- Across Kenya, millions of people living on community land remain legally vulnerable, as complex, costly and often obstructive processes prevent them from securing collective land titles under the Community Land Act.
- Because untitled community land is treated as state property, county governments can lease or allocate it for large infrastructure and commercial projects, creating power imbalances and exposing communities to displacement with little say or legal protection.
- In Uyombo, on Kenya’s southern coast, this systemic problem has resurfaced amid plans for the country’s first nuclear power plant, which residents say threaten their land, livelihoods and access to coastal ecosystems, and has proceeded without meaningful consultation.
- The lack of formal land ownership also leaves communities uncertain about compensation, reinforcing fears that development projects can override local land rights — a pattern researchers say is rooted in colonial land policies and persists nationwide.
From the shores of Sanita Kitole’s quiet coastal town of Uyombo in southern Kenya, one can see dolphins bobbing in the water from time to time. The environmental activist has grown deeply attached to the biodiversity of his region, he says, located in Watamu Marine National Park. For several years now, he’s been working with community groups, especially women, to reforest mangroves and develop sustainable businesses in Mida Creek.
But over the past two years, the town of Uyombo has made headlines, thanks to the government eyeing the area as the site for the first nuclear power plant in Kenya. According to NuPEA, the national nuclear power regulator, the country’s development ambitions could significantly increase its electricity needs, rendering the current electricity production, generated largely by hydropower, insufficient.
The potential project has triggered anger among the largely fishing-dependent local population, who say they fear losing their land, their access to the sea, and their livelihoods.
“[The proponent of the nuclear plant] just came here. They tell you this is the place that we have chosen to build the power plant. That’s all. And then you lose everything,” Kitole says. Residents also say the plan for managing radioactive waste is unclear to them, and highlight the project’s proximity to Watamu Marine National Park and Arabuko-Sokoke Forest, a UNESCO Biosphere Reserve.
Protests have erupted over the plans. “They didn’t involve us from the start, didn’t explain what nuclear energy is. When we asked questions, we got arrested,” Kitole says.
But despite protests, plans to use the land for a nuclear power plan are technically legal and sources tell Mongabay that it is reigniting long-standing tensions over community land rights in the country.
In this area, the majority of the population doesn’t have title to the land. That makes the land essentially the property of the state, which can dispose of it for projects as it sees fit. Researchers say this is part of a recurring pattern throughout the country: because of how the Community Land Act plays out, many communities can’t get titles because the process is complicated and expensive. For years, residents of Uyombo have tried to address the situation and obtain papers, but without success.
“Our parents tried. They tried to go by the rules they were given to have the official papers. And when they came, they got blocked,” Kitole says. “When you go to the government, they’ll not give you the deed. We don’t know why, especially as we have the right to own the land.”
In principle, the Community Land Act applies to all land in Kenya where communities live. Each of these communities can claim ownership of the land where they live and from which they historically originate. But in practice, complexities and costs can keep the communities from obtaining land titles.
Several generations have lived, farmed and fished in Uyombo, but the lack of land titles leaves them vulnerable to political pressure, opaque land deals, and the threat of having their land expropriated. The problem isn’t unique to this particular project or community. According to a 2020 report by the NGO Rights and Resources, out of Kenya’s total land area of 56.91 million hectares (141 million acres), more than two-thirds, or 38.5 million hectares (95.1 million acres), is community land.
But until a community manages to obtain title to the land — even if it uses the land by living on it, farming it, and building infrastructure — it legally remains the property of the state. This allows the state, represented by county governments, to lease out or sell the land at its own discretion.
Mongabay sought comment from Kenya’s National Land Commission, the Ministry of Infrastructure, and the Office of the President, but didn’t receive any responses by the time this story was first published.
Too expensive, too difficult
Securing title to community lands can cost 3 million to 4 million shillings ($23,300 to $31,000), according to Joyce Mbataru, communications manager at the Kenyan Wildlife Conservancies Association (KWCA). By contrast, it costs only around $1,000 in administration fees to obtain a private land title — an option some community members opt for. The average annual income in the country is around $2,000.
“Most of the costs are related to government technical support, awareness,” Mbataru tells Mongabay.
She adds county governments are sometimes not supportive or cooperative in helping securing communities secure land titles, due to conflicts of interest.
“Here is the mechanism: if community land is not registered, the county becomes the trustee, the landlord,” says Kathleen Klaus, an assistant professor at Uppsala University in Sweden who has studied land and political violence in Kenya. “And what is happening is that the county is then using that land however they want. The government gets to manage it on behalf of the community.”
This is a power asymmetry that county governments sometimes struggle to give up, Mbataru says.
“So there’s a bit of laxity on the county government side to support that [communal titling] process because they’re the ones who are supposed to hand over the registry in terms of the lands where they are and support public participation for those communities,” she says. “The county government sometimes is not cooperative. I think they used to take advantage of the communities and they would sell some of these lands to private investors or they would use it for their own benefits.”
In other regions, communities have also faced obstacles in gaining land titles.
In northern Kenya’s Turkana region, U.K.-listed Tullow Oil was prospecting for oil on land that pastoral communities lived on but didn’t have title to. The county government decided to allocate the land to the oil company, and when it started its project, the pastoralists faced eviction. Similarly, the Ogiek people in the Mau Forest lacked titles, and in 2009 the Kenyan government decided to take over their land, affecting their livelihoods. After a long legal battle, the Ogiek won: they were officially recognized as a community and obtained the right to dispose of their land.
Klaus attributes the problem to historical factors: the British colonial power undermined existing customary land tenure frameworks, and with Kenya’s independence, the new state took over the management of community lands.
“In the ’70s and ’80s, under [then-president] Daniel Arap Moi in particular, a lot of community lands or trust lands became private titles owned by small elites, often with connections to the Kenyan president, leaving much of the community, especially women, dispossessed,” Klaus says.
In Uyombo, Kitole says the community’s lack of land titles doesn’t make the act of taking the land for a nuclear project any less of a land grab as defined by researchers in a 2016 paper in the African Journal of Legal Studies, namely: “the acquisition of land belonging to communities depriving them of their means of livelihood.”
“According to our Constitution, when you live somewhere you should own that piece of land,” Kitole says. “You own that piece of land by applying to the government and being given a title deed, a document that shows you own the place. But for many years, the government has been blocking this place.”
And without official documentation proving ownership of the land, compensation for losing the land to a nuclear project becomes uncertain for communities.
“People are living here but do not have ownership, do not have documents,” he says.
Banner image: Mida Creek, Watamu, Kenya. Image by Delphinidaesy via Flickr (CC BY-NC 2.0).
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Citations:
Mkutu, K., & Mdee, A. (2020). Conservancies, conflict and dispossession: The winners and losers of oil exploration in Turkana, Kenya. African Studies Review, 63(4), 831-857. doi:10.1017/asr.2020.2
Kariuki, F., & Ng’etich, R. (2016). Land grabbing, tenure security and livelihoods in Kenya. African Journal of Legal Studies, 9(2), 79-99. doi:10.1163/17087384-12340004
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