contract-law lease community-property kenya
Leasing of community land
<p>With the spirit of protecting community lands from private investors and other government actors, The Kenyan Constitution (2010) demanded for a community land law. This law was formulated in 2016 as the <a href="http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2027%20of%202016" rel="nofollow noreferrer">Community Land Act 2016</a>.</p>
<p>The unregistered community lands are held in trust by the county governments on behalf of the community. Currently my pastoral-nomadic community are trying to register their community land as per the CLA, 2016.</p>
<p>Section 6.8 of the Act provides that the county government is prohibited from <em>Selling</em>, <em>disposing</em>, <em>transferring</em>, or <em>converting for private purposes</em> unregistered community lands.</p>
<p>This particular region and community in subject is being faced by county government threat of entering into agreement with NGOs and a wild life conservation organization to somehow LEASE the unregistered community lands before the community acquires their title.</p>
<p>My question is does <em>LEASING</em> fall in the category of these terms provided in the act:   <em>Selling</em>, <em>disposing</em>, <em>transferring</em>, or <em>converting for private purposes</em>?</p>

<p><strong>My question is does LEASING fall in the category of these terms provided in the act: Selling, disposing, transferring, or converting for private purposes?</strong></p>
<p>None of these words are defined in the <a href="http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2027%20of%202016" rel="nofollow noreferrer">2016 Act</a>.</p>
<p>I cannot speak directly for Kenya, but legal systems based on British common law often refer to relevant and comparable legislation for interpretation, meaning and their Parliament's intent when such things are not clear.</p>
<p>For instance, the interpretation section of the Kenyan <a href="http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%206%20of%202012#part_IV" rel="nofollow noreferrer">Land Act 2012</a> includes:</p>
<blockquote>
<p>“transfer” means the passing of land, a <strong>lease</strong> or a charge from one party to another by an act of the parties.</p>
</blockquote>
<p>The 2012 Act also states:</p>
<blockquote>
<p>“lease” means the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of his or her land...</p>
</blockquote>
<p>On the face of it, <em>leasing</em> does appear to fall within the meaning of <em>transferring</em>.  However this is an incomplete answer as there may well be provisions specific for nature conservation that I, as yet, am unable to find. I suggest that your community considers seeking legal advice from a lawyer who specialises in this area.</p>
