493
il493 0.03.7
0.037 allocations
allocations
National
National 1. Mwanasiti
I. Mwanasiti 0.121
0.121
Reserve
Reserve Mohamed Chabamba
Mohamed Chabamba
2. Christina
Christina M.
Mwakudu
Mwakudu
3. Sally
Sally Florence
Florence
Title No.
TitIeNo.
Kwale/Shimon1/494
KwalelShimonil494·
I. Boy
1. Boy Juma Boy
Juma Boy
Shee Hamisi
2. Shee Hamisi
Mwawidi
Mwawidi
Bakari Ali Kasiri
3. Bakari Kasiri
Title No.
Title No.
Kwale/Shimoni/495
KwaielShimonil495
Mwamzadi K.B.
1. Mwamzadi K.B.
Mohamed Mzee
2. Mohamed Mzee
Mwinyiamiri
Mwinyiamiri
Nasoro Juma
3. Nasoro Juma
5 Naivasha
Naivasha 6.473
6.473 Reserved
Reserved Naivasha Kanu
Naivasha Kanu 0.697
0.697 Subject to Court
Subject Court
W.T.F.L
W.T.F.I. by Youth Quarry
Youth Quarry ruling,
ruling, revoke.
revoke.
Commissio
Commissio Nairobi High
Nairobi High
ner
ner of
of Court
Court Misc.
Misc. Civil
Civil
lands Vide
lands Vide Application
Application No.
No.
85948/1 I/6
8594811116 231
231 of 2002
2002
77 of
of Jan
Jan
1977
6 Ras Tenewi
Ras Tenewi 406
406 Proposed
Proposed I. Nairobi ranch
1. Nairobi ranch 0.5
0.5 Government
Government Revoke
Revoke
National
National 2. Eco Marine(K)
2. Eco Marine(K)
Park
Park Ltd
Ltd
7 Malind
Malind 6 98 of
98 Franci Limited,
Franci Limited, P.O.
P.O. 0.1667
0.1667 Government
Government Revoke
Revoke
Marine
Marine 2613168
26/3/68 Box 56 Malindi
Box 56 Malindi Ha
8 Watamu
Watamu 10 98 of
98 of Require further
Require further
Marine
Marine 2613168
26/3/68 investigation
investigation
9 Ngai
Ngai 212 90f-9/1n6
9 of 9/1/76 Settlement Scheme
Settlement Scheme 212
212 Government
Government Revoke
Revoke
ndethya
ndethya Kilo-
Kilo-
National
National metres
metres
Reserve
Reserve
I
I Malindi
Malindi 213 99
99 of
of Encroachments By
Encroachments By Revoke
Revoke
0 Watamu
Watamu 26/3/68
26/3/68 Owners Plots
Owners of Plots
Marine
Marine Bordering High
Bordering the High
WaterMark
Water Mark
Besides, most
Besides, most of the allottees
allottees of National
National Parks
Parks and National
National Reserves
Reserves land
land
have not been
have not been allowed
allowed by by the
the KWS
KWS to to take
take possession
possession of of the
the same.
same,
However, the KWS
However, the KWSGameGamestation
stationplots
plotsare
arevulnerable
vulnerable totograbbing
grabbing since
since
they
they are
are not
not protected
protected areas.
areas. Some
Some have
have in fact
fact been
been allocated
allocated toto land
land
speculators
speculators as shown
shown below.
below,
Several KWS
Several KWS houses. located outside
houses. located outside the
the protected
protected areas
areas have
have similarly
similarly
been
been illegally
illegally allocated
allocated as shown in
as-shown in the
the Table below:
below:
165
165
Sichangi Adv
ILLEGAL
ILLEGAL ALLOCATION
ALLOCA TION OF
OF KWS
KWS LANDS
LANDS OUTSIDE
OUTSIDE PROTECTED
PROTECTED AREAS
AREAS
(STATION
(STA TION PLOTS)
PLOTS)
Area
Area
Asset
Asset Area
Area Letter
Letter of
of Allocation
Allocation
Illegal
Illegal Beneficiaries
Beneficiaries (Ha)
(Ha) Remarks
Remarks
Description
Description (HA)
(HA) Allotment
Allotment Authority
Authority
Affected
Affected
1I Embu
Embu Eustace
Eustace M.M. Njiru,
Njiru, P.O.
P.O. 0.07486
0.07486 Revoke
Revoke
Warden's
Warden's Box
Box 54637
54637 Nairobi
Nairobi Illegal
Illegal
House
House allocation
allocation
2 Garissa
Garissa 7 Mohamed
Mohamed Y.
Y. Abdi
Abdi 0.239
0.239 Case
Case still
still
Station
Station P.O.
P.O. BOX
BOX 563,
563. in Court
Court- —
Garissa
Garissa Subject
Subject to to
the
the court
court
, decision
decision
Revoke
Revoke
3 Ivory
Ivory 0.42 Josgid
Josgid Ltd
Ltd Box
Box 51990,
51990. 0.042
0.042 Revoke
Revoke
Room
Room Nairobi
Nairobi
4 Kakamega
Kakamega Revoke
Revoke
Proposed
Proposed
Park
Park Hqs
5 Kericho
Kericho \.\51
1.151 A. Jiwa
Jiwa Shamji
Shamji Ltd
Ltd 0.0464
0.0464 I Revoke
Revoke
Staff
Staff P.o. Box
P.o. Box 916,
916. Sotik
Sotik
Quarters
Quarters
6 Limuru
Limuru Hon. Simon
Hon. Simon K.
K. Revoke
Revoke
Kanyingi
Kanyingi
7 Malindi
Malindi 3 1. Mwalimu
I. Mwalimu 0.2 ha
0.2 TP
TP Revoke
Revoke
Former
Former K.Ngandu Box371
K.Ngandu B()x37 I Each
Each 47/X111/75
47/XI I 1175
Game
Game Malindi 2.
Malindi 2. TP
TP
Department
Department Benjamin Rondo
Benjamin Rondo Box
Box 47/X111/74
47/XI I 1174
(KWS)
(KWS) 371 Malindi
371 Malindi TP
TP
3. Z.A.
3. Z.A. Mabea
Mabea Box
Box 47/X111/72
47/XIII172
30089
30089 TP47/X111/70
TP47/XI I 1170
4. Amani
4. Amani SN Box
Box 371
371 TP47/X11U
TP47/XIIlI
Malindi
Malindi TP47/XI1U76
TP47/XIIlI76
5. Josphine
5. Josphine Wanjiku
Wanjiku TPXIIU79
TPXII1I79
Kariuki
Kariuki TP47/XIII/78
TP47/XII1I78
6. Salem
6. Salem Investment
Investment TP47X
TP47 X I111/68
I 1168
7. Francis
7. Francis Maritim
Maritim TP47/XI1U77
TP47/XII1I77
Box 30089
Box 30089 Nairobi
Nairobi TP47/X111/
TP47/X II11
8. Martin
8. Martin Saro
Saro Box
371 Malindi
371 Malindi
9. Francis
9. Francis B. Diwani
Diwani
box 5184
box 5184 Malindi
Malindi
10. Bahati
10. Bahati Temo
Temo Box
Box
371 Malindi
371 Malindi
11. Esther
II. Esther W.
W. Maina
Maina
166
Sichangi Adv
Area
Area
Asset
Asset Area
Area Letter of
Letter of Allocation
Allocation
Illegal
Illegal Beneficiaries
Beneficiaries (Ha)
(Ha) Remarks
Remarks
Description
Description (HA)
(HA) Allotment
Allotment Authority
Authority
Affected
Affected
BOX
BOX 30089.
30089.
12.Godfrey
12.Godfrey Mjomba
Mjomba
Box
Box 371
371 Malindi
Malindi
13.
13. John
John Thoya
Thoya Box
Box
371
371 Malindi
Malindi
88 Malindi
Malindi M/s
MIs Match
Match Designers
Designers Revoke
Revoke
staff hqs
staff hqs Ltd
Ltd Box
Box 61060
61060
Nairobi
Nairobi
9 Marrdera
Mandera Occupied
Occupied By
By Forest
Forest KWS
Asst. Dept. address
address the
the
warden
warden Irregularity
Irregularity
House
House
10.
10. Mkokoni
Mkokoni 8.609
8.609 202021/11
202021111
Plot, Hola
Plot, Hola I. Mohamed
1. Mohamed Aboud
Aboud 33 88405/118
884051118 of Revoke
Revoke
Badi
Badi Box 41 Hola
Hola 3 15/4/94
1514194 Revoke
Revoke
Bwana Tora Box
2. Bwana Box 41
41
Hola
Hola
II
11 Mombasa
Mombasa Sajad Ahmed
Sajad Ahmed Revoke
Revoke
Provincial
Provincial
office
office
12 Naivasha
Naivasha 52.2
52.2 Hosea Kiplagat
Hosea Kiplagat 26.77
26.77 Revoke
Revoke
Wildlife.
Wildlife
Annex
Annex
13 Nanyuki
Nanyuki I.
I. C.M.
C.M. Murlgo
Murlgo P.O.
P.O. 0.1 2585/9
2585/9 Revoke
Revoke
Station
Station Box 1356
Box 1356 Nairobi,
Nairobi, 0.1 XXIII of 28
XXlllof28
2. D.
2. D. Gitau,
Gitau, P.O.
P.O. Box 0.1 /11/95
111/95
420 Nanyuki,
420 Nanyuki,
D.N. Gethi,
3. D.N.
3. Gethi, P.O.
P.O.
Box 420"Nanyuki,
Box 4201Nanyuki,
4. James
4. James Gichui
Gichui W
Achira, P.O.
Achira, P.O. Box,
Box, 331,
331,
Nanyuki
Nanyuki
14
14 Moyale
Moyale Revoke
Revoke
Sub-Station
Sub-Station
15
15 Narok
Narok Ministry of
Ministry of Lands
Lands to
to Revoke
Revoke
Station
Station Provide Details
Provide Details
167
167
Sichangi Adv
National Reserves
National Reserves Under
Under Local
Local Authorities
Authorities
The
The Commission
Commission also also learnt
learnt that
that there
there are
are several
several National
National Reserves
Reserves which
which
fall under
fall under the jurisdiction of
the jurisdiction of local
local authorities.
authorities. None
None of of the
the local
local authorities
authorities
provided
provided informationregarding
information regardingthe the status
status of of these
these Reserves.
Reserves. The The
Commission recommends
Commission recommends that that further
investigations be carried
be carried outout to to
establish status
establish status of these
these reserves.
reserves. Below
Below is is aa Table
Table showing
showing the the Reserves:
Reserves:
S
SI / Name
Name of
of Area,
Area, Sq.
Sq.
PDP/
PDP/B.B. Plan
Plan Legal
Legal Notice
Notice
No. Reserve
Reserve Km
Km
1I Lake Bogoria
Lake Bogoria 107 216/26
216/26
2 Shaba
Shaba 239
239 216/25
216/25 268
268 of 12/10/1974
12/10/1974
3 Masai
Masai Mara
Mara 1510 216/50
216/50 271
271 of 1/11/1974
1/11/1974
4 Arawale
Arawale 533 216/23
216/23 272 of 1/11/1974
272 of 1/11/1914
5 Mwea
Mwea 68 216/29
216/29 6 oF9/1/1976
oF9/1/1976 ..
6 Rahole
Rahole 1270 2161727
216/727 5 of 9/1/1976
9/1/1976
Tana River
Tana River
7 Prim.
Prim. 169 216/28
216/28 44 of
of 9/1976
9/1976
8 Boni
Boni 1339 216/31 7 of 9/1/1976
9/1/1976
9 Losai,
Losai, 1806 216/30
216/30 9/1/1976
8 of 9/1/1976
10 Dodori
Dodori 877 216/33
216/33 75 of 14/5/1978
75 14/5/1978
11
11 Nyambene
Nyambene 640.6
640.6
12
12 South
South Kitui
Kitui 1133 216/41 186 of 7/9/1979
186 of7 /9/1979
13
13 North
North Kitui
Kitui 745 216/40
216/40 187
187 of7 /8/1979
of 7/8/1979
14
14 Bisanadi
Bisanadi 808 216/42
216/42 261 28/9/1979
261 of 28/9/1979
15
15 South Turkana
South Turkana 1019 216/44
216/44 290
290 of 26/10/1979
26/10/1979
16
16 Chepkitale
Chepkitale 178
17
17 Nasolot
Nasolot 194 216/43
216/43 300 of 2/11/1979
300 2/1111979
18
18 Kerio
Kerio Valley
Valley 66 216/46
216/46 13 of
of 261111983
26/1/1983
19 Kamnarok'
Kamnarok' 87.7 216/47
216/47 101 of
101 of 14/6/1983
14/611983
20 Samburu
Samburu 165 216/38
216/38 188 of 2318/1985
188 of 2318/1985
21 Buffalo Springs
Buffalo Springs 131
131 216/53
216/53 189 of 23/8/1985
189 of 23/8/1985
22 Maralal
Maralal Sanct
Sanct 5 216/51
216/51 564
564 of 2/12/1988
211211988
Laikipia.
Laikipia.
23 Kirimon
Kirimon 165 216/57
216/57 526
526 of 16/10/1991
16/10/1991
24 Ngai
Naai Ndethya
Ndethya 212
212 216/32
216/32 9 of 9/1/1976
9/1/1976
Lake Simbi
Lake Simbi
25 Sanct,
Sanct, 0.417
0.417
Ondago Swamp
Ondago S~amp
26 Sanct,
Sanct, 0.248
0.248
168
168
Sichangi Adv
(iv) NATIONAL
NATIONAL MUSEUMS
MUSEUMS AND
ANDHISTORICAL
HISTORICAL MONUMENTS
MONUMENTS
The Commission
found that
that of
of the
the list
list of
of lands
lands under
under National
National Museums
Museums.
the following
the following parcels
parcels of
of land
land had
had been
been allocated
allocated illegally
illegally asastabulated
tabulated
below:
below:
Plot/LR
PlotlLR Date
Date of of Reserved/
Reserved! Gazettement
Gazettement
Name
Name Location
Location CoMment
Comment
No
No Allocation
Allocation Intended
Intended use
use Date
Date
I. Ras
1. Ras Bofu
Bofu Parcel
Parcel 12/10/1976
1211011976 Mombasa
Mombasa National
National Allocated
Allocated
1589 Museums
Museums but not
but not yet
developed
developed
Fort St.
Fort P.D.P
P.D.P Mombasa
Mombasa National
National Access
Access
Joseph
Joseph 12.2.CT
12.2.CT MuseumS '.
Museums Allocated
Allocated to
9.93
9.93 Kamlesh
Kamlesh
Pandya
Pandya &
Hites
Hites Pandya
Pandya
Kongo
Kongo 13445 Kwale
Kwale National
National 1986
:986 Allocated
Allocated to
Mosque
Mosque Museum
Museum former
former
President
President
Moi
Moi
Eldoret
Eldoret P.R.
F.R. 29/9/1995
29/9/1995 Eldoret
Eldoret Museum
Museum Allocated
Allocated to
306/165
306/165 Developed;
Developed;" Boaz Kaino
Boaz Kaino
Kitale
Kitale KTL/BLO
KTUBLO Kitale
Kitale Museum
Museum
Museum
Museum CK
CK Developed
Developed
V/11358
V/l1358 .
Hyrax
Hyrax Hill Nakuru
Nakuru National
National Allocated
Allocated
II
Site
Site" Monument
Monument Raju
to Raju
Shah
Mama
Mama P.D.P
P.D.P Mombasa
Mombasa National
National 1997 Portion
Portion
Ngina
Ngina 12.2. Monument
Monument Grabbed
Grabbed
Drive
Drive ;
CT.I07
CT.107
A.96
A.96
Redoubt
Redoubt P.D.P
P.D.P Mombasa
Mombasa National
National Access
Access I
12.2.CT
12.2.CT Monument
Monument Grabbed
Grabbed
.29.93
I11I By
By Gazette
Gazette Notice
Notice No
No 2018
2018 of
of April,
April, 13,
13, 1995
1995 Hyrax
Hyrax Hill
Hill Site
Site was
was declared
declared under
under 'The
'The
Antiquities and Monument
Antiquities and Monument Act as National
National Monument
Monument (or site
site of
of historical
historical interest
interest
measuring
measuring approx.
approx, 27 HA, including
including the whole
whole of LR. 4720/50
ofLR. 4720/50 and
and portion
portion of LR 11264,
ofLR 11264,
situated
situated within
within Nakuru
Nakuru Municipality,
Municipality, Nakuru
Nakuru District.
District.
169
Sichangi Adv
(v) PROTECTED
(v) PROTECTED AREAS
AREAS FOR
FOR NATIONAL
NATIONAL SECURITY
SECURITY REASONS
REASONS
These are
These are public
public land
land areas,
areas, which
which for
for interests
interests ofof public
public security
security and
and
public order are Gazetted
public order Gazetted as protected.
protected. The
The Protected
Protected Areas
Areas Act,
Act, Cap
Cap 204,
204,
establishes these protected
establishes these protected areas.
areas. The protected
protected areas
areas include
include and
and are
are not
not
limited
limited to State Houses
Houses and
and State
State Lodges
Lodges grounds
grounds throughOut
throughout the
the Republic,
Republic,
Military barracks, camps,
Military barracks, camps, Army Army Ammunition
Ammunition Depots,Depots, AirAir Force
Force
Aerodromes all of which
Aerodromes which areare bounded
bounded by fences;
fences; Kenya
Kenya Navy facilities
facilities i.e.
i.e.
bases
bases and
and jetty areas, all
jetty areas, all of which
which are bounded
bounded on on all sides by high
all sides high post
post
and chain-linked
chain-linked fence.
fence.
Others are
Others are National
National Youth
Youth Service
Service camps
camps all
all bounded
bounded by by fences;
fences; Police
Police
facility grounds
facility grounds such
such as
as office
office areas,
areas, Dog
Dog Sections,
Sections, Police
Police depots,
depots, Police
Police
Driving Schools, the Police
Driving Schools, Police Signals,
Signals, Stores,
Stores, Workshops
Workshops and and the Armouries,
the Armouries,
Police Airwings hangars, Police Training Centres, Police Anti- Stock
Police Airwings hangars, Police Training Centres, Police Anti- Stock Theft Theft
Unit Camps,
Unit Camps, Wireless
Wireless Repeater
Repeater Stations
Stations on various
various hills,
hills, Police
Police General
General
Service Unit Training Centres,
Service Unit Training Centres, Camps
Camps aad:
and Presidential
Presidential Escort
Escort Section
Section
Camps, all of which
Camps, which are
are bounded
bounded by by fences.
fences.
All these
All these public
public lands
lands cannot
cannot be be allocated
private individuals
individuals or or
companies. Any
companies. Any purported
purported allocations
allocations of of such
such lands
lands are
are illegal.
illegal. Even
Even
where such
where such lands
lands are
are excised
excised forfor alienation
alienation for
for private
private use,
use, certain
certain special
special
procedures must
procedures be followed
must be followed overover and
and above
above those
those provided
provided for for in
in the
the
Government Lands
Government Lands Act
Act orthe
or' the trust
trust Lands
LandsAct.Act. These
These areas
areas or category
category of
lands are considered
lands considered soso strategically
strategically important
important that
that they
they must
must remain
remain inin the
the
public domain.
public domain. TheThe Government
Government and and its
itsagents
agents undertake
undertake totoprotect
protect such
such
lands from
lands from alienation
alienation or allocation
allocation or or improper
improper useuse by
by individuals
individuals and and
corporate bodies.
corporate bodies. This
This explains
explains whywhy Parliament
Parliament hashas enacted
enacted specific
specific laws
laws
meant to protect
meant protect the above outlined
outlined lands.
lands.
Illegal allocation
of Protected
Protected Areas
Areas
The Commission
found that
that a number
number of of these
these lands
lands have
have been
.been illegally
illegally
allocated to
companies. The The Commission
Commission however
however
experienced great
experienced dIffiCUlty in accessing
great diffictilty accessing information
information from
fr~m official
official sources
sources
which would
which would have enabled
enabled itit to
to identify
identify the
the persons
persons and
and companies
companies that
that the
the
allocations were
allocations were made
made to. From
From the the incomplete
incomplete records
records made
made available,
available, thethe,
170
Sichangi Adv
Commission
Commission found that
found that lands
lands belonging
belonging to
to the
the military
military asas highlighted
highlighted
below
below were
were illegally
allocated.
Coast Region
Coast Region
1.
1. Kenya Navy
Kenya Navy Mtongwe
Mtongwe — where two
- where two parcels
parcels of of land
land were
were illegally
illegally
allocated
allocated to aa private
to private developer
developer inside
inside thethe Mtongwe
Mtongwe Base.Base. The The
allottee
allottee having
having beenbeen denied
denied access
access nownow claims
claims compensation
compensation of
of
Kshs. 8.5
Kshs. 8.5 millions
millions fromfrom the the Department
Department of
of Defence.
Defence. NameName of of
allottee
allottee was
was not
not disclosed
disclosed to to the
the Commission
Commission despite
despite efforts
efforts to to get
get
it.
it.
2.
2. Diani
Diani Maritime
Maritime Surveillance
Surveillance Radar
Radar (Masura)
(Masura) isis reported
reported toto have
have
been
been allocated
allocated toto Mr.
Mr. Maina
Maina Rwingo
R wingo and
and Mr.
Mr. Mutua
Mutua both of whom
both of whom
being registered
being registered public
public surveyors,
surveyors, are
are claiming
claiming ownership
ownership of of the
the
land.
3. Canon Point (Masura)
Canon (Masura) whose
whose title
title is
is currently
currently being
being held
held by
by aabank.
bank.
4. Malindi
Malindi (Masura)
(Masura) — the land
- the land was
was allocated
allocated to
to DODDOD in in 1988
1988 later
later
allocated to Mr. Darman
allocated Darman who
who purportedly
purportedly sold
sold itit to
to Mr.
Mr. Mohamed.
Mohamed.
5. Forward
Forward, Operation Base (FOB)
Operation Base (FOB) — - isis land
land measuring
measuring 50 50 acres
acres
located at
located at sea
sea front
front at
at the
the Port
Port Reitz
Reitz Harbour,
Harbour, three
three quarters
quarters of
of
which
which was excised and
was excised and illegally
iiIegallyallocated
allocated totoprivate
private developers.
developers.
Nairobi
Nairobi Region
Region
1. Moi
Moi AirAir Base
Base (MAB)
(MAB) — - The
The land
land measuring
measuring 10 10 acres
acres was
was
irregularly
irregularly left out of the protected
protected area space at at the
the time
time of
of fencing
fencing
and
~nd to date it is occupied
occupied by
by dwellers
dwellers as
as aa slum
slum area.
area.
2. Embakasi
Embakasi Garrison
Garrison —NOON
-NodN WORKSWORKS AND AND SUPPLIES
SUPPLIES LTD were were
illegally
illegally allocated
allocated the
the Garrison's
Garrison's main
main gate.
gate. Titles
Titles to
to the
the gate
gate have
have
been issued
been issued despite
despite lack
lack of
of access
access to
to the
the same.
same.
3. Embakasi Area
Embakasi Area — DODlost
- DOD lost 400ha
400ha to
to Sololo
Sololo Outlets
Outlets and 87ha
87ha to
to
Torino Company
Torino Company Limited.
Limited.
4. Headquarters Kenya
Headquarters Kenya Army
Army Land
Land (Karen)
(Karen) —
- the original
original protected
protected
area measuring
area measuring 75.38HA
75.38HA part
part of
of which
which has
has systematically
systematically been
been
Illegally allocated.
5. Roysambu —
Roysambu the area
- the area in
in question
question is a subject
subject of
of aa court
court case.
case.
171
171
Sichangi Adv
6.
6. Air House
Air House — - onon Riara
Riara Road
Road on
on land
land measuring
measuring 2.9acres
2.9acres officially
officially
meant for
meant for Air
Air Force
Force Commander
Commander and and last
last occupied
occupied by by the
the former
former
Chief of
Chief of General
General Staff,
Staff, GEN.
GEN. TONJE
TONJE in in 1997
1997 was was illegally
illegally
allocated to
allocated to BRIGADIER
BRIGADIER (RTD) SITIENEI
(RTD) SITIENEI who
who is is believed
believed to to
have sold
have sold it to aa third
third party.
party.
7.
7. Gatharani Ammunition
Gatharani Ammunition Sub-Depot
Sub-Depot — measuring 673.5
- measuring 673.5 acres
acres was
was in
in
the process
the process of of allocation
allocation for for purpose
purpose ofof Ammunition
Ammunition Depot
Depot and
and
rifle shooting range but in the process the DOD only got 533.9
rifle shooting range but in the process the DOP only got 533.9
acres and
acres and lost
lost 139.6
139.6 acres.
acres.
8.
8. Thika Garrison
Thika Garrison — wason
- was on land
land measuring
measuring 987ha,
987ha, however,
however, out
out ofof
that reserved
that portion .350ha
reserved portion "350ha has
has been
been demarcated
demarcated and
and illegally
illegally
allocated to
allocated to private
private developers.
developers.
Rift
Rift Valley Region
Valley Region
1.
1. Lion Hill
Lion Hill Range
Range — the range
- the range covers
covers 1O.26ha
10.26ha butbut the
the adjacent
adjacent land
land
was allocated
was allocated toto individuals.
individuals. TheThe land
land has
has since
since been
been developed
developed
thiis exposing
thus exposing the
the residents
residents toto flying
flying bullets
bullets and
and other
other safety
safety risks.
risks,
2. Moi Barracks
2.Moi Barracks (Eldoret)
(Eldoret) — land measuring
- land measuring 16, 16, 277
277 acres
acres was
was
compulsorily acquired from number of local farmers who were
compulsorily acquired from a number of local farmers who were
duly compensated.
duly compensated. Currently
Currently there
there is
is massive
massive encroachment
encroachment on on
over 10,000acres by squatters.
over 1O,000acres by squatters.
Central Province
Central Province Region
Region
1.
1. Gathiuru
Gathiuru Ammunition
Ammunition Sub-Depot
Sub-Depot (ASD)
(ASD) —- The The area
area surrounding
surrounding
the
the depot
depot has
has been
been illegally
illegally allocated
private developers,
developers, butbut
given
given the
the highly
highly explosive
explosive ordinances
ordinances stores
stores atat the
the depot
depot there
there isis
imminent
imminent danger
danger toto allottees
allottees around
around there.
there.
Nanyuki/Isiolo
Nanyukifisiolo Region
Region
1. Nanyuki
1. Nanyuki Barracks
Barracks —- Kwambuzi
Kwambuzi area area isis disputed
disputed between
between DOD DOD
and the
and the area
area County
County Council
Council which
which in in 1998
199,8 gazetted
gazetted thethe area
area as as
Trust Land
Trust Land vide
vide Gazette Notice No.
2143 of of April
April 30,
30, 1998
1998 andand
". proceeded
t . proceeded totosub-divide
sub-divide andand allocate
allocate itittotoaa number
number of of individuals
individuals
who dangerously
who dangerously settled
settled in
in the
the protected
protected area.
area. Also
Also contrary
contraryto - to the
the
172
172
Sichangi Adv
site plan
site plan the
the area
area next
next to
to 43
43 ordinance
ordinance camp
camp Coy
Coy (OCC)
(OCC) is
is
developed
developed byby private
private developers.
developers.
2. Laikipia
2. Laikipia AirAirBase
Base(LAB)
(LAB)—- the
the area
area surrounding
surrounding aa watering
watering point
point
was illegally
was illegally excised
excised out
out and
and allocated
allocated to to aa private
private developer
developer out
out
of
of Air
Air Force
Force land.
land.
North Eastern
North Eastern Province
Province Region
Region
1.
1. Garissa
Garissa Barracks
Barracks — - the
the Barracks
Barracks is
is co-located
co-located with
with Garissa
Garissa Airstrip,
Airstrip,
but the
but the Air
Air area,
area, which
which was
was part
part ofof the
the barracks,
barracks, waswas illegally
illegally
allocated
allocated to
to a private
private developer,
developer, who
who hashas constructed
constructed houses.
houses.
The
The little
little information
received fromfrom DODDOD points
points toto massive
massive illegal
illegal
allocations of
allocations of protected areas. This
protected areas. This calls
calls for
for urgent
urgent investigation,
investigation, with
with aa
view to
view to revoking
revoking all
all illegal
illegal titles.
titles.
State Houses
State Houses and
and Lodges
Lodges
The Commission
The Commission also found
also found thatthat some
some land land belonging
belonging to to the
the country's
country's
State Houses
State Houses and and Lodges
Lodges may may have
have been
been illegally
allocated. Most
Most State
State
Houses
Houses andand Lodges
Lodges are are not
not surveyed.
surveyed. Part Part Development
Development Plans
Plans andand area
area
Maps
Maps had
had toto be
be used
used to
to identify
identify thethe sites.
sites. Information
Information made made available
available toto the
the
Commission
Commission indicates
indicates that
that land
land reserved
reserved for for State
State Houses
Houses and and Lodges
Lodges hashas
been illegally
been illegally allocated
allocated in in the
the following
following areas:
areas:
• State
State House,
House, Nairobi
Nairobi originally
originally had had an an area
area ofof 100.66
100.66 hectares.
hectares.
Over the
Over the years
years aa number
number of of excisions
excisions have have taken
taken place
place withwith thethe
result that the current area is approximately 91.55 hectares. The
result that the current area is approximately 91.55 hectares. The
Commission was
Commission was unable
unable toto obtain
obtain details
details of of the
the allottees,
allottees, and and
recommends the
recommends the matter
matter be be investigated
investigated further
further and
and the
the illegal
illegal titles
titles
revoked.
revoked.
• Malindi State
Malindi State Lodge,
Lodge, withwith an an area
area ofof approximately
approximately 66 acres
acres waswas
illegally allocated
illegally allocated to to Yusuf
Yusuf Haji,
Haji, former
former Provincial
Provincial Commissioner
Commissioner
and current
and current M.P.M.P. for
for Ijara.
Ijara.
• Rumuruti State
Rumuruti State Lodge
Lodge — although acquisition
- although acquisition ofof thethe land
land for
for this
this
Lodge and
Lodge and the
the actual
actual construction
construction was
was financed
financed using
using public
public funds,
funds,
title to
title to the
the land
land isis reportedly
reportedly in in the
the name
name of of an
an individual.
individual. The
The
173
173
Sichangi Adv
• Commission was
Commission was unable
unable to to get
get particulars
particulars on on the
the individual
indi vidual
concerned.
concerned.
• Ex-Duke of
Ex-Duke of Manchester
Manchester Land,Land, Kitale
Kitale — during the
- during the creation
creation of of
Milimani Settlement
Milimani Settlement Scheme,
Scheme, an an area
area ofof 297
297 hectares
hectares was
was reserved
reserved
for State
for State House.
House. However
However in in the
the course
course of of surveying
surveying the
the land,
land, the
the
area was
area was reduced
reduced to to 143.45
143.45 hectares.
hectares. Investigations
Investigations should
should be be
undertaken to
undertaken to establish what happened
establish what happened to to the
the balance
balance ofof the
the land.
land.
The allocation
The allocation ofof such
such land
land should
should be be revoked.
revoked.
(g) Conclusions
Conclusions
The Commission
The Commission concluded
concluded thatthat inin allocating
allocating military
military and
and related
related lands,
lands,
the concerned
the concerned public
public officials
officials completely
completely ignored
ignored thethe public
public interest
interest
inherent in the protection
inherent protection of
of these
these areas
areas and
and instead
instead gave
gave in in to
to interests
interests of
of
private individuals whose
private individuals whose only
only motive
motive waswas to to make
make profit.
profit. In so so doing,
doing,
they not only
they only endangered
endangered thethe lives
lives and
and security
security ofof the
the citizens,
citizens, they
they also
also
compromised
compromised the the country's
country's sovereignty.
sovereignty. The The Government,
Government, in in condoning
condoning
such illegal
such illegal allocations
allocations ofof protected
protected land,land, failed
failed in
in its
its supreme
supreme duty duty ofof
guaranteeing the security
guaranteeing security of
of its
its citizens.
citizens.
(h)
(h) Recommendations
Recommendations
Forest Lands
Forest Lands
1. All excisions
All excisions of forestland
forestland which
which were
were made
made contrary
contrary to
to the
the
provisions
the Forests
Forests Act
Act and
and the
the Government
Government LandsLands Act
Act
should be
should be cancelled.
cancelled. All
All titles
titles which
which were
were acquired
acquired consequent
consequent
upon the
upon the illegal
illegal excisions
excisions and
and allocations
allocations of
of forestland
forestland should
should be
be
revoked.
revoked. TheThe forestlands
forestlands affected
affected should
should bebe repossessed
repossessed andand
restored
restored to their original
original purpose.
purpose.
2. Where the
Where the Forestlands
Forestlands have have been
been substantially
substantially developed
developed whether
whether
by
by the
the original
original allottee
allottee or or third
third party,
party, such
such that
that they
they cannot
cannot be
be
restored
restored to their
their original
original purpose,
purpose, titles
titles thereto
thereto should
should nonetheless
nonetheless
be
be revoked
revoked (given
(given their
their inherent
illegality). The
The Government
Government may may
however issue
however issue new titles
titles to
to the
the current
current registered
registered proprietors
proprietors upon
upon
new terms
new terms andand conditions.
conditions. Provided
Provided that that where
where the
the Government
Government
decides
decides to to issue
issue new
new titles,
titles, all
all requirements
Planning and
and
Environmental Legislation must be strictly strictly complied
complied with.
with.
174
Sichangi Adv
3.
3. Where Forest
Where Forest land
land was was excised
excised forfor the
the purpose
purpose ofofestablishing
establishing-a •a
settlement scheme
settlement scheme for for the
the landless
landless without
without complying
complying with with the
the
requirements of
requirements of the
the Forests
Forests Act,
Act, and
and thethe land
land has
has since
since been
been settled
settled
by the
by the landless,
landless, titles
titles thereto
thereto should
should nonetheless
nonetheless be be revoked
revoked (given
(given
their inherent
their inherent illegality)
illegality) however
however the the Government
Government should
should comply
comply
with the.
with Forests Act
the Forests Act other
other Environmental
Legislation andand issue
issue new
new
to the
titles to
titles the landless
landless settlers
settlers only.
only.
4.
4. Where the
Where the land
land inin question
question is
is aa water
water catchment
catchment area
area or
or aa fragile
fragile
ecosystem,
ecosystem, the the Government
Government should
should urgently
urgently settle
settle the
the landless
landless on on
alternative and appropriate land.
alternative and appropriate land.
5.
5. All forest
All forest excisions
excisions (however
(however regular),
regular), and
and consequent
consequent allocations
allocations
to individuals for their personal gain should revoked.
to individuals for their personal gain should be revoked.
6.
6. The
The Government
Government should
should withdraw
withdraw all all 2001
200 1 Gazette
Gazette andand Legal
Legal
Notices of intention to excise forest land which notices have been
Notices of intention to excise forest land which notices have been
challenged
challenged in in court
court so
so as
as to
to facilitate
facilitate thethe withdrawal
withdrawal of of pending
pending
cases and the eventual rationalization of settlements in accordance
cases and the eveAtual rationalization of settlements in accordance
with the
with the law
law andand conservation
conservation priorities.
priorities,
7.
7. All Exchanges
All Exchanges ofof forest
forest land
land with
with private
private landowners
landowners in which
which the
the
Government
Government was defrauded
was defrauded ofof land
land should
should be
be cancelled
cancelled and
and any
any
titles thereto
titles thereto revoked.
revoked.
8.
8. All Nyayo
All Nyayo Tea Tea Zones
Zones should
should be be abolished
abolished and
and the
the lands
lands thereof
thereof
revert to forest
revert to forest land.
land. Any
Any titles
titles to
to Nyayo
Nyayo Tea
Tea Zone
Zone land
land which
which have
have
been
been acquired
acquired byby private
private individuals
individuals pursuant
pursuant to
to the
the allocation
allocation or or
purchase of such land should be revoked.
purchase of such land should be revoked.
9.
9. All
All illegal
illegal allocations
allocations of of land
land around
around indigenous
indigenous close
close canopy
canopy
forests
forests should
should be cancelled
cancelled and
and titles
titles thereto
thereto revoked.
revoked.
All allocations
10. All
10. allocations of of forestland
forestland toto the
the Agricultural
Agricultural Society
Society of
of Kenya
Kenya
should be cancelled and the land repossessed by the Government.
should be cancelled and the land repossessed by the Government.
11.
11. All
All Gazetted
Gazetted forest
forest boundaries
boundaries should
should be
be resurveyed
resurveyed forfor validation
validation
and
and rectification
rectification in in accordance with the
accordance with the latest
latest Inventory
Inventory complied
complied
by the Forest
by the Forest Department.
Department.
175
Sichangi Adv
12. The
12. The Government
Government should
should urgently
urgently table
table the
the Forests
Forests Bill
Bill before
before
parliament for enactment.
parliament enactment.
Wetlands
Wetlands
1. All allocations of land
All allocations land within
within and
and around
around Riparian
Riparian areas
areas and
and Sites
Sites
and other Wetlands
and other Wetlands in the
the country
country should
should be
be cancelled
cancelled and
and titles
titles
thereto revoked without
thereto revoked without exception.
excepti.on.
2. All allocations of Public

All allocations Public Access
Access Corridors
Corridors and
and other
other Easements
Easements toto
Lakes, Rivers, etc
Lakes, Rivers, etc and
and the
the Indian
Indian Ocean
Ocean should
should be
be cancelled
cancelled and
and
3. All allocations
allocations of
of islands
islands and
and marine
marine parks
parks in
in the
the country
country should
should be
be
cancelled thereto revoked
cancelled and titles thereto revoked without
without exception.
exception.
4. The Government
The Government should
should develop
develop .a.acomprehensive
comprehensive Wetlands
Wetlands
Management and Plan
Management Policy and Plan for
for the
the country.
country.
5. The Government
should promote
promote international
international cooperation
cooperation inin
regard trans-boundary wetlands,
regard to trans-boundary wetlands, and
and other
other shared
shared water
water systems
systems
etc.
6. All public officers,

All public officers, individuals,
individuals, professionals
professionals and
and companies
companies thatthat
participated
participated in the illegal
illegal allocation
allocation and
and sale
sale of
of forest
forest land
land should
should
be investigated with
be investigated with aa view
view toto being
being prosecuted
prosecuted where
where they
they may
may
have
have committed offences.
committed offences.
7. The Government
should institute
institute legal
legal measures
measures ofofrecovering
recovering
money
money that was gotten
that was gotten from
from thethe illegal
illegal allocation
allocation and
and sale
sale of
of
wetlands.
wetlands.
8. The Government
should undertake
undertake the survey and
the survey and protection
protection ofof
riparian sites and other
riparian sites other wetlands.
wetlands. Consequently,
Consequently, it should
should stop
stop the
the
current human activity
current human activity encroaching
encroaching the
the following
following wetland/riparian
wetland/riparian
areas
areas —- Lake
Lake Naivasha,
Naivasha, Lake Olbollosat, Lake
Lake Olbollosat, Lake Victoria,
Victoria, Indian
Indian
Ocean coast1ine 100 ft from high water mark
Ocean coastline 100 ft from high water mark inland, Lake inland, Lake
Elementaita, Omo
Elementaita, Omo Delta
Delta on
on Lake
Lake Turkana
Turkana and
and Tana
Tana Delta.
Delta.
176
Sichangi Adv
9. The
9. TheGovernment
Government through
through KWSKWS andandthetheNational
National Environment
Environment
Management Authority,
Management Authority, should
should undertake
undertake to to develop
develop aanational
national
inventory of
inventory of wetlands
wetlands inin the
the country
country asas aa.basis
basis for
for ensuring
ensuring their
their
sustainable use.
sustainable use.
Protected Areas
Protected Areas (For
(For National
National Security
Security Reasons)
Reasons)
All
All allocations
allocations ofof lands
lands classified
classified as security
security areas
areas should
should be
be cancelled
cancelled and
and
titles
titles thereto
thereto revoked
revoked without
without exception. The lands
exception. The lands inin question
question should
should
revert to
revert to their
their original
original purpose.
purpose.
(i) Impact
(i) ImpactofofForest
ForestExcisions
Excisions on
onthe
theEnvironment
Environment and
and Economy
Economy
Introduction
Introduction
Forest ecosystems
Forest ecosystems present
present aa complex
complex economic
economic natural
natural resource.
resource. This This is
is
because they
because they provide
provide environmental
environmental goodsgoods andand services.
services. Forests
Forests provide
provide
goods
goods to to the
the local
local economy
economy through
through provision
provision of of timber
timber and andnon-timber
non-timber
products. ItIt also
products. also provides
provides environmental
environmental services
services given
given its its capacity
capacity to to
manage
manage and and regulate
regulate water
water flow,
flow, soil
soil erosion
erosion andand nutrient
nutrient recycling.
recycling. Forests
Forests
are
are an
an important
important source
source ofof food
food (plant
(plant and
and animal),
animal), employment,
employment, medicinemedicine
and
and many
many other
other non-wood forest products.
non-wood forest products. Forests
Forests are are valued
valued for for their
their
cultural and religious
cultural and religious values. They are
values. They are both
both home
home to to and
and part
part andand parcel
parcel ofof
biodiversity. Given
biodiversity. Given these
these facts,
facts, forests
forests should
should notnot be
be allocated
individuals
recklessly. Yet
recklessly. Yet this
this is what
what has
has happened
happened in in the
the country
country overover thethe years,
years, with
with
devastating effects.
devastating effects.
Impact of Forest
Impact of Forest Excisions
Excisions on the
the Environment
Environment
Impacts
Impacts ofof forest
forest excisions and illegal
excisions and illegal settlements
settlements areare now
now being
being felt.
felt. The
The
negative environmental
negative environmental impacts
impacts include
include reduction
reduction in forest
forest cover,
cover, depletion
depletion
of
of biodiversity
biodiversity and
and damage
damage to to water
water (catchment
(catchment areas)
areas) and
and soil
soil resources.
resources.
Excisions have
Excisions have also
also caused
caused stress
stress onon wildlife
wildlife habitats
habitats resulting
resulting in in serious
serious
human
human wildlife
wildlife conflicts
conflicts inin Districts
Districts neighbouring
neighbouring major
major National
National Game Game
Parks and National
Parks and National Game
Game Reserves.
Reserves. Some
Some of the examples
of the examples of the the negative
negative
effects
effects are:
Reduction in Forestland
Reduction in Forestland Area
Area and
and Cover
Cover
Excision of
Excision of a total
total of
of over
over 297,
297, 000 000 hectares
hectares ofof forestland
forestland has
has reduced
reduced the
the
total forestland area from 1.7 million hectares 1.4 million hectares which is
total forestland area from 1.7 million hectares to 1.4 million hectares which is
2.5
2.5 % ofof the
the total
total land
land area,
area, but
but itit is
is only
only 1.7%
1.7% which
which isis closed
closed canopy
canopy forest.
forest.
177
Sichangi Adv
According
According to international standards
to international standardsany any country
country with
with less
less than 10% of
than 10% of
closed canopy
closed canopy forest
forestcover
coverofof its land area
its land area isis considered
considered to to bebe
environmentally unstable.
environmentally unstable. The
The excision
excision has
has reduced
reduced both
both the
the forestland
forestland area
area
and forest cover.
Catchment
Water Catchment
Kenya water catchment
Kenya has five main water catchment towers,
towers, which include
include Mt.
Mt. Kenya,
Kenya, The
The
Complex, Mt.
Mau Complex,
Mau Mt. Elgon,
Elgon, Cherengani,
Cherengani, and
and .the
.the Aberdares. Some of
Aberdares. Some of these
these
important
important water catchments have
water catchments have been
been severely
severely affected
affected through
through forest
forest
excisions. Some examples
excisions. Some examples are:
are:
~â The settlement
settlement on 34,273.4
34,273.4 ha ha of
of indigenous
indigenous forests
forests in Eastern
Eastern and
and South
South
Western
Western Mau Mau Forest
Forest Reserve
Reserve has has destroyed
destroyed critical
critical water
water catchment
catchment forfor
Lakes Nakuru, Naivasha,
Lakes Nakuru, Naivasha, Elementaita,
Elementaita,and and Victoria.
Victoria. InIn addition
addition water
water
catchments
catchments for rivers such
for rivers such the
the Mara,
Mara, Molo,
Molo, Rongai
Rongai andandNjoro/Bagaria
Njoro/Bagaria
have been
have been affected.
affected. AsAsaaresult
result water
water shortages
shortages ininNakuru,
Nakuru, Kericho
Kericho and
and
Eldama
Eldama Ravine.
Ravine.towns
townshavehavestarted
startedbeing
beingexperienced.
experienced. The The effect
effect onon
river
river Mara
Mara is soso drastic
drastic that
that Hippos
Hippos andand other
other wildlife
wildlife have
have nowhere
nowhere to to
inhabit
inhabit because
because of low water
of low water levels
levels and
and their
their survival
survival isishighly
highly
threatened. livestock isis threatened.
threatened. Even livestock threatened.
~â In the
the agricultural
agricultural areas,
areas, cultivation
cultivation along
along riverbanks,
riverbanks, steepsteep slopes
slopes and
and
hills has
hills has not
not only
only reduced
reduced water
water flow
flow down
down streams
streams but but also
also caused
caused
siltation
siltation of
of the
the major
major hydroelectric
hydroelectric dams,
dams,lakes
lakesand
andcoral reefs along
coral reefs along our
our
ocean
ocean shore.
shore. SoilSoilerosion
erosionhashasreduced
reducedagricultural
production capacity
capacity
and increased the
and increased the cost ofof food
food production
production due due toto loss
loss ofofsoil
soilnutrients
nutrients
carried away during
carried away during run-offs.
run-offs. AAclassic
classic example
example isisChepyuk settlement
Chepyuk settlement
in Mt. Elgon
Elgon where
where settlement
settlement was
was done
done onon very
very steep
steep terrain
terrain covering
covering
8,700Ha.
8,700Ha. This particular illegal
This particular illegal excision
excision is aa recipe
recipe forfor environmental
environmental
disasters such as
disasters as landslides.
landslides.
~â Settlement
Settlement of of people
people in an area area of
of about
about 531Ha.
531Ha. at
at Kapolet
Kapolet forest
forest and
and
illegal settlement
illegal settlement.inin about
about 11,000
11;~OOHaHa ofof Embobuti
Embobuti inin Marakwet
Marakwet District
District
has adversely affected
has adversely affected the
the integrity
integrity of
of Cherengani
Cherengani water
water catchment
catchment area.
area.
This
This has had the
has had consequedce of
the consequerice of perennial
perennial flooding
flooding of river
river Nzoia
Nzoia
. causing
causing havoc in in the
the lower reglons such
lower regions such as
as Budalangi,
Budalangi, and
and compromising
compromising
water supply to
water to Eldoret
Eldoret town.
town.
178
Sichangi Adv
» Clearing
â Clearing of vegetation
vegetation in new settlement
settlement areas
areas has had
had the
the consequence
consequence
of lowering
lowering water tables. This
water tables. This has
has led
led to
todrying
drying up
upof ofwater
water springs
springs and
and
boreholes. For instance a borehole at Njoro campus of Egerton
boreholes. For instance a borehole at Njoro campus of· Egerton
University
University has
has dried
dried up because
because ofof the
the clearing
clearing of
of the
the vegetation
vegetation in
in the
the
Eastern
Eastern Mau exicion.
Reduction of Wildlife
Reduction of Wildlife Habitat
Habitat
In Laikipia
In Laikipia District,
District, settlement
settlement on 10,270.49
10,270.49 ha of of indigenous
indigenous forests
forests has
has
destroyed wildlife habitat
destroyed wildlife habitat andand elephant
elephant migratory
migratory corridors
corridors resulting
resulting to
to
serious human/wildlife
serious human/wildlifeconflict.
conflict. The
The wildlife
wildlife is not
not only
only disturbing
disturbing those
those
settled in the forest
settled in forest but also
also those
those in
in the
the old
old settlements
settlements outside
outside the
the forest.
forest.
Destruction of food crops,
Destruction of crops, deaths
deaths and
and injuries,
injuries, involving
involving domestic
domestic animals
animals
and people were few before
before the
the settlement
settlement inin the
the forest
forest excision
excision areas.
areas.
Loss
Loss of
of Forest Biodiversity
Forest Biodiversity
Whenever there is land use change
Whenever there change from
from forest
forest to other
other uses
uses there
there isis overall
overall
effect on
effect on forest
forest biodiversity.
biodiversity. Clearing
Clearing ofof forest
forest results
results inin the
the destruction
destruction of of
various micro
various micro and
and macro ecosystems found
macro ecosystems found therein.
therein. ThisThis results
results inin loss
loss of
of
species
species ofof flora
flora and
and fauna that are
fauna that are adapted
adapted to to live
live inin such
such ecosystems.
ecosystems. In In
some
some cases
cases species become
become extinct
extinct especially,
especially, endemic
endemic ones ones inin certain
certain forest
forest
areas.
areas. This
This in
in turn
turn affects
affects genetic
genetic variation
variation ofof both
both plants
plants and animals. ItIt
and animals.
must
must be emphasized
emphasized that that biodiversity,
biodiversity, once
once lost
lost isis not
noteasily
easilyrecoverable
recoverable
through
through afforestation/reforestation
afforestation/reforestation programmes.
programmes.
Economic Impact
Economic Impact of Forest Excisions
Excisions
Besides
Besides direct
direct revenue
revenue generated
generated by thethe forests
forests toto the
the Government,
Government, there
there
are many
are many other
other economic
economic contributions
contributions by thethe forestry
forestry sector,
sector, which
which are
are
affected by excision.
affected by excision. The
The impact
impact has
has been
been felt
felt through:
through:
•• Collapse of Wood
Collapse of and Non -Wood
Wood and Wood Based
Based Industries
— Industries
Settlements, which
Settlements, which have
have taken
taken place
place in
in forest
forest areas,
areas, have
have resulted
resulted inin
clearing of
clearing of Industrial plantations en-mass.
Industrial plantations en-mass. This
This has
has led
led to
to scarcity
scarcity of
ofraw
raw
for wood based industries. A
materials for wood based industries. A good example is in the Eastern and
materials good example is in the Eastern and
southwestern Mau
southwestern Mau where
where more
more than 22,000ha
22,000ha of industrial
industrial plantations
plantations were
were
cleared to
cleared to create
create room
room for
for settlement.
settlement. Many
Many saw
saw mills
mills have
have closed
closed down
down
179
Sichangi Adv
in these
in these areas
areas andand as
as a aconsequence
consequence manymany people
people have
have been
been rendered
rendered
jobless
jobless and
and job
job opportunities
opportunities lost.
lost. The
The forests
forests were
were established
established through
through aa
World Bank
World Bank loan
loan which
which must
must be
be repaid
repaid and
and yet
yet the
the trees
trees were
were given
given toto
individuals
individuals free
free of charge.
charge.
• Degeneration of
Degeneration of Forest
Forest Towns
Towns
Illegal excisions
Illegal excisions have
have led
led to
to the
the unsustainable
unsustainable useuse of
of forests
forests through
through such
such
negative
negative activities
activities as clear
clear felling
felling of trees
trees in an unplanned
unplanned andand unsustainable
unsustainable
manner.
manner. TheThe consequence
consequence has
has been
been the
the collapse
collapse of such
such towns
towns as as Elburgon
Elburgon
and
and loss
loss of employment.
employment.
• Reduction of Tourist
Reduction Tourist Attraction
Attraction Sites
Sites
Tourism has
Tourism has been
been adversely affected by
adversely affected by excisions.
excisions. An An example
example isis Lake
Lake
Nakuru, the
Nakuru, the second
second mostmost visited
visited National
NationalPark Parkinin Kenya.
Kenya. This
This lake
lake isis
threatened by
threatened by siltation
siltation and
and drying
drying of
of rivers
rivers due
due to
to Forest
Forest clearance
clearance in
in Eastern
Eastern
Mau forest
Mau forest reserve.
reserve. Recreation
Recreation sites
sites especially
especially inin Karura
Karura and
and Ngong
Ngong forest
forest
reserves have
reserves have also
also been
been adversely
adversely affected.
affected.
• Depletion of
Depletion of Foreign
Foreign Exchange
Exchange
Following eXCISIons
Following excisions the
the country
country isis no
no longer
longer self
self sufficient
sufficient inin timber
timber
production. Scarce
production. Scarce foreign
foreign exchange
exchange isis now
now being
being used
used toto import
import timber,
timber,
which
which would
would otherwise
otherwise bebe produced
produced locally.
locally. A
A lot
lot of
of timber
timber isis now
now coming
corning
from DRC-Congo,
from DRC-Congo, Tanzania
Tanzania and
and Uganda.
Uganda.
• Contravention of
Contravention International Conventions
of International Conventions and
and Instruments
Instruments
Illegal
Illegal allocations
allocations of forestland
forestland and
and the
the resultant
resultant negative
negative activities
activities which
which
constitute a contravention
constitute contravention of Environmental
Environmental Agreements
Agreements to which
which Kenya
Kenya isis aa
party
party such
such as:
as:
~â The
The Convention
Convention of
of Biological
Biological Diversity
Diversity
~)=. The
The Framework
Framework Convention
Convention on
on Climate
Climate Change
Change
~â The
The Ramsar
Ramsar Convention
Convention and
and many
many others.
others.
180
Sichangi Adv
5. GENERAL FINDINGS
5. GENERAL FINDINGS
The
The Commission
Commission has
has made
made specific
specific Findings
Findings and and Recommendations
Recommendations with
with
regard
regard to to each
each type
type of of public
public landland whose
whose illegal
illegal acquisition
acquisition itit inquired
inquired into.
into.
However,
However, some some of of the
the information
information obtained
obtained by by the
the Commission
Commission generated
generated
findings and
findings and recommendations
recommendations of
of aa general
general nature
nature which
which areare applicable
applicable to to
the
the entire
entire problem
problem of
of illegal
illegal allocation
of public land.
land. These
These are are
highlighted inin this
highlighted this section.
section. SomeSome of of the
the issues
issues addressed
addressed in in this
this section
section
arose out
arose out ofof the
the Commission's
Commission's interviews
interviews with with public
public officials
officials while
while others
others
came
came to to light
light from
from public
public memoranda
memoranda to to the
the Commission.
Commission.
Interviews with Public

Interviews with Public Officials
Officials
As indicated
As indicated in in PART
PART TWO TWO of of this
this Report,
Report, the the Commission
Commission interviewed
interviewed
key players
key players in in thethe allocation
allocation process
process of of public
public land.land. Initially,
Initially, itit was was
apparent that
apparent that many
many seniorsenior officials
officials in in the
the Ministry
Lands and and Settlement
Settlement
and also
and also inin a number
number of of local
local authorities
authorities had had made
made thethe grabbing
public
land aa routine
land routine method method of of rapid
rapid but but unjust
unjust enrichment.
enrichment. ItIt was
was therefore
therefore
arranged to
arranged to meet
meet and and interview
interview some some public
public officials.
officials. These
These included
included pastpast
Commissioners
Commissioners ofof Land,
Land, physical
physical planners,
planners, surveyors
surveyors and
and former
former city city
council
council officials.
officials. Two Two pastpast Commissioners
Commissioners of
of Land,
Land, namely,
namely, WILSON WILSON
GACHANJA
GACHANJA and
and SAMMY
S~MMY MWAITA,
MWAITA, two two Directors
Directors of of Survey,
Survey, namely
namely
ALEXANDRINO
ALEXANDRINO KIAMATI NJUKI
KlAMATI NJUKI and and HAGGAI
HAGGAI NYAPOLA, NY APOLA, three three
Directors
Directors of
of Physical
Physical PlanningPlanning namely,
namely, RENSON
RENSON MBWAGWA, MBWAGWA, JOHN
JOHN
OHAS
OHAS and and TIMOTHY
TIMOTHY MAKUNDA,
MAKUNDA, two
two Directors
Directors of of City
City Planning
Planning and and
Architecture
Architecture inin the
the Nairobi
Nairobi City City Council,
Council, KURIA
KURIA WA W A GATHONI
GATHONI and and
PETER MBURU
PETER MBURU KIBINDA KIBINDA and and aa former
former Town
Town ClerkClerk of of thethe Nairobi
Nairobi CityCity
Council MRS
Council MRS ZIPPORAH
ZIPPORAH MBESA
MBESA WANDERA W ANDERA were were interviewed.
interviewed.
The main
The main objective
objective of of these
these interviews
interviews was was to
to enable
enable the
the Commission
Commission gain gain
an insight into the political and social environment in which illegal
an insight into the political and social environment in which illegal
allocations public land
land were
were made.
made. TheThe Commission
Commission also
also wanted
wanted to to
establish the
establish the extent
extent ofof involvement
involvement by these
by these public
public officials
officials in inthe
theillegal
illegal
allocations
public land.
land. TheThe Commission
Commission also also wanted
wanted to to find
find outout
whether these
whether these officials
officials had had personally
personally benefited
benefited from from the the,illegal
illegal
allocations. From
allocations. From thesethese interviews,
interviews, the the Commission
Commission arrived arrived at at the
the
following
conclusions:
181
181
Sichangi Adv
Abuse of Office
Abuse Office
Key public
Key public officers
officers abused
abused their
their offices
offices in the the allocation
public land.
land.
They mostly
They mostly acted
acted inin total
total disregard
disregard of of the
the substantive
substantive and and procedural
procedural law law
relating to
relating to the
the allocation
public land.
land. Some
Some of the officials
officials did
did not
not see
see
anything legally or
anything legally or morally
morally wrongwrong with with allocating
allocating public
public landland to to
individuals
individuals or companies.
companies. Land Land grabbing
grabbing was something
something normal
normal to to them.
them.
They did
They did not
not view
view their
their offices
offices asas positions
positions of of public
public trust
trust meant
meant to to
safeguard public land
safeguard public land for
for present
present and
and future
future generations
generations and and the
the general
general
economic welfare
economic welfare of of the
the country.
country. Some
Some of of the
the activities
activities ofof the
the officials
officials
indicate that
indicate that criminal
criminal offences
offences may
may have have beenbeen committed
committed warranting
warranting
further investigations into into their
their activities.
activities. At At various
various times,
times, there
there were
were
many
many centres
centres of power
power whichwhich were
were responsible
responsible for the the allocation
public
land. Ministers,
land. state house
Ministers, state house officials,
officials, and and all all levels
levels ofofprovincial
provincial
administration became
administration became involved
involved in the the illegal
illegal allocations
allocations of of Public
Public land.
land.
Some officers
Some junior to the
officers junior the Commissioner
Lands became
became more
more powerful
powerful
than the
than the Commissioner
Commissioner and influenced
influenced many
many illegal
illegal allocations
allocations of land.
A number
number of of the
the officials
officials interviewed
interviewed directly
directly benefited
benefited from
from thethe illegal
illegal
allocations of
public land. Some
Some officials
officials inin the
the ministry
ministry of of lands
lands and
and city
city
council of Nairobi
council Nairobi would
would always
always be privy
privy toto aa political
political decision
decision to to allocate
allocate
land. They
land. They would
would thenthen position
position themselves
themselves to to benefit
benefit fromfrom such such
allocations. While
allocations. While notnot all
all the
the officials
officials interviewed
interviewed appeared
appeared to to have
have
benefited personally
benefited personally from
from thethe land
land grabbing
grabbing mania,
mania, the
the answers
answers to to the
the
questions they
questions they were
were asked
asked andand their
their general
general attitude
attitude towards
towards the the
Commission indicated
Commission indicated that
that further
investigations would
would be necessary in the
be necessary
future to
future to establish
establish the entire
entire picture
picture of their
their involvement.
involvement.
Many illegal
Many illegal allocations
public land
land were
were politically
politically motivated.
motivated. On On
many occasions
many occasions a Commissioner
Commissioner of Lands Lands would receive
receive instructions
instructions from
from
the President
the President to allocate
allocate land. HeHe would
would then proceed
proceed toto allocate
allocate such
such land
land
not withstanding
not withstanding the fact
fact that
that the
the allocation
allocation was
was illegal.
illegal. Many
Many allocations
allocations
of city
city council
council land were
were made
made pursuant
pursuant to instructions
instructions from
from the
the Minister
Minister
of Local
Local Government.
Government.
Religious Bodies
Religious Bodies
The
The moral
moral decadence
decadence epitomized
epitomized by by the
the grabbing
grabbing of public
public land
land did
did not
not
spare religious
spare religious institutions
institutions of all
all faiths.
faiths. Thus
Thus churches,
churches, mosques,
mosques, temples
temples
and other
and other faith
faith institutions
institutions directly
directly participated in the
participated in the illegal
illegal allocation
allocation of
18'2
18:L
Sichangi Adv
public
public land.
land. The
The most
most reprehensible
reprehensible conductconduct by by thethe religious
religious institutions
institutions inin
this
this regard
regard waswas their
their grabbing
public utility
utility plots
plots andand school
school playplay
grounds.
grounds. SomeSome of of the
the religious
institutions were were allocated
allocated public
public land
land asas an
an
inducement
inducement or or reward
reward for for mobilizing
mobilizing political
political support
support for for the
the former
former ruling
ruling
party,
party, (Kanu).
(Kanu). In In many
many instances,
instances, thethe religious
institutions obtained
obtained public
public
land
land without
without paying
paying any any money
money for for it.
it. At
At times
times they
they obtained
obtained largelarge tracts
tracts ofof
public
public land
land for
for very
very little money. Below
little money. Below is aa list list and
and particulars
the
Religious Institutions
Religious Institutions that that acquired
acquired illegally
illegally allocated
allocated publicpublic land.
land. This
This
list is just
list just anan illustrative
illustrative samplesample 1.1. ForFor details
details see see the
the General
General Annexes.
Annexes.
Serial
Serial Parcevritle
Parcel/Title ReservedlIntended
Reserved/Intended
Current
Current User
User Area
Area
No. No. User
User
11 Milimani
Milimani Public School
Public School
7.831
International
International 7.831 Acres
Acres
Primary
Primary
Bible Students
Students
School.
School, Association
Association
Nairobi
Nairobi
2 Land for
Land Public School
Public School Gospel 1 Ha
Riruta Satellite
Riruta Satellite Revival
Revival Centre
Centre
Primary —-
Primary
Nairobi
Nairobi
3 Block 60/463
Block Open Residential
Residential
space/playground
space/playground Catholic
Catholic
Otiende Estate
Otiende Estate Archdiocese of
Archdiocese
Nairobi
Nairobi
4 Block 60/466
Block 60/466 Open
Open Residential
Residential 0.5933
0.5933 Ha
space/playground
space/playground Catholic
Catholic
Otiende Estate
Otiende Estate Archdiocese of
Archdiocese
Nairobi
Nairobi
5 Block 60/484
Block 60/484 Open
Open space Church
Church of Block 60/463
Block 60/463
Jesus Christ
Jesus Christ
6 LR.No.
LR. No. Schools Prison
Schools and Prison PCEA and
PCEA
Kabete/Kabete
Kabete/Kabete Ext. Programme
Ext. Programme 'Christian
"Christian
124·128
124-128 Community
Community
Service
Service
7 LR.No.
I.R. No. Lady Northey Trust
Lady Northey AIC
ArC 2.41 Ha
2.41 Ha
209/5391
209/5391 (Medical)
(Medical)
8 Gacharage
Gacharage Public School
Public School AIPCA
AIPCA 12 Acres
12 Acres
Primary —-
Maragua
Maragua
9 Kariko
Kariko Public School
Public School AIPCA Kariko
AIPCA Kariko
Primary —- Church
Church
Maragua
Maragua
10 Gachwe
Gachwe Public
Public School
School Church
Church 55 Acres
Acres
Primary
Primary —- Commission
Commission
Nvandarua
Nyandarua for Kenva
for Kenya
183
183
Sichangi Adv
Serial
Serial Parcel/Title
Parcelffitle Reserved/Intended
ReservedlIntended
Area
Current
Current User
User Area
No.
No. No.
No. User
User
11 Star of
Star of the
the Sea
Sea Public
Public School
School Full
Full Gospel
Gospel
Primary —-
Primary Churches
Churches ofof
Mombasa
Mombasa Kenya
Kenya
12 Tulima
Tulima Public School
Public School AIC
AIC Church
Church 1 Acre
Acre
Primary —-
Primary
Machakos
Machakos
13 Mugumone
Mugumone Public
Public School
School AIPCA
AIPCA 2 Acres
Acres
Primary —-
Primary Church
Church
Meru Central
Meru Central
14 Omoya
Omoya Public
Public school
school Full
Full Gospel
Gospel 5 Acres
Acres
Primary
Primary Churches
Churches ofof
School
School Kenya
Kenya
15 Kirimose
Kirimose Public
Public School
School Catholic
Catholic 1 Acre
Acre
Primary —-
Primary Church
Church
Bureti
Bureti
16 Arap Moi
Arap Moi Public
Public School
School PCEA
PCEA 9 Acres
Acres
Primary —-
Primary Foundation
Foundation
Kaiiado
Kajiado
17 Kasoas
Kasoas Public School
Public School ACK
ACK Church
Church 33 Acres
Acres
Primary
Primary
School-
School —
Nandi
Nandi
18 Kapkiptui
Kapkiptui Public School
Public School Seventh
Seventh DayDay 3
3 Acres
Acres
Primary
Primary Adventist
Adventist
School-
School — Church (East
Church (East
Nandi
Nandi Africa)
Africa)
19 Milimani
Milimani Public School
Public School St Paul's
St Paul's 22 Acres
Acres
Primary
Primary — - Musanda Luo
MusandaLuo
Butere
Butere ACK Church
ACKChurch
Mumias
Mumias
20
20 Lumakanda-
Lumakanda — Public School
Public School Baptist Church
Baptist Church 11 Acre
Acre
Lugali
Lugali
21
21 Kiamwangi
Kiamwangi Public School
Public School AIC
AIC 11 Acre
Acre
Secondary
Secondary — -
Thika
Thika
22
22 Block 5/551
Block 5/551 Public
Public Utility'
Utility. Provincial
Provincial 0.2469 Ha
0.2469 Ha
Kisumu
Kisumu Synod of
Synod of
A.C.P.K.
A.C.P.K.
23
23 Block 61261
Block 6/261 Government Housing
Government Housing Aga Khan
Aga Khan 0.5451
0.5451 Ha
Ha
Kisumu
Kisumu Karim Shah
Karim Shah
and Aga
and Aga Khan
Khan
Foundation
Foundation
184
184
Sichangi Adv
Serial
Serial Parcevritle
Parcel/Title ReservedlIntended
Reserved/Intended
Current User
Current User Area
Area
No. No. User
User
24 Lunyu Mixed
Lunyu Mixed Public
Public School PAG Church
PAG Church 2 Acre
School-
School —
Kakameza
Kakamega
25 LR 9917/8
9917/8 ADC Astra Farm,
ADC Astra Farm, AIC 3851.71 Acres
3851.71 Acres
Machakos
Machakos
26 LR 16672/37
16672/37 ADCFarm
ADC Farm AIC 30 Acres
Acres
27 LR 9867 ADC, Baraka,
ADC, Baraka, Catholic
Catholic Acres
1040 Acres
Nakuru
Nakuru Church
Church
28 LR 209/11969
209111969 Kevevapi
Kevevapi Catholic
Catholic 6.0 Acres
Acres
Nairobi
Nairobi Church
Church
29 Block 321210
Block 32/210 Public
Public Utility SDA
SDA (EA) 0.5112
0.5112 Ha
Church
Church
30 LR 11239
11239 Public
Public Utility Presbyterian
Presbyterian 1.1488
1.1488 Ha
Kibera
Kibera Foundation
Foundation
31 Nursery
Nursery School SDA Church
SDA Church
32 Kiyonga
Kiyonga Children Playground
Children Playground ACK
ACK St. Mary
Mary
Crescent
Crescent Magdalene
Magdalene
Maringo
Maringo
Estate
Estate
33 LR 209/12596
LR 209/12596 Parking
Parking Space Siri
Siri Ramgarhia
Ramgarhia 0.2018
0.2018 Ha
34 Block 60/494
Block 60/494 Road Reserve
Road Reserve SDA Church
SDA Church 0.4414
0.4414 Ha
35 HG255
HG 255 Government House—-
Government House Catholic
Catholic
Kileleshwa
Kileleshwa Church
Church
36 HG256
HG 256 Government
Government House- Holy Trinity
Holy Trinity
Kileleshwa
Kileleshwa
37 LR 209/3861/1
209/386111 Government House—
Government House - ACK Church
ACK Church
(HG 131
131 State House Avenue
State House
38 LR 209/3858
LR 209/3858 Government House
House—- AIC Church
AIC Church
Sanford
Sanford Flats State
House
House 1515 Flats
39 LR
LR 209/12240
209/12240 Government HOuse
House—- Shree House
Shree House
(HG 96) Swami
Swami Bapa Road
40 LR 209/12241
209/12241 Government House
House—- Sthankvasi
Sthankvasi
. (HG
(HG 97) Swami
Swami Bapa Road Jain Sangh
Jain Sangh
Parklands
Parklands Temple
Temple
41 MOW
MOW Camp Camp. Road
Road Camp PCEA Church
PCEA Church 2 Acres
Acres
Kirigiti
Kiriaiti
42 MG39
MG 39 Government House—-
Government House Redeemed
Redeemed
Kiambu
Kiambu Gospel Church
Gospel Church
43 MG 11
11 Hospital Land
Land—- ACK Church
ACK Church
Bungoma
Bunzoma
44 Block 1/1051
Block 1/1051 Government Housing
Government Housing Outreach
Outreach 0.0998 Ha
0.0998
Nyeri
Nyeri Gospel Church
Gospel Church
185
Sichangi Adv
Serial
Serial Parcel/Title
Parcelffitle Reserved/Intended
Reservedllntended
Current
Current User
User Area
Area
No.
No. No.
No. User
User
45 61700
Block 6/700
Block Government
Government Housing
Housing Church
Church 0.0612
0.0612 Ha
Ha
Nyahururu
Nyahururu Commisioner
Commisioner
of Kenya
Kenya asas
trustees
trustees for
ACK,
ACK, Mothers
Mothers
Union
46 102/XIIMI
102/XI/MI Dickson
Dickson Gardens
Gardens Catholic
Catholic
Mombasa
Mombasa Recretion
Recretion Diocese
Diocese of
Mombasa
Mombasa
47 LG79
LG 79 AA&B,
& B, Government
Government House
House ACK(St.
ACK(St.
Bungoma
Bungoma Crispins)
Crispins)
48 LG 80 A &
LG80A& Government
Government House
House Word
Word of Faith
Bungoma
Bungoma
• 49 LG24A&B,
LG 24 A & B, Government
Government House
House Pedesta
Pedesta
Bungoma
Bungoma Church
Church
50 LG25
LG A,B,C
25 A,B 4O Government
Government House
House Pedesta
Pedesta
&D,
& D, Church
Church
Bungoma
Bungoma
51 Community
Community Open space
Open Catholic
Catholic 0.55
0.55 Ha
Centre Free
. Centre Free Diocese of
Diocese
Area Nakuru
Area Nakuru Nakuru
Nakuru
52 Block 4/592
Block 4/592 Open space
Open space Jehovah's
Jehovah's 0.2984 Ha
0.2984
Eldoret Mun.
Eldoret Mun. Witnesses
Witnesses
Est.
53 Saniak Primary
Saniak Primary AIC Academy
AIC Academy 6 Plots
Plots
School
School
54 406 Laboret
406 Laboret Hospital
Hospital ACK
ACK
Trading Ceritre
Trading Centre
55 School — Kapsabet
- Kapsabet AIC
AIC 6 Acres
Acres
Municipality
Municipality
54
55
Memoranda from the Public

Memoranda from Public
As indicated
As earlier in this
indicated earlier this Report,.the
Report., the Commission
Commission received
received hundreds
hundreds of
written memoranda
written memoranda pointing
pointing atat various
various cases
cases of
of illegal
illegal allocation
allocation of
of public
public
land. The
land. The Commission
Commission gained
gained aa lot
lot of
of insight
insight from
from these
these public
public complaints.
complaints.
It was
It was able
able to establish
establish the trends
trends and
and patterns
patterns of land grabbing.
grabbing. From
From thethe
tone of
tone of their
their letters,
letters, the Commission
concluded that
that the members
members whowho sent
sent
in these
in these memoranda
memoranda were were public
public spirited
spirited Kenyans.
Kenyans. TheyThey expect
expect nothing
nothing
------
186
Sichangi Adv
short of
short of the
the revocation
revocation of
of illegal
illegal titles
titles and
and restoration
restoration of
of public
public land
land to
to its
its
proper use.
proper use.
The
The Commission
Commission would
would have
have liked
liked to
to visit
visit all
all the
the areas
areas said
said to
to have
have been
been
grabbed so
grabbed so as
as to
to verify
verify their
their development
development status.
status. The
The Commission
Commission would would
also have
also have liked
liked toto verify
verify all
all the
the complaints
complaints at at the
the Ministry
Lands andand
Settlement.But
Settlement. But itit was
was notnot possible
possible to to undertake
undertake all all these
these tasks
tasks due
due to to
constraintsofof time
constraints time and and thethe massive
massive amounts
amounts of of information
information the the
Commission had
Commission had to dealdeal with.
with. However,
However, aa comprehensive
comprehensive Digest Digest ofof these
these
complaints has
complaints has been prepared. See
been prepared. See Annex
Annex 19 in Vol.
19 in Vol. 11
II of
of the
the Annexes.
Annexes.
All recommendations
All recommendations which the
which the Commission
Commission has has given
given inin this
this Report
Report
regarding
regarding thethe revocation
revocationofof illegal
illegal titles
titles to public land
to public land are are also
also
applicable to all
applicable to all the
the cases
cases reported
reported to to the
the" Commission
Commission by by members
members of of
the
the public once they
public once they are
are verified.
verified.
The
The Commission
Commission could
could not not however
however dealdeal with
with certain
certain complaints
complaints sincesince
they were
they were pending
pending in in courts
courts of
of law.
law. The
The Commission
Commission nevertheless
nevertheless noted
noted
with dismay
with dismay the
the fact
fact that
that many
many such
such cases
cases had
had been
been pending
pending in in courts
courts forfor
many years
many years without
without final
final resolution
resolution (some
(some had
had been
been pending
pending for
for as
as long
long asas
20 years)
20 years) .
Forelgn'Dlplomatic Missions
Foreign Diplomatic Missions
The
The Commission
Commission alsoalso came
came across
across certain
certain cases
cases where
where illegally
illegally allocated
allocated
public land
public land had
had been
been acquired
acquired by by diplomatic
diplomatic missions.
missions. Given Given the the
restrictions by
restrictions by the
the Vienna
Vienna Convention
Convention on on Diplomatic
Diplomatic and and Consular
Consular
Relations, regarding
Relations, regarding personnel
personneland and property
property ofof such
such missions,
missions, the the
Commission has
Commission has not
not made
made anyany specific
specific recommendation
recommendation regarding
regarding such such
titles. The
titles. The Commission
Commission however
however urges
urges thethe Government
Government to to get
get in
in touch
touch with
with
such Missions
such Missions soso asas to
to find
find aasolution
solution ininconformity
conformity with with diplomatic
diplomatic
etiquette.
etiquette.
Currently, there appears

Currently, there appears toto be
be nono Government
Government Policy on
Policy on the
the siting
siting or or
location of
location of foreign
foreign diplomatic
diplomatic missions
missions inin the
the City.
City. Consequently,
Consequently, some
some of of
the
the Chanceries
Chanceries are are situated
situated in
in the
the most
most inappropriate
inappropriate places.
places. The
The logic
logic of
.of
urban planning
urban planning was not
was not applied
applied while
while locating
locating these
these missions.
missions. The The
Government and
Government and the
the City
City Council
Council should
should urgently
urgently consider
consider aa plan
'plan for
for
creating zones for
creating zones for Diplomatic
Diplomatic Missions
Missions and
and encourage
encourage as many many missions
missions as as
possible
possible to to relocate
relocate to
to such
such zones.
zones.
187
187
Sichangi Adv
6. SOME
6. SOME ADDITIONAL
ADDITIONAL RECOMMENDATIONS
RECOMMENDATIONS
As already explained
As already explained in the
the foregoing
foregoing section,
section, the
the Commission
Commission has has made
made
specific recommendations regarding
specific recommendations regarding each each type public land.
type of public land. There
There areare
however
however a number
number of recommendations
recommendations which apply to all types
which apply types of
of public
public
land that the Commission
land that Commission hereby
hereby makes
makes in addition
addition to to the
the specific
specific ones
ones
highlighted
highlighted above.above. These recommendations are
These recommendations aremeant
meant to help the
to help the
Government
Government redress the harm
redress the harm done
done in the past
past and
and also
also prevent
prevent illegal
illegal and
and
irregular allocations of
irregular allocations of public
public land
land in
in the
the future.
future.
Establishment of
Establishment of aa Land
Land Titles
Titles Tribunal
Tribunal
Given the fact

Given the fact that
that each
each case
case of a suspected
suspected illegal irregular allocation
illegal or irregular allocation of
public land must
public land must be dealt
dealt with
with on
on its
its own
own merits,
merits, itit isis recommended
recommended that that aa
Land Titles Tribunal
Land Titles Tribunal bebe immediately
immediately established
established to embark upon
to embark upon thethe
process revocation and
process of revocation and rectification
rectification of
of titles
titles in
in the
the country.
country. TheThe detailed
detailed
rationale for the
rationale for the establishment
establishment of thethe Tribunal discussed in Part
Tribunal is discussed Part Three
Three of
this Report. For
this Report. For the Draft
Draft Bill proposing
proposing thethe establishment
establishment of of the
the Tribunal,
Tribunal,
see Appendix
Appendix 10. 10.
Computerization of Land
Computerization Land Records
Records
One of the main

One main problems
problems which
which hashas fuelled
fuelled the
the illegal
illegal allocation
allocation of ofpublic
public
land
land is the the poor
poor and
and chaotic
chaotic record
record keeping
keeping system
system in in the
the Ministry
Ministry of of
Lands and
Settlement' andand inin the
the district
district registries.
registries. Because
Because of of poor
poor
records, it has not been
records, been always
always easy for members
members of the the public
public toto trace
trace and
and
keep track of
keep track of the
the history
history transactions
transactions relating
relating to
to particular.
particular. titles
titles ofof land.
land.
Quite often,
Quite often, records
records have
have been
been falsified
falsified or even
even hidden
hidden soso as
as totoconceal
conceal
illegal allocations of
illegal allocations of land.
land.
It
It is therefore
therefore recommended
recommended thatthat all
all land
land records
records in the Ministry
Lands
and Settlement
and Settlement should
should be computerized
computerized andand digitalized.
digitalized. All facts
facts relating
relating to
the
the history
history of each
each parcel
parcel of land
land should
should be securely
securely stored.
stored. AnAn appropriate
appropriate
legal framework
legal framework for the computerization
computerization of land
land records
records should
should bebe urgently
urgently
devised. All
devised. All land
land records
records should
should be made
made available
available for
for inspection
inspection toto the
the
public
public
188
Sichangi Adv
Insurance of Land
Insurance Land Titles
Titles
Members of
Members of the
the public
public should
should be be able
able toto rely
rely onon aa title
title deed
deed as as aa secure
secure
document
document in in which
which toto transact
transact either
either as buyers or
as buyers or sellers
sellers of of land.
land. If land
land isis
to be freely
to be freely transferable
transferable on on the
the market,
market, then
then aa secure
secure system
system of of titling
titling must
must
be devised.
be devised. While
While thethe title
title deed
deed inin Kenya
Kenya has has largely
largely been been reliable,
reliable, thethe
problem
problem of of illegal
illegal allocation
public land
land hashas seriously
seriously thrownthrown into into
question
question thethe degree
degree toto which
which members
membersofof the the public
public can can rely
rely on on itit as
as aa
valid
valid legal
legal document.
document. This This uncertainty
uncertainty has has the
the potential
potential of of disrupting
disrupting the the
land
land market
market and jeopardizing the
and jeopardizing the general
general development
development of of the
the country.
country.
It is
It is therefore
recommended that
that aa comprehensive
comprehensive Land Land Title
Title Insurance
Insurance
Scheme
Scheme should
should bebe established
established forfor the
the country.
country. AA consortium
consortium ofof Insurance
Insurance
companies
companies should should be
be encouraged
encouraged and and licensed
licensed to
to offer
offer insurance
insurance services
services
in
in this
this regard.
regard. This
This will
will eliminate
eliminate risk
risk and
and uncertainty
uncertainty of of dealing
dealing with
with
forged
forged titles.
titles.
\
Establishment of a Land
Establishment Land Commission
Commission \
At present,
present, the country
country lacks
lacks aa comprehensive
comprehensive land land policy
policy which
which can
can guide
guide
all matters
all matters relating
relating to the
the administration,
administration, ownership
ownership and and use
use of
of land.
land. In
In
addition, the powers
addition, the powers toto administer public land
administer public land are
are largely
largely vested
vested in
in the
the
President
President andand in certain
certain instances,
instances, the
the Commissioner
Commissioner of Lands. Lands. Some
Some
ministers have administrative powers over certain protected areas while
ministers have administrative powers over certain protected areas while
county councils
county councils hold
hold Trust
Trust land
land on
on behalf
behalf of of the
the local
local communities.
communities. The The
absence of
absence of a centralized
centralized andand professional
professional bodybody charged
charged with
with the duty
duty of
of
land administration
land administration has facilitated
facilitated the
the illegal
illegal allocation
allocation ofof land.
land.
It is
It is consequently
consequently recommended
recommended that that aa National
National Land
Land Commission
Commission be be
established to
established to deal
deal with
with all
all land
land matters
matters inin the
the country.
country. The
The Commission
Commission
should be vested with
should be-vested with powers
powers of allocating
allocating public
public land
land and
and supervising
supervising the
the
management and
management and allocation
allocation ofof Trust
Trust land.
land. InIn this
this regard,
regard, section
section 3 and
and all
all
other sections
other sections in the Government
Government Lands
Lands ActAct which
which empower
empower the
the President
President
or the
the Commissioner
Lands toto make
make grants
grants of of un-alienated
Government
Land should
Land should be repealed.
repealed. .
Enhancing Capacity of Institutions

Enhancing the Capacity Institutions
The technical
The technical and
and personnel
personnel capacities in the
capacities in. the Ministry
Ministry of
of Lands
Lands and
and
Settlement, the
Settlement, the Judiciary
Judiciary and
and the
the Attorney General's Chambers
Attorney General's Chambers should
should be
be
189
Sichangi Adv
enhanced so
enhanced so as to
to competently
competently and and efficiently
efficiently deal
deal with
with land
land matters.
matters. All
All
ministries and
ministries and local
local authorities
authorities dealing
dealing with
with the
the administration
administration of of public
public
land should
land should have
have properly
properly trained
trained legal
legal personnel
personnel to advise
advise them
them andand to
to
ensure reliable
ensure reliable representation
representation in in courts
courts ofof law.
law.
Government Policy
Government Policy on
on Development
Development of
of Public
Public Land
Land
By offering
By offering allocations
allocations of of undeveloped
undeveloped public public land
land at a discount
discount of 20% 20% of
its market
its market value
value andand then
then byby failing
failing to to enforce
enforce the the development
development conditions
conditions
contained in
contained in the
the lease
lease oror grant
grant of of title
title ofof such
such land,
land, thethe Government
Government has has
perhaps unwittingly
perhaps encouraged the
unwittingly encouraged the abuse
abuse of of the
the law
law in in this
this respect.
respect. The The
benefit of
benefit of the
the offer
offer ofof undeveloped
undeveloped land land at a discount
discount includes
includes aa number
number of
implied obligations
implied obligations to be be observed
observed by by both
both thethe allottee
allottee of of the
the land
land and
and also
also
by the
by the Government.
Government. The allottee
The allottee is is obliged
obliged to to observe
observe strictly
strictly the the
development conditions
development conditions contained
contained in the the title.
title. The
The Government
Government for for its
its part
part
is obliged
is obliged to provide
provide the the infrastructure
infrastructure to enable enable the the allottee
allottee to carry
carry outout his
his
development
development obligations. The
obligations. The Government
Government isis also also obliged
obliged to to protect
protect thethe
public
public interest
interest by by enforcing
enforcing the the development
development conditionsconditions strictly
strictly andand by by
refusing
refusing to to consent
consent to to any
any dealing
dealing with
with the the land
land until
until such
such conditions
conditions have have
been
been complied
complied with.
with.
Allocations
Allocations of developed
of developed public
public land
land e.g.
e.g. Government
Government houses,
houses, should
should
generally
generally bebe made
made at
at market
market value.
value.
Inventory
Inventory of
of All
All Public
Public Land
Land
There appears
There to be
appears to be no
no complete
complete record
record or
or register
register of
of public
public land
land in
in the
the
country. Some
country. Some Ministries,
Ministries, State • Corporations
State Corporations andand Departments
Departments cannot
cannot
give a comprehensive
give comprehensive account
account of what public
public land
land they hold.
hold.
It is
It is therefore
recommended thatthat all
all Ministries,
Ministries, Local
Local Authorities,
Authorities, and
and
State Corporations
State Corporations should
should maintain
maintain registers
registers of all assets
assets they
they hold.
hold. These
These
registers should
registers should be
be updated
updated annually.
annually.
The
The Government should prepare
Government should prepare an
an inventory
inventoryofof all
all public
public land
land in the
the
country.
country.
Harmonization of Land Legislation

Harmonization Legislation
Land
Land law is one of
of the
the most
most complex
complex branches
branches ofof law
law in
in Kenya.
Kenya. At
At present,
present,
there
there are
are more
more than
than 4040 different
different statutes
statutes dealing
dealing with
with aspects
aspects of
of land
land
administration, ownership
administration, ownership and use. The situation
situation is exacerbated
exacerbated by the
the fact
fact
190
Sichangi Adv
that the applicable

that the applicable substantive
substantive land
land law
law is
is also
also not
not easily
easily understandable
understandable by
by
many.
many.
The
The Government
Government should
should harmonize
harmonize land
land legislation
legislation to
to prevent
prevent the the double
double
issuance of
issuance of land
land titles
titles andand other
other abuses.
abuses. ItIt was
was intended
intended thatthat the
the Registered
Registered
Land
Land ActAct would
would replace
replace the the Registration
Registration of Titles
of Titles Act
Act andand in in many
many other
other
cases the
cases the Government
Government Lands Act.
Lands Act. But
But this
this has
has notnot been
been done
done as as originally
originally
contemplated. The
contemplated. The RLA
RLA should
should be be applied
applied to to large
large areas
areas in in aasystematic
systematic
manner. The
manner. The process
process should
should be be rationalized
rationalized inin such such aa wayway as as to
to prevent
prevent
double issuance
double issuance ofof titles
titles asas is
is currently
currently thethe case.
case.
Restitution
Restitution
The Government
should embark
embark upon
upon thethe legal
legal recovery
recovery of of all
all monies
monies that that
were unjustly
were unjustly gotten
gotten through
through the
the illegal
illegal allocation
allocation and and sale
sale ofof Public
Public Land.
Land.
The recovery
The recovery should
should be be extended
extended toto original
original allottees,
all ottees, professionals,
professionals,
. brokers,
brokers, etc.
etc.
Prosecution
Prosecution
All
All public officials, private
publicofficials,
, private individuals,
individuals, companies
companies and
and professionals
professionals who
who
participated in
participated in the
the illegal
illegal allocation
public land
land in
in ways
ways that
that disclose
disclose the the
commission of crimes should be investigated, prosecuted and/or retired
commission of crimes should be investigated, prosecuted and/or retired
from public
from public service
service in in the
the public
public interest.
interest.
Upgrading Informal
Upgrading Informal Settlements
Settlements
The Commission
The Commission concluded
concluded that illegal
that illegal allocations
of public land
land have
have
greatly contributed to
greatly contributed to the
the spread
spread of of Informal
Informal Settlements
Settlements in
in the
the main
main urban
urban
centres
centres in in the
the country.
country. The The Government
Government should
should initiate
initiate programmes
programmes to
to
address
address the the problem
problem of such
of such settlements.
settlements. In this
In this regard,
regard, partpart ofof the
the
recovered public land
recovered public land should
should be be utilized
utilized to to establish
establish decent
decent and and affordable
affordable
housing schemes for
housing schemes for urban
urban population
population that now
,that now lives
lives in in conditions
conditions of
of
squalor. Such informal
squalor. Such informal settlements
settlements that cannot
that cannot be be upgraded
upgraded should
should be be
relocated to
relocated to other
other areas
areas where
where public
public land land will
will have
have been
been recovered.
recovered.
Establishment of
Establishment of a Land
Land Division
Division of
of the
the High Court
High Court
Given the
Given the backlog
backlog of of land
land related
related disputes
disputes in in the
the courts,
courts, the
the Government
Government
should
should urgently consider establishing
urgently consider establishing aa Division
Division in in the
the High
High Court
Court which
which
will exclusively
will exclusively deal
deal with
with land
land cases.
cases.
191
191
Sichangi Adv
7. CONCLUSION
7. CONCLUSION
The process and
The process and findings
findings of this this Inquiry
Inquiry havehave disclosed
disclosed the the fact
fact that
that thethe
illegal
illegal allocation
public land land is is one
one ofofthe themostmostpronounced
pronounced
manifestations of
manifestations of corruption
corruption and and moral
moral decadence
decadence in in •our
-our society.
society. It It has
has
demonstratedthe
demonstrated the loss
loss of
of public
public responsibility
responsibility for
for present
present and and future
future
generations by
generations by those
those entrusted
entrusted with with power.
power. TheThe memoranda
memoranda received received from from
the people by
the people by this
this Commission
Commission leave leave nono doubt
doubt that
that they
they expect
expect nothing
nothing
short
short of
of the
the restoration
restoration of of their
their land.
land: Political
Political statements
statements made made against
against this this
Commission during
Commission during thethe Inquiry
Inquiry on on the
the other
other hand
hand demonstrate
demonstrate the the lack
lack of
shame on
shame the part
on the part ofof those
those whowho may may have
have benefited
benefited fromfrom the the plunder
plunder of of
public resources. Such
public resources. Such people
people wouldwould" gogo toto any
any lengths
lengths to to protect
protect theirtheir ill-
ill-
gotten property.
gotten property. At At the
the endend of of the
the day,.
day.. the
the challenge
challenge lies lies withwith the the
Government
Government -to summon all
to summon all its
its political
political will
will and
and might
might so so asas toto implement
implement
the recommendations
the recommendations made made in this this Report.
Report. Only
Only that
that way,
way, will
will impunity
impunity be be
stamped out
stamped out of our
our society.
society.
192
Sichangi Adv
PART
PART FIVE
FIVE
PROPOSALS ON
PROPOSALS IMPLEMENTATION OF
ON IMPLEMENTATION OF THE
THE
COMMISSION'S REPORT
COMMISSION'S REPORT
ACTION
ACTION FOR
FOR CHANGE:
CHANGE: HOW
HOW TO
TO DO
DO IT?
IT?
Background
(a) Background
"Land crimes"
"Land crimes" are are asas much
much aa part part ofof Kenya's
Kenya's pastpast wrongdoings,
wrongdoings, as as
economic crimes
economic crimes and and human
human rights
rights crimes.
crimes. Together,
Together, theythey constitute
constitute thethe
country's
country's transitional
transitional justice
justice agenda.
agenda. The The challenge
challenge toto the
the government
government is is to
to
rise
rise toto the
the occasion
occasion and and deal
deal comprehensively
comprehensively with
with thethe corrupt
corrupt andand·
fraudulent practices,
fraudulent practices, which
which have
have bedeviled
bedeviled Kenya's
Kenya's public
public land
land allocation
allocation
and
and administration
administration for several
for several decades.
decades. ItIt will
will take
take a herculean
herculean effort
effort toto
rectify all that
rectify all that has
has gone
gone wrong.
wrong. Therefore,
Therefore, government
government must must involve
involve thethe
people,
people, as as what
what is is at
at stake
stake isis the
the national
national interest.
interest. This
This ought
ought to to bebe the
the
concern
concern of of every
every citizen.
citizen. Effort
Effort and and support
support should
should bebe broadened
broadened and and the
the
positive
positive rolerole that
that civil
civil society
society and and the
the media
media could
could playplay should
should be be
recognized
recognized and and encouraged.
encouraged.
(b) Framework
Framework
This part
This part of
of the
the report
report is the
the summary
summary of of the
the Appendix
Appendix on on Implementation,
Implementation,
which forms an
which forms an analysis
analysis of of thethe. implementation
implementation of the
of the outcome
outcome of of the
the
inquiry.
inquiry. It It integrates
integrates the the retrospective
retrospective (findings)
(findings) and and prospective
prospective
(recommendations) parts
(recommendations) parts of the
the report.
report. The
The former
former dealt
dealt with
with the
the questions
questions
"what
"what happened
happened withwith public
public land,
land, how
how andand why?
why? And And what
what have
have been
been the
the
impacts?"
impacts?" The The latter
latter appraised
appraised the the question
question "what
"what should
should be be done?"
done?" TheThe
integration
integration ofof the
the parts
parts leads
leads toto the
the question
question "how
"how to to do
do it?"
it?"
An "implementation
An "implementation framework"
framework" is is employed
employed to to conceptualize
conceptualize and and analyze
analyze
the strategy
the strategy implied
implied by by the
the inquiry
inquiry and
and the
the organization,
organization, that that is,
is, the
the parts
parts of
of
the government system
the government system thatthat would
would implement
implement it. The The strategy
strategy component
component is is
split into
split into the
the implied
implied policy
policy andand the
the programme.
programme. Policy Policy comprises
comprises purpose
purpose
and objectives
and objectives andand programme
programme includes
includes the the elements
elements of of outcomes,
outcomes, actions,
actions,
resources
resources and and plan.
plan. The
The organisation
organisation component,
component, that that is,
is, the
the government
government
system reveals
system reveals the
the set
set ofof implementers
implementers of of the
the strategy.
strategy. TheThe setset consists
consists ofof
the existing structures
the existing structures of government,
government, and and thethe new
new structures
structures thatthat would
would bebe
required, to
required, to execute,
execute, oversee
oversee and and steer
steer the
the strategy.
strategy. The The pictorial
pictorial display
display ofof
the overview the framework follows.
the overview of the framework follows.
193
Sichangi Adv
I Inquiry
(propagate. pa<"{-
(propagates PlO!I"nvne)
policy programme)
J ( Implementation
Implementation
Framework
Framework
) Overview
-
I 4,•• I f
I Purpose
Purpose
I (implied
Policy
Policy
inquiry)
(implied by inquiry) Strategy)
(Strategy)
I Organization
Organization
(Govemmenl System)
(Government Syslem)
I
...
i #
~
I Objectives
Objectives
t
I I
Programme
Programme
(implied pohcy)
(implied by policy)
...
Strategy
Interaction
(policy-programme) and
Strategy (policy—programme)
interaction and fitfit
andStructures
Structures
II
I
Outcomes Act'ons
wutcome~11
V='s
(Include ~IS
Actions
(Includ Inputs
(Include.I~IS
ac,l`ridImp<! $)) and
(jnand and Activities)
kiivibes)
II .~~~
Resources
Resources
(Include Ava~bIe
Available and
Inanaal ana
FrnanrJal
and New
New Human.
Ht.man.
Ph 'SleaI ResOurt8S)
and Physcal Resources)
I _Occludes
Plan
Plan
Events. Milesiones and
~Iodudes Evenl~.~ileston~.
me tarcets.
Time
and
A.ctivllles. OeasJOns~
tames Activities Decisons!
I( •
(
Structures
Structures
(parts of
(parts of Government System)
Government System)
))
(c) Strategy
(c) Strategy
Policy: kind.purpose
Policy: kind; purpose and and objectives
objectives
The kind
The kind ofof policy
policy implied
implied by by the
the inquiry
inquiry can
can be
be described
described as as aa"redress
"redress
policy" to ameliorate
policy" grave situation
ameliorate the grave situation and
and the
the severity
severity of crisis,
crisis, resulting
resulting
from
from the illegal allocation
the illegal allocation of public
public land,
land, particularly
particularly public
public utility
utility land. It
falls into the
falls into the realm
realm of of "transitional
"transitional justice".
justice". The
The implementation
implementation of of the
the
implied policy
implied policy must
must take
take into
into account
account itsits complex,
complex, unique
unique andand historical
_historical
nature and
nature and character.
character. The
The purpose
purpose andand objectives
objectives of of the
the policy
policy areare both,
both,
retrospective or
retrospective or backward-looking,
backward-looking, as as they
they correct
correct past
past wrongdoings,
wrongdoings, and and
also prospective
also prospective or forward-looking,
forward-looking, as they prevent prevent future
future repetition
repetition and and
recurrence, while
recurrence, while nurturing
nurturing hopehope andand amelioration.
amelioration. The The purpose
purpose or or the
the
strategic intent
strategic intent could
could be be formulated
formulated asas "the "the redress
redress of of the
the past
past
wrongdoings by
wrongdoings by government, individuals, both
government, individuals, both public
public and private,
private, withwith
respect
respect to the illegal allocation and development of public land".
allocation and development of public land".
The recommendations of the Inquiry

The recommendations Inquiry imply
imply policy
policy objectives
objectives in in such
such areas
areas
as: legislation enactment—to
as: legislation enactment-to provide forum to enable
provide a forum enable the
the revocation
revocation and and
rectification
rectification process
process to become practicable
to become practicable and and to modify any
to modify any existing
existing
obstructive
obstructi ve laws.
laws. This cancan be
be achieved
achieved byby the
the enactment
enactment of ofan anamendment
amendment
to the Government
to the Government Lands Lands ActAct (GLA),
(GLA), to establish
establish andand operate
operate the the Land
Land
Titles Tribunal, and consequential amendments
Titles Tribunal, and consequential amendments to other legislation; to other legislation;
revocation and
revocation rectification and the validation—of
and rectification validation-of registered
registered titles to to land,
land,
restitution
restitution of land and property
and property from revoked titles,
revoked titles, and restitution from the
restitution from the
unjustly enriched; prosecution—to
unjustly enriched; prosecution-to investigate with
investigate withaa viewview to to the
the
prosecution of criminal
prosecution criminal offenders
offenders and
and offences
offences suspected
suspected or or disclosed
disclosed in in
the illegal
the illegal allocation
allocation ofof land,
land, and
and to
to obtain
obtain restitution
restitution of landland under
under the
the
relevant laws; lustration—to
relevant laws; lustraiion=-us prohibit
prohibit wrongdoers
wrongdoers 'from from holding
holding public
public
194
Sichangi Adv
office and
office and to
to invoke
invoke disciplinary
disciplinary action
action against
against errant
errant professionals
professionals
(lustration derived
(lustration derived from
from Latin, lustrare, "to
Latin, lustrare, "to shed
shed light"); monitoring—to
light"); monitoring-to
establish systems and
establish systems and produce
produce relevant
information' for for multiple
multiple purposes,
purposes,
which include
which include audits;
audits; and
and divestment-to restitute land
divestment—to restitute land intended
intended for for the
the
landless but
landless but diverted
diverted toto ineligible
ineligible persons,
persons, as as it is the
it is the case
case ininsettlement
settlement
schemes.
schemes.
Constraints
Constraints
The types
The types of limitations
limitations and and obstacles,
obstacles, including
including the
the risks
risks that
that may
may stand
stand inin
the way
the way ofof redress
redress of of the
the past
past wrongdoings
wrongdoings and and achieving
achieving thetheobjectives
objectives
are political,
are political, legal,
legal, organisational,
organisational, and and budgetary. Political, as
budgetary. Political, as the
the
individuals, public
individuals, public officials,
officials, even
even elected
elected representatives
representatives or or bodies,
bodies, whose
whose
stakes—the ill-gotten
stakes-the ill-gotten land
land and
and property,
property, would
would be be threatened
threatened by by the
the
strategy, may
strategy, may erect
erect barriers
barriers everywhere
everywhere and and impose
impose limitations
limitations on the the
acceptance and
acceptance and execution
execution of of the strategy. Legal, in terms
strategy. Legal, terms of thethe laws
laws and
and
rules, the
rules, the due
due process
process and and litigations
litigations that
that may
may limit
limit attempts
attempts to to achieve
achieve
objectives. The
objectives. The likely
likely risk
risk would
would be be that
that the
the strategy
strategy is subverted
subverted by its its
opponents through
opponents through overtovert and
and covert
covert politics.
politics.
Organisational, as
Organisational, as the
the structures
structures that
that would
would implement
implement the the policy
policy and
and
programme may
programme may limit
limit efforts
efforts toto achieve
achieve thethe objectives
objectives due due to to their
their past
past
involvement in corrupt
involvement corrupt and and fraudulent
fraudulent practices,
practices, or or inherited
inherited incompetence
incompetence
and dysfunctional
and dysfunctional systems.
systems. The The possible
possible risk
risk would
would be be that
that the
the strategy
strategy isis
inhibited rather than
inhibited rather than enabled
enabled to to succeed. Budgetary, as
succeed. Budgetary, as the
the government
government
funds being limited
funds being limited may
may require
require that
that the
the effort
effort to
to achieve
achieve the the objectives
objectives ofof
the
the strategy
strategy be be considered
considered in in light
light ofof the
the scarcity
scarcity of of resources.
resources . .ItIt isis
important
important to take into account
account the the budgetary
budgetary implications
implications of ofthethe uncertainty
uncertainty
concerning
concerning the the turnaround
turnaround time time or
or the
the life cycle
cycle ofof the
the strategy.
strategy. TheThe risk
risk
would
would be that a poor fit fit of
of resources/budget
resourceslbudget and and the
the strategy
strategy might
might weaken
weaken
its effect.
(d)
(d) Programme
Programme
The programme
The consists of
programme consists of the
the setset ofofelements,
elements, encountered
encountered in in
programmingthat
programming that fulfill
fulfill purpose
purpose andand objectives,
objectives, such
such as:as: outcomes
outcomes
(outputs
(outputs and
and impacts),
impacts), actions
actions (activities
(activities and
and inputs),
inputs), resources
resources andand plan.
plan.
They are
They are interrelated
interrelated in a hierarchy
hierarchy such
such that
that the
the attainment
attainment of of the
the lower
lower
ones enhances
ones enhances the attainment
attainment of thethe higher
higher ones.
'ones. A
A tool
tool isisdevised,
devised, which
which
structures the
structures the monitoring
monitoring and and thethe evaluation
evaluation elements
elements (intents
(intents and
and
measures matrix)
measures matrix) of the
the programme.
programme.
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Sichangi Adv
Actions
Actions
The actions
The actions are
are of
of two
two types:
types: the
the set
set of
of activities
activities toto accomplish
accomplish the the
outcomes—outputs
outcomes-outputs and
and impacts;
impacts; and and the
the allocation
allocation of resources
resources or thethe
inputs to achieve
inputs achieve thethe activities
activities efficiently,
efficiently, effectively
effectively andand adequately
adequately and and
on
on time.
time. Activities
Activities and
and inputs
inputs comprise
comprise the the process
process that
that shapes
shapes the
the outputs.
outputs.
The programme
The programme activities
activities correspond
corres , nd one-to-one
one-to-one with with the
the objectives
objectives like:
like:
legislation enactment
legislation enactment activity, re ocation and rectification
activity, reVocation rectification activity,
activity,
prevention
prevention activity,
activity, prosecution
prosecution activity,
a'tivity, lustration
lustration activity,
activity, monitoring
monitoring
activity and divestment
activity divestment activity.
activity.
Outcomes
Outcomes
The
The tangible
tangible outputs
outputs expected
expected are a of of such
such types
types as:
as: restituted
restituted landland and
and
property—from
property-from revoked
revoked titles,
titles, from
frob; unjustly -enriched, from
unjustlyenriched, from crimes
crimes under
under
penal code,
penal code, anti-corruption
anti-corruption and and others
oth s laws.
laws. Audits—of
Audits-of State State Corporations
Corporations
concerning
concerning pastpast illegal
illegal land
land transactions,
transactions, all past past illegal
illegal allocations
allocations of of
public
public land,
land, settlement
settlement schemes schemes lands lands diverted
diverted to to ineligible
ineligible persons.
persons.
Systems—better
Systems-better and preventive
and preventive land land administration
administration and and information
information
systems
systems and operating
operating procedures.
procedures. Services—examination
Services-examination and
and verification
verification
of
of registered
registered titles
titles to to land
land for fora afee.fee.Products—land
Products-land titles titlesinsurance
insurance
products from
products from insurance companies; Register
insurance companies; Registerofof public
public lands
lands of of the
the
Republic
Republic of Kenya,
Kenya, whichwhich comprise–
comprise- urbanurban lands
lands (cities,
(cities, municipalities,
municipalities,
townships),
townships), lands
lands of of ministries
ministries and and departments,
departments, statestate corporations
corporations lands,lands,
trust
trust lands,
lands, settlement
settlement schemes
schemes lands,lands, forest
forest lands,
lands, wetlands,
wetlands, riparian
riparian lands,
lands,
the foreshores,
the foreshores, gamegame reserves
reserves and and national
national parks
parks lands,
lands, and and national
national
museums and protected
museums protected areas areas lands;
lands; Lustration—public
Lustration-public officialsofficials removed
removed
and
and prohibited
prohibited fromfrom holding
holding public public office;
office; and
and errant
errant professionals
professionals
disciplined by their
disciplined their respective
respective bodies.
bddies. Justice
Justice (retributive)—convictions
(retributive)-convictions
under penal
under penal code,
code, anti-corruption
anti-corruption and and other
other laws;
laws; Justice
Justice (distributive)—
(distributive)-
distribution of land divested
distribution divested from from the{hesettlement
settlement schemes
schemes to to beneficiaries,
beneficiaries,
intended by the original
intended original policy.
policy. "
Resources and Costs

Resources Costs
Tools are
Tools are devised
devised which
which structure
structurd the
the resources
resources element
element (resources
(resources andand
activities matrix)
activities matrix) the
the cost elemeht (cost
cost elemeht (cost and
and activities
activities matrix)
matrix) ofof the
the
programme and
programme and cursory
cursory indicatidh
indicatidnisis given
given of
of the
the new
new and
and available
available
human, financial
human, financial and
and physical resburces required;
physical re§burces required; and
and the
the primary
primary costs
costs
(bne-time fixed,
(bne-time fixed, capital,
capital, recurring)
recurring) and secondary
secondary cost
cost implications
implications of
of the
the
programme.
prograf9me; ,
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Sichangi Adv
Plan
Plan
The plan
The plan element
element of of the
the programme
programme structures
structures thethe process
process sequence.
sequence. ItIt
begins with
begins with the
the concluding
concluding event of
event of the
the inquiry
inquiry phase,
phase, that
that is,
is, the
the' -
submission by the Commission of Inquiry, of its report to the President.
submission by the Commission of Inquiry, of its report to the President.
How long
How long will
will the
the process
process taketake from
from beginning
beginning toto the
the end?
end? The
The answer
answer toto
the question
the question is is constrained
constrained by by the
the uncertainty
uncertainty concerning
concerning the the turnaround
turnaround
time or
time or the
the life
life cycle
cycle ofof the
the programme
programme that that would
would bebe implemented.
implemented. ItIt isis
dealt with
dealt with further
further on.
on.
The concluding
The concluding event
event ofof the
the inquiry
inquiry phase
phase initiates
initiates thethe adoption
adoption phase
phase ofof
the process,
the process, or milestone 1.
or milestone 1. The
The fixing
fixing ofof -the
the time
time target
target of the milestone
milestone is is
the discretion
at the discretion of the Executive.
Executive. Responsiveness
Responsiveness is is very
very desirable
desirable and
and the
the
phase should
phase should be be concluded,
concluded" as as soon
soon as as practicable.
practicable. ItIt includes
includes thethe
execution of an activity
execution activity and the making
making of a decision
decision by the Executive.
Executive. The
outcome expected
outcome expected from the the phase
phase is:
is: the
the establishment
establishment and and operation
operation ofofthe
the
Task
Task Force,
Force, recommended
recommended by by the Commission,
Commission, to advise advise and
and assist
assist the
the
Ministry
Ministry of of Land
Land andand Settlements
Settlements on on immediate
immediate actions
actions in in several
several areas,
areas,
until such
until such time
time asas The
The Land
Land Titles
Titles Tribunal
Tribunal isisestablished
established and and operated;
operated;
and the
and the decision
decision of thethe Executive
Executive on on the
the preferred
preferred policy
policy and
and programme
programme
to implement,
to implement, to redress
redress the past
past wrongdoings
wrongdoings and the the prevention
prevention in in the
the
future.
The
The conclusion
conclusion of the adoption
adoption phase
phase initiates
initiates the implementation
implementation phasephase of
the
the process, milestone 2. The
process, or milestone The fixing
fixing of the time targettarget of
of the
the milestone
milestone is is
also
also at thethe discretion
discretion ofof the
the Executive.
Executive. The The phase
phase includes
includes two
two sets
sets of
of
activities and
activities and a decision
decision of the Executive.
Executive. The first first set of activities
activities is to do
with:
with: thethe enactment
enactment of of aa new
new section
section into
into the
the Government
Government Lands Lands ActAct
(GLA)—to establish
(GLA)-to establish the Tribunal,
Tribunal, including
including consequential
consequential amendments
amendments to to
other legislation;
other legislation; the establishment and commencement of operation of the
establishment and commencement of operation of the
Tribunal, after
Tribunal, after preparation
preparation and and training
training lasting
lasting three
tliree months;
months; andand thethe
establishment
establishment and and operation
operation of the the steering
steering system
system and and the
the strategic
strategic unit
unit
for
for the
the oversight
oversight and
and the
the steering
steering of of the
the programme.
programme. The The second
second setset of
of
activities is to do
activities do with
with execution
execution of of the
the respective
respective substantive
substantive activities
activities of
of
the
the programme, including oversight
programme, including oversight and and steering.
steering. The The decision
decision ofof the
the'
Executive is on when and
Executive and how
how toto conclude
conclude the programme.
programme.
The expected
The outcomes of
expected outcomes of the
the phase
phase are
are the
the outputs
outputs of
of the
the activities,
activities,
illustrated
illustrated under outcomes. The
under outcomes. The question
question of how long
long the
the process
process will
will take
take
to achieve
achieve the outcome
outcome can
can be
be addressed
addressed by
by conducting
conducting anan assessment
assessment of of
197
Sichangi Adv
the
the programme
programme at at an
an appropriate
appropriate time,
time, which
which the
the Commission
Commission recommends
recommends
should
should be be twenty-four
twenty-four months
months after
after the
the commencement
commencement of
of implementation.
implementation.
The assessment,
The assessment, which which ought
ought toto be
be conducted
conducted by by the
the strategic
strategic unit,
unit, should
should
shed light on the uncertainty, and arrive at a real estimation of
shed light on the uncertainty, and arrive at a real estimation of the
the
turnaround
turnaround time or
time or life
life cycle
cycle of of the
the programme.
programme. This This would
would permit
permit the
the
Executive to reach an informed decision and consensus on when and how
Executive to reach an informed decision and consensus on when and how
to conclude the
to conclude the programme.
programme.
The
The conclusion
conclusion of of the
the implementation
implementation phase
phase initiates
initiates the
the evaluation
evaluation phasephase
of the
of the process
process or milestone 3.
or milestone The time
3. The time target
target ofof the
the milestone
milestone is is fixed
fixed by by
the
the Steering
Steering System.
System. The The Strategic
Strategic UnitUnit administers
administers the the evaluative
evaluative activity.
activity.
The outcome
The outcome of of the
the phase
phase isis the
the assessment
assessment of of the
the ultimate
ultimate outcome,
outcome, that that
is,
is, the
the outputs
outputs and
and thethe impacts
impacts of of the
the policy
policy andand the
the programme
programme or or the
the
strategy.
strategy. The The conclusion
conclusion of of the
the evaluation
evaluation phasephase ends
ends the
the programme,
programme, as as
required by
required by the
the decision
decision of of the
the Executive.
Executive.
(e) Organisation
(e) Organisation
The
The organisation
organisation component,
component, that that is,
is, the
the government
government system
system reveals
reveals the
the set
set
of implementers
implementers of the strategy.
strategy. The set set consists
consists of
of the
the existing
existing structures
structures
of government,
government, and the new new structures
structures thatthat would
would be be required,
required, to
to execute,
execute,
oversee and steer the strategy. The challenge is achieve a good fit
oversee and steer the strategy. The challenge is to achieve a good fit
between the
between the strategy,
strategy, andand such
such other
other elements
elements ofoforganisations
organisations as: as:
structures, systems,
structures, systems, staff,
staff, skills
skills and
and core
core competence,
competence, style
style and
and culture
culture or or
shared values.
shared values.
Constraints
Constraints
There
There are
are severe
severe organizational
organizational pathologies
pathologies originating
originating from
from thethe past
past era,
era,
which
which afflicted
afflicted and
and degenerated
degenerated these
these elements, especially the
elements, especially the culture
culture or
shared
shared values
values of the civil
civil service.
service. Norms
Norms werewere corrupted.
corrupted. The
The pressures
pressures toto
commit immoral,
commit immoral, illegal
illegal and
and criminal
criminal acts
acts mounted.
mounted. Consequently,
Consequently, the rise
of `kleptocracy'—government
'kleptocracy'-government by
by theft,
theft, and
and the
the culture
culture of
of impunity,
impunity, which
which
perpetrated
perpetrated thethe plunder
plunder of public
public land andand money
money besides
besides abuse
abuse of
of human
human
rights.
rights. This
This systemic
systemic crisis
crisis is
is being
being ameliorated
ameliorated by by the
the governance
governance and and
ethics reforms
ethics reforms that are are underway.
underway.
The degenerate
The degenerate culture
culture of the
the civil
civil service,
service, that
that is,
is, its
its collective
collective attitude,
attitude,
character and
character and the reputation
reputation would
would impose
impose limitations
limitations and and obstacles
obstacles that
that
198
Sichangi Adv
may
may stand
stand in the
the way
way ofof achieving
achieving thethe strategy.
strategy. The
The decision
decision process
process of of the
the
civil service
civil service waswas characterized
characterized by by 'orders
'orders fromfrom above'
above' dictum,
dictum, which
which
propagated the
propagated the abuse
abuse of power—authorized
power-authorized or not
not and
and the
the abuse
abuse of of office,
office,
by
by thethe senior
senior andand subordinate
subordinate staff
staff at at the
the centre
centre and
and periphery
periphery of of the
the
administration. The
administration. The orders
orders were
were also
also obeyed
obeyed for for fear
fear of being
being sacked.
sacked. TheThe
administrative
administrative style style of
of subservience
subservience and and unquestioned
unquestioned conformity
conformity to to the
the
dictates of the political patron led to the systemic crisis of accountability,
dictates of the political patron led to the systemic crisis of accountability,
transparency
transparency and integrity.
and integrity. TheThe aftermath
aftermath would also
would also inhibit
inhibit the the
implementation
the strategy.
strategy.
There would
There would be be risk
risk of
of covert
covert politics
politics and and resistance
resistance to to the
the strategy,
strategy, by by
those
those inside
inside the the bureaucracy
bureaucracy and and their
their allies
allies outside,
outside, whose
whose stakes
stakes –- the
the ill-
ill-
gotten land
gotten land and and property,
property, would
would be be threatened
threatened by by it.it. Therefore,
Therefore, the the
implementers
implementers of the
of the strategy
strategy should
should be be appropriately
appropriately and and adequately
adequately
prepared
prepared toto confront
confront this this challenge.
challenge. The top
The top civil
civil servants
servants and and
policymakers
policymakers should should move
move fromfrom the the inherited
inherited dictatorial
dictatorial and and autocratic
autocratic
style, to
style, to aa participative
participative style
style ofof administration.
administration. They They should
should internalize
internalize
NARC's electoral
NARC's electoral promise
promise to to the
the citizens
citizens regarding
regarding the the realization
realization of of
"good
"good governance
governance and and participatory
participatory democracy".
democracy".
. (0
(f) Structures
Structures
The new
The. new structures
structures that
that would
would be be established
established andand operated,
operated, as as
recommended by
.recommended by the
the Commission,
Commission, include The Land
include The Land Titles
Titles Tribunal,
Tribunal, thethe
Task
Task Force
Force to advise
advise and
and assist
assist the
the Ministry
Ministry of of Land
Land and
and Settlements,
Settlements, and and
the
the Steering
Steering System
System andand the
tfie Strategic
Strategic Unit.
Unit. These
These new
new structures
structures andand the
the
existing structuresthat
existing structures that would
would be be involved
involved constitute
constitute the the setset ofof
implementers
implementers of such programme
programme activities
activities as: revocation
revocation and
and rectification,
rectification,
prosecution, prevention, lustration,
prosecution, prevention, lustration, monitoring
monitoring and divestment.
divestment.
The Land
The Land Titles
Titles Tribunal
Tribunal
The
The Tribunal
Tribunal would
would bebe established
established and
and operated
operated by
by the
the enactment
enactment ofof an
an
amendment—a new
amendment-a new Section
Section 147(A),
147(A), to
to the
the Government
Government Lands
Lands Act
Act (GLA).
(GLA).
The
The Tribunal
Tribunal shall
shall consist
consist of
of aa Chairperson,
Chairperson, aa Deputy
Deputy Chairperson
Chairperson and
and
nine
nine members,
members, appointed
appointed by the Minister,
Minister, with
with specified
specified qualifications
qualifications and
and
credentials. The Tribunal
credentials. The Tribunal is a quasi-judicial body. It would
quasi-judicial body. would have
have the
the same
same
jurisdiction and
jurisdiction and powers
powers as
as conferred
conferred upon
upon the
the High
High Court
Court inin Civil
Civil matters.
matters.
199
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Task Force
Task Force
A Task
A Task Force
Force to advise
advise andand assist
assist the
the Ministry
Ministry of of Land
Land andand Settlements
Settlements is is
recommended by
recommended by the
the Commission.
Commission. It should should bebe established
established and and operated
operated
under the
under the Executive
Executive powerpower of of government,
government, under under Section
Section 23 23 of of thethe
Constitution. It would
Constitution. would consist' of specialists
consist 'of specialists in the area area of
of land
land law
law and
and land
land
administration from
administration from outside
outside Government
Government and and Permanent
Permanent Secretary
Secretary of of
Ministry of
Ministry of Land
Land and and Settlements,
Settlements, Permanent
Permanent Secretary
Secretary of of Ministry
Ministry of of
Local Government,
Local Government, Permanent
Permanent Secretary
Secretary of of Ministry
Ministry ofofEnvironment,
Environment,
Natural Resources
Natural Resources and and Wildlife,
Wildlife, Director
Director of of Kenya
Kenya Anti-corruption
Anti-corruption
Commission and
Commission and Director
Director ofof Criminal
Criminal Investigations
Investigations Department.
Department. The The
Task Force
Task Force would
would advise
advise and
and assist
assist the
the Ministry
Ministry on: on: revocation
revocation of of illegal
illegal
registered titles;
registered titles; repossession
repossession of of land;
land; measures
measures to to be
be taken
taken regarding
regarding
claims filed
claims filed in in the
the courts;
courts; information
information retrieval
retrieval systems
systems for formultiple
multiple
purposes; and
purposes; and verification
verification of of the
the validity of registered
validity of titles to land.
registered titles land. ItIt
would assist
would assist CIDCID on oninvestigating
investigating and andprosecuting
prosecuting criminal
criminal offenders
offenders
under the
under the Penal
Penal Code
Code in the areaarea ofof illegal
illegal allocation
land in thethe past
past
decade or so.
decade
Steering System
Steering and Strategic
System and Strategic Unit
Unit
The
The role of these structures
structures is
is in
in aa real
real world
world situation
situation is
is to
to think
think ahead
ahead and
and
adapt en
adapt en route
route the
the implementation
the strategy.
strategy, as
as the
the circumstances
circumstances.
demand. A
demand. A triad
triad comprising
comprising aa helmsman,
helmsman, aa captaincaptain and and aa navigator
navigator
constitute
constitute a good
good analogy
analogy ofof the
the steering
steering system.
system. The
The implementers
implementers of of the
the
activities are
activities are the
the helmsmen
helmsmen of the the programme—the
programme-s-the driversdrivers of change.
change. The
The
Steering System
Steering System should
should have
have thethe representation
representation of of the
theAnti-Corruption
Anti-Corruption
Strategy Steering
Strategy Steering Committee,
Committee, which as as the
the policy-maker
policy-maker is is the captain, the
the captain,
one who
one who makes
makes changes
changes in the destination or policy.
the: destination policy. The Strategic
Strategic Unit
Unit isis
the
the navigator,
navigator, whowho charts
charts the course,
course, ensures
ensures that
that the programme
programme is on on the
the
right
right path and
arid changes
changes course
course only
only as as the
the circumstances
circumstances demand.
demand.
An
An important
important task
task would
would be to to monitor
monitor policy
policy slippages and drifts
slippages and drifts in the
course implementation. Slippages are associated with distortions of
course of implementation. Slippages are associated with distortions of
policy intentions
policy intentions and
and drifts
drifts occur
occur when
when thethe original
original policy
policy intentions
intentions areare
fundamentally altered. The Strategic Unit responsible for seeing that the
fundamentally altered. The Strategic Unit is responsible for seeing that the
strategy
strategy is is put
put into
into effect.
effect. ItItperforms
performs the theplanning,
planning, coordinating,
coordinating,
communicating,
communicating, monitoring
monitoring and evaluating
evaluating functions.
functions. Therefore,
Therefore, thethe unit
unit
should
should be endowed
endowed with appropriate
appropriate and adequate
adequate human
human resources
resources and the
support
support services.
services.
200
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Sichangi Adv
(g) Implementers
(g)
The
The implementers
implementers and and those
those who
who would
would be becollaborators,
collaborators, include:
include: thethe
Ministry of Land and Settlements which is
Ministry of Land and Settlements which is the focal point of the focal point of
implementation;
implementation; the the Land
Land Titles
Titles Tribunal;
Tribunal; Office
Office of of the
thePresident—
President-
Governance
Governance and and Ethics,
Ethics, Kenya
Kenya Police
Police (CID),
(CID), Inspectorate
Inspectorate of of State
State
Corporations;
Corporations; Kenya
Kenya Anti-Corruption
Anti-Corruption Authority
Authority (KACA);
(KACA); the the Ministry
Ministry of of
Justice
Justice and Constitutional
Constitutional Affairs;
Affairs; Judiciary;
Judiciary; and the the Ministries
Ministries of of Local
Local
Government; Roads, Public
Government; Roads, Public Works
Works andand Housing;
Housing; and andEnvironment,
Environment,
Natural Resources
Natural Resources and Wildlife. They
and Wildlife. They" would
would execute
execute the the respective
respective
programme activities. The
programme activities. The oversight and steering
oversight and steering activity
activity would
would be be the
the
responsibility of
responsibility of the
the Steering
Steering"System
System and
and the
the Strategic
Strategic Unit.
Unit.
An 'implementer
An 'implementer and and measures
measures matrix' could be
matrix' could be devised
devised for for rapid
rapid
assessment
assessment of of any
any implementer,
implementer, around
around such
such criteria
criteria as:
as:responsiveness,
responsiveness,
adequacy, appropriateness,
adequacy, appropriateness, effectiveness
effectiveness and efficiency, with
and efficiency, with respect
respect to
to
structure, staff, systems,
structure, staff, systems, skills,
skills, style
style and
and most
most importantly,
importantly, culture
culture oror
shared values. For detailed
shared values. detailed proposals on on the
theimplementation
implementation process
processseesee
Annex
Annex 20 in Vol.Vol. II of
of the
the Annexes.
Annexes.
201
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APPENDICES
APPENDICES
203
203
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Zoo
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APPENDIX 1
APPENDIX 1
THE KENYA
KENYA GAZETTE
GAZETTE
4TH
July,
July,2003
GAZETTE NOTICE
GAZETTE No. 4559
NOTICENo. 4TH 2003
COMMISSIONS OF
THE COMMISSIONS OF INQUIRY
INQUIRY ACT
ACT
(Cap.
(Cap. 102)
COMMISSION
COMMISSION OF INQUIRY.
INQUIRX
WHEREAS
WHEREAS it appears
appears that lands
lands vested
vested in thethe Republic
Republic or
or dedicated
dedicated
or
or reserved
reserved for
for public
public purposes
purposes maymay have
have been
been allocated,
allocated, by corrupt
corrupt or
or
fraudulent practices
fraudulent practices or
or other
other unlawful
unlawful oror irregular
irregular means,
means, totoprivate
private
persons,
persons, andand that
that such
such lands
lands continue
continue to be
be occupied
occupied contrary
contrary to
to the
the good
good
title
title of
of the
the Republic
Republic oror in
in aamanner
manner inconsistent
inconsistent with
with the
the purposes
purposes for
for
which such lands were
which were respectively
respectively dedicated
dedicated or
or reserved.
reserved.
NOW
NOW THEREFORE,
THEREFORE, in in exercise
exercise of of the
the powers
powers conferred
conferred on on the
the
President by
President by section
section 3 of the Commissions
Commissions of Inquiry Inquiry Act,
Act, I,I, Mwai
Mwai Kibaki,
Kibaki,
President and
President and Commander-in-Chief
Commander-in-Chief of of the
the Armed
Armed Forces
Forces of of the
the Republic
Republic
of Kenya,
Kenya, being
being of the opinion
opinion that
that itit is
is the
the public
public interest
interest to
to do
do so,
so, appoint
appoint
a Commission
Inquiry to
to be
be held
held fortwith
fortwith in in Nairobi
Nairobi bybythethefollowing
following
persons
persons who shall bebe the
the commissioners-
commissioners-
Paul Njoroge Ndtingu,
Paul Njoroge Ndungu, who shall be the Chairman
Chairman of the
Commission; and
Commission; and'
Michael
Michael Aronson,
Aronson, who shall
shall be
be the
the Vice-Chairman;
Vice-Chairman; and and
Abdallah Ahmed
Abdallah Ahmed Abdallah;
Abdallah;
Davinder Lamba;
Davinder Lamba;
Ann Kirima
Ann Kirima (Ms.);
Ishan
Ishan Kapila;
Kapila;
Odenda
Odenda Lumumba;
Lumumba;
Winston
Winston O. 0. Ayoki;
Ayoki;
Nancy
Nancy Wanjiru
Wanjiru Mukunya
Mukunya (Ms.);
(Ms.);
Peter Koech;
Peter Koech;
Permanent Secretary
Permanent Secretary inin the
the Office
Office of the
the President
President responsible
responsible for
for
Governance and
Governance and Ethics
Ethics or
or his
his designated
designated representative;
representative; Permanent
Permanent
Secretary, Ministry
Secretary, Ministry of of Lands
Settlement or or his
his designated
designated
representative;
representati ve;
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Sichangi Adv
Peiiiianent
Secretary, Ministry
Ministry of of Environment,
Environment, Natural
Natural Resources
Resources
and Wildlife
and Wildlife or
or his
his designated
representative;
Permanent Secretary, Ministry
Permanent Secretary, Ministry ofof Roads,
Roads, Public
Public Works
Works and
and Housing
Housing
or
or his
his designated
representative;
Permanent
Secretary, Ministry
Ministry of Local
Local Government
Government oror his
his designated
designated
representative; and
representative;
Thuita Mwangi
Thuita Mwangi and and Smokin Wanjala,who
Smokin Wanjala, who shall
shall be
be the
the joint
joint
secretaries of the
secretaries the Commission;
Commission; and
and
Raychelle
Raychelle Awour
Awour Omamo;
Omamo; and
and
Wanyiri
Wanyiri Kihoro,
Kihoro,
who
who shall
shall be counsel
counsel to
to assist
assist the
the Commission.
Commission.
AND
AND I SPECIFY,
SPECIFY, as
as terms
terms of
of reference
reference for
for the
the inquiry,
inquiry, the
the following=
following:'
(a) to inquire
(a) to inquire generally
generally into
into the
the allocation
allocation of
of lands,
lands, and
and in
in particular-
particular-
(i)
(i) to inquire
to inquire into
into the
the allocation,
allocation, to private
private individuals
individuals or
or
corporation,
corporation, of of public
public lands
lands or
or lands
lands dedicated
dedicated or
or
reserved for aa public
reserved public purpose;
purpose;
(ii)
(ii) to collect
to collect and
and collate
collate all
all evidence
evidence and
and information
information
available, whether
available, whether from
from ministry-based
ministry-based committees
committees or or
from any
from any other
other source,
source, relating
relating to
to the
the nature
nature and
and
extent
extent ofof unlawful
unlawful or or irregular
allocations of such
such
lands; and
lands;
(iii)
(iii) to
to prepare
prepare a list
list of
of all
all lands
lands unlawfully
unlawfully, oror irregularly
irregularly
allocated, specifying
allocated, specifying particulars
particulars of the lands
lands and
and of
of the
the
persons to
persons to whom
whom they they were
were allocated,
allocated, the
the date
date ofof
allocation, particulars
allocation, particulars ofof all
all subsequent
subsequent dealings
dealings inin the
the
lands concerned
lands concerned and and their
their current
current ownershop
ownershop and and
development
development status;
status;
to inquire
(b) to
(b) inquire into and
and ascertain-
ascertain-
(i)
(i) the
the identity
identity of
of any
any persons,
persons, whether
whether individuals
individuals or
or
bodies
bodies corporate,
corporate, toto whom
whom any any such
such lands
lands were
were
allocated by
allocated by unlawful
irregular means;
means; and
and
(ii)
(ii) the identity
the identity of
of any
'any public
public officials
.offieials involved
involved in
in such
such
allocations;
allocations;
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Sichangi Adv
(c)
(c) to carry
to carry out
out such
such other
investigations intointo any
any matters incidentl
matters incidental
to the
to the. foregoing
foregoing as,
as, in
in the
the opinion
opinion of of the
the commissioners,
commissioners, willwill be
be
beneficial to a better
beneficial better and
and fuller
fuller discharge
discharge of of their
their commission;
commission;
(d)
(d) to
to carry
carry out
out such
such other
may bebe directed
directed by
by the
the
President or the Minister
'President Minister for
for Lands
Lands and
and Settlement;
Settlement;
(e) to recommend-
(e) recommend-
(i)
(i) legal and administrative
legal administrative measures
measures forfor the
the restoration
restoration
of
of such
such lands
lands to their
their proper
proper title
title or
or purpose,
purpose, having
having
the
the regard
regard to the rights
rights of
of any
.any private
private person
person having
having
any
any bona
bona fide entitlement to
fide entitlement to or
or claim
claim of right
right over
over the
the
lands
lands concerned;
concerned;
(ii) legal and
legal and administrative measures to
be taken
taken in
in the
the
event that
event that such
such lands
lands are
are for
for any reason
reason unable
unable to
to be
be
restored to their
restored their proper
proper title or purpose'
purpose'
(iii)
(iii) criminal
criminal investigation
investigation or prosecution
prosecution of,
of, and
and any
any other
other
measures to
measures to be taken
taken against,
against, persons
persons involved
involved inin the
the
unlawful irregular allocation
allocation of
of such
such lands;
lands; and
and
(iv)
(iv) legal and
legal andadministrative
measures for
for the
theprevention
prevention
of unlawful
allocations of
of such
such land
land in
inthe
the
future;
future; and
to report,
(f) to
(f) 'in accordance
report, 'in accordance withwith section
section 77 ofof the
the said
said Act,
Act, their
their
findings and
findings and any
any such
such recommendations
recommendations within within a period
period of of one
one
hundred and eighty (180) days commencing on the day next
hundred and eighty (180) days commencing on the day next
following the
following the day on which
which the
the last
last of
of the
the commissioners
commissioners to to take
take
his oath
his oath of office,
office, in
in accordance
accordance with
with section
section 5 of
of the
the said
said Act,
Act,
shall have
shall have done so; andand
(g) to make
(g) make monthly
monthly progress
progress reports
reports to the
the Ministry
Ministry for
for Lands
Lands and
and
Settlement.
Settlement.
AND I DIRECT
AND DIRECT the the commissioners,
commissioners, in in the
the execution
execution of of the
the
commission given and issued,
commission given issued, to
to conform
conform with
with the
the following
following instructions
instructions
(except in so far as the commissioners
(except commissioners consider
consider itit essential,
essential, for
for ascertaining
ascertaining
the truth
the truth of any
any matter
matter into
into which
which they
they are
are commissioned
commissioned to to inquire,
inquire, to
to
depart from
depart from them)-
them)-
(i)
(i) that
that evidence
evidence adversely
adversely affecting
affecting the
the regulation
regulation ofof any
any person,
person, or
or
tending to reflect
tending reflect in any
any way
way upon
upon the
the character
character or
or conduct
conduct any
any
207
Sichangi Adv
(ii) person,
person, shall
shall not be
be received
received unless
unless the
the commissioners
commissioners are are satisfied
satisfied
it is relevant
relevant to the
the inquiry,
inquiry, and
and that
that all
all reasonable
reasonable efforts
efforts have
have been
been
made
made to to give
give that
that person
person prior
prior warning
warning of of the
the general
general nature
nature ofof the
the
evidence,
evidence, andand that,
that, where
where nono such
such warning
warning has has been
been given,
given, thethe
general nature
general nature ofof the
the evidence
evidence hashas been
been communicated
communicated to to the
the
person;
person;
that the
(iii) that
(iii) the person
person shall
shall be given
given such
such opportunity
opportunity asas is
is reasonable
reasonable and
and
practicable
practicable toto be
be present,
present, either
either inin person
person or
or by
by his advocate,
advocate, at the
hearing
hearing ofof the
the evidence,
evidence, to to cross-examine
cross-examine any any witness
witness testifying
testifying
thereto,
thereto, and
and to to adduce
adduce without
without unreasonable
unreasonable delaydelay material
material
evidence,
evidence, in his own own behalf
behalf inin refutation
refutation or otherwise
otherwise in in relation
relation to
to
the
the evidence;
evidence;
(iv) that
that hearsay
hearsay evidence
evidence which
which adversely
adversely affects
affects the reputation
reputation ofof any
any
person
person or
or tends
tends to reflect
reflect in any
any way
way upon
upon the
the character
character or
or conduct
conduct
of any
any person,
person, shall
shall not
not be
be received.
received.
• AND
ANDI FURTHER
I FURTHER DIRECT DIRECT the theCommissioners
Commissioners that,
that, ininthe
the event
event
of any
of any departure
departure from
from the
the foregoing
foregoing instructions,
instructions, they
they shall
shall record
record
their reasons
their reasons therefore
therefore in the
the record
record of the inquiry,
inquiry, and
and shall
shall report
report
thereon, with
thereon, with their
their reasons
reasons therefore,
therefore, in their
their report
report of the inquiry.
inquiry.
Dated so" June, 2003.

Dated the 30th 2003.
MWAI
MWAI KIBAKI,
KIBAKI,
President.
President.
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APPENDIX 2
APPENDIX
THE KENYA
KENYA GAZETTE
GAZETTE
14th July, 2003
2003
THE COMMISSIONS
COMMISSIONS OF
OF INQUIRY
INQUIRY ACT
ACT
(Cap. 102)
(Cap.
CORRIGENDUM
CORRIGENDUM
IN Gazette
IN Notice No.
4559 of 2003, amend
of 2003, the the
amend the the name
name o0 the
the
Chairman of
Chairman of the Commission to read
the Commission "Paul Ndiritu
read "Paul Ndung'u" instead
Ndiritu Ndung'u" instead of
"Paul Njoroge
"Paul Njoroge Ndungu."
Ndungu."
209
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APPENDIX
APPENDIX 3
THKKENY A GAZETTE
THE- KENYA GAZETTE
GAZETTE NOTICE No.

GAZETTE NOTICE No. 6724
6724
THE COMMISSIONS OF
THE COMMISSIONS OF INQUIRY
INQUIRY ACT
ACT
(Cap.
(Cap. 102)
THE COMMISSION OF INQUIRY
THE COMMISSION INQUIRY INTO
INTO ILLEGALIIRREGULAR
ILLEGAL/IRREGULAR
ALLOCATION PUBLIC LAND'
ALLOCATION OF PUBLIC LAND'" --
APPOINTMENT OF
ApPOINTMENT OF JOINT
JOINT SECRETARY
SECRETARY~
IN EXERCISE
IN EXERCISE of of the
the powers
powers conferred
conferred by by section
section 66 of
of the
the
Commissions
Commissions of Inquiry
Inquiry Act,
Act, I,I, Mwai
Mwai Kibaki,
Kibaki, President
President and
and Commander-
Commander-
in-Chief of the.
in-Chief Armed Forces
the. Armed Forces of
of the
the Republic
Republic of
of Kenya,
Kenya, appoint-
appoint-
VICTORIA KATTAMBO (MRS.)

VICTORIA KATTAMBO (MRS.)
to be
be a joint
joint secretary
secretary to
to the
the commission
commission appointed
appointed byby me
me through
through Gazette
Gazette
Notice No.
Notice No. 4559
4559 of of 2003,
2003, with
with effect
effect from 22ndnd September,
from 22 September, 2003,
2003, and
and
revoke the
revoke the appointment
appointment of Thuita
Thuita Mwangi.
Mwangi.
Dated 22nd September,

Dated the 22nd September, 2003.
2003.
MWAI
MWAI KIBAKi,
KIBAKi,
President.
President.
210
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APPENDIX 4
APPENDIX
GAZETTE
GAZETTE No.
NOTICE No.
NOTICE 711
711
THE COMMISSIONS
THE COMMISSIONS OF
OF INQUIRY
INQUIRY ACT
ACT
(Cap. 102)
(Cap. 102)
JUDICIAL COMMISSION
JUDICIAL COMMISSION OF
OF INQUIRY INTO THE
INQUIRY INTO THE ILLEGAL
ILLEGAL
AND IRREGULAR
AND IRREGULAR ALLOCATION
ALLOCATION OF
OF PUBLIC
PUBLIC LAND
LAND
EXTENSION
EXTENSION OF PERIOD
OF PERIOD
IN EXERCISE
IN EXERCISE of the
of the powers
powers conferred
conferred by section
by section 44 of of the
the
Commissions of
Commissions of Inquiry
Inquiry Act,
Act, I,I, Mwai
Mwai Kibaki,
Kibaki, President
President andand Commander-
Commander-
in-Chief of
in-Chief of the
the Armed
Armed Forces
Forces of of the
the Republic
Republic of of Kenya,
Kenya, extend
extend thethe period
period
within
within which
which the
the Commission
Inquiry appointed
appointed by by me
me through
through Gazette
Gazette
Notice No.
Notice No. 45594559 of of 2003
2003 should
should report
report on on itsits findings
findings and and
recommendations, by
recommendations, by aa period
period of of ninety
ninety (90)
(90) days
days with
with effect
effect from
from the
the 24 th
24th
January, 2004.
January, 2004.
rd
Dated the 33rd
Dated the February,
February, 2004.
2004.
MWAI KI'BAKI,
MWAI
President.
President.
211
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APPENDIX 5
APPENDIX
COMMISSIONS OF
COMMISSIONS OF INQUIRY
INQUIRY ACT
ACT
(CAP 102)
(CAP
COMMISSION
COMMISSION OF
OF INQUIRY
INQUIRY INTO
INTO THE
THE ALLOCATION
ALLOCATION OF
OF
PUBLIC
PUBLIC LAND
LAND
(a) SUMMONS FOR
(a) SUMMONS FOR THE
THE PRODUCTION
PRODUCTION OF
OF RECORDS
RECORDS AND
INFORMATION
INFORMATION
(Section 10 (1) of
(Section the Commissions
of the Commissions of Inquiry
Inquiry Act)
Act)
To:
By Gazette
By Gazette Notice
Notice No. 4559, published
No. 4559, published on the 44th
on the th day
day of
of July,
July, 2003,
2003, the
the
President
President of the Republic
Republic ofof Kenya
Kenya convened
convened this
this Commission
Commission of of Inquiry
Inquiry
under the
under the Commissions
Commissions of of Inquiry
Inquiry Act
Act to
to assist
assist the
the Government
Government determine
determine
the extent
the extent to which
which lands
lands dedicated
reserved forfor aa public
public purpose
purpose have
have
been irregularly
been irregularly or illegally
illegally allocated
allocated to private
private individuals,
individuals, corporations
corporations or or
other institutions.
other institutions.
Pursuant to the powers
Pursuant powers vested
vested in this Commission
Commission by virtue
virtue of
'of Section
Section
10(1) of
10(1) of the
the Commissions
Commissions ofof Inquiry
Inquiry Act,
Act, you are hereby
you are required to
hereby required
produce for
produce for the
the examination
examination of the Commission
Commission the documents/information
documents/information
listed below within
listed below Fourteen (14)
within Fourteen (14) days the date
days of the date of this summons.
summons.
1. A list and
and particulars
particulars of ALL LANDS
of ALL LANDS held,held, used oror administered
administered
by your
your Council
Council whether
whether under
under freehold
freehold oror leasehold
leasehold title
title or
or under
under
licence the year
as at the
licence as year 1962 or as at the date
date of the establishment
establishment of
your Council,
your Council, if
if this
this occurred
occurred after
after the
the year
year 1962.
1962.
2. A list and
A list and particulars
of ALL LANDS previously
previously held, used or
held, used or
administered by your Council
administered Council which
which have
have since
since the
the year
year 1962,
1962,
"-
been
been
allocated, sold or
allocated, sold or otherwise disposed Of,
otherwise disposed of, leased,
leased, oror licensed
licensed to aa
private
private individual,
individual, corporation
corporationoror any
any other
other Council. Please do
Council. Please do
supply
supply precise
precise details
details of
of the
the recipients
recipients of
of such
such lands.
lands.
3. A list and
and particulars
of ALL which since
LANDS which since the year
year 1962
1962
have been
have been acquired
acquired by
by your
your Council
Council through
through allocation,
allocation, purchase,
purchase,
surrender, exchange
surrender, exchangeor or other
other manner.
manner. Please
Please dodo supply
supply precise
precise
details of the
details the private
private individual,
individual, corporation,
corporation, institution
institution or
or other
other
person from whom
person whom thethe said
said lands
lands were
were acquired.
acquired.
212
Sichangi Adv
4.
4. A list
A list and
and particulars
of ALL LANDS so
so acquired
acquired by your
your Council
Council
which
which havehave since
since been
been disposed
disposed of
of to
to a aprivate
private individual,
individual,
corporation or other
corporation other institutions.
institutions.
5.
5. A
A list
list and
and particulars
particulars of such
such lands
lands asas have
have already
already been
been, allocated
allocated
or in
or in any
any other
other manner
manner disposed
disposed ofof and
and whether
whether theythey had
had' been
been
dedicated or
dedicated or reserved
reserved forfor a public
public purpose
purpose e.g. e.g. hospitals,
hospitals, public
public
utilities,
utilities, parks,
parks, dispensaries,
dispensaries, road
road reserves,
reserves, etc.
etc.
6.
6. 'A
A list
list of
of status
status of
of development
development or or partial
partial development
development of ALL
of ALL
LANDS currently
LANDS currently held
held by
by your
your Council.
Council. .
7.
7. A
A list
list ofof ALL
ALL LANDS
LANDS leased from
leased from private
private individuals,
individuals,
corporations or other
corporations other institutions.
institutions.
TAKE
TAKE NOTICE
NOTICE THAT:
THAT: '
(a)
(a) The information
The information required
required should
should as far
far as possible be produced
as-possible produced to
the
the Commission
Commission inin the
the prescribed
prescribed form
form attached
attached hereto.
hereto.
(b)
(b) All
All information
information supplied
supplied must
must be
be accurate
accurate and
and truthful.
truthful.
(c)
(c) All information
All information supplied
supplied shall
shall be
be subject
subject to 'verification
verification byby the
the
Commission
Commission through
through cross-referencing
cross-referencing withwith other
other official
official records,
records,
and
and information
information derived
derived from
from the
the public
public and
and other
other sources.
sources.
TAKE FURTHER NOTICE:

TAKE FURTHER NOTICE: THAT
THAT FAILURE
FAILURE TO
TO PRODUCE
PRODUCE THE
THE
INFORMATION
INFORMATION REQUIRED TO'
REQUIRED TO THE
THE COMMISSION
COMMISSION SHALL
SHALL
AMOUNT TO
AMOUNT TO CONTEMPT
CONTEMPT OFOF THE
THE COMMISSION
COMMISSION ANDAND MAY
MAY GIVE
GIVE
RISE TO SERIOUS
RISE TO SERIOUS LEGAL
LEGAL CONSEQUENCES.
CONSEQUENCES.
DATED AT
DATED AT NAIROBI
NAIROBI ......•...... DAY
DA Y OF
OF 2003
2003
Smokin Wanjala
Smokin Wanjala Victoria Kattambo
Victoria Kattambo
JOINT
JOINT SECRETARY
SECRETARY JOINT SECRETARY
JOINT SECRETARY
213
Sichangi Adv
APPENDIX
APPENDIX 6
COMMISSION INQUIRY
INTO
ILLEGAL/IRREGULAR
ILLEGAL/ PUBLIC LAND
IRREGULAR ALLOCATION OF PUBLIC LAND
27313191273130812731321-2
Tel: 2731319/2731308/2731321-2 NSSF Complex, Block
NSSF Complex, Block A,A,
Mobile: : 0721-724838,
Mobile 0721-724838,0734-750323
0734-750323 Eastern
Eastern Wing,
Wing, 11thFloor
Il th Floor
Fax: : 2722815
Fax 2722815 6450-00100
P. O. Box 6450-00100
E-mail: : landcommission(i.hbnet.co.ke
E-mail landcommission@nbnet.co.ke NAIROBI
NAIROBI
NOTICE
NOTICE TO THE PUBLIC
PUBLIC
This Commission
This Commission of of Inquiry
Inquiry as as appointed
appointed by the President
President on 4th4th July 2003
2003
under the Commissions of Inquiry
Inquiry Act (Cap
(Cap 102)
102) of
of the
the Laws
Laws of ofKenya.
Kenya.
The Commission
The Commission is is to
to assist
assist the
the Government
determine the the extent
extent to
to which
which
Lands dedicated
Lands or reserved
dedicated or reserved forfor a public
public purpose
purpose have
have been
been irregularly
irregularly or
unlawfully allocated to
unlawfully allocated to Private
Private Individuals,
Individuals, Corporations
Corporations and and other
other
Institutions. The Commission
Institutions. Commission is is required
required specifically;
specifically;
1.
l. To inquire
To inquire into
into the
the allocation,
allocation, toto private
private individuals
individuals or or
corporations, Of
corporations, of public
public lands
lands or lands
lands dedicated
dedicated or
or reserved
reserved for
for aa
public purpose;
public purpose;
2. To collect
To collect and
and collate
collate all
allevidence
evidence and
andinformation
information available
available
whether from ministry
whether from ministry based
based committees
committees or or from
from any
any other
other
source, relating to the nature
source, relating. nature and
and extent
extent of
of unlawful
unlawful or
or irregular
irregular
allocations
allocations of such lands;
lands; and
and
3. To prepare
To prepare a list
list of
of an
an lands
lands unlawfully
unlawfully or
or irregularly
irregularly allocated,
allocated,
specifying particularsof
specifying particulars of the
the lands
lands and
and of
of the
the persons
persons to to whom
whom
they were
they were allocated,
allocated, thethe date
date of
of allocation,
allocation, particulars
particulars of of all
all
subsequent dealings in
subsequent dealings in the
the lands
lands concerned
concerned and and their
their current
current
ownership and
ownership and development
development status;
status;
214
Sichangi Adv
4. To ascertain
To ascertain the
the identities
identities of
of any
any persons,
persons, whether
whether individuals
individuals or
or
bodies corporate
bodies corporate to to whom
whom anyany such
such lands
lands were
were allocated
allocated by
by
unlawful
irregular means;
means;
5. To ascertain
To ascertain the
the identities
identities of any
any public
public officials
officials who
who may
may have
have
been involved
been involved in
in such
such allocations;
allocations;
6. To carry
To carry out
out such
such other
may be
be directed
directed by
by the
the
President
President or Minister
Minister for
for Lands
Lands and
and Settlement
Settlement
The Commission is
The Commission is then
then required
requiredtotorecommend-
recommend-
1. legal
measures for for the
the recovery
recovery and
and restoration
restoration
of
of such
such land
land to
to their
their proper
proper title
title or
or purpose,
purpose, having
having due
due regard
regard to
to
the
the rights
rights of any
any private
private person
person having
having anyany bona
bona fide
fide entitlement
entitlement
to or claim
claim of right
right over
over the
the lands
lands concerned;
concerned;
2. legal and
measures to be taken
taken in
in case
case such
such land
land
cannot
cannot be recovered;
recovered;
3. any
any criminal
criminal prosecution
prosecution against
against any
any persons
persons involved
involved in
in such
such
allocations;
allocations;
4. legal and
measures for the prevention
forthe prevention of of such
such
illegal
illegal or irregular
allocations inin the
the future.
future ..
For Commission to accomplish
For the Commission accomplish this important
important task,
task, itit will
will need
need maximum
maximum
cooperation from
cooperation from members
membersofof the the public.
public. ItIt isis absolutely
absolutely critical
critical to
to the
the
Commission's work
Commission's work that anyone
anyone who
who may
may have evidence regarding
have evidence regarding an an illegal
illegal
or irregular
public land
land avails
avails the
the same
same to to the
the Commission. ItIt is is
everyone's civic
everyone's civic responsibility
responsibility to provide information
to provide information which which willwill help
help in
in the
the
recovery of
recovery of public
public land
land so that
that the
the same
same may
may be be reserved
reserved forfor use by present
present
and future generations.
and future
Consequently,
Consequently, thethe Commission
Commission wishes
wishes to
to invite
invite any
any member
member ofof the
the public,
public,
who. has information
who has information regarding
regarding an
an unlawful
public
land (Developed
land (Developed or or Undeveloped)
Undeveloped) to submit
submit the
the same
same to the
the Commission's
Commission's
Secretariat, at the
Secretariat, the Address
Address shown
shown above.
above.
The information
The information received
received shall
shall be
be treated
treated in
in strict
strict confidence
confidence and
and shall
shall be
be
used only for
used only for the purposes for
the purposes for which
which the
the Commission
Commission was was appointed.
appointed.
The lands
The lands with
with respect to which
respect to which this
this information
information is
is required
required are:
are:
•• Government
Government land
landlocated
locatedwithin
within Urban
Urban areas
areas and
and Townships
Townships
215
Sichangi Adv
• Local
Local authority
authority land
land located
located within
within Urban
Urban areas
areas and
and Townships
Townships
• Trust
Trust land
• National Forests
National Forests
• National Parks
National Parks and
and Reserves
Reserves
• Local Government
Local Government Forests
Forests
• Local Government
Local Government Parks
Parks and
and Reserves
Reserves
• Settlement Schemes
Settlement Schemes
• Land held by State
Land State Corporations
Corporations and
and Ministries
Ministries
• Lands set aside
Lands aside and
and held
held by Research
Research Institutions
Institutions for research
research and
and
extension work
extension
• Wakf Lands
WakfLands
• Wetlands (( river
Wetlands river beds,
beds, swamps
,swamps etc
etc ))
• Any other
Any other lands
lands that
that may
may have
have been
been dedicated
reserved for aa
public purpose
public purpose such
such as hospitals,
hospitals, schools
schools road reserves,
reserves, beaches,
beaches,
historical
historical sites and
and monuments
monuments
Those who
Those who provide,
provide, information
information may may be be required
required byby the
the Commission
Commission toto
give further
give further evidence
evidence or or particulars
particulars through
through written
written memoranda
memoranda or or oral
oral
testimony. The
testimony. The information sought covers
information sought covers the the period
period from
from 1962
1962 toto the
the
PRESENT. Given
PRESENT. Given the importance
importance and urgency the matter under inquiry,
urgency of the matter under inquiry,
members of
members of the
the public
public areare required
required toto submit
submit information
information within
within aa period
period
of
of TWO
TWO MONTHS
MONTHS from from thethe date
date of
of this
this NOTICE.
NOTICE. The The COMMISSION
COMNtISSION
will
will soon
soon commence
commence public public hearings
hearings to to verify
verify and
and receive
receive further
further
information circumstances may dictate. Details of such hearings will be
information as circumstances may dictate. Details of such hearings will be
published
published soon.
sm~ anja
Sate"" Victoria }Cattambo
~bo
mrNT SECRETARY
JOINT SECRETARY "QINT SECRETARY
JOINT SECRETARY
216
Sichangi Adv
JAMHURI YA KENYA
JAMHURI YA KENYA
TUME YA UCHUNGUZI
TUME UCHUNGUZI
KATIKA
KATIKA
UTOAJI
UTOAJI WA VIPANDE
VIPANDE VYA ARDHI
ARDHI VYA
VY A UMMA
KIHOLELA/KINYUME CHA SHE
KIHOLELA/KINYUME SHE RIA.
RIA.
Simu: 2731319/2731308/2731321-2
Simu: 2731319/273130812731321-2 BaruaBarna pepe:
pepe: 2722815
2722815
Rununu: 0721-724838,0734-750323
0721-724838,0734-750323
NSSF
NSSF Complex,
Complex, Block
Block A,
A, Eastern
Eastern Wing, n"
Wing, 11 th flr,
fir, S.L.P
S.L.P 6450,00100-
6450,00100- Nairobi.
Nairobi.
Pepesi:
Pepesi:
Iandcommissio n@nbnet.co.ke
Iandcommissio n@nbnet.co.ke
TANGAZO
TANGAZO KWA UMMA
Tume
Tume hiihii ya Uchunguzi
Uchunguzi iliteuliwa
iliteuliwa nana mstahiki
mstahiki Rais
Rais tarehe
tarehe 4,
4, mwezi
mwezi
Julai, 2003
Julai, 2003 chini
chini ya
ya kifungu
kifungu cha cha sheria
sheria yaya Tume
Tume ya yaUchunguzi
Uchunguzi
(sehemu ya
(sehemu ya 102) ya sheri
102) ya sheri a ya ya Kenya.
Kenya. Wajibu
Wajibu wa wa Tume
Tume hiihii ni
ni
kuisaidia serikali
kuisaidia serikali kubainisha
kubainisha na kuvithibiti
na kuvithibiti vipande
vipande vyavya ardhi
ardhi
vilivyotengewaumma
vilivyotengewa umma amaama kwakwa matumizi
matumizi ya ya umma
umma na na hatimaye
hatimaye
kutumiwa kiholelaholela
kutumiwa kiholelaholela au au kupewa
kupewa watu
watu binafsi,
binafsi, mashirika
mashirika nana asasi
asasi
nyingine.
nymgme.
Kwa
K hakika Tume
wa hakika hii inahitajika:
Tume hii inahitajika:
1.
1. Kuchunguza ugawanyaji
Kuchunguza ugawanyaji hila,
hila, kwa
kwa watu
watu binafsi,
binafsi, mashirika,
mashirika,
ya ardhi
ya ardhi ya
ya umma
umma ama
ama ardhi
ardhi iliyotengwa
iliyotengwa au aukuhifadhiwa
kuhifadhiwa
kwa matumizi
kwa matumizi ya umma;
umma;
2. Kukusanya
Kukusanya nana kudhihirisha
kudhihirisha wazi
wazi ushahidi
ushahidi na habari
habari zilizopo
zilizopo ima
ima
kutoka kwa kamati
kutoka kwa kamati ya
ya wizara
wizara husika
husika au
au kwa
kwa njia
njianyingine,
nyingine,
inayohusiana
inayohusiana nana kiwango
kiwango cha
cha uharamia
uharamia huo
huo ama
amaugawanyaji
ugawanyaji
kiholela
kiholela wa vipande
vipande vya ardhi kama
kama hivyo;
hivyo; na
3. Kutayarisha
Kutayarisha orodha
orodha ya majina
majina ya vipande
vipande vya
vya ardhi
ardhi vilivyotolewa
vilivyotolewa
kiholela, pawe
kiholela, pawe na maelezo
maelezo yaya kina
kina kuhusu
kuhusu ardhi
ardhi zenyewe
zenyewe nana wale
wale
waliopewa ardhi
waliopewa ardhi hizo,
hizo, siku
siku iIiyotolewa,
iIiyotolewa, maelezo
maelezo ya ya wahusika
wahusika
wengine
wengine wa wa ardhi
ardhi hiyo
hiyo nana umiliki
umiliki wao
wao wa
wa sasa
sasananamaendeleo
maendeleo
ambayo
ambayo tayari
tayari wameshafanyia
wameshafanyia ardhi
ardhi hizo;
hizo;
217
Sichangi Adv
4.
4. Kuelezea majina
Kuelezea majina ya
ya wamiliki,
wamiliki, watu
watu binafsi
binafsi au
au mashirika
mashirika ambayo
ambayo
vipande
vipande vya
vya ardhi
ardhi kama
kama hivyo
hivyo vilitolewa
vilitolewa kiharamu
kiharamu ama
ama kinyume
kinyume
cha sheria;
cha sheri a;
5.
5. Kuelezea majina
Kuelezea majina ya
ya wamiliki
wamiliki ambao
ambao ni
ni wahusika
wahusika wa
wa serikali
serikali
waliohusika
waliohusika katika
katika ugawanyaji
ugawanyaji huo
huo
6.
6. Kufanya
Kufanya uchunguzi
uchunguzi mwingine
mwingine wa
wa aina
aina hiyo
hiyo kufuatia
kufuatia maagizo
maagizo
kutoka kwa
kutoka kwa Rais
Rais ama
ama Waziri
Waziri wa
wa Ardhi
Ardhi na
na Makao
Makao
Hatimaye, Tume
Hatimaye, Tume hupaswa
hupaswa kupendekeza
kupendekeza kwamba
kwamba
1.
1. Taratibu za
Taratibu za usimamizi
usimamizi wa wa kisheria
kisheria kwa
kwa minajili
minajili ya
ya kurudisha
kurudisha nana
kuhifadhi ardhi kama hizo kwa wanaofaa kupewa ama matumizi
kuhifadhi ardhi kama hizo kwa wanaofaa kupewa ama rnatumizi
yake
yake halisi,
halisi, kwa
kwa kulingania haki na
kulingania haki na usawa
usawa wa wa mtu
mtu yeyote
yeyote
aliyeachiwa ama
aliyeachiwa ama atakayedai
atakayedai kukimiliki
kukimiliki kipande
kipande hicho
hicho cha
cha ardhi
ardhi
2.
2. Taratibu za usimamizi
Taratibu usimarnizi wa kisheria
kisheria zichukuliwe
zichukuliwe iwapo
iwapo ardhi
ardhi kama
kama
hizo
hizo haziwezi
haziwezi kurudishwa
kurudishwa
3.
3. Madai yoyote
Madai yoyote ya mauaji
mauaji dhidi
dhidi ya mtu
mtu yeyote
yeyote aliyehusika
aliyehusika
4.
4. Taratibu za usimamizi
Taratibu usimamizi wa
wa kisheria
kisheria kwa
kwa kuzuia
kuzuia utoaji
utoaji huo
huo wa
wa ardhi
ardhi
kiholela na kinyume
kiholela kinyume cha
cha sheria
sheria baadae
baadae
Iii Tume
Iii Tume hiihii ikamilishe
ikamilishe zoezi
zoezi hill
hili muhimu,
muhimu, itahitaji
itahitaji ushirikiano
ushirikiano mkubwa
mkubwa wa wa
umma.
umma. Ni suala nyeti
Ni suala nyeti m,no nalamanufaa kwa
mno nalamanufaa kwa kazi
kazi ya
ya Tume
Tume hii hii kwamba
kwamba kila
kila mtu
mtu
mwenye
mwenye ushahidi
ushahidi unaohusiana
unaohusiana na na ugawanyaji
ugawanyaji wa wa ardhi
ardhi ya ya umma
umma kinyume
kinyume chacha
sheria
sheria ama
ama kiholela
kiholela aufikis'ne katika afisi
aufikishe katika afisi za
za Tume.
Tume. Ni Ni jukumu
jukumu kubwa
kubwa lala kila
kila
mmoja kutoa
mmoja kutoa habari
habari ili
iIi kurudisha
kurudisha ardhi
ardhi hizo
hizo za
za umma,
umma, kwani kwani ardhi
ardhi hiyo
hiyo hiyo
hiyo
itahifadhiwa
itahifadhiwa kwa
kwa matumizi
matumizi ya ya kizazi
kizazi kilichopo
kilichopo nana kile
kile kijacho.
kijacho.
Hata hivyo,
Rata hivyo, Tume
Tume hiihii ingependa
ingependa kumualika
kumualika mwananchi
mwananchi yeyote
yeyote mwenye
mwenye taarifa
taarifa
kuhusu ugawanyaji
kuhusu ugawanyaji wa wa ardhi
ardhi yaya umma
umma kinyume
kinyume cha
cha sheria
sheria ama
arna kiholela
kiholela
(isiyotumiwa ama isiyotumiwa)
(isiyotumiwa ama kufikisha ujumbe
isiyotumiwa) kufikisha ujumbe huo
huo kwa
kwa afisi kuu za
afisi kuu za Tume,
Tume,
kupitia anuwani
kupitia anuwani zilizotajwa
zilizotajwa awali.
awali. '
Taarifa itakayotolewa
Taarifa itakayotolewa itafanywa
itafanywa kuwa siri kubwa
kubwa na itatumiwa
itatumiwa to
tu kuambatana
kuambatana na
vigezo
vigezo na sera za Tume.
Tume.
Ardhi ambazo
Ardhi ambazo zina ambatana
ambatana na maagizo
maagizo yalitajwa
yalitajwa ni pamoja
pamoja na:
1: Ardhi
1. Ardhiyaya
serikali
serikalizilizopo
zilizopokatika
katikamaeneo
maeneo ya
yamiji
miji na
na wilaya.
wilaya.
218
Sichangi Adv
2. Ardhi za serikali
Ardhi serikali za wilaya
wilaya zilizo
zilizo kwenye maeneo ya miji na
kwenye maeneo
wilaya.
3. Ardhi
Ardhi za muamana
muamana
4. Misitu ya Kitaifa
Misitu
5. Mbuga na maeneo ya
ya kitaifa
kitaifa ya
ya wanyamapori
wanyamapori
6. Misitu
Misitu ya serikali za Wilaya
Wilaya
7. Mbuga
Mbuga na maeneo
maeneo ya wanyamapori
wanyamapori ya serikali
serikali za wilaya
8. Miradi ya makazi ya
ya mitaa
mitaa
9. Ardhi ya mashirika
Ardhi mashirika ya
ya serikali
serikali na
na wizara
wizara
10. Ardhi
Ardhi iliyotengwa
iliyotengwa na
na kurnilikiwa
kumilikiwa na
na taasisi
taasisi za
za utafiti
utafiti kwa
kwa shughuli
shughuli
za utafitina
utafitina shughuli nyingine
nyingine
11. Ardhi
Ardhi ya Wake
Maeneo ua usumbi/
12. Maeneo usumbil tepwetepwe
tepwetepwe ( viuno vya mito, vitivo
vitivo n.k)
n.k):
13. Ardhi
l3. Ardhi yeyote
yeyote nyingine
nyingine ambayo
ambayo pengine
pengine ilikuwa
ilikuwa imetengwa
imetengwa ama
ama
kuhifadhiwa kwa
kuhifadhiwa kwa ajili ya
ya matumizi
maturnizi yaya umma
umma kama
kama vile
vilehospitali,
hospitali,
shule,
shule, hifadhi
hifadhi za
za barabara,
barabara, fuo
fuo zaza bahari
bahari (bichi),
(bichi), ngome
ngome zaza
kihistoria na sehemu
kihistoria sehemu zaza kuashiria
kuashiria fahari
fahari ya
ya nchi.
nchi.
Wale
Wale watakaotoa taarifa zozote
watakaotoa taarifa zozote watahitajika
watahitajika nana Tume
Tume kutoa
kutoa ushahidi
ushahidi ama
ama
maelezo kamili
maelezo kamili kupitia
kupitia kwa maandiko
maandiko yaya memoranda
memoranda amaama kwa
kwa maelezo.
maele~o. Taarifa
Taarifa
hiyo
hiyo inayohitajika
inayohitajika itahusisha masuala ya
itahusisha masuala ya ardhi
ardhi ya tokea
tokea miaka
miaka ya ya 1962
1962mpaka
mpaka
sasa.
sasa. Kuambatana
Kuambatana na na dharura
dharura na umuhimu
umuhimu uliopo
uliopo wa
wa Tume
Tume hiihii ya
yaUchunguzi,
Uchunguzi,
wananchi wanahitajika kufikisha
wananchi wanahitajika kufikisha taarifa
taarifa zao
zao kwa
kwa kipindi
kipindi cha
cha MIEZI
MIEZI MIWILI
MIWILI
kutoka
kutoka siku ya ILANI hii.hii.
Hivi karibuni
karibuni TUME HII
HII YA
YA UCHUNGUZI
UCHUNGUZI itaanza
itaanza kusikiza
kusikiza taarifa
taarifa kwa
kwa umma
umma
ili kubainisha
kubainisha na kupata
kupata habari zaidi kuhusiana
kuhusiana na halihalisi
halihalisi ya
ya mambo.
mambo. Maelezo
Maelezo
zaidi
zaidi kuhusiana
kuhusiana na masuala
masuala hayo yatachapishwa
yatachapishwa hivi karibuni.
karibuni.
219
Sichangi Adv
APPENDIX
APPENDIX 7
SUMMONS FOR THE PRODUCTION

SUMMONS PRODUCTION OF DOCUMENTS
DOCUMENTS FOR
FOR
EXAMINATION
EXAMINATION
(Section 10(1) of the Commissions of
of Inquiry
Inquiry Act)
Act)
To:
WHEREAS
WHEREAS bybyGazette Gazette Notice
Notice 4559,
4559, published
published on on the 4th day
the 4th day of
of July,
July,
2003
2003 the President the Republic of Kenya convened this Commission of
President of the Republic of Kenya convened this Commission of
Inquiry
Inquiry under
Inquiry Act
Act to
to assist
assist the
theGovernment
Government
determine the extent which lands dedicated or reserved for aapublic
determine the extent to which lands dedicated or reserved for public
purpose have been irregularly
purpose irregularly or
or illegally
illegally allocated
allocated toto private
private individuals
individuals or
or
corporations.
corporati ons.
PURSUANT
PURSUANT to the powers
powers vested
vested in
in this
this Commission
Commission by by virtue
virtue of
of Section
Section
10(1) and
10(1) and Section
Section 13(1), (2) of the Commissions
Inquiry Act
Act (Cap.
(Cap. 102)
102)
you are hereby
you hereby required
required to
to produce
produce the documents
documents specified
specified below
below for thethe
examination of
examination of the
the Commission
Commission or or its
its authorized
authorized representatives,
representatives, at at the
the
Commission's premises
Commission's premises situated
situatedatat the
the 11 Floor, NSSF
th Floor,
11th NSSF Complex,
Complex,
Eastern Nairobi:-
Eastern Wing, Nairobi:-
PARTICULARS REQUIRED (as per the
PARTICULARS REQUIRED the attached
attached Annex)
Annex)
You are
You are to
to appear
appear on
on the
the O'clock.
O'clock.
TAKE NOTICE that
TAKE NOTICE that if
-ifyou
you fail comply with this order
to comply
fail to order without
without lawful
lawful
excuse, you will
excuse, you will be
be subject
subject toto the
the consequences
consequences as
as laid
laid down inSection
down in Section
121 of
121 of the
the penal
penal Code
Code Cap.Cap. 63 andand Sections
Sections 145,
145, 146
146 and
and 149
149 of
of the
the
Criminal Procedure
Criminal Procedure Code
Code Cap.
Cap. 75.
75.
DATED AT NAIROBI ......•......

day
day of 2003
COMMISSIONER
COMMISSIONER COMMISSIONER
COMMISSIONER
220
Sichangi Adv
APPENDIX 8
APPENDIX
COMMISSION INQUIRY
INTO
INTO
ILLEGAL/IRREGULAR ALLOCATION OF PUBLIC
PUBLIC LAND
LAND
Tel: 2731319/273130812731321-2
Tel: 2731319/2731308/2731321-2 NSSF Complex,
NSSF Complex, Block
Block A,A,
Mobile:
Mobile : 0721-724838, 0734-750323
0721-724838,0734-750323 Eastern Wing,
Eastern II'h-Floor
Wing, Il th •Floor
Fax:: 2722815
Fax 2722815 P.OO. Box 6450-00100
P. 6450-00100
E-mail: landcommissionlii!nbnet.co.ke NAIROBI
E-mail : landcommission0lnbnet.co.ke NAIROBI
COMMISSION INQUIRY ACT
ACT
(CAP. 102)
(CAP.
PUBLIC NOTICE
PUBLIC NOTICE
-
By Gazette
By Notice No.
Gazette Notice 4559, published
No. 4559, published on the the 44th
th day
day ofof July,
July, 2003,
2003, the
the
President
President ofof the
the Republic
Republic ofof Kenya
Kenya appointed
appointed thisthis Commission
Commission of ofInquiry
Inquiry
under the Commissions of of Inquiry
Inquiry Act
Act toto assist
assist the
the Government
determine
the
the extent
extent to which
which lands
lands dedicated
reserved for for aa public
public purpose
purpose have
have
been
been irregularly
irregularly or illegally
illegally allocate
allocate to
to private
private individuals
individuals ororcorporations
corporations
and
and to make
make recommendations
recommendations as to the the legal
legal and
and administrative
measures
for the
for the restoration
restoration of of such
such lands
lands and
and in in respect
respect of of such
such criminal
criminal
investigation
investigation for prosecution
prosecution of, and any otherother measures
measures to be taken taken against
against
persons involved
persons involved in the unlawful
allocation of of such
such lands:
lands:
Pursuant
Pursuant to to the
the said
said mandate
mandate the the Commission
Commission has has commenced
commenced its its
investigations into
investigations into the matter
matter stated
stated above
above and
and will
will submit
submit its
its findings
findings and
and
recommendation
recommendation to the President
President of the Republic
Republic of Kenya.
Kenya.
Accordingly, members
Accordingly, members of
of the
the Public
Public are
are HEREBY
HEREBY CAUTIONED
CAUTIONED againstagainst
acquiring, developing,
acquiring, developing, disposing
disposing of,
of, or
or otherwise
otherwise encumbering
encumbering andand
alienating any
alienating any land
land which
which has
has been
been dedicated
reserved for public
for aa public
221
Sichangi Adv
purpose, or
purpose, or which
which has
has or
or appears
appears to
to have
have been
been irregularly
irregularly oror illegally
illegally
allocated to any
allocated any person
person without
without verifying
verifying the
the authenticity
authenticity ofof the
the title.
title.
Dated at Nairobi
Dated Ith day of
Nairobi 12th of September,
September, 2003.
2003.
Smokin Wanjala
Smokin Wanjala Victoria Kattambo
Victoria Kattambo
JOINT SECRETARY
JOINT SECRETARY JOINT
JOINT SECRETARY
SECRETARY
222
Sichangi Adv
APPENDIX
APPENDIX 9
ILLUSTRATIONS ON
ILLUSTRATIONS ON FOREST EXCISIONS
EXCISIONS
(a)
NGONG ROAD
NGONG ROAD FOREST
FOREST
Ngong Road
Ngong Forest was
Road Forest was gazetted
gazetted as forest reserve
as forest reserve as per proclamation
as per proclamation No. No. 4444 of
1932 and
1932 and covered
covered anan area
area of 2,926.6
2,926.6 hectares. It was
hectares. It was declared
declared asas aa central
central forest
forest
under Legal
under Legal Notice No. 174
Notice No. 174 of 20zo"th May
May 1964.
1964. Various
Various excisions
excisions have
have taken
taken place
place
over
over the
the years
years for public
public and
and private
private development.
development. Some
Some of
of the
the beneficiaries
beneficiaries include
include
Lenana School, Extelcoms,
Lenana School, Extelcoms, St. St. Francis
Francis Anglican
Anglican Church,
Church, P.C.E.A.
P.C.E.A. Mugumoini
Mugumoini
Church, Langata
Church, Langata Cemetery,
Cemetery, thethe War
War Cemetery,
Cemetery, Kenya
Kenya Science
Science Teachers
Teachers College,
College,
Meteorological Department and
Meteorological Department and the
the ASK
ASK Showground.
Showground. By By 1978
1978 the
the forest
forest covered
covered
an area
an area of 1,328.2
1,328.2 ha.
ha.
In 1996
In 1996 a title
title deed:
deed: Grant
Grant no.
no. I.R.
I.R. 70244
70244 (signed
(signed by by Mr. W. W. Gacanja)
Gacanja) was wasissued
issued
to
to the
the Permanent
Permanent Secretary
Secretary Treasury
Treasury to hold hold inin trust
trust for
for the
thePermanent
Permanent Secretary
Secretary
MENR.
MENR. This This left
left out
out an
an area
area covering
covering 339.8
339.8 hectares
hectares from
original forest
forest area
area of
1,328.8 hectares.
1,328.8 hectares. In In 1999,
1999, the title
title was
was surrendered
surrendered to to the
the Commissioner
Lands
and a leasehold title deed: Grant no. I.R. 81938 (signed by
and a leasehold title deed: Grant no. I.R. 81938 (signed by Mr. W. Gacanja) forMr. W. Gacanja) for an
an
area
area ofof 538.2
538.2 hectares
hectares issued
issued to the Permanent
Permanent Secretary Treasury to hold
Secretary Treasury hold in trust
trust for
Ngong
Ngong RoadRoad Sanctuary.
Sanctuary. This This again
again left
left out
out an
an area
area ofof 450
450 hectares
hectares from
from the
the title
title
issued
issued inin 1996.
1996. In total,
total, an
an area
area ofof 789.8
789.8 hectares
hectares was left left outside
outside the
the boundaries
boundaries of
the Ngong
the Ngong RoadRoad Forest.
Forest. The
The land
land excluded
excluded fromfrom thethe title
title was
was allocated
private
developers
developers somesome of who who have
have since
since transferred
transferred it to other
other third
third parties.
parties.
Some
Some of the illegally
illegally allocated
allocated land
land parcels
parcels include:
include:
"" 8.8
8.8 hectares
hectares that
that was
was allocated
allocated for
for expansion
expansion of Langata
Langata women's
women's prison
prison but
but
later a big portion of this land was allocated to private developers
later big portion of this land was allocated to private developers who have who have
already constructed residential
already constructed residentialhouses.
houses. A A small
small portion
portion of
of this
this area
area has
has been
been
developed by the Commissioner
developed Commissioner of of Prisons.
Prisons.
"" 15.09 hectares

4. 15.09 hectares that
that was
was authorized
authorized asas per
per CCF's
CCF's letter
letter Ref.
Ref. No.
No. FOR
FOR
681713NOL.1 V1211
68/7/3/VOL.I V/211 of 15/1/85 in exchange
of 15/1/85 exchange with prime plot in
with a prime in Industrial
Industrial Area
Area.
belonging to
belonging to the
the Department
Department of
of Prisons,
Prisons, which
which was
was later,
later, allocated
allocated totoprivate
private
developers. Since 1996,
developers. Since 1996, the
theland
land has
hasbeen
been transferred
transferred to
to others
others and
and presently
presently on
on
the
the land
land stands
stands aa modern
modern hospital,
hospital, aa residential
residential Complex
Complex owned
owned byby the
the Kenya
Kenya
Medical Resuscitation
Medical Centre and
Resuscitation Centre and other
other residential
residential houses
houses owned
owned by by illegal
illegal
allottees. Presently construction is going
allottees. Presently construction is going on. The land in question is still part of
The land in question is still part of
the gazzetted forest.
the gazzetted forest.
223
Sichangi Adv
'" 53.68
53.68 haha allocated
allocated toto aa private
private developer
developer by by legal
legal notice
notice No.
No. 44 44ofof1998
1998—- The
The
forest
forest has
has been
been cleared
cleared but but not
not structures
structures erected.
erected. Unconfirmed
Unconfirmed information
information
indicates that
indicates that some
some ofof this
this land
land has
has been
been sold
sold to
to some
some parastatals.
parastatals.
'" 82 ha
82 ha were
were excised as per
excised as per legal
legal notice No.79 of
notice No.79 of 1997.
1997. This
This Legal
Legal Notice
Notice was
was
signed
signed by
by Mr.
Mr. John
John Sambu
Sambu the
the Minister
Minister for
for MENR
MENR one one year
year earlier
earlier on
on the 13thth
the 13
June
June 1996.
1996. Boundary
Boundary plan
plan No.
No. 175/364
175/364 delineating
delineating the
the area
area to
to be
be excised
excised was
was not
not
found
found in Ardhi
Ardhi House
House nor in
in Forest
Forest Department
Department and and neither
neither was
was aa gazette
gazette notice
notice
published and thus,
published thus, making
making this
this excision
excision irregular.
irregular.
224
Sichangi Adv
(b)
KARURA
KARURA FOREST
FOREST
Karura forest
Karura forest was
was gazetted as a forest
reserve as per
per proclamation
proclamation No.No. 44
44 of
of 1932
1932 and
and
covered
covered anan area
area of
of 1,062.7
1,062.7 hectares.
hectares. The
The forest
forest was
was declared
declared aacentral
central forest
forest under
under
Legal
Legal Notice No. 174
Notice No. zo"th May
174 of 20 May 1964.
1964. Various
Various excisions
excisions have
have taken
taken place
place over
over time
time
for public and private
for public private development.
development.
Out of
Out of the
the 8.1
8.1 ha
ha set
set aside
aside for
for Diplomats,
Diplomats, 3.03.0 ha
ha were
were granted
granted to to ICRAF
ICRAF as asper
perletter
letter
Ref. 119134/39 of 11/3/94
Ref. 119134/39 1113/94 from
from thethe Commissioner
Commissioner •of of Lands
Lands and and letter
letter Ref.
Ref. No.
No.
B5.04NOL.11116
B5.04NOL.111/6 of 11/7/94 1117/94 from
from thethe Permanent
Permanent Secretary
SecretaryMENR.MENR. The The balance
balance of
5.1 Ha
5.1 Ha was
was allocated
allocated to other
other parties.
parties. AAGazette
Gazette Notice
Notice No. No. 5677
5677 ofof15/12/89
15/12/89 was
was
published to
published to declare
declare intention
intentiontotoalter
alterforest
forestboundaries
boundariestotoexclude
exclude8.1 8.1ha.
ha. InIn2003
2003 anan
American
American developer
developer who had purchased
who had purchased the the balance
balance ofof 5.1
5.1 hectares
hectares attempted
attempted totoput
put
up a five
five star
star hotel
hotel but his
his efforts
efforts were
were thwarted
thwarted since
since this
this area
area isis not
not degazetted.
degazetted.
In 1980, land
In 1980, land covering
covering 26.251
26.251 Ha
Ha was
was allocated
allocated toto Tumaini
Tumaini School
School vide
vide the
the Chief
Chief
Conservator's letter
Conservator's letter Ref.
Ref. No.
No. FOR 6817/9173 of
FOR 68/7/9/73 of 12/8/80.
12/8/80. The
The Commissioner
Lands
issued
issued a leasehold
leasehold title
title Grant
Grant No.
No. I.R.
LR. 37653,
37653, for
for aa period
period of
of 99
99 years
years with
witheffect
effect from
from
1/11182.
1/11/82. A A Gazette
Gazette Notice
Notice No.
No. 1802
1802 of
of 2/5/82
2/5/82 was
was also
also published.
published. However
However no nolegal
legal
notice
notice has
has been
been published.
published. To To date
date no
no development
development has has been
been done
done on this
this land.
land.
In the 1990s,
1990s, private
private developers
developers requested
requested the
the Commissioner
Lands to toallocate
allocate them
them
an area
an area measuring
measuring approximately
approximately 1.838 1.838 hectares
hectares that
that was
was sandwiched
sandwiched between
between old old and
and
new Kiambu
new Kiambu Road
Road atat the
the precincts
precincts of
of River
River Rui-Ruaka,
Rui-Ruaka, which
which waswas left
left out
out during
during
relocation
relocation of the road
of the road in in the
the 1960s.
1960s. The
The road
road corridor
corridor was
was allocated
allocated totoMessrs.
Messrs.
Hezekiah Karanja
Hezekiah Karanja Kogo
Kogo (0.756
(0.756 Ha),
Ha), Samson
Samson Muriithi
Muriithi Nduhiu
Nduhiu (0.2179
(0.2179 Ha) Ha) and
and Sardu
Sardu
Singh Virdi and
Singh Virdi and Gusharan
Gusharan Kaur Kaur (0.8651
(0.8651 Ha) Ha) without
without consult
consult tingting thethe Forest
Forest
Department. Leasehold
Department. Leasehold titles for 99 years
titles for years were
were issued
issued with
with effect
effect from 117/92 as
from 1/7/92 as Grant
Grant
Nos.
Nos. LR.
I.R. 623173, 57926 and
623173, 57926 and 73513
73513 for L.R.
L.R. Nos.
Nos. 19090/1-
19090/1- 4,4,17942
17942 andand 22733.
22733. Two Two
of the beneficiaries
of beneficiaries have
have since
since transferred
transferred the
the land
land to
to Messrs
Messrs Johnson
Johnson Githii
Githii Karanja
Karanja
(0.3774 Ha), Waweru
(0.3774 Ha), Waweru Mungai
Mungai (0.1899
(0.1899 Ha),
Ha), Famwell
Famwell Promotions
Promotions Limited
Limited (0.1887
(0.1887 Ha)Ha)
and Peter
and Peter Kamau
Kamau (0.8651
(0.8651 Ha) Ha) who
who have
have all
alltaken
taken possession
possession on on the
theground
ground except
except
Farmwell
Farmwell Promotion
Promotion Ltd.
In 1989,
1989, an area
area covering
covering 2.668
2.668 HaHa was
was allocated
allocated to Hon.
Hon. J.J
J.1 Kamotho
Kamotho in in exchange
exchange forfor
his land
his land that
that was
was purportedly
purportedly allocated
allocated to Kenya Technical Teachers
Kenya T.echnical Teachers College.
College. Gazette
Gazette
Notice
Notice No.No. 2019
2019 of of 28/4/89
28/4/89 was
was published.
published. In In 1994
1994 an
an area
area covering
covering 18.41
18.41 ha
ha was
was
allocated
allocated to Pelican Engineering
to Pelican Engineering and and Construction
Construction as as per
per Permanent
Permanent Secretary's
Secretary's letter
letter
Ref. No. Z.85.VOL.111/195
Ref. No. Z.85.VOL.l11/195 of 2817/94.
of Gazette Notice
28/7/94. Gazette Notice No.No. 4818
4818 ofof 19/8/94
19/8/94 was
was
published
published butbut itit was
was contested.
contested. The The area
area isisstill
stillforestland
forestland butbut the
theNational
National Social
Social
Security
Security Fund claims to have
Fund claims have bought
bought it from
from Pelican
Pelican Engineering
Engineering in in year
year 2001.
2001.
On 21 stst August
August 1996,
1996, aa freehold
freehold title
title covering
covering 564.1
564.1 hectares
hectares was was issued.
issued. This
This left
left out
out
an area of
an area 477 hectares
of 477 hectares from
from the
the original
original area
area of 1,041.1 hectares
of 1,041.1 hectares by 1996. In
by 1996. In 1997,
1997, aa
Legal Notice
Legal no. 97
Notice no. 97 dated
dated 16 16thth June
June 1997
1997 was
was published
published excising
excising anan area
area of
of 85.0
85.0
hectares
hectares outout of Karura
Karura forest,
forest, but no Gazette
Gazette Notice
Notice had been been published
published as as required
required by by
the
the Forests Act. This Legal
Forests Act. Legal Notice
Notice was was signed
signed onon the 16thth of June
the 16 June 1996,
1996, which
which waswas one
one
year earlier.
year earlier. The
The forestland
forestland areaarea affected
affected by by this
this illegal
irregular move
move was was
subsequently illegally and
subsequently illegally and irregularly
allocated toto aa group
group of of companies
companies shortlisted
shortlisted ininaa
matrix on Karura
matrix Karura herein
herein attached
attached detailing
detailing thethe particulars
the beneficiaries.
beneficiaries.
225
225
Sichangi Adv
(c
(c)
)
KAPTAGAT FOREST
KAPTAGAT FOREST
Kaptagat forest was originally

Kaptagat forest originally gazetted
gazetted as
as forest
forest as
as per
per proclamation
proclamation No No 57 is"th June
57ofof18
1941. ItIt covered
1941. covered an
an area
area of
ofapproximately
approximately 13,894.37
13,894.37 ha.
ha. Various
Various alterations
alterations totoexcise
excise
this forestland
this forestland for various
various public
public and
and private
private uses
uses have
have been
been made
made over
over the
the years.
years. In
In all
all
the areas earmarked
the areas earmarked for public
public amenities,
amenities, there
there are
are no
no letters
letters of
of authorization.
authorization. In In total
total
4,100 hectares
4,100 hectares were
were proposed
proposed for
for development
development without
without authority.
authority.
Eleven (11)
Eleven (11) schools
schools have
have been
been constructed
constructed illegally
illegally in
in an
an area
area covering
covering approximately
approximately
132 hectares
132 hectares and
and they
they are
are fully
fully operational.
operational. OnOn average,
average, each
each ofof the
the secondary
secondary schools
schools
occupies 20 hectares
occupies hectares while
while primary
primary schools
schools occupy
occupy 1212 hectares.
hectares. Another
Another 486
486 hectares
hectares
are reserved for
are reserved for public
public amenities
amenities which
which include
include health
health centres,
centres, shopping
shopping centres,
centres, aa
divisional headquarter
divisional headquarter and
and aa youth
youth centre.
centre. In
In addition,
addition, seven
seven (7)
(7)settlement
settlement schemes
schemes
with a reservation
with reservation ofof 3,472
3,472 hectares
hectares have
have been
been proposed.
proposed. The Theseven
sevensettlements
settlements
include
in Mosop/Kaptarakwa, Marichor,
dude Mosop/Kaptarakwa, Marichor, Sabor,
Sabor, Mosop
Mosop and
and Kaptilos.
Kaptilos.
In 1994,
In 1994, anan area
area measuring
measuring approximately 161.5 ha
approximately 161.5 ha as
as per
per Legal
Legal Notice
Notice No
No 384
384 of
of
1994 was
1994 was excised
excised and
and allocated
allocated toto Hon.
Hon. Kipyator
Kipyator Nicholas
Nicholas Kiprono
Kiprono Biwott
Biwott of
of Post
Post
office Box 40084,
office Box 40084, Nairobi
Nairobi andand Manu
Manu Chandaria
Chandaria of Post
Post office
office Box
Box 50820,
50820, Nairobi
Nairobi as
as
trustees of
trustees of "MARIA
"MARIA SOTI SOT! MEMORIAL
MEMORIAL TRUST.TRUST. TheThe area
area is
is known
known asas LR.
LR. NO.
NO.
19054
19054 and registered as
and registered as title I.R.6700/1.
I.R.67001l.
Another irregular
Another irregular allocation
allocation from
from Kaptagat forest was
Kaptagat forest was to LT.LT. GEN.
GEN. SAWE,
SA WE, who who was
was
allocated
allocated 56.54HA
56.54HA on lease of three
on a lease three years
years upon
upon its
its expiry
expiry subject
subject to
to the
the land
land being
being
developed
developed to to the
the satisfaction
satisfaction of
of the
the District Agriculture Officer,
District Agriculture Officer, the
the allottee
allottee would
would be
be
granted conditional agricultural
granted a conditional agricultural freehold
freehold upon
upon payment
payment of of purchase
purchase price
price of
of485,000.
485,000.
However, the
However, the said
said conditional
conditional freehold
freehold was
was issued
issued inin contravention
contravention of of the
the special
special
conditions allotment.
conditions of allotment.
Comments:
Comments:
Sometime in November
Sometime November 1990,1990, part
part of
of Kaptagat
Kaptagat forest
forest was
was proposed
proposed to
to be
be excised
excised forfor
the purpose
the purpose of establishing
establishing aa secondary
secondary school.
school. TheThe area
area earmarked
earmarked forfor this
this purpose
purpose
was approximately
was approximately 100100 acres
acres or
or 40
40 hectares.
hectares. The
The then
then Permanent
Secretary, Ministry
Ministry
of Environment
of Environment and and Natural
Natural Resources
Resources wrotewrote to the the District
District Forest
Forest Officer,
Officer, Elgeyo
Elgeyo
Marakwet
Marakwet videvide his letter Ref.
his letter Ref. No.Z.85
No.Z.85 VOL.VOL. 11 11 TY/
TY/ 5151 dated
dated October
October 15 15thth 1993
1993
directing him
directing him to hasten
hasten the
the degazettement
degazettement of the the forest.
forest. However,
However, while
while issuing
issuing this
this
directive, the Permanent
directive, Permanent Secretary
Secretary increased
increased the areaarea to be degazetted
degazetted from
original
40
40 hectares
hectares to 140
140 hectares.
hectares. The
The purpose
purpose of of the
the excision
excision alsoalso changed
changed fromfrom thatthat of
of
establishing
establishing aa secondary
secondary school
school toto using
using the
the land
land for
for settlement.
settlement.
226
Sichangi Adv
The District
The District Commissioner
Commissioner of the the area
area was
was requested
requested toto use
use the
the services
services of
of the
the Local
Local
District Surveyor
District Surveyor instead
instead ofof the
the Forest
Forest Department
Department Surveyor
Surveyor underunder the
thetechnical
technical
appraisal and
appraisal direction of
and direction of the
the Chief
Chief Conservator
Conservator of of Forests.
Forests. TheThe District
District Surveyor
Surveyor
went ahead to survey
went ahead survey an an area
area measuring
measuring 161.5161.5 hectares
hectares (21.5
(21.5 hectares
hectares more
more than
than the
the
area proposed
area proposed in in the
the Permanent
Permanent Secretaries
Secretaries letter).
letter). A
A Boundary
Boundary Plan Plan No.175/341
No.175/341 was was
consequently prepared
consequently prepared andand forwarded
forwarded to to the
the Department
Department of of Forestry.
Forestry. The
The excision
excision was
was
carried out
carried out through
through Gazette
Gazette Notice
Notice No. 38073807 of
of June 23rdrd 1994
June 23 1994 and
and Legal
Legal Notice
Notice No.
No.
384 October 55thth 1994.
384 of October 1994. .
This area was

This area was then
then registered
registered as
as L.R
L.R NO 19054 and
NO19054 andallocated
allocatedtotoMaria
Maria Soti
Soti Education
Education
Trust,
Trust, whose
whose Trustees
Trustees are
are Mr.
Mr. Nicholas
Nicholas Biwott
Biwott andand Mr. Manu
Manu Chandaria
Chandaria and and
registered
registered as
as freehold
freehold title
title NO.
NO. L.R 67900111. The
L.R 679001/1. 'The Trust
Trust was
was registered
registered under
under the
the
Perpetual
Perpetual Succession
Succession Act,Act, Cap 164 on June
Cap 164 June 13Bt~ 1990. This
th 1990. This excision
excision was
was therefore
therefore
carried out
carried out to benefit
benefit individuals
individuals and
and not
not to
to establish
establish aa school
school asas had
had originally
originally been
been
claimed.
claimed.
227
Sichangi Adv
(d)
MAU
MAU FOREST
FOREST COMPLEX
COMPLEX
At
At the
the time
time. of
of the
the original
original gazettement
gazettement in
in 1932,
1932, the
the total
total area
area under
under the
the Mau
Mau forest
forest
complex was
complex was 189,178.07
189,178.07 ha.ha. The
The complex
complex consists
consists of
of three
three forest
forest Blocks,
Blocks, namely:
namely:
Eastern Mau
Eastern Mau (65,942.94
(65,942.94 Ha),
Ha), South
South Western
Western Mau
Mau (95,357.345
(95,557.345 Ha) Ha) and
and Western
Western Mau
Mau
(27,877.78
(27,877.78 Ha).
Ha).
EASTERN MAU
EASTERN MAU FOREST
FOREST
Eastern Mau,
Eastern Mau, which
which covers
covers anan area
area of
of 65,942.94
65,942.94 hectares,
hectares, was
was originally
originally gazetted
gazetted as as
forest reserve
forest reserve as per proclamation
proclamation No No 56
56 of
of 18/6/41.
18/6/41. Over
Over the
the years
years various
various alterations
alterations
of its
of its boundary
boundary have
have taken
taken place
place reducing
reducing the
the forest
forest area
area in
in year
year 2001
2001 toto29,669.7
29,669.7
hectares.
hectares. InIn 1995,
1995, the
the District
District Forest
Forest Officer
Officer Nakuru
Nakuru mademade aa report
report vide
vide his
his letter
letter Ref.
Ref.
No. CONF/GEN/21/14
No. CONF/GEN/21/14 dated dated 1818th
th September
September 1995
1995 to to the
the Director
Director of of Forestry
Forestry that
that an
an
area
area of 51,829.13
51 ,829.13 hectares
hectares had
had been
been earmarked
earmarked forfor settlement.
settlement. . .
In his
In his letter
letter Ref.
Ref. No. CONF/FOR/EXC/1/13/Vol.V1/116 of
No. CONFIFORlEXCI1I13Nol.VII1l6 19th
of I9 th November
November 1999,1999, the
the
Provincial Forest
Provincial Forest Officer
Officer Rift
Rift Valley
Valley reported
reported that
that over
over 36,825
36,825 haha had
had been
been demarcated
demarcated
and settled
and settled in the
the forest
forest estate.
estate. The
ThePermanent
Secretary, Ministry
Lands and
and
Settlementvide
Settlement vide his
his letter
letter No. CON/211/A11/11/94 of
No. CON/211/All/1l/94 of 4th
4th November
November 1999 1999 gave
gave
information on
information on plots/parcels
plots/parcels ofof the
the area
area settled
settled as
as follows:
follows: Sururu
Sururu (7,284
(7,284 ha),
ha), Likia
Likia
(2,833 ha),
(2,833 ha), Nessuit
Nessuit (7,284
(7,284 ha),
ha), Teret
Teret (2,428
(2,428 ha),
ha), Ngongongeri
Ngongongeri (3,642(3,642 ha),
ha), Sigotik
Sigotik
(1,214 ha),
. (1,214 ha), Mariashoni
Mariashoni (7,284
(7,284 ha),
ha), Ndoinet
Ndoinet (6,070.42
(6,070.42 ha)
ha) and
and Kiptagich
Kiptagich (809.39ha).
(809.39ha).
The Permanent
The Permanent Secretary, Ministryofof Lands
Secretary, Ministry Lands and and Settlement
Settlement in in his
his letter
letter
CON/211/A/11/11/94 of 4th
CON/2111A/1l/1l/94 4th November
November 1999 1999 reported
reported that
that since
since 1993
1993 the
the Government
Government
has been
has been resettling
resettling the
the Okiek
Okiek communities
communities in Eastern
Eastern and
and South
South Western
Western Mau
Mau forest
forest
within 14
within 14 schemes
schemes covering
covering anan area
area of
of approximately
approximately 32,376
32,376 ha.
ha. As
As per Legal Notice
per Legal Notice
no.142
00.142 of 19thOctober
of 19th October 2001,
2001, aa total
total of
of 35,301
35,301 hectares
hectares ofof forestland
forestland were
were excised
excised inin
Eastern
Eastern Mau
Mau in 2001
2001 leaving
leaving aa balance
balance of of 29,669.7
29,669.7 hectares.
hectares. Although
Although over 70%
70% ofof the
the
excised
excised area
area is occupied,
occupied, the
the excision
excision has
has been
been contested
contested inin court.
court.
228
228
Sichangi Adv
(e)
MT.
MT. ELGON
ELGON FOREST
FOREST RESERVE
RESERVE
Mt. Elgon was
Mt. Elgon was gazetted
as a forest reserve as
as per
per proclamation
proclamation no. no. 44 30th April
of 30th
44 of April
1932
1932 and and initially
initially covered
covered anan area
area ofof 91,890
91,890 hectares.
hectares. Over
Over the the years,
years, various
various
alterations
alterations of its boundary
of its boundary have
have been
been made
made to excise
excise parts
parts of the
the forest
forest and
and add
add some
some
areas to
areas to it. In 1968,
1968, anan area
area of 16,916
16,916 hectares
hectares was
was excised
excised under
under Legal
Legal Notice
Notice No.
No. 112
112
th
of 55 th April
April 1968
1968 andand gazetted
gazetted asas Mt.
Mt. Elgon
Elgon National
National Park.
Park. In 2000,
2000, an an area
area of
of 17,200
17,200
hectares was
hectares was gazetted
gazetted as as per
per Legal
Legal Notice No. 88
Notice No. 88 of
of June
June 2000
2000 andand gazetted
gazetted asas
Chepkitale National
Chepkitale National Reserve.
Reserve.
In 1974,
In 1974, an
an area
area covering
covering 3,686
3,686 hectares
hectares in in Chepyuk
Chepyuk was was excised
excised under
under Legal
Legal Notice
Notice
no. 51
no. 51 of 220d
of 22 January1974 to
nd January1974 to settle
settle members
members of of the
the Saboat
Saboat community.
community. However
However aa
bigger area
bigger area was demarcated
demarcated forfor settlement
settlement and to date, date, the area settled
settled is
is approximately
approximately
8,700
8,700 hectares.
hectares. ToToformalize
formalize the theillegally
illegallysettled
settledarea,
area,thethePermanent
Permanent Secretary
Secretary
MENR authorized
MENR authorized3,5683,568hectares
hectarestotobebe excisedexcisedasas per his letter
per his letter Ref.
Ref. No.
No.
MENRl041A/8/(l45)
MENR/041A/8/(145) of 26/912000.
of 26/9/2000. LaterLater in in 2001
2001 another
another area
area of
of 496
496 hectares
hectares was
was
authorized
authorized for excision for
for excision for the
the purpose
purpose of of accommodating
accommodating people people whowho were
weresettled
settled
between River Malakisi
between River Malakisi andand one
one of of its
its tributaries.
tributaries. In In total
total 4,064
4,064 hectares
hectares were
were
authorized
authorized for excision
excision and
and this
this whole
whole area
area isis settled.
settled.
In 1978,
In 1978, an area
area covering
covering 1,981.8
1,981.8 hectares
hectares was
was added
added toto the
the forest
forest reserve
reserve and
and gazetted
gazetted
under Legal Notice
under Legal Notice No.
No. 22 of 13thth October
of 13 October 1978.
1978. The
The Government
Government boughtbought the
the land
land
from white
from white settlers
settlers for
for pulpwood
pulpwood development.
development. In In 1986,
1986, another
another area
area covering
covering 372.3
372.3
th
hectares was added
hectares was added to the forest
forest reserve
reserve and
and gazetted
gazetted under
under legal
legal notice
notice no.
no. 359
359 of
of 19
19th
December
December 1986.
1986. This
This was
was inin exchange
exchange withwith 501.9
501.9 hectares
hectares in in Kitalale
Kitalale forest
forest station,
station,
which
which was
was allocated
allocated toto the
the late
late Major
Major General
General Kipsaita.
Kipsaita.
In mid
In mid 1990's,
1990's, Saboat
Saboat leaders
leaders met
met the
the former
former head
head of
of state
state and
and requested
requested forfor land
land toto
settle squatters. Later
settle squatters. Later they
they were
were advised
advised to form
form Cooperative
Cooperative Societies
Societies for ease
ease of
of land
land
acquisition.
acquisition. In the process
process aa number
number ofof groups
groups were
were formed,
formed, the
the most
most prominent
prominent being
being
Kokwo
Kokwo Multipurpose
Multipurpose Cooperative
Cooperative Society,
Society, Kony
Kony Multipurpose
Multipurpose Cooperative
Cooperative Society
Society
and
and Kaitaboss
Kaitaboss Youth
Youth Group.
Group. The
The Commissioner
Lands went
went ahead
ahead and
and issued
issued
allotment
allotment letters
letters to the groups
groups and
and thereafter
thereafter collected
collected the
the required
required land
land premiums
premiums for for
LR. Nos. 6442,
LR. Nos. 644312, 6469,
6442, 6443/2, 6469, 6950/3
6950/3 andand 7404,
7404, which
which were
were all
all part
part of
of Mt.
Mt. Elgon
.Elgon
Forest Reserve.
Forest Reserve.
Kokwo
Kokwo MultiMulti Purpose
Purpose Co Co operative
operative Company
Company Limited
Limited isis claiming
claiming Forestland
Forestland
registered
registered as L.R .. No.6950/3
as L.R.. No.6950/3 which
which came
came toto our
our possession
possession through
through aa legal
legal land
land
exchange transaction
exchange transaction between
betweenthe the Late
Late Major
Major General
General Kipsaita
Kipsaita andand the
the Forest
Forest
Department.
Department. The The forest
forest.Department parted with
Department parted with its
itsland
land registered
registered asasL.R.Nos.5523/2
L.R.Nos.552312
and19091 amounting to
and19091 amounting approximately 501.9
to approximately 501.9 hectares
hectares inin Kitalale
Kitalale Forest. These lands
Forest. These lands
were degazetted
were degazetted asas per
per Legal
Legal Notice
Notice Nos.360
Nos.360 of of 1986 and292 of
1986 and292 of 1994.
1994. Major
Major General
General
Kipsaita
Kipsaita released Forest Department
released to the Forest Department L.R.
L.R. Nos.
Nos. 6950/3
6950/3 measuring
approximately
372.3 hectares. Another
372.3 hectares. Another parcel
parcel ofofLand
LandKnownKno.wnasasL.R.6992/2
L.R.699212 measuring
measuring
approximately252.53
approximately 252.53 was was purchase
purchase byby Ministry
Ministry of of Environment
Environment and and Natural
Natural
Resources from
Resources from Mr.K,L,
Mr.K,L, Sorensen
Sorensen in 1975 for pulpwood
1975 for pulpwood development).
development). However,
However, this
this
\
229
Sichangi Adv
property had
property standing charge
had a standing charge inhibiting
inhibiting itsits transfer
transfer of of ownership
ownership to to the
the Forest
Forest
Department
Department until the charge
until the charge isis settled.
settled. Presently
PresentI.y this
this property
property hashas been
been irregularly
irregularly
allocated to
allocated to Kokwo
Kokwo Multipurpose
Multipurpose Co-operative
Co-operative Company Ltd.
Company From the
Ltd. From the forgoing,
forgoing,
Kabeywan
Kabeywan Block L.R.Nos.6950/3
Block L.R.Nos.6950/3 and 699212 all
and 6992/2 all amounting
amounting to to 2606.1
2606.1 hectares
hectares are are
owned and
owned and managed
managed by the Forest
by the Forest Department
Department and and it isis apparent
apparent that that thethe
Commissioner of
Commissioner lands erred
of lands erred in in allocating
allocating forestland
forestland for for settlement
settlement without
without
following down procedures
following the laid down procedures and and consultative
consultative process.
process.
~;~----------~------------------------------------------------~
230
Sichangi Adv
(0
(f)
KIAMBU FOREST
KIAMBU FOREST
Kiambu Forest
Kiambu Forest covering
approximately 133.95
133.95 hectares
hectares was
was gazetted
gazetted as
as forest
forest as
as per
per
proclamation No. 44
proclamation No. 44 of
of 1932
1932 and
and by
by legal
legal notice
notice No.
No. 174
174 of 20th
of 20 th May
May 1964
1964 itit was
was
declared
declared a central
central forest.
forest. Over
Over the
theyears
years various
various land
land transactions
transactions have
have taken
taken place
place inin
Kiambu
Kiambu Forest
Forest as tabulated
tabulated here
here below.
below.
An
An area
area measuring
approximately 29.6829.68 was
was authorized
authorized for for excision
excision for for Pelican
Pelican
engineering
engineering andand construction
construction Company
Company Ltd. Ltd. as per
per Permanent
Secretary's letterletter Ref.
Ref.
No.
No. B14.21 VOL.1/34 dated
B14.21 VOL.1I34 dated 21/12/94.
21/12/94 . Gazette
Gazette Notice
Notice No. No. 1091
1091 of of 1/2/95
112/95declaring
declaring
the Minister's intention
the Minister's intention toto alter
alter boundaries
boundaries of of Kiambu
Kiambu Forest Forest to
to exclude
exclude 29.68
29.68 hectares
hectares
was published.
was published. This
This prompted
prompted aa stiff
stiff challenge
challenge to to be
be instituted
instituted in in the
the High
High Court
Court by by
seven Kiambu farmers
seven Kiambu farmers vide
vide MISC
MISC CIVIL
CIVIL APPL.
APPL. NO. NO. 350
350 ofof 1995.
1995. The The case
case was
was
heard
heard andand determined
determined and and subsequently
subsequently Legal Legal Notice
Notice No. No. 260
260 of of 21/7/95
21/7/95 was was
published
published andand thus
thus finalizing
finalizing this
this excision.
excision. However,
However, asasper perPermanent
Secretary's
letter
letter Ref.
Ref. No.
No. Z.85 VOL. 1V/34 of 21/12/94
Z.85 VOL.1V/34 21112/94 aa title
title deed
deed waswas issued
issued to to this
this company
company in in
1991, before degazettement
1991, before process. Another
degazettement process. Another areaarea measuring
approximately 25.00 25.00
hectares
hectares forfor the
the general
general development
development of of Wibeso
Wibeso Investment
Investment was wasauthorized
authorized for for
excision
excision asas per
per PS' letter Ref.No.Z85
PS'letter Ref.No.Z85 VoI.VII/28
Vol.VII/28 of of 23/6/95.
23/6/95. Gazette
Gazette Notice
Notice No.5846
No.5846
of 23/10/98
23/10/98 was
was published
published andand subsequently
subsequently legal
legalnotice
notice No.56
No.56 ofof8/6/1999
8/6/1999 totofinalize
finalize
the
the degazettement
degazettement was was published.
published. PriorPrior to
to degazettement
degazettement aa title title deed
deed "Grant
"Grant No.No.
I.R.67273
I.R.67273 of 24 th October
24th October 1995
1995. and backdated to
and backdated to 11'st April
April 1991
1991 was
was issued.
issued. ItIt was
was toto
hold for 99 years.
hold years.
An area
An area measuring
measuring approximately 39.82 ha was
approximately 39.82 was authorized
authorized forfor excision
excision for
for Kiambu
Kiambu
Women Group as
Women Group as per
per Chief
Chief Conservator's
Conservator's letterletter Ref.
Ref. No.
No. FOR:
FOR: 68/7/62
68/7/62 of of 12/7/84.
12/7/84.
The area
The area has
has not
not been
been degazetted
degazetted but
but itit is
is already
already cleared.
cleared. In
In the
the same
same locality
locality an
an area
area
of
of approximately 24.00 'ha
approximately 24.00 'ha was
was allocated
allocated to to Tugirane
Tugirane Project
Project and
and registered
registered under
under
Kama Agencies owned
Kama Agencies owned by by Hon.
Hon. Kuria
Kuria Kanyingi.
Kanyingi. Flower
Flower farming
farming isisbeing
being undertaken
undertaken
although the area
although area is illegally
illegally acquired.
acquired.
231
231
Sichangi Adv
(g)
(g)
KAMITI FOREST
KAMITI FOREST
Kamiti Forest
Kamiti Forest covering
169.57 hectares
hectares was
was originally
originally gazetted
gazetted asas forest
forest
as per
as per proclamation
proclamation No.14No.14 of of 1933.
1933. In In 1964
1964 as
as per
per legal
legal notice
notice No.174
No.l74 of zo"th May
of 20 May
Kamiti was
Kamiti was declared
declared a Central
Central Forest.
Forest. However,
However, thethe Provincial
Provincial Commissioner,
Commissioner, Central
Central
Province
Province as per per his
his letter
letter Ref.No.D374/1/4/173
Ref.No.D374/1/41l73 dated dated 5/12/94
5/12/94 stated
stated that
that our
our Minister
Minister
in his
in his letter
letter dated
dated 1/12/94
1112/94 authorized
authorized an an excision
excision ofof 300
300 acreas
acreas (121.2
(121.2 ha).
ha). The
The area
area
was demarcated
was demarcated into into plots
plots for
for settlement
settlement andand currently,
currently, the
the whole
whole forest
forest has
has been
been
converted
converted intointo Ting'ang'a
Ting'ang'a AnnexAnnex 11 11 Settlement
Settlement Scheme.
Scheme. However,
However, aa check
check onon the
the
ground reveals
ground reveals erection
erection of of a few
few temporary
temporary structures.
structures. Vacation
Vacation notices
notices were
were issued
issued
last year;
last year, as the area
area has notnot been
been degazetted.
degazetted.
232
Sichangi Adv
(h)
MOUNT
MOUNT KENYA FOREST
KENYA FOREST
Mount Kenya
Mount Kenya Forest
Forest was
was originally
originally gazetted
gazetted as as per
per proclamation
proclamationNo No 48
48 ofof 1943.
1943. ItIt
covered an area
covered area of 277,236
277,236 hectares.
hectares. Over
Over the
the years
years various
various alterations
alterations to
to its
itsboundary
boundary
has been
has been. made
made mainly
mainly for
for settlement.
settlement. In
In 1968,
1968, 10,522
10,522 hectares
hectares were
were excised
excised forfor Mt.
Mt.
Kenya National Park
Kenya National Park and further
further subsequent
subsequent excision
excision have
have since
since followed
followed asas herein:
herein:
A total
total area
area of 930.3
930.3 hectares
hectares was
was excised
excised in
in Ontulili
Ontulili Bock
Bock ofof Mt.
Mt. Kenya
Kenya Forest
Forest for
for aa
former Minister
former Minister ofof Lands
Lands and
and Settlement
Settlementthe the late
late Mr.
Mr. H.
H. Angaine.
Angaine. The The lands
lands are
are
registered as
registered as L.R.
L.R. Nos.13269
Nos.13269 andand 12234.
12234. The
The area
area was
was degazetted
de gazetted as
as per
per Legal
Legal Notice
Notice
Nos.
Nos. 68 and 107
107 of 1975
1975 and
and 1977
1977
Gathiuru
Gathiuru Settlement:
Settlement: An Anarea
areameasuring
approximately 658.2658.2 Ha
Ha was
was authorized
authorized asas
per
per Minister and Permanent
Minister and Permanent Secretary's
Secretary's letters
letters Ref.
Ref. No.
No. B9.07
B9.07 VOL.1/3
VOL.1I3 dated 2617/93
dated 26/7/93
and Ref: No.z.85
and Ref: No.Z.85 VOL.IVI133
VOL.1V/133 of 22/6/95.
22/6/95. A A survey
survey of
of the
the area
area was
was carried
carried out
out and
and an
an
area measuring 744
area measuring 744 hectares
hectares was
was carved
carved out
out from
from Mt.
Mt. Kenya
Kenya Forest
Forest for the purpose
purpose of
of
settlement.
settlement. A A Boundary
Boundary Plan
Plan No
No 175/392
175/392 was
was drawn
drawn and
and authenticated
authenticated byby the
the Director
Director
of
of Surveys/and
Surveys/and gazettement documents sent
gazettement documents sent to
to the
the Permanent
Permanent secretary
secretary MENR
MENR as per per
the letter Ref.No.FD/SS
the letter Ref.No.FD/SS 146 146 Vol.II/340
Vo\.II1340 of
of 30/1/2001.
30/112001.
Meru Sirmon
Meru Sirmon Settlement:
Settlement: An An area
area measuring
796.04 hectares
hectares was
was
authorized for settlement
authorized for settlement of of Ngusichi squatters as
Ngusichi squatters as per
per PSPS letter
letter Ref.
Ref. No.Z85
No.Z85
VOL.V/157 of
VOL.VI157 of 13/12/95.
13/12/95. TheThe area
area was
was eventually
eventually degazetted
degazetted asas per
per Legal
Legal Notice
Notice
No.29 of
No.29 of 2001.
2001. AA big
big portion
portion of
of this
this area
area isis occupied.
occupied.
Ndathi
Ndathi Settlement
Settlement Scheme:
Scheme: An An areaarea measuring
approximately 912.1912.1 Ha.Ha. waswas
authorized
authorized asas per
per Permanent
Secretary's letter
letter Ref.
Ref. No.B9.07
No.B9.07 VOL.1/
VOL. 114 4 dated
dated 4/8/93
4/8/93 to to
be degazetted
be degazetted forfor settlement.
settlement. A A Gazette
Gazette Notice
Notice No.
No. 897
897 of 161212001 was
of 16/2/2001 was published.
published.
Objectionswere
Objections wereraised
raisedinincourt
courtofof lawlaw and
and aa ruling
ruling waswas given
given in favour
favour ofof the
the
Government in one
Government one case
case among
among many
many others,
others, which
which were
were not
not consolidated
consolidated andand are
are still
still
running
running in High
High Court,
Court, Nairobi,
Nairobi, but
but nonetheless
nonetheless Legal
Legal Notice
Notice no.
no. 149
149 of
of19/10/2001
19110/2001
purporting to
purporting to finalize
finalize this
this excision
excision was
was published.
published. Later,
Later, in
in 2002
2002 this
this excision
excision amongst
amongst
others was contested
others was contested in in the
the High
High Court.
Court. TheThe matter
matter is
is still pending.
pending. However
However thisthis area
area
settled and
is settled and settlers
settlers issued
issued with
with titles.
titles.
Sagana
Sagana Extension
Extension Settlement
Settlement Scheme:
Scheme: An Anareaareameasuring
approximately 717.0
717.0 Ha.Ha.
was authorized
was authorized asas per
per PSPS and
and Ministers'
Ministers' letters
letters Ref.
Ref. No.
No. Z.85
Z.85 VOL.V11/70
VOL.VII170 & & 163
163 ofof
111197and
1/1/97 and 26/7/98
26/7/98 letter
letter Ref.
Ref. No.
No. Z85Z85 VOL.V1111127
VOL.V111/127of of 23/7/99.
23/7/99. A A Gazette
Gazette Notice
Notice
no.
no. 896
896 of 16/2/2001
1612/2001 was was published. Objections were
published. Objections were raised
raised in
in court
court of
of law
law in one
one ofof
the
the cases
cases and
and a ruling
ruling waswas given
given inin favour
favour of
of the
the Government
Government and and aaLegal
Legal Notice
Notice no. no.
147 of
147 of 19/10/2001 purporting to
1911012001 purporting to finalize
finalize this
this excision
excision was
was published.
published. Later,
Later, in
in 2002
2002
this
this excision amongst others
excision amongst others waswas contested
contestedininthe the High
High Court.
Court. The
The matter
matter is is still
still
pending.
pending. TheThe area
area isis not
not settled.
settled.
Magutu Settlement
Magutu Settlement Scheme:
Scheme: AnAnarea
areameasuring
196.05 hectares
hectares was
was
authorized by the Chief
authorized by Chief Conservator
Conservator of Forests
Forests vide letter
letter Ref. FDIZ/68/59 of
Ref. No. FD/Z/68/59 of
233
Sichangi Adv
5/10/79
5/10/79 and
and the
the Permanent
Secretary's letter
letter Ref.
Ref. No.
No. B9.07/VOL
B9.07NOL 1/4/8/93.
114/8/93. This
This
was for
was for anan exchange
exchange with
with the_gazetted
the.gazetted Lusoi forest
Lusoi forest measuring
approximately 295.5
295.5
hectares.
hectares. This area
This area waswas earmarked
earmarked for
for settling
settling people
people displaced
displaced by by Karatina
Karatina Nyayo
Nyayo
Wards.
Wards. A A Gazette
Gazette NoticeNotice No. No. 894894 of of 16/2/2001
16/2/2001 was was published.
published. Objections
Objections were were
raised
raised in in court
court of,of, which
which in in one
one ofof the
the cases
cases thethe government
government got
got aa favorable
favorable ruling
ruling
and
and through
through aa Legal
Legal Notice
Notice No. No. 150 150 ofof 19/10/2001
19/1012001 purportedly
purportedly finalized
finalized this
this
excision.
excision. Later in
Later in 2002
2002 this
this excision
excision amongst
amongst othersothers waswas contested
contested in
in Hiah
Hioh Court
Court
and the
and the matter
matter is is still
still pending.
pending. The The area.is
area.is 60% 60% settled.
settled.
234
Sichangi Adv
APPENDIX 10
APPENDIX 10
THE LAND
THE TITLES TRIBUNAL
LAND TITLES TRIBUNAL
The
The Government Lands Act
Government Lands Act is amended
amended by thethe creation
creation of
of the
the following
following
new section
new section to be numbered
numbered 147
147 A.
A. that
that will
will be
be inserted
inserted immediately
immediately after
after
the present
present Section
Section 147.
147.
147 A.
l. (i)
I. (i) Reference
Reference to Notwithstanding the
Tribunal. Notwithstanding
to Tribunal. the provisions
provisions of this Act Act and
and of
any other
any other written
written law, where where it appears
appears to the
the Commissioner
Commissioner or or itit isis
provided by
provided by this
this Act Act or
or other
other written
written law
law that
that any
any action
action suit
suit or or
proceedings shall
proceedings shall be be commenced, prosecuted and
commenced, prosecuted and carried
carried onon in in
relation to
relation to Government
Government land land or or any
any other
other category
category of land land oror in in
relation to the validity
relation validity of a title,
title, lease,
lease, sub-lease
sub-lease oror licence
licence issued
issued by by
the Commissioner
the Commissioner or or other
other competent
competent authority
authority in respect
respect of of such
such
Government land
Government land or or other
other category
category of of land,
land, such
such action,
action, suit
suit or or
proceedings shall
proceedings shall in the firstfirst instance
instance be referred
referred toto the
the Land
Land Titles
Titles
Tribunal
Tribunal hereinafter
hereinafter established.
established.
(ii) Notwithstanding
(ii) Notwithstandingthe theprovisions
provisionsofofthis thisAct
Actandand ofof anyany other
other
written law,
written law, where
where itit appears
appears to to the
the Registrar,
Registrar, the
the Principal
Principal Registrar
Registrar
of Titles
of Titles appointed under the
appointed .under the Registration
Titles Act,
Act, the
the Chief
Chief
Land Registrar
Land Registrar appointed
appointed under under thethe Registered
Registered LandLand Act Act oror any
any
interested party
interested party that
that anyany action,
action, suit
suit or
or proceeding
proceeding should should be be
commenced, prosecuted
commenced, prosecuted and carried
carried on in relation
relation toto the
the validity
validity of
of aa
title, lease,
title, lease, sub-lease
sub-lease or or licence
licence issued
issued or about
about toto be
be issued
issued byby the
the
Commissioneroror other
Commissioner other competent authority in
competent authority in respect
respect of of
Government land
Government land or
or any
any other
other category
category of of land,
land, such
such action,
action, suit
suit or
or
proceeding shall
proceeding shall in the
the first
first instance
instance bebe referred
referred toto the
the Land
Land Titles
Titles
Tribunal
Tribunal hereinafter
hereinafter established.
established.
2. Establishment and
2. Establishment andmembership
membership of
of Tribunal. There shall
Tribunal. There shall be
be established
established aaTribunal
Tribunal
to be
to be known
known as as THE
THE LAND LAND TITLES
TITLES TRIBUNAL
TRIBUNAL (hereinafter
(hereinafter
referred to
referred to as
as "the
"the Tribunal")
Tribunal") which whichshall
shallconsist
consist of:-
of:-
a) aa Chairman,
a) Chairman, aa Deputy
Deputy Chairman
Chairman appointed
appointed byby the
the Minister
Minister
each
each of whom
whom shall
shall at
at the
the date
date of
of their
their appointment
appointment have
have been
been
235
Sichangi Adv
Advocates of High
Advocates High Court
Court ofof Kenya
Kenya ofof not
not less
less than
than twenty
twenty years
years
standing or
standing or shall
shall hold
hold and
and have
have held
held for
for aa period
period or
or periods
periods
amounting
amounting in the aggregate
aggregate to not
not less
less than
than twenty
twenty years,
years, one
one or
or
other of
other of the
the qualifications specifiedinin section
qualifications specified section 13 13 ofof the
the
Advocates Act;
Advocates Act; and
and
three members
b). three members appointed by the
appointed by the Minister
Minister each
each of
of whom
whom shall
shall
be an
be an Advocate
Advocate of of the
the High
High Court
Court of Kenya
Kenya ofof not
not less
less than
than
twenty years
twenty years standing;
standing; and
six members
c). six members being
being persons
persons ofof known
known integrity
integrity and
and
respectability appointed
respectability appointed by
by the
the Minister
Minister all of
of whom
whom shall
shall have
have
competence and experience
competence experience in land
land administration;
administration;
such additional
d). such membersasas may
additional members may from
from time
time to
to time,
time, be
be
appointed by the Minister
appointed Minister on the advice
advice of the
the Tribunal.
Tribunal.
For purposes
3. For purposes of of hearing
hearing and
and determining
determining thethe action,
action, suit
suit or
or
proceedings referred to
proceedings referred to in subsection
subsection (1)
(1) hereof
hereof any
any three
three members
members
of
of the
the Tribunal
Tribunal duly
duly authorised
authorised in
in writing
writing by
by the
the Chairman
Chairman shall
shall
constitute a Tribunal.
constitute Tribunal.
The members
4. The members of of the
the Tribunal
Tribunal shall
shall not
not be
be personally
personally liable
liable for
for any
any
act or
act or default
default of the Tribunal
Tribunal done
done or committed
committed in good
good faith
faith in
in the
the
course of exercising
course exercising the
the powers
powers conferred
conferred by this
this Act.
Act.
Where a reference
5. (Where reference to.to. the
the Tribunal
Tribunal falls
falls within
within the
the provisions
provisions of of
section 75(2) of
section 75(2) of the
the Constitution,
Constitution, the
the party
party dissatisfied
dissatisfied withwith the
the
decision of the Tribunal
decision Tribunal maymay appeal
appeal to the High
High Court
Court inin the
the manner
manner
prescribed in the Constitution
prescribed Constitution on anyany of
of the
the grounds
grounds ofof the
the reference
reference
to the Tribunal and on any of the following grounds namely:-
the Tribunal and on any of the following grounds narnely:-
(a)that
(a) that the
the decision
decision of
of the
the Tribunal
Tribunal was
was contrary
contrary to
to law
law or
or to
to
some
some usage
usage having
having the force
force of law;
law; or
(b)that
(b)that the
the decision
decision failed
failed to
to determine some material
determine some material issue
issue of
law usage having
law or usage having the force law;
force of law; or
236
Sichangi Adv
(c) that
(c) that aa substantial
substantial error
error or
or defect
defect in
in the
the procedure
procedure provided
provided by by
or under
or under this
this Act
Act has
has produced
produced an an error
error or
or defect
defect in
in the
the
decision of the case
decision case upon
upon its
its merits.
merits.
6. AAcopy
6. copy ofofthe
thedetermination,
determination, ruling
ruling or
or order
order ofof the
the Tribunal
Tribunal certified
certified
by
by the
the Chairman
Chairman or by such such member
member as as may
may be be nominated
nominated inin writing
writing"
by
by the
the Chairman
Chairman forfor the
the purpose
purpose toto be
be aa true
true aa copy
copy may
may be
be filed
filed in
in
the High
the High Court
Court and
and thereafter
thereafter if if notice
notice inin writing
writing has
has been
been given
given toto
any
any party
party affected
affected by
by it,
it, the
the determination,
ruling or
or order
order may
may be be
enforced
enforced as a decree
decree of
of the
the High
High Court.
Court.
7.
7. Any
Any party
party toto a areference
reference totothetheTribunal
Tribunal aggrieved
aggrieved by by any
any
determination,
ruling or order
order of the Tribunal
Tribunal may
may within
within thirty
thirty days
days
after the date
after the date of such
such determination
determination or order
order appeal
appeal on
onaa question
question ofof
law to
law to the
the High
High Court.
Court.
8.
8. In
In the
the exercise
exercise ofof the
the powers
powers conferred
conferred upon
upon it it by
by this
this Act,
Act, aa
Tribunal shall
Tribunal shall have
have the
the same
same jurisdiction
jurisdiction and
and powers
powers" asas are
are conferred
conferred
upon the
upon the High
High Court
Court inin civil
civil matters
matters and
and in
in particular
particular (but
(but without
without
prejudice
prejudice to the generality
generality of of the
the foregoing)
foregoing) shall
shall have
have power:-
power:-
(a) To
(a) administer oaths
to administer oaths and
and toto order
order persons
persons toto attend
attend andand give
give
evidence or
evidence or to produce
produce and
and give
give discovery
discovery andand inspection
inspection of of
documents
documents inin the
the same
same manner
manner as as in
in proceedings
proceedings in in the
the High
High
Court and
Court for that
and "for that purpose
purpose to to authorise
authorise the
the Chairman
Chairman to to issue
issue
summonses
summonses to compel
compel the
the attendance
attendance of of persons
persons before
before it; and
and
(b) Upon
(b) Upon thethe determination
determination of any any application
application or other
other proceeding,
proceeding, inin
its
its discretion,
discretion, toto order
order any
any party
party thereto
thereto to
to pay
pay the
the whole
whole oror any
any
part of
part of the
the costs
costs thereof,
thereof, andand either itself to
either itself to fix
fix the
the amount
amount of of
those costs
those costs or
or to
to direct
direct taxation
taxation thereof
thereof byby the
the taxing
taxing officer
officer of
of
the High
the High Court
Court onon either
either the
the High
High Court
Court scale
scale or
or the
the subordinate
subordinate
court scale.
court scale.
9. The
9. The Civil
Civil Procedure
Procedure Act
Act and
and Rules
Rules shall
shall not
not apply
apply to
to the
the proceedings
proceedings
of
of the
the Tribunal.
Tribunal.
10. (1)(1)The
10. TheMinister
Ministermay
maymake
makeregulations
regulations for
forthe
thebetter
better carrying
carrying out
out
of the
of the provisions
provisions of this
this Act
Act and
and for
for the
the procedures
procedures andand duties
duties of
of
237
237
Sichangi Adv
the Tribunal
the Tribunal and
and without
without prejudice
prejudice toto the
the generality
generality of
of the
the
foregoing such regulations
foregoing regulations may
may prescribe:-
prescribe:-
the manner
(a) the manner in which
which the
the Tribunal
Tribunal shall
shall conduct
conduct its
its business;
business;
the procedure
(b) the procedure in in connection with any
connection with any reference
reference to to the
the
Tribunal, or the
Tribunal, the determination
determination of
of any
any matter
matter by
by the
the Tribunal;
Tribunal;
(c) the
the matters
matters which
which the
the Tribunal
Tribunal shall
shall take
take into
into account
account in
in
exercising its powers
exercising powers under
under this
this Act;
Act;
the fees
(d) the fees which
which shall
shall be
be payable
payable inin respect
respect of
of any
any matter
matter or
or
thing to be done
thing done under
under this Act;
Act;
the scale
(e) the scale and
and taxation
taxation of costs
costs and
and expenses
expenses of
of witnesses
witnesses in
in
proceedings before the tribunal.
proceedings before tribunal.
(f) That
That the
the Tribunal
Tribunal maymay ininappropriate
appropriate cases
cases recommend
recommend
criminal
criminal investigations.
investigations.
(2) The
(2) The Chief
Chief Justice
Justice may
may make
make rules
rules prescribing
prescribing any
any procedure,
procedure,
fees or
fees or costs
costs in
in any
any proceedings
proceedings in the
the High
High Court
Court or
or any
any other
other
court under this Act.
court under Act.
CONSEQUENTIAL AMENDMENTS
CONSEQUENTIAL AMENDMENTS
TO
OTHER LEGISLATION.
OTHER LEGISLATION.
1. AMENDMENTS
1. AMENDMENTS TO THE REGISTRATION
TO THE REGISTRATION OF
OF TITLES
TITLES
ACT (cap. 281).
ACT (cap. 281).
a) Section
a) Section 22ofofthe
theRegistration
Registration of
of Titles
Titles Act
Act isis amended
amended by
by including
including
in the
the interpretation
interpretation of the
the word
word "court"
"court" the following
following words:-
words:-
"and
"and shall
shall include
include the
the Tribunal
Tribunal established
established by
by Section
Section
147
147 AA of the
the Government
Government Lands
Lands Act
Act (Cap
(Cap 280)"
280)" after
after
the
the words
words "High
"High Court".
Court".
238
Sichangi Adv
b). Section
b). Section 2 shall
shall be
be further
further amended
amended by
by including
including in
in the
the appropriate
appropriate
order the
order the following
following words:-
words:-
"Tribunal" means
"Tribunal" means the
the Tribunal
established by
by Section
Section
147 A
147 A of
of the
the Government
Government Lands
Lands Act
Act (Cap
(Cap 280).
Section 59 (1) should

c) Section should be amended
amended so that
that it reads
reads as follows:-
follows:-
59 (1) In
59 In the
the case
case of
of aanon-existent
non-existent or or fictitious
fictitious person
person beingbeing
named as
named as proprietor
proprietor inin the
the register
register or or in
in anyany Grant,
Grant,
Certificate of
Certificate of Title
Title or other
other instrument,
instrument, the the name
name shall
shall
be cancelled
be cancelled by by order
order of the Registrar
Registrar and and ifif as
as aa result
result
of such
of such cancellation there shall
cancellation there shall remain
remain no no name
name of of aa
legal
legal person
person the
the Registrar
Registrar shall
shall cancel
cancel the the registration
registration of of
the Grant
the Grant Certificate
Certificate of Title
Title or other
other instrument.
instrument.
2. AMENDMENTS
AMENDMENTS TO
TO THE
THE REGISTERED
REGISTERED LAND
LAND ACT.
ACT.
a).
a). Section
Section 3 shall
shall be
be amended
amended by
by adding
adding ininthe
theappropriate
appropriate order
order the
the
words
words
"the Tribunal
"the Tribunal means
means the
the Tribunal
Tribunal
having jurisdiction
having jurisdiction by virtue
virtue of Section
Section 159
159 (2);"
(2);"
Section 126
b). Section 126 (1)
(1) be
be amended
amended by by deleting
deleting thethe word
word "may"
"may" andand
replacing itit with
replacing with the
the word
word "shall"
"shall" and
and by
by deleting
deleting the
the words
words "but
"but the
the
Registrar shall
Registrar shall not
not enter"
enter" and
and "in
"in the
the register"
register" and
and replacing
replacing them
them with
with
the words
the words "together
"together with".
with".
Section 126
c). Section 126 (3)
(3) bebe amended
amended by by deleting
deleting the
the words
words "but
"but forfor the
the
purpose of
. purpose of any
any registered dealings he
registered dealings he shall
shall be
be deemed
deemed to to be
be the
the
absolute proprietor
absolute proprietor thereof
thereof and
and nono person
person dealing
dealing with
with the
the land,
land, aalease
lease
or a charge
or charge so registered
registered shall
shall be
be deemed
deemed toto have
have notice
notice of
of the
the trust
trust nor
nor
shall any
shall any breach
breach of thethe trust
trust create
create any
any right
right to
to indemnity
indemnity under
under this
this
Act".
Act".
d). Section
Section 142
142 (1) of the RLA
RLA should
should be amended
amended by adding
adding
a new
new sub-section
sub-section as
as follows:-
follows:-
239
Sichangi Adv
"(d).
"(d). In
In the
the case
case of
of aanon-existent
non-existent or or fictitious
fictitious person
person
being named
being named as as proprietor
proprietor inin the
the register
register or in in any
any Title
Title
Deed, Certificate
Deed, of Lease
Certificate of Lease or other
other instrument,
instrument, the the name
name
shall
shall be
be cancelled
cancelled byby order
order of
of the
the Registrar
Registrar and and if as
as aa
result
result of such
such cancellation
cancellation there
there shall
shall remain
remain no name name ofof aa
real
real person
person· •the
theRegistrar
Registrarshall
shall cancel
cancel the
the registration
registration of
.the
.the Title,
Title, or Lease
Lease and/or
and/or other
other instrument."
instrument."
e). Section
e). Section 143
143 (1)
(1) shall
shall be
be amended
amended by
by deleting
deleting the
the words
words "(other
"(other than
than aa
first
first registration)";
registration)";
f).There should
f).There should be
be aa new
new subsection
subsection to
to be
be numbered
numbered 143(3)
143(3) as
asfollows:
follows:
143(3) The Tribunal

143(3) The Tribunal maymay by by order
order direct
direct the
the Registrar
Registrar toto
cancel, correct,
cancel, correct, substitute
substitute oror issue
issue any entry
entry in
in the
the register,
register,
or
or otherwise
otherwise to do such
such acts
acts or make
make such
such entries
entries as
as may
may bebe
necessary
necessary to to give
give effect
effect toto the
the decision
decision oror order
order of of the
the
Tribunal;
Tribunal; and
and
g). Section
g). Section 159
159 be
be amended
amended by by renumbering
renumbering the
the present
present section
section as
as
Section 159
Section 159 (1) and by inserting
insertirrg the
the following
following words
words at
at the
the beginning
beginning
of the
of the subsection
subsection
"Subject
"Subject to subsection(2)".
subsection(2)".
h). Section 159

h). Section 159 be
be further
further amended
amended by
by adding
adding the
the following
following
subsection:-
subsection:-
"(2) A reference
"(2) reference byby the
the Registrar
Registrar forfor the
the purpose
purpose ofof
establishing the validity
establishing validity of any title
title or
or for
for the
the revocation
revocation
or rectification
or rectification of any
any title
title shall,
shall, in
in the
the first
first instance,
instance, be
be
made
made to to the
the Tribunal
established by by Section
Section 147 147 A ofof
the Government
the Government Lands
Lands Act (Cap(Cap 280).
280).
240
240
Sichangi Adv
APPENDIX
APPENDIX 11
11
MEMBERS
MEMBERS OF STAFF
STAFF OF THE COMMISSION
COMMISSION
1. Robert Kobia
Robert A. K. Kobia Assistant Coordinator.
Assistant Coordinator·
Alfred Muthee
2. Alfred Muthee Data Analyst
Data Analyst
3. Daniel
Daniel R. Kithunka
Kithunka Researcher
Researcher
Agatha Wanyonyi
4. Agatha Wanyonyi Researcher
Researcher
Mwenda K. Mbogori
5. Mwenda Mbogori Researcher
Researcher
Johnson M. Ruthuthi
6. Johnson Ruthuthi Researcher
Researcher
Teresia Munyua
7. Teresia Munyua Researcher
Researcher
Rosina N. Mule
8. Rosina Mule Researcher
Researcher
Jeremy Birichi
9. Jeremy Researcher
Researcher
10. Irene
10. Irene Muttai
Muttai Researcher
Researcher
11. Rashid
11. Rashid A. Abdullahi
Abdullahi Researcher
Researcher
12. Rachel
12. Rachel Nyamori
Nyamori Researcher
Researcher
13. Irene
13. Irene W. Kamunge
Kamunge Researcher
Researcher
14. Omwanza
14. Omwanza Ombati
Ombati Researcher
Researcher
15. Godfrey
15. Godfrey Musila
Musila A. M Researcher
Researcher
16. Dorothy
16. Dorothy Mwanzile
Mwanzile Editor
Editor
17. Isabella
17. Isabella A. Odolo
Odolo Accountant
Accountant
18. Juliet
18. Juliet Mwaniki
Mwaniki Secretary
Secretary
19. Judy
19. Judy Mwangi
Mwangi Secretary
Secretary
20. Joyce
20. Joyce Nduku
Nduku Mwanthi
Mwanthi Secretary
Secretary
21. Rose
21. Rose Endesia
Endesia Secretary
Secretary
22.
22. Joyce
Joyce Momaya
Momaya Secretary
Secretary
23. Jackline
23. Jackline Kitune
Kitune Secretary
Secretary
24.
24. Robert Ochung'a Amutabi
Robert Ochung'a Amutabi Typesetter
Typesetter
25. Francis Masyuka
25. Francis Masyuka Clerk
26. Maurice Anyira
26. Maurice Anyira Sergeant
Sergeant
27. Abdullahi Shariff
27. Abdullahi Shariff Corporal
Corporal
28. Dennis Kiprotich
28. Dennis Kiprotich Administration Police
Administration Police
Constable
Constable
241

Sichangi Adv

29. Jacob
29. Jacob Aringo
Aringo Administration
Police
Constable
Constable

Daniel Lendamako
30. Daniel Lendamako Administration
Police
Constable
Constable

31. Muuo
Muuo Ngoloma
Ngoloma Administration
Police
Constable
Constable

Johana Maingi
32. Johana Maingi Mburu
Mburu Driver
Driver

33. Simeon
Simeon Kiprono
Kiprono Bii Bii Driver
Driver

Evans Waarari
34. Evans Waarari Driver
Driver

Enock Kataka
35. Enock Kataka Driver
Driver

Pauline W. Waweru
36. Pauline Waweru Subordinate
Subordinate Staff
Staff

37. Serah
Serah N.
N. Nzuve
Nzuve Subordinate
Subordinate Staff
Staff

Esther M. Mbisi
38. Esther Mbisi Subordinate
Subordinate Staff
Staff
242
242
Sichangi Adv
LIST
LIST OF
OF REFERENCES
REFERENCES
1.
1. Crown Lands Ordinance
Crown Lands Ordinance 1915.
1915.
2.
2. The Government
The Government Lands
Lands Act
Act (Cap.
(Cap. 280).
280).
3.
3. The
The Interpretations
Interpretations and
and General
General Provisions
Provisions Act
Act (Cap.
(Cap. 2).
2).
4.
4. The Physical
The Physical Planning
Planning Act
Act No.
No.66 of
of 1996.
1996.
5.
5. The Land
The Land Adjudication
Adjudication Act
Act (Cap.
(Cap. 284).
284).
6.
6. The Land
The Land Consolidation
Consolidation Act
Act (Cap.
(Cap. 283).
283).
7.
7. The Trust
The Trust Lands
Lands Act
Act (Cap.
(Cap. 288).
288).
8.
8. The
The Registered
Registered Land
Land Act
Act (Cap.
(Cap. 300).
300).
9.
9. The
The Land
Land Acquisition
Acquisition Act
Act (Cap.
(Cap. 295).
295).
10.
10. The Registration
The Registration of
of Titles
Titles Act
Act (Cap.
(Cap. 281).
281).
11.
11. The Companies
The Companies Act
Act (Cap.
(Cap. 486).
486).
12.
12. The
The Constitution
Constitution of
of Kenya.
Kenya.
13.
13. The Constitution
The Constitution of
of Kenya
Kenya (Amendment)
(Amendment) Act
Act 1964.
1964.
14.
14. The Sectional Properties
The Sectional Properties Act
Act 1987.
1987.
15.
15. The Forests
The Forests Act
Act (Cap.
(Cap. 385).
385).
16.
16. The Wildlife
The Wildlife Management
Management and
and Conservation
Conservation Act
Act (Cap.
(Cap. 376).
376).
17.
17. The Survey Act
The Survey Act (Cap.
(Cap. 299).
299).
18.
18. The
The Environmental
Environmental Management
Management and
and Co-ordination
Co-ordination Act
Act 1999.
1999.
19.
19. The
The Agriculture
Agriculture Act
Act (Cap.
(Cap. 318).
318).
20.
20. The Agricultural
The Agricultural Development
Corporation Act
Act (Cap.
(Cap. 444).
444).
21.
21. The WakfCommissioners
The Wakf Act (Cap.
Commissioners Act (Cap. 109).
109).
22.
22. The Protected
The Protected Areas
Areas Act
Act (Cap.
(Cap. 204).
204).
23.
23. Legal Notice
Legal Notice No.
No. 305
305 of 1994.
1994.
24.
24. Gazette No.
Gazette No. 2018
2018 of
of 1995.
1995.
25.
25. Republic Kenya 22ndnd Sessional
Republic of Kenya Sessional Paper
Paper on National
National Wetlands
Wetlands Conservation
Conservation and
and
Management
Management ofof February,
February, 2002.
2002.
26. M. K. Sorrenson,-The
M. P. K. Sorrenson,-The Origins
OriginsofofEuropean
European Settlement
Settlement ininKenya,
Kenya, Nairobi
Nairobi
O.U.P. 1968.
O.U.P.1968.
27. Y. Ghai and

Y. P. Ghai and J.1.P.
P. McAuslan,
McAuslan, Public
Public Law
Law and
and Political
Political Change
Change in
in Kenya,
Kenya,
O.U.P. 1970.
O.U.P. 1970.
243
Sichangi Adv
28.
28. H.
H. W.
W. 0.
O. Okoth
Okoth Ogendo,
Ogendo, Tenants
Tenants of
of the
the Crown:
Crown: The
The Evolution
Evolution of
of Agrarian
Agrarian
Law and
Law and Institutions
Institutions in
in Kenya,
Kenya, Acts
Acts Press
Press 1995.
1995.
29.
29. COMMUNIQUE issued
COMMUNIQUE issued by
by the
the Governor
Governor in
in 1951.
1951.
30.
30. MEGARRY AND
ME0ARRY AND WADE,
WADE, The
The Laws
Laws of
of Real
Real Property,
Property, London,
London, Sweet
Sweet and
and
Maxwell 6thth Edition,.
Maxwell Edition,.
31. SIMPSON S. R.
SIMPSON S. R. Land
Land Law
Law and
and Registration
Registration Book
Book I ICambridge
Cambridge University
University
Press.
Press.
32. Associated Provincial
Associated Provincial Picture
Picture Houses
Houses Ltd.
Ltd. v.
v. Wednesday
Wednesday Corp.
Corp. (1947)
(1947) All
All ER
ER
680:
33. R.v. Secretary
R.v. Secretary of
of State
State for
for the
the Home
Home Department,
Department,
Hargreaves others (1997)

Hargreaves and others (1997) 11 All
All ER
ER 397.
397.
244
244
Sichangi Adv
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FINDINGS AND RECOMMENDATIONS

1. Gazette Notice No.

Your Excellency appointed

Lastly we are very grateful

Part Three contains

Five of the Report

I See for example,

(b) Powers ofofthe

The original allottee

5 See the discussion

WHEREAS itit appears

The Remit of the Commission

The First Task

The Task was

1. Stage One: Formation

2. Stage Two: Definition

(a) Sources ofofInformation

The required information

The Instruments for

The documents, and

(f) Information from Official

Although the Commission's

The bulk of the Commission's

(g) Addressing the

Government Land or Trust

Plans for all

One of the main

Those parties who

The main question

(b) Illegality From

The register shall

(c) Where the

This approach would

The suggestions made

Yet during the

Alienated Government lands

Lands set aside

The pattern of allocation

The preference of corporations

The corporation therefore

Only ninety-five (95)

62 19187 5 Kagika Limited

Size Purchase Price

4 209 Mohammed p.115

Most of the Ministries

The Commission appreciates

(ii) Ministries' Land

Through these programmes,

9 See the SECOND

Settlement Schemes established

Full details and

ILOODO·ARIAK AND MOSIRO

Other Officially Sanctioned

The Agrarian "Revolution"

Artificial Landlessness, General

(ii) Trust Lands

section are those described in PART ONE

t°10 See appendix

From the list of

Other key findings

(k) Sisiyian Farm,

Serial Name of Current

The Ndung'u Report: Annexe Volume 3

The Ndung'u Report: Annexe Volume 3