Public land allocation

The President is reported to have recently accented to the allocation of some land at Roysambu in favour of a Nairobi Church. The subject land is said to be reserved for military use. Away from this specific land, whose contentious history remains in the public domain, does the President hold sway over the allocation of public land to individuals or other private entities?

President's powers under pre-2010 regime

Prior to the promulgation of the 2010 constitution, many Kenyans obtained land through presidential fiat. This was commonplace during the first and second post-independence governments. A word, or written note from the President was considered sufficient authority for allocation. The applicable law at the time “was deemed” to have allowed the practice. Indeed, under the repealed Government Lands Act, the President was perceived to hold unfettered powers over the allocation of unalienated public land, then known as government land. The law gave the President latitude to make grants or dispositions of any estates, interests or rights in or over any unalienated government land.

These powers, exercised under the Commissioner of Lands, a powerful office established under the Act, went on to be grossly abused. I recall that some folks so coveted the powers that they made an occupation forging the President’s signature to influence allocations of government land. They would then proceed to present fraudulently procured letters of allotment to the Commissioner of Lands to support the preparation of leases. Some failed. But some succeeded, making it possible to get themselves, or their cronies, allocated government land. Some of this land had been reserved for use by public institutions. Most of this information was documented and remains publicly available.

Position post-2010 regime

This practice however received extensive criticism in the Njonjo and Ndung’u Commission forums and reports. There was compelling argument that land reserved for public purpose did not fit the category of unalienated government land, and, therefore, could never have been available for allocation. The practice was deemed irregular. No one, not even the President, had the powers to allocate and privatize such land. Doing so would defeat the very public interest for which the land had been initially reserved. This doctrine went on to inform the national land policy, new constitution and subsequent land laws. It underpins the provisions of the Land Act of 2012 which contains the substantive law governing the allocation of public land in Kenya.

This law provides that public land will be managed by the National Land Commission on behalf of the national and county governments. This Act specifies methods that the Land Commission must use in considering the allocation of public land. It however outlaws the allocation of public land gazetted as forests and wildlife reserves. Moreover, the Commission must not allocate land reserved for security, education, research and other strategic public uses.

Individuals and private entities seeking to be allocated public land must therefore use the prescribed process, and not shift the burden to the President.

Dated: 13th March, 2025