The Process of Land Adjudication in Kenya

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: A Short Note on Land Laws in Kenya.

While the previous blog post briefly describes the classification of land in Kenya according to the new constitution, the following posts will focus on practical ways of registering and acquiring titles to land in Kenya. In our research and work, we were specifically interested in the processes of land adjudication, land registration, registration of community land, registration of private surveyed land and registration and transfer of private un-surveyed land, and the process of land demarcation.

There are various ways to acquire title to land and they include[1]: allocation; land adjudication process; compulsory acquisition; prescription; settlement programs; transmissions; transfers; long-term leases exceeding 21 years created out of private land; or any other manner prescribed in an Act of Parliament.[2]

The Constitution of Kenya acknowledges the existence of Community Land, however, as of now, the unregistered Community Land is held in trust by the County Governments on behalf of communities.

Land Adjudication is “the process of final and authoritative determination of the existing rights and claims of people to land.”[3] In Kenya, the Land Adjudication Act[4] provides the guidelines for the land adjudication process. These involve determining and recording of rights and interests of individuals residing on registered Community Land for the purpose of facilitating the registration of titles.

Ideally, the government must work together with the communities when it comes to the land adjudication process. To ensure that community members and the public are informed about the process of land adjudication we break the process down below:

1.     A formal written petition is delivered to the Commissioner of Lands with a request to have an area earmarked for adjudication. This petition is copied to the County Commissioner.
2.     Land Adjudication Board convenes at the Ministry of Lands to deliberate and approve the adjudication petition.
3.     A directive is issued to the Department of Survey based on the results of the Board deliberations to visit the site, conduct reconnaissance of the terrain, and give recommendations.
4.     The reconnaissance mission provides its professional recommendations to the Land Adjudication Board for consideration.
5.     Based on these recommendations, the Board deliberates and, if satisfied, approves the adjudication request.
6.     The Survey Department proceeds to formally survey the areas earmarked for adjudication (adjudication areas).

i. Landowners in presence of Land Adjudication Officers identify their land boundaries.

ii. The boundaries are demarcated by Adjudication officers using enlarged aerial photographs, ground survey methods or both.

iii. Land adjudication committees are set-up to ascertain and arbitrate rights and interests in the land.

7.     After the survey work is complete, the Survey Department generates a Registry Index Map (RIM) of the area and a Land Adjudication register which contains parcel numbers, the name of the owner, size of land and a map sheet number.
8.     The map is given to the Ministry of Lands which issues Land Reference Numbers (L.R. Numbers).
9.     These, together with the Map of the area are returned to the community for public examination. If all parties agree, the Director of Land Adjudication signs a certificate of finality and the L.R. Numbers are issued to individuals.
10.  For the owner to get a title after completion of adjudication process they need to provide the following:

i. Original and copy of the national identity card

ii. Personal identification number from the Kenya Revenue Authority

iii. Recent and clear passport photographs

iv. Ksh 500 for registration; Ksh 500 for adjudication; Ksh 250 for the title

The next blog post will focus on the process of land registration, specifically on registration of Community Land.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher

[1] Section 7 of the Land Act of 2012.

[2] See Community Land Act of 2016

[3] See: http://www.fao.org/docrep/005/X2038E/x2038e08.htm

[4] Cap 284 Laws of Kenya

A Short Note on Land Laws in Kenya

Previous blog in a series: Land Tenure Issues in Taita Hills

Land remains a contentious and problematic issue in Kenya, particularly land held in areas predominantly perceived as the traditional home of a community. Land reforms in Kenya were mainly run under systems set up by colonialists from as early as 1885. Through the years land laws have evolved, however, structures and methods have remained largely centralized with minimal progress towards developments in adjudication and titling.

Research in Taita Hills revealed that the operation of law is a mundane process. Informal mechanisms are still used from the inheritance of ownership to dispute resolution. The community is not fully educated about their rights to land and the processes involved. This has led to continued perceptions of land injustice and only recently has formal adjudication addressed some of these issues. Title deeds are yet to be issued and many areas around Kenya remain contentious and ripe for land dispute.

The New Constitution in 2010 enhanced previous land reform efforts by establishing a legal framework for the administration, use, and management of land in Kenya. It outlined definitions of land and land systems in Kenya as well as set out a land legislative obligation on Parliament[1]. The parliament of Kenya enacted new land laws, including:

  • The Land Act 2012[2],
  • The Land Registration Act 2012[3],
  • The National Land Commission Act 2012[4]
  • Community Land Act of 2016[5]

These legal regimes replaced the past regimes which included, amongst other laws, the Land Titles Act, the Registration of Titles Act, the Registration of Land Act, the Government Land Act and the Indian Transfer of Property Act.

These new land laws have constitutional backing unlike in the previous regimes’ which provided no framework on land legislation and where land laws were enacted not as a constitutional requirement but out of necessity.[6]

The Land Act 2012 sought ‘to revise, consolidate and rationalize land laws; and to provide for the sustainable administration and management of land and land-based resources’.[7] This Act was amended following the introduction of the Land Laws (Amendment) Act 2016. The Act brought about amendments to the Land Act 2012, Land Registration Act 2012 and the National Land Commission Act 2012. The amendments were necessary to correct errors and inconsistencies in the statutes and to clarify certain definitions, as well as to introduce some pertinent changes to land law and conveyancing in Kenya. This Act applied to all land declared as public, private and community land under the constitution.

In 2010, the Constitution of Kenya classified land as:[8]

  • Public land[9] – reserved for public use or environmental protection. It is administered and managed by National Land Commission (NLC) on behalf of the people of Kenya.
  • Community land[10] – held by communities on basis of ethnicity, culture or similar community interest. It is administered under the Community Land Act No. 27 of 2016. Any unregistered land that is community land is held in trust by the county governments for the community.
  • Private land[11] – held by natural or legal persons. The Ministry of Lands is tasked with the registration of any interest in private land. It is classified into the following land tenure system:
    • Freehold land tenure system which gives the holder absolute ownership of the land for life. A freehold title deed generally has no restrictions as to the use and occupation of the land. However, there are some conditional freeholds which may restrict the use of land for agricultural uses only.
    • Leasehold land tenure system which is the interest in land for a specific period subject to payment of land rent to the government and land rates to the county governments. Once a lease expires, the land reverts to the owner or the leaseholder can apply for a renewal or extension of the lease.

Since our research applied new technologies to the data capture element of land registration, we first looked into various methods of acquisition of titles to land in Kenya. These are coming up in the next blog posts.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher

 

[1] Article 68 of the Constitution.

[2] See: No. 6 of 2012. http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf

[3] See: No. 3 of 2012. http://kenyalaw.org/lex/rest//db/kenyalex/Kenya/Legislation/English/Amendment%20Acts/No.%206%20of%202012.pdf

[4] See: No. 5 of 2012. http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/National_Land_Commission_Act___No_5_of_2012_.pdf

[5] Article 63 (5) of the Constitution.

[6] Chapter Five.

[7] See: http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf

[8] See: https://eregulations.invest.go.ke/menu/117?l=en&embed=true&includeSearch=true

[9] Article 62 (4) of the Constitution of Kenya, 2010.

[10] Article 63 of the Constitution of Kenya, 2010.

[11] Article 61(2) of the Constitution of Kenya, 2010.

Land Tenure Issues in Taita Hills

As a part of our research into applying ICTs to the data capture element of land registration, we conducted a series of interviews in Taita Hills touching on major issues people face when it comes to land tenure. The interviews were done in Wongonyi, Ghazi, and Kishushe village, and other locations throughout Taita Taveta County.

Research in Taita Hills revealed that the communities are not fully aware of their rights to land and the process of land registration. This leads to a continued sense of insecurity and injustice when it comes to land ownership in the area.

In recent years, a formal adjudication was carried out in some parts, however, the results of the adjudication processes are yet to be seen and, in many adjudicated areas, title deeds are yet to be issued.

These are some of the most pressing issues in the area:

  • There is a discord between the traditional landholding and inheritance systems and the government issued legal adjudication process. The respondents understood the value of the title deed, they saw it as a permanent and government-issued record of ownership but did not attach much importance to the legal process of demarcation or subdivision itself.
  • The ownership to the land had often been passed down from parents to children through oral tradition and without any formal process of subdivision or registration. The knowledge of boundary points of properties is oftentimes held in the collective memory of the community, often by the elders. If the knowledge is lost, there’s no way of retrieving it.
  • The larger part of the area under research had undergone the land adjudication process in the past. Some respondents confirmed receiving title deeds while others indicated that their property has yet to be adjudicated.[1] Many landowners whose land has been adjudicated say they had only been given plot numbers with the promise of titles deeds to be issued later. [2]
  • Nevertheless, the sale or transfer or subdivision of land in Taita Hills has continued since. The transactions carried out were often recorded on a piece of paper and without any other formal records. In some cases, the only proof of land transactions were plot numbers and names written on a piece of paper.
  • Without formal records to the ownership of land, confusion and conflict occurred. There were several examples of how missing records lead to disputes. For example, in some cases the children who lived outside the community returned to what they thought was their ancestor’s land, only to find that the land has been “transferred” to someone else. The children demanded that “new owners” show the proof of official transfer documents and when they couldn’t produce them, they asked them to leave the premises, causing tensions within the community. Similar examples touch on land that was in the past donated to churches, hospitals, schools, and other institutions. The land was donated without written or formal agreements and for an unclear period of time, causing similar tensions as in the previous example.
  • Another potential cause of tension can occur in the future. Once the adjudication process occurs and title deeds are finally issued to the owners, they are usually issued in the names of original owners (at least the ones captured during a survey completed decades ago) and not necessarily the people who occupy the land at that particular time. This can lead to more tension in the community.
  • Finally, most community members did not know which government offices handle land matters. The term ‘land office’ was used to denote an institution that is all-encompassing when it comes to land matters but people did not know its actual responsibilities. In fact, the chief’s office emerged as the preferred initial point of contact for all land matters. On top of that, the respondents did not understand the processes of land adjudication and titling or the costs involved or of the documentation required for various procedures.

There are several solutions that can be put in place to mitigate some of these problems. Creating proper digitized land records is, of course, one of them. In the future blogs, we’ll discuss some of the easiest and most cost-effective options to do just that.

[1] According to the Lands Office in Voi, Taita Taveta County the area has been adjudicated as a large adjudication zone in a process that began in the late 1980s and ended in the early 2000s. The same was confirmed by the village elders and the elderly who confirmed having participated in the process of adjudication.

[2] It is worth noting that some of the titles issued were defective because the names of owners were incorrect.

Open Cities Africa, Zanzibar

Spatial Collective is the implementing partner of the World Bank’s Open Cities Africa initiative on Zanzibar. The goal of the initiative is to create and release open spatial data about the built environment, critical infrastructure, and natural hazards concerning the Zanzibar Archipelago, with a specific focus on Zanzibar City.

This project builds on our previous efforts of mapping the outputs of the Zanzibar Mapping Initiative (read more about it here and here). Since the start of the Open Cities Project, our team of digitizers added more than 100,000 buildings to an already existing dataset of approximately 250,000 buildings mapped during the first phase.

The mapping of buildings on Unguja Island is almost complete. Our efforts are now shifting towards mapping all of the buildings on Pemba Island and adding additional infrastructure such as the road network on both islands.

Below is the map representing the number of buildings per each 3x3km grid.

The Need for Inclusive Community- and Data-centered Land Registration Within Standards and Legal Thresholds

In countries across Africa, many people do not have access to formal land registration. Individual and shared property rights have not been properly documented or acknowledged.

Lack of documentary evidence of customary property rights leaves individuals, households, and communities at a disadvantage. Lack of customary land rights has undermined the ability of individuals, households, and communities to protect their traditional access to land for agriculture, environmental conservation and mineral rights. Government and private companies have been able to evict communities or make claims and prospect in areas where rights have only been expressed by oral tradition[1]. Even within communities, undocumented transfers of land have caused confusion. Where a title deed may exist, the deed has not been updated by any subdivisions or bequests and may refer to a deceased party as owner. Land may be grabbed or obtained without challenge, traditional rights of access, usage, and sale values are undermined. Moreover, landowners have no proof of ownership which could allow them to borrow credit.

Getting legal evidence of rights to property has been a lengthy and expensive process which requires precise measurements of boundaries and rights of access or easements of land that can usually only be done by trained surveyors. Also, the types of customary rights which have been declared by communities may not fit the formal legal definition of land title rights.

The current act (2016) gives communities both the right and the outline of a mechanism by which customary land can be legally recognized for the first time in Kenya. As yet, the detail of the registration process is unclear and requisite forms have not been disseminated. This means that registration is currently conducted to the standards required by formal titling. The whole process is limiting and communities are confused as to how to go about the registration process.

Key bottlenecks are assumed to be:

  1. Lack of affordable tools to empower people to obtain rights to their land.
  2. Local communities have no access to information.
  3. Local communities are not able to value their land.
  4. The registration process is unclear or unknown to the communities.
  5. The relationships between Kenyan national, community and individuals in terms of property rights is difficult for communities to comprehend.
  6. Antiquated procedures sustained through inertia in the titling process and an inability to explore, let alone adopt new technologies to replace old methods.
  7. Technical tools used to capture vital info on mapping are often too expensive, difficult to operate, rely solely on connectivity, and require extensive training/maintenance and complex processing solutions. In some cases, the skills needed to record information accurately often built up over many years of experience including formal qualifications.

So while there might be a perception by the national government that customary titling can move forward, communities struggle to work out a cost-effective path to documented rights. With titling, people can buy and sell land more easily, protect and manage the land more effectively, and conserve the resources on and under that land.

The current limited network of both government and private surveyors would be overwhelmed if all communities rushed to document their land at this time. Professional surveyors fees needed at demarcation and titling stages of the process would be prohibitive for most communities, let alone individual owners within those communities.

Our recent research applied new technologies to the data capture element of registration in order to test whether affordable tools for documentation of land exist, whether these tools can reach the accuracy standards required by the state, and whether communities can fill in the gap and replicate the work of a professional surveyor.

To do this, we looked into the land demarcation process, determined whether new technologies were of quality and met national standards, and gauged the most cost-effective tools which are widely accessible to local communities.

More coming soon.

Authors: Primoz Kovacic, Alan Mills, Michelle Gathigi

[1] Land Rights Now, 2016.

Putting Community and Rights on the Map in Southern Kenya

Throughout 2017, Spatial Collective applied new technologies to the data capture element of land registration in order to test whether affordable tools for documentation of land exist, whether these tools can reach the accuracy standards required by the state, and whether communities can replicate the work of a professional surveyor. To do this, our research looked into the land demarcation process, determined whether new technologies were of quality and met national standards, and gauged the most cost-effective tools which are widely accessible to local communities.

The fieldwork and production of the report were supported by Omidyar Network.

We will make our research openly available shortly, but in the meantime, we will publish a series of blog posts touching on the main findings of the research, starting with the Executive Summary below.

Executive Summary

The Community Lands Act of Kenya – passed in September 2016 – provides for the recognition, protection, and registration of community land rights. One of the requirements to registering community land is for communities to agree on and identify the community resources and boundaries to determine which entity deserves recognition for ownership. For this reason, there is an urgent need to build the most affordable and sustainable systems for mapping community lands.

We believe that through affordable and ubiquitous technologies, coupled with awareness raising and training, local communities can understand their land rights and contribute to proper land mapping in rural and remote areas of Kenya. While Kenya has existing legislature and controlling bodies to enact land laws, many local communities remain unaware of their rights and the processes to claim and register land. This leaves a large part of the country unmapped and communities ripe for dispute and confrontation.

A wide selection of geospatial technologies exist to accurately survey the land, however, many of these are expensive, require very specialized skills to operate or facilitate and, in some cases, muster a hostile reaction from the communities due to its unfamiliarity of use. In our research, we looked at off-the-shelf, easy to use, hand-held mobile and GPS units and their potential in communities’ participation in land demarcation. We chose these tools because their learning curve is less steep compared to some other technologies for land mapping. These tools are ubiquitous and habitually used in many aspects of life in Kenya, such as communication, entertainment, access to information, Internet, and mobile banking. We were interested to see whether these tools can be used in property rights mapping to reach the accuracy and attribution threshold required by the state for land demarcation.

To do this, Spatial Collective implemented a three-step approach. First, we examined the process of land demarcation for new grants and for the subdivision of land. We were specifically interested in the accuracy and attribution of spatial data required by professional surveyors and government offices for demarcation of land. Second, we tested a series of affordable mobile and GPS tools in varying environments to see whether they can achieve these thresholds. And third, by replicating the work of a professional surveyor, we assessed whether communities can lead the process of demarcation of their own lands.

We found that environmental factors greatly affect the nature of measurements of different terrains. Most of the latest mobile phones can only reach the accuracy standards required for mapping general boundaries, which is three meters or lower. This is the standard required for mapping parcels and community land in rural areas in Kenya. These tools cannot be used for the capture of fixed boundaries which require two to three-centimeter accuracies.

Furthermore, we found that a pairing of mobile and GPS dependencies may provide the most optimal and cost-effective measurements in the face of environmental and terrain challenges and limited network connectivity.

Working with communities and a professional surveyor, we find that communities can lead the process of land demarcation and can replicate the work of a professional surveyor both in terms of accuracies and attribution required in rural areas. Smartphones can store the necessary attribute data from the field in a digital format, fulfilling the requirements to document people, land and associated rights.  Training is relatively simple and most processes repeatable to a satisfactory standard, and the possibility of having units available at sub-county level that can be rented out to communities makes it cost effective and affordable.

Most rural parcels are currently registered only through pen and paper and sometimes by a measuring tape. The information is then stored in paper format at the County offices, making it susceptible to manipulation, corruption, and loss. The ubiquitous mobile phones and GPS units provide an excellent alternative to the system that is currently used.

We believe our research can empower local people to rightfully claim land and thus eradicate future land disputes and conflicts amongst them. We also believe there are opportunities for policymakers, lawmakers, technical experts, and administrators to use these insights to influence and shape their land rights agendas, as well as support efforts to better include local people and accurately map boundaries in Kenya.

More coming soon.

Database of schools in Mathare

Spatial Collective has been gathering information on schools in Mathare Constituency since January 2018. At the time of writing, we have collected information on hundreds of indicators for about one hundred schools in all six wards of Mathare, including Mathare North area.

The information collected included the following categories:

  • Information on the interviewer
  • School description
  • Registration process
  • Student population
  • Funding and fees
  • Financial management
  • Information on facilities
  • Information on teachers
  • Information on curriculum
  • Management and governance
  • Community engagement
  • Quality assurance

This information will help our client, the East African Center for Human Rights, increase their understanding of the larger social, political and economic contexts within which these schools function.

Locations of schools

Survey of 6000+ plots in Viwandani (Photo Blog)

In the past six weeks, Spatial Collective’s team visited approximately 6000 plots in Viwandani Area in Nairobi and completed thousands of interviews touching on access to sanitation facilities.

To complete a project this size in such a short time, project planning and good teamwork are essential. Images below represent one of our fieldwork planning meetings held at Viwandani.

 

Creating landlord and plot profiles of Viwandani Area

Spatial Collective is currently conducting a door-to-door survey for the purpose of collecting data on sanitation facilities and creating landlord and plot profiles in one of Nairobi’s informal settlements. We are providing the manpower to conduct the survey and have also trained additional people from the settlement to help with the work.

To fulfill the requirements of the proposed engagement, we deployed the following approach:

  • Carry out a building extraction of the Viwandani area. Using aerial imagery, Spatial Collective digitized every structure in the area of interest. Digitization provided a building footprint which was later used for door-to-door data collection.
Building extraction
  • Coding of structures. All of the digitized structures were automatically numbered for easier identification. These house codes help with the logistics of implementing the household survey and will later enable us to link the survey questions to the map.
Building Reference Numbers
  • Development of a questionnaire for data collection. We helped the client with the development of a questionnaire for data collection. Techno Spark K7 mobile phone, OpenDataKit and ONA platforms are being used for data collection.

  • Ongoing field work consists of the following:
    — ground verification of shapes of digitized structures,
    — documenting the number of housing units within each structure,
    — grouping structures together that make up plots and
    — collecting details on plots, including sanitation facilities and landlords and caretakers information.
Diana during fieldwork
  • Development of plot profiles and landlord profiles. In the end, all the data from the field will be digitized and merged with the building extraction, creating a geospatial layer consisting of plot profiles of Viwandani Area.
  • Finally, a series of visualizations will be made based on the analysis required.
Survey progress map

Project Planning (Video)

Project planning is essential for successful implementation of activities. Get it right and the project runs like a well-oiled machine. Mess it up, and the outputs of the project could be jeopardized.

We recently held a project planning meeting in Mathare and thought to make a video. The aim of this particular project was to collect data on all the schools in Mathare, Kenya’s second largest informal settlement, and create a rich database for a human rights organization.