AN INVESTIGATION INTO THE FACTORS CONTRIBUTING TO ILLEGAL

AND IRREGULAR ALLOCATIONS OF PUBLIC LAND; A CASE STUDY OF

MAU FOREST COMPLEX

RESEARCH PROJECT; CHAPTERS

PRESENTED BY ASUNTAH WAIKUNU

REGISTRATION NO: 1008752

DEPARTMENT OF SOCIAL SCIENCES

CATHOLIC UNIVERSITY OF EASTERN AFRICA

PRESENTED TO CUEA IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELORS OF ARTS IN SOCIAL
SCIENCES
CHAPTER 1

INTRODUCTION

1.1 The Background of the Study

In most developing countries, the problem of optimum access to land i.e.
access for whom and under what conditions- remain a serious unresolved
issue, frequently with high efficiency and welfare costs, environmental
consequences and explosive political manifestations. The starting point for
understanding current tenure issues in Kenya requires a backwards look at
both pre-colonial system of land and people management, and the ways in
which the establishment of colonial authority affected land tenure system.

The origin and nature of the land question in Kenya as well as the rest of Sub
Saharan Africa has its roots in the colonial era. The alienation and acquisition
of land, the imposition of English property laws, the celebration of title in the
alienated areas and the introduction of tenure reforms in the Africans
areas/native reserves. The post-colonial state adoption of the colonial-based
legal framework of land administration. Another fundamental factor
contributing to the land question is the use of political patronage for
purposes of establishing and sustaining political loyalty, overtime, deepened
the problem of landlessness and made the land question more complex. (U.
Weber, J.K Mutai et al; 2000)

In the early 1970s, the land question and landlessness that resulted with the
establishment of the colonial state therefore had to be resolved without
disturbing the existing framework. Doing so had two important
consequences: it gave rise to constitutional arrangements that favored
sanctity and inviolability of private property; it also led to the adoption of the
colonial-based legal and administrative framework on land. With these, the
new elites continued to accumulate using the state framework and therefore
accumulation moved in tandem with an increase in landlessness.
Landlessness also increased as a result of contradictions in the land reform
program. Resettlement efforts and the land purchase program were
introduced in the early 1960s but did not resolve these problems for a
variety of reasons (Kanyinga, K 1998). The new elites evolved to be the most
advantaged group in acquiring private properties in the form of land. A
majority acceded into the land rights in the white highlands the expense of
the poor squatters, while others bought out the poor from the settlement
schemes. Political patronage also evolved to be the most important means of
acceding to land rights. Indeed, political patronage increasingly undermined
other means of accessing land including purchasing. (U. Weber, J.K Mutai et
al; 2000)

Public land however defined, includes land held by government ministries,

departments, statutory bodies and agencies. It also includes land controlled
and managed by local authorities in townships, municipalities and cities and
that belonging to parastatals or other enterprises wholly owned by the
government. Principally, despite the varied government control over this
category of land, public land is a national resource, the use of which should
be governed by a policy that supports the Government’s macro-economic,
human development and redistribution goals.

Government ownership of natural resources provides for resource access

either through lease arrangements delegation of trusteeship to lower levels
of authority. The primary control retained in the relevant government
ministry and administered though its machinery such as in the case of
Kenya, administrative chiefs and local authorities. The political nature of
organs such as administrative chiefs and local authorities opens up
opportunities for inconsistency in access and insecurity in tenure with limited
channels of redress. (Juma, Calestous and Ojwang J.B 1996).
1.2 The Research Problem
The study will investigate factors that have contributed and continue to play
a fundamental role in promoting illegal and irregular allocation of public land
focusing on Mau Forest Complex as the case study.

The task of the study is to explicate the phenomena of illegal public land
allotment. Since independence Kenya has experienced major crises in the
overall land tenure system including; land demarcated for public utilization
has over the years been marred by corruption through allotment to private
individuals and corporations in total disregard of the public interest. This
study’s concern is based on the understanding that sound public tenure,
consequently development imperative depends largely on the manner in
which the country balances private and public land rights.

The research will explore the history of the land question in regard to the
current culture of misappropriation of public land, investigate the factors
culminating to these problems, the causal effects and ultimately offer vital
insights into feasible solutions.
1.3 Justification
The Kenya Indigenous Forest Conservation Programme (KIFCON) of 1991-
1994 estimated Kenya’s closed canopy forests to cover 1.24 million hectares,
or roughly two percent of the country. Recent estimates based on remote
sensing indicate that against a global forest cover average of 21.43 percent,
and an average for Africa of 9.25 percent, Kenya’s closed canopy forest
cover stands at a critical 1.7 percent (UNEP, 2001).

The loss of forest cover has been caused by a number of factors:

degradation, settlement (both legal and illegal), urbanization, unsustainable
extraction of timber and forest products, lack of land use policy, and
corruption, among others. During the last decade of the Kenya Africa
National Union (KANU) regime there was an increase in illegal and irregular
forestland allocation due to political interference, exacerbating an already
critical situation. The Mau Forest Complex (MCF) and the Maasai Mau Forest
(MMF) in particular, were no exception (Republic of Kenya, 2004).

This research has been sparked by the rising need and due to the public
outcry of the degradation of the Mau water towers resulting into massive
suffering of a vast number of people who significantly depend on this
resource for their livelihood either directly or indirectly. On further
investigation, it has been determined that the major cause for this
devastation is artificial. Disgustingly, it has come out clear that the culprits
have formed a culture of allocating themselves and their cronies, land that
has been set aside for public interest across the country. Other such
controversial allocations of public resources include; Karura Forest, Ngong
Road Forest,, the coastal area uneasy antagonism among indigenous African
squatters versus Arab land owners, versus private foreign ownership, and
government ownership. Parastatals lands including to name but a few Kenya
Agriculture Research Institute, Kenya Industrial Estates, Agricultural
Development Corporation farms, Kenya Railways Corporation, Kenya
National Security Fund Land and even State house and military land

Public land misappropriation has seen Public land transferred to private

ownership without following due process.  The Commission Report on illegal
and irregular allocation of public land(2004) asserts that the practice of
illegal allocations of land increased dramatically during the late 1980s and
throughout the 1990s:
“Land was no longer allocated for development purposes but as political
reward and for speculation purposes … ’land grabbing’ became part and
parcel of official grand corruption through which land meant for public
purposes … has been acquired by individuals and corporations” (Republic of
Kenya (2004).

Since the late 1980s to date, those politically correct and influential
personalities have been allocated public land, not for development but
financial speculation. In most of these allocations no planning was done as
required under the Act. Public utilities, forests, nature reserves and even
national parks have not been spared the agony of abuse. Under these
circumstances therefore, there is need to review the overall land policy
framework with a view to overhauling all Acts pertaining to land
administration, acquisition, survey, and disposition or otherwise, so as to
foster an economically efficient, socially equitable and environmentally
sustainable land tenure and land use system free from constant abuse. (U.
Weber, J.K Mutai et al; 2000)

This study is set to illuminate the policy formulation and implementation

impact on the land use. It shall endeavor to show how the disjointed
characteristics of the formulation and implementation processes contribute
to poor performance of these policies. The weak policy formulation and
enforcement has failed to harmonize existing land tenure system and the
country’s land laws to address the problem.

The study shall investigate the impact of colonialism, the reforms that have
continued to be embraced regardless of some of their detrimental effects.
We shall demonstrate how these reforms have created loopholes for the
misappropriation of land. In the light of political patronage, the plight of
public land seems to be in a miasma.

The study hopes to provide a vital insight in the current plight of public lands
in Kenya with the view of providing vital information that could be useful to
the government, the public and other stakeholders who would be interested
in information concerning public lands, a significant fraction of Kenya lands.

The findings of this study can be used to inform the land reform process,
enlighten the land laws amendment process and the constitutional
formulation process. This project will inform and influence debates on land
related laws and policies which are key political and security issues at
national and international levels. The information and the specific
recommendations generated will be utilized to influence government as well
as key organizations and networks working on issues of land access and
natural resource management, in addition to organizations working within
the field of conflict resolution and humanitarian assistance.

1.4 Objectives
1. To establish the impact of political patronage on land tenure system.
2. To determine the nature and performance of the land administrative
institutions and laws in Kenya in regard to public land.
3. To assess the impact of colonialism on the land question.

1.5 Research Question

1. To what extent does political alignment influence irregular allotment of
public?
2. What role has the government departments played in the irregular and
illegal allocation of public land?
 3. How has colonial legacy impacted on land issue in Kenya?

1.6 Operation Definition of Variables in the Research Question

Public land: consists of all land that is owned by the government. Public
land is the land in relation to which the state, its agents or assigns can
exercise the power of ownership, meaning the right and incidence of use and
abuse, appropriation and misappropriation.

Land tenure System: refers to the terms and conditions under which rights
to land and land-based resources are acquired, held, transferred, or
transmitted. That is, land tenure denotes the quantum of property rights that
a given society has decided to allow individuals or groups thereof to hold,
and the conditions under which those rights are to be enjoyed.

Government land: is land owned by the government and which was

inherited at independence (former Crown Land) for her own use. It includes
unalienated or unutilized government land reserved for future development
by the government itself, or that land that may be available for alienation to
the general public for various uses. This type of land is administered under
the Government Lands Act, cap 280. The government is the custodian of the
public land, and the president is vested with relevant authority under the
appropriate Land Act to administer the same. The Act also empowers him to
delegate the same powers to the Commissioner of Lands who exercises them
on a day to day basis in respect to public lands.

Trust: land is held under trusteeship by various county councils as per

section 115(1) of the constitution of Kenya. The land is held by County
Councils on behalf of local communities, groups, families and individuals in
accordance with applicable African Customary Law until it is registered under
any land registration statutes, following which it is transformed into private
land and becomes the sole property of the individual or group in favor of
whom it is registered. This land was known as the Native Land Unit, Native
Reserves or Special Areas prior to independence. Trust Land is administered
under the Trust Land Act; cap 288 under section 5 of the Act, the
commissioner of land is empowered to administer the land reforms such as
adjudication and registration programmes.

Private land is land which is registered in accordance with laws that

provide for registration of title, and is registered in the name of an individual
or a company, and may be created from either government land or trust land
through registration after all legal procedures have been strictly followed.
Policy is a definite course or method of action selected as by a government
from among alternatives and in the light of a given conditions to guide and
usually determine present and future decisions.

Political Patronage is the custom and practice of political officials

rewarding their royalties with economic favors

Colonialism is a practice of domination, which involves the subjugation of

one people to another.

1.7 Limitations of the study

The project will have to negotiate the political constraints and pitfalls that
are an inevitable part of any work on topics such as these which are so
important in the history of the region and which evoke emotive responses. It
will manage this through acknowledgement of diverse viewpoints in
interpretation of historical facts as well as political and economic theories
and rejection of any over-simplification or partisan bias.

It was not possible to conduct research in the entire population and hence in
this research a sample was identified to work with an assumption that their
views were representative of the whole population.

The study also encountered a problem of time shortage. The researcher did
not have enough time t collect as much information as the wide field of
research called for. However, the problem was solved by utilization of the
available time exhaustively through use of schedule and sampling
techniques to identify appropriate data sources clearly, readily and in detail.

The theme of discussion used in this research was not too familiar with a
vast majority of the population and so a purposeful method of sampling had
to be undertaken. Many potential respondents were limited by lack of
awareness on matters concerning public land.

CHAPTER 2
Literature review
2.1 HISTORY OF LAND IN KENYA
Land policy in Kenya and its legal development has a long history. This has
been witnessed by the long list of policy papers, reports and commissions set
up by various regimes.
On June 15th 1895, Kenya was declared a British protectorate. The effect of
the declaration was merely to confer on British crown political jurisdiction
over the area, whilst it remained a foreighn jurisdiction. Beyond that, the
declaration of protectorate did not confer any rights over land in the
territory. Any rights over land in the territory would have to be on the basis
of conquest, agreement, treaty or sale with the indigenous people.

In 1897, the Indian Land Act was extended to the territory, thus enabling the
appropriation of lands in the main land beyond Mombasa for public use.

In 1899, following the Foreign Jurisdiction Act of 1890, law officers of the
crown adviced the Act empowered the crown to control and dispose waste
and unoccupied land in the protectorates with no settled forms of
government and where land had been appropriated to the local sovereign
individual.

In 1901, the East Africa (Land) Ordinance-in-council was enacted conferring

on the commissioner of the Protectorate(later named Governor) power to
dispose off all public lands on such terms and conditions as he might think
fit. The land was vested in the commissioner in trust for the British crown.

In 1902, The crown Lands Ordinance empowered the commissioner to sell

freeholds in crown land up to 1,000 acres to any person or grant leases of
99years.

In 1915, Crown land Ordinance amendments facilitated the dispossession of

the Africans of their land. It was during this time that some parts of Mau
forest were recognized as Crown Lands. ( Towett J. Kimaiyo 2004)
The forests have since 1901 been part of government. Under the forest Act,
through degazettement, land, which was once a forest, could cease to be a
forest. The forest Act Cap 385 came into operation on 1 march 1942. Since
then unprecedented invasion into public land has been in the rise- massive
corruption.

2.2 MANAGEMENT OF PUBLIC LAND IN KENYA

According to the Kenya constitution of 1963 section 205, all land formerly
belonging to the British Crown (Crown Lands) was transferred to the
president of Kenya on behalf of the Government on Kenya. By the Crown
Land Ordinance of 1902 and 1915, such lands include;
A. Former white settlers’ land which had been alienated by the
government from the indigenous tribes and accorded leases of 99years
for urban land(plots) and 999years for agricultural land.
B. Unoccupied and underutilized regions mainly left to natural fauna and
wild game and subsequently earmarked for special purposes such as
shooting blocks, water catchment areas, excavation, mining etc
C. Game parks and game reserves alienated mainly for game.
D. Forestland, reclamation areas and land appropriated for special
development programmes such as state farms and town development.

At the territorial level, government and trust lands are administered by the
commissioner of lands directly or in the later on behalf of county councils.
This means that ultimately access to land in Kenya is controlled by the
commissioner.
At the end of the last century the colonial government promulgated the East
Africa land Regulations 187 which empowered the commissioner and Consul-
General to administer all public land within the sphere of influence of the
east Africa Protectorate. These regulations stipulated rules and procedures
on how to manage public land.
2.3 ALLOCATION OF GOVERNMENT AND TRUST LAND
The system of allocation of commercial plots of a general nature in
townships and municipalities during the last part of the last century, the
beginning of this century, including the early 50s, was through competitive
bidding in auctions. This system was discontinued in 1951. The system had
its own advantages and disadvantages in that the rich had the monopoly of
purchasing all the plots at the expense of the lower and middle classes. In
1952 the direct allocation system was adopted through letters of Allotment
wit assistance of local committees. This met that commercial, residential or
industrial plots were first planned and then advertised in respective
townships and municipalities. Those who applied were considered for
allocation by the government which was assisted by an appointed local
committee. The allocations were subject to precise development conditions.
In some cases however, it was decided that commercial plots of a general
nature were to be disposed of by tender instead of auction in cases where
the government considered such a course to be in public interest.
Before government or trust land can be considered for allocation, it must
have been planned by the Director Physical Planning and a development
plan or a part of a development plan produced showing various uses such as
industrial, transportation, recreational, commercial, residential, education,
public purposes utilities etc. The same plan must have been approved by the
commissioner of lands.
Depending on the type of development proposed, there are three methods of
alienation;
A. Advertisement
According to U. Weber (2000), The regulations demand that before any plots
are allocated they must be advertised in the Kenya Gazette and any other
media so as to reach a wider spectrum of the critical mass of the population.
Application for allocation of normal residential, commercial and light
industrial plots that may be available for alienation from the government or
local authority stocks of land areconsidered by various allocation committees
following the advertisement of such plots in the Kenya Gazettee and local
dailies. Those interested apply in accordance to the terms of nitice. Inter-alia,
the Commissioner of Lands would have carried out the necessary valuation
of plots to be advertised. After the closing date, all applications received are
recorded and listed for preparation to the relevant plot allocation committee.
This committee then meets at an appointed date and time to consider and
ballot the applications. The names of successive applicants are then
forwarded to the Commissioner of Lands for issuance of letters of allotment.
This letter stipulates various conditions which the applicants must accept
within a specified period, including stamp duty, rates, ground rent, road
charges, survey fees payable before issuance of title, etc.

B. Direct Application
In case of special projects of industrial, commercial, residential, educational
or public purpose nature, the Commissioner of Lands receives direct
applications from interested parties. All these applications have to be
channeled through respective District Development Committees and
Investment Promotion Centres. These two bodies consider and forward their
recommendations to Commissioner of Lands. The commissioner presents the
application to Special Plots Allocation Committee (SPAC) for consideration
and necessary action. After SPAC has approved the application, the
Commissioner of Lands then carries out the necessary valuation before a
letter of allotment is issued.

C. Reservation
Allocation of government or trust lands to a government ministry,
department, parastatal, local authority for its operational use is referred to
as reservation. A public agency requiring reservation writes directly to the
commissioner of Lands requesting for land for a particular purpose.

2.4 Origin and nature of the land question

Kenya’s land question has its roots on colonial era when events stemming
from three distinct but related processes shaped it. According to Okoth-
Ogendo, (1999), these processes were; the alienation and acquisition of land
as prelude to the establishment of colonial state; imposition of English
property law and the celebration of titling in the alienated land; and
introduction of tenure reforms in the African areas or native reserves. These
events had several consequences in the society. Firstly, they widened and
deepened inequalities in land ownership. Secondly, and as a result of this,
social-economic inequalities increased.

Each of these processes gave rise to unique but related problems which
continue to haunt the country today. One of these was the mass
displacement of people in the alienated areas such as in Central Kenya. This
gave rise to squatters, mass of people without title to land or land rights. The
second problem was the politicization of the land question and the process of
regulating access to and control of land in the post-colonial period.
Resettlement efforts devised by the government to alter the racial structure
of land ownership, and by that, address the ethnic and the political
dimensions of the land question, became increasingly politicized. The new
elite sought to consolidate their positions in the economy and politics. To do
so, as U. Weber (2000) notes, they appropriated political patronage to
undermine and erode other means of acceding to land rights. The other
notable problem centred around ethnicisation of the land question as a result
of alienation.
These problems had a considerable impact on nation-building project. They
shaped the country’s politics of transition to independence considerably and
have continued to shape local and wider politics. Notably, at independence,
the land question influenced the debate on the constitutional and economic
arrangements that the country was to assume. Much later, the land question
became the basis upon which political parties were formed.

The mainstream parties constructed a distinct answer to the land question

for purposes of negotiating independence with the colonial administration.
Kenya African national Union ( KANU) espoused the need for a unitary form
of government and respect for private property. It had within it a radical
faction that championed the need for forcible seizure of appropriated land.
On the other hand, Kenya African Democratic Union (KADU) which comprised
of small ethnic groups advocated for a federal governmental system with
regional assemblies whose main duty would be land administration. This was
meant to check the hunger for land among the squatters from outside the
area. Each party thus had a different solution to the land question from
which a vision of the future constitutional and economic arrangements
constructed.

KANU won the 1963 elections and formed a government comprising the
liberal who preferred a unitary form of government and a constitution that
respected the principle of private property wherever and however obtained.
This occasioned the beginning of the end of KADU as a major opposition
party. After their defeat in the election and after facing subsequent
frustration with the implementation of a majimbo form of government which
it favored, the party was dissolved and its leaders joined KANU. This was
done for the purposes of “national interest”. KANU accommodated its
leader’s including those who advocated preservation of ethno-territorial land
claims and ethnicisation of the land question. By accommodating such
leaders, the government quashed the ethnic dimension and aspect of the
land question. This in turn gave rise to class-based politics of access to land.
Again, the dissolution and actual folding over of KADU did not mean the end
of ethnic ideology on territory. The elite who articulated this concern were
simply accommodated into another party without shedding off the federalism
or ethno-territorial claim agenda.

The liberal elite in KANU nonetheless were careful not to disturb the legal
framework oon economic development. They were convinced that this would
give rise to intensified agricultural production. The land question and
landlessness that resulted with the establishment of the colonial state
therefore, had to be resolved without disturbing the existing framework.
Doing so had two important consequences; it gave rise to constitutional
arrangements that favored sanctity and inviolability of private property; it
also led to the adoption of the legal and administrative framework on land.
With these, the new elite continued to accumulate using the state framework
and therefore accumulation moved in tandem with an increase in
landlessness.

Landlessness has also increased as a result of contradictios in the land

reform program. Resettlement efforts and the land purchase program were
introduced in the early 1960s but did not resolve these problems for a
variety of reasons.the new elites evolved to be the most advantaged group
in acquiring private property in the form of land. A majority acceded to the
land rights in the white highlands ta the expense of the poor squatters, while
others bought out the poor from the settlement schemes. Political patronage
also evolved to be the most important means of acceding to land rights.
Indeed, political patronage increasingly undermined other means of
accessing land including purchasing.

[13718]
Current Abuses of Land Allocation

QUESTIONNAIRE
I am a student at Catholic University of Eastern Africa, conducting AN
INVESTIGATIONS FACTORS CONTRIBUTING TO ILLEGAL AND IRREGULAR
ALLOCATIONS OF PUBLIC LAND. The information provided will be treated
confidentially and will only be used for academic purposes. You do not need
to write your name.
Please feel free to fill all the questions.
BIO-DATA
1. Age
A. 19-24 C. 36-45
B. 25-35 D. 46+

2. Sex
A. Male
B. Female

3. Level of education
A. PhD D. Degree
B. Higher Diploma E. Diploma
C. Masters F. Certificate

4. Are you a registered voter?

A. Yes
B. No

5. Do you belong to a political party?

A. Yes
B. No
6. If yes, since when have you been a member?
A. Since the party’s formation
B. Since the last general elections
C. I have been a member of many political parties
D. Year ______________
7. How has the presidential discretion in allocation of land faired?
A. Excellent
B. Average
C. Below average
 D. Poorly
8.