A Critical analysis of Article 63(1) of the constitution of Kenya: vesting community land rights on urban communities

Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore University Law SchoolLand is critical to the economic, social and cultural development of Kenya. 1 Land is also an emotive issue and it was at the core of the resistance to British rule during the struggle for independence.2 Before colonisation, native communities owned land communally through the commons proprietary system.3 The arrival of the Arab traders and British colonialists led to large scale disruption of this system and the introduction of foreign land tenure systems that were alien to the native inhabitants ofKenya.4 After independence, the independence government further neglected community land by not providing it with adequate protection which was as a result of not putting in place adequate laws that would grant it legal recognition. 5 Despite all these, the commons proprietary system remained resilient and did not succumb to the onslaught of suppression and subversion. 6 In 2010 Kenya promulgated a new Constitution and one of its salient features was the recognition of community land.7 Furthermore, the Constitution provides that community land shall vest in communities identified on the basis of ethnicity, culture or a similar community of interest. 8 This dissertation seeks to examine the efficiency of vesting community land on urban communities identified on the basis of a similar community of interest as opposed to culture and ethnicity