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Report of the Ccautkission of Inquiry Illegal/Irregular Allocation Public Land

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Report of the Ccautkission of Inquiry Illegal/Irregular Allocation Public Land NATIONAL COUNCIL VOR LAW REPORTING LIBRARY NO .......................................................... CALL .......................................... .......... •••••••Mee ACCESSION No: ......» ........................ • Report of the Ccautkission of Inquiry into the Illegal/Irregular Allocation of Public Land TABLE OF CONTENTS Page Forwarding Letter (ix) Acknowledgements (xiii) Introduction (xvii) Executive Summary (xix) PART ONE THE CONTEXT 1 1. INTRODUCTION 1 2. A BRIEF HISTORICAL BACKGROUND 1 (a) The Pre-colonial Period 1 (b) Public Land under African Customary Tenure 2 (c) The Colonial Period 3 (d) Policy and Administrative Changes After 1948 3 (e) The Practice of Land Allocation After 1951 5 (f) The Legal Position Regarding the Allocation of Public Land Before and After Independence 6 3. THE LAND GRABBING PHENOMENON 7 (a) The Disappearance of the Public Trust Doctrine in the Allocation of Public Land 8 (b) Powers of the Commissioner of Lands to Dispose of Land within Townships (c) The Letter of Allotment as an Instrument of Land Grabbing 12 (d) Allocations of Public Land by Unauthorised Persons 14 (e) Land within the Jurisdiction of Local Authorities 14 (f) Special Lands and Land Territories 15 4. THE MYTH OF THE SANCTITY OF TITLE 15 5. PAST EFFORTS AT RECLAIMING PUBLIC LAND 17 6. THE COMMISSION OF INQUIRY INTO ILLEGAL/IRREGULAR ALLOCATION OF PUBLIC LAND 18 The Remit of the Commission 20 PART TWO THE APPROACH 23 1. STAGE ONE: FORMATION 23 2. STAGE TWO: DEFINITION OF THE PROBLEM 23 3. STAGE THREE: ACQUIRING, STORING AND STRUCTURING 25 INFORMATION 25 (hj Sources of Information 26 (b) Instruments for Acquiring Information 26 (c) Receipt Classification and *Storage of Information 27 (d) Methods of Analysis 28 (e) Information Received in Response td Summons 29 (f) Information from Official Reports (g) Information Received from Members of the Public through Letters and memoranda in response to the.Piiblie Nplice 29 30 (h) Information froth Volunteers and Professional Bodies 32 4. MEETINGS 5. MONTHLY PROGRESS REPORTS- 32 6. FIELD VISITS , 32 7. CONSULTATIVE WORKSHOP WITH OFFICIALS FROM MINISTRIES 33 8. THE COMMISSION'S CONTACT WITH THE PUBLIC 34 (a) Public Hearings 35 (b) Thematic Hearings 35 9. CONSTRAINTS AND CHALLENGES FACED BY THE COMMISSION 36 (a) The Time Period 36 (b) Missing, Inaccurate and Incomplete Records 37 (c) Inadequate and Irrelevant Information Received in Response to Summons 38 (d) The Diversity of Public Complaints 39 (e) Missing Company Records at the Registry of Companies 40 (f) Operating Social and Political Environment 40 (g) Addressing the Constraints and Challenges 41 PART +HREE THE LAW RELATING TO Mt ALLOCATION OF PUBLIC LAND IN KENYA 43 1. Introduction 43 2. The Legal Meaning of Land in kenya 43 3. Categories of Land in Kenya 43 (iv) 4. Some Common Terms and Phrases used in this Report 47 49 5. The applicable law 6. The Abuse of Current Laws Leading to Illegal Allocation of Public Land 52 52 (a) Substantive Abuses (b) Procedural 'Atiiises 54 7. THE PROBLEM OF THIRD PARTY INTERESTS 55 (a) The Problem 56 (b) Illegality From the Very Beginning 57 (c) The Guarantee of Title by. Government 60 (d) The Bonafide Purchaser for Value Without Notice 61 (e) The Legal Position Versus the llality 62 8. POSSIBLE SOLUTIONS , fi. , 63 (a) Where Land has been Developed 0 (b) Where the Third Party is a State Corporation 64 (c) Where the Third Party is a Bank or other Chargee 65 9. THE ESTABLISHMENT OF LAND TITLES TRIBUNAL 67 PART FOUR FINDINGS AND RECOMMENDATIONS 71 1. INTRODUCTION 71 2. URBAN, STATE CORPORATIONS AND MINISTRIES LANDS 71 (a) Urban Lands 71 (i) Urban Lands as Public Land 73 (ii) Findings 73 (iii) Recommendations 83 (b) State Corporations Land 86 (i) Background 86 (ii) State Corporations Land as Public Land 87 (iii) Findings 88 (iv) Recommendations 110 (c) Land Reserved for the use of Ministries and Departments 111 (i) Background 111 (ii) Ministries' Lands as Public Land 114 (iii) Findings 114 (iv) Recommendations 117 (v) (d) The Impact of Illegal Allocations of Urban, Ministries and Corporations Land 118 (v) Urban lands 118 (vi) State Corporations and Ministries' Lands 120 3. SETTLEMENT SCHEMES AND TRUST LANDS 122 (a) Settlement Schemes (Background) 122 (i) Settlement Schemes as Public Land 124 (ii) Findings 125 (iii) Recommendations 136 (b) Trust Lands 137 (i) Background 137 (ii) Trust Lands as Public Land 139 (iii) Findings 140 (iv) Recommendations 145 (c) The Impact of Illegal Allocation of Settlement Schemes and Trust Lands 145 (i) Settlement Schemes 145 (ii) Trust Lands 147 4. FORESTLANDS, NATIONAL PARKS, GAME RESERVES, WETLANDS, RIPARIAN RESERVES, NATIONAL MUSEUMS, HISTORICAL MONUMENTS AND PROTECTED. ► REAS 148 (a) Background 148 (b) Forestlands 148 (c) Wetlands 149 (d) National Parks and Game Reserves 150 (e) Forest, National Parks, etc. as Public Land 150 (f) Findings 151 (i) Forestlands 151 (ii) Wetlands, Riparian Reserves and Sites 159 (iii) Game Reserves and National Parks 164 • (iv) National Museums and Historical Monuments 169 (v) Protected Areas for National Security Reasons 170 (g) Conclusion 174 (h) Recommendations 174 (i) Impact of Forest Excisions on the Environment and Economy 177 5. GENERAL FINDINGS 181 (vi) 6. SOME ADDITIONAL RECOMMENDATIONS 188 7. CONCLUSION 192 PART FIVE PROPOSALS ON IMPLEMENTATION OF THE COMMISSION'S REPORT 193 (a) Background 193 (b) Frame Work 193 (c) Strategy 194 (d) Programme 195 (e) Organisation 198 (f) Structures 199 (g) Implementers 201 APPENDIXES 1. Gazette Notice No. 4559 of 2003 205 2. Corrigendum of 4th July, 2003 209 3. Gazette Notice No. 6724 of 2003 210 4. Gazette Notice No. 711 of 2004 211 5. Summons for Production of Records 212 6. Notice to the Public 214 7. Summons for the Production of Documents for Examination 220 8. Public Notice 221 9. Illustrations on Forest Excisions 223 10. The Land Titles Tribunal 235 11. Members of Staff of the Commission 241 LIST OF REFERENCES 243 ANNEXES (Two Separate Bound Volumes) COMMISSION OF INQUIRY INTO ILLEGAL/ IRREGULAR ALLOCATION OF PUBLIC LAND NSSF Complex, Block A, Tel: 2731319/2731308/2731321-2 Eastern Wing, 11 th Floor Mobile : 0721-724838, 0734-750323 P. 0. Box 6450-00100 Fax : 2722815 NAIROBI E-mail: [email protected] Date: HIS EXCELLENCY, HON.MWAI KIBAKI, C.G.H., M.P. PRESIDENT AND COMMANDER-IN-CHIEF OF THE ARMED FORCES OF THE REPUBLIC OF KENYA, STATE HOUSE, NAIROBI YOUR EXCELLENCY, RE: REPORT OF THE COMMISSION OF INQUIRY INTO ILLEGAL/IRREGULAR ALLOCATION OF PUBLIC LAND Your Excellency appointed this Commission by Gazette Notice No.4559 dated 30th June, 2003 and published on 4th July, 2003 as read together with Gazette Notice No.6724 dated 22nd September, 2003 published on 22 nd I February, 2004 September, 2003; and Gazette Notice No.711 dated 3" published on 6th February, 2004 to inquire into illegal/irregular allocation of public land and set out in our Terms of Reference. Following that commission we have completed the inquiry and accordingly we submit this Repott. We remain, Your Excellency's most obedient servants, Paul Ndiritu Ndungu Chairman Michael Aronson Vice-Chairman 11 Abdallah Ahmed Abdallah Davinder Lamba Ann Kirima (Ms.) Ishan Kapila Odenda Lumumba Winston 0. Ayoki Nancy Wanjiru Mukunya (Ms.) Peter Koech John Githongo (Permanent Secretary, in the Office of the President responsible for Governance and Ethics) (x) Kiriinya Mukiira (Permanent Secretary, Ministry of Lands and Settlement) Zwv_Juizicte.d Rachel Arungah (Permanent Secretary, Ministry of Environment, Natural Resources and Wildlife) Eng. Erastus Kabutu Mwongera (Permanent Secretary, Ministry of Roads, Public Works and Housing) Zachary Onyancha Ogongo (Permanent Secretary, Ministry of Local Government) Lawrence Agayi Orowe (Designated representative of the Permanent Secretary, Office of the President responsible for Governance & Ethics) Nelson Waruinge Kimani (Designated representative of the Permanent Secretary, Ministry of Lands and Settlement) David K. Mbugua (Designated representative of the Permanent Secretary, Ministry of Environment, Natural Resources and Wildlife) Musa Kibiti Rintari (Designated representative of the Permanent Secretary, Ministry of Roads, Public Works and Housing) Muli Nyamai Malombe (Designated representative of the Permanent Secretary, Ministry of Local Government) Joint Secretaries Smokin Wanjala Victoria Kattambo (Mrs.) Counsel to the Commission Wanyiri Kihoro ACKNOWLEDGEMENTS This Report is the result of hard work support and commitment by many individuals. We are deeply indebted to all those Mao supported and facilitated our work and wish to acknowledge them. We wish to express our gratitude to His Excellency the President and Commander-in-Chief of the Armed Forces of the Republic of Kenya for his wisdom in establishing this Commission to inquire into illegal and irregular allocation of public land. We thank him for appointing us and thereby giving us the opportunity and privilege of serving our nation in a special way. In addition the Commission wishes to extend its appreciation to Hon. Amos Kimunya, M.P., Minister for Lands and Settlement, the Permanent Secretary Mr. Kiriinya Mukiita, the Heads of Department in the Ministry as well as their staff who participated in our meetings and facilitated our investigations. We are also grateful for the support we received from the Office of the President and in particular from Permanent Secretary, the Secretary to the Cabinet and Head of Civil Service (Ambassador Francis K. Muthaura) who ensured that the Commission was provided with material,
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