Why NLC recommendations around Kakuzi land is sending shockwaves to land owners

The National Land Commission (NLC) has made an unprecedented recommendation that could usher in a new era of land redistribution, sending shock waves among land owners.

The landmark recommendation by the NLC in favour of communities in and around Kakuzi farms in Murang’a county includes one to surrender 3,200 acres to the National government and the Murang’a county government for the settlement of vulnerable people and for social amenities.

If upheld, the recommendation to settle unnamed and unknown numbers of claimants on 3,200 acres to be hived off from a private entity would be one of the largest transfers of land through civic legal claims and outside of the traditional state-driven Settlement Schemes since independence.

The first post-independence large-scale land redistribution involved the Kenyan government buying off colonial-era large-scale holdings from British owners for redistribution to landless Africans through Settlement Schemes under the National Settlement Fund Trustee (NSFT), legally domiciled in the Ministry of Agriculture, but physically housed at Ardhi House.

Land ownership rights, access and control were at the centre of the colonial enterprise and the Mau Mau war of Independence, with the military wing of the struggle named Kenya Land and Freedom Army (KLFA) under Field Marshal Dedan Kimathi.

Independence has, however, yet to resolve all historical claims. The 2010 constitution gave a new impetus to this quest by converting colonial-era 999-year land leases on large-scale commercial properties into 99-year renewable leases with effect from 2010, with provisions for the NLC to review historical land claims and make recommendations for redress.

A number of NLC decisions have resulted in new disputes between target beneficiaries and elites. National and county elites are now beneficiaries of land meant for the landless.

A ruling by NLC compelling Del Monte to surrender 7,500 acres to Murang’a and Kiambu counties in March of 2019, as a condition to renew their lease titles, has since turned into a bitter controversy between those it was intended to benefit and elite interests.

In 2023 and 2024, NLC supervised a squatter settlement project in Rumuruti Urban Municipality in Laikipia County, thanksgiving benefitted everybody save for the landless.

Squatters who were the intended beneficiaries are still yawning away while the elite are dancing to the bank. Enforcement of NLC advisories by national and local authorities has been held hostage by elite considerations.

If upheld, the NLC recommendations around Kakuzi land will invite claims by communities against land owners across the country, where restive historical land claims have persisted since independence.
Large-scale land-owning entities are more likely to be caught up in the web, including tea estates in Kericho and Nandi, military training ranges and game conservation parks in Isiolo and Laikipia, and other land claims also exist in more densely populated areas such as Limuru, Tigoni, and Karen.

The NLC recommendation is likely to face constitutional obstacles, as there are no explicit provisions for the expropriation of legally acquired title without compensation.

Given that both Kakuzi PLC and its majority shareholder Camellia PLC are listed companies, this directive will potentially undermine Kenya’s position as an FDI destination, besides compromising the Kenya–United Kingdom Bilateral Investment Treaty of 1999.

The elephant in the room that authorities have given a wide berth is who has the capacity to determine “the most vulnerable claimants” and “define their legal claims” since they are not defined as adverse possession claimants, descendants of plantation employees or ancestral clan land claimants besides the amorphous “community” description.

While Kenya’s historical land debates may evoke strong and divergent emotions, it is clear that Kenya must respect the rule of law and order in the context of globalisation of markets and production.

Kenya cannot afford to compromise its position as the natural FDI destination on account of mischievous and greedy elite interests. This is a serious risk that should concern competent authorities.

The writer is a political risk analyst