Public land: Separating the facts from common myths

Youth salvaging things escape the jaws of a roller flattening Winmart market in Kisumu after it was demolished in the ongoing demolitions in Kisumu on August 14, 2019. Hundreds of traders in the market were displaced. [Denish Ochieng, Standard

The issue of land in Kenya has been described as highly emotive and a source of constant conflict at both the family and national levels.

At the centre of the national discourse is whether public land is really public.

The general assumption is that the public is free to occupy and use public land because it is, well, public.

In theory, it is. But in an actual sense, it is not. Public land can be described as property that the government controls and serves everyone without any entity laying claim to it.

It is land for the public, safeguarded by the government. It is for the benefit of the public, but it cannot be occupied by members of the public.

The Collins Dictionary defines public property as land and other assets that belong to the general public and not to a private owner.

The word public perhaps comes in because the land is held for the benefit of the public, not because the public has a right to use such land as they please.

Wagiita Theuri, a Nyeri-based advocate, says because such land is meant to serve the public, no individual can encroach it. This is contrary to public perception.

“Once someone is alone, they are not the public; they are private citizens. They are members of the public, part of the public, but not the public themselves. And it remains so if such a person walks into a piece of public land. They are private citizens occupying public land,” said Mr Theuri.

“The public is all of us, all citizens of the country. If all the 47 million of us were able to invade such land at the same time, then the public land has been used as it should.”

Land in Kenya is classified into three categories - private, communal and public.

In a constitution working paper, Paul Syagga, a professor of land economics at the University of Nairobi, describes private land as any held by a person or corporate body under any tenure (freehold through upgrading of trust land, leasehold alienation of public land or private land and temporary occupation license.

Basically, it is the land one would call theirs and show proof of ownership. Prof Syagga further notes that community land is that which is registered in the name of a group or land communally, used by a given community for cultural/religious practices, grazing or hunting. It could also be trust land held by county governments.

Community land is vested in the community and may not be disposed of or otherwise changed except in terms of legislation specifying the nature and extent of the rights of each member of the community individually or collectively.

This is most probably what people take to be public land. In other words, many take it to be land owned by a group of people in a community.

Public land, as defined in the 2009 National Land Policy and the 2010 Constitution, includes land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date.

It includes land lawfully held, used or occupied by any State organ, “except any such land that is occupied by the State organ as lessee under a private lease and land transferred to the State by way of sale, reversion or surrender,” according to the Constitution.

Land in respect of which no individual or community ownership can be established by any legal process is also described as public, same as land in respect of which no heir can be identified by any legal process.

When a mineral or mineral oil is discovered in private land, such property is passed onto the government through compulsory acquisition and the owner duly compensated. Such land is, again, termed public land.

Ibrahim Mwathane, chairman of the board at Land Development and Governance Institute and a former chairman of the Institution of Surveyors of Kenya (ISK), said the public has to understand what entails public land.

“Public land should be understood in the context of land reserved or only available for the collective good of everyone. Some public land is, however, reserved for agricultural, commercial or residential use. Through the laid down due process, such land can be leased by county governments (where under them), or the national government (where under national government) to individuals for productive agricultural, commercial and residential purposes,” said Mr Mwathane.

Government forests, game reserves, water catchment areas, national parks, government animal sanctuaries and specially protected areas are also part of public land. So are all roads and thoroughfares provided for by an Act of Parliament, all rivers, lakes and other water bodies as defined by an Act of Parliament.

One can, for example, swim in any lake without claiming ownership or building a floating house on it.

The seafront cannot be owned by the public or individuals, as the territorial sea, the exclusive economic zone and the sea bed are also part of public land.

According to the 2010 Constitution, public land shall vest in and be held by a county government in trust for the residents of the county and shall be administered on their behalf by the National Land Commission.

With most public land, and in some instances private land, lying idle, it creates potential squatters.

“As a principle, all land should be used productively in the interest of our economy. But Kenya currently has no legal framework compelling private landowners to develop or utilise their land,” said Mwathane.

“If the government, however, wished to use any idle private land for some specific public use, it could only do so through acquiring it compulsorily. The national land policy, however, recommends the use of fiscal tools to discourage the holding of idle land as a measure to encourage productive use of private land. However, the use of such fiscal tools hasn’t yet been adequately explored within our jurisdiction.”

This private land, as opposed to the public land thus does not guarantee citizens any benefits.

If the government obtains it, and it remains idle, the land could be used to put up public facilities.