UNDERSTANDING SURRENDER OF LAND IN KENYA: AN EXPLORATION OF PROCESS AND PRACTICALITY

In Kenya’s evolving urban landscape, land development is a crucial component of economic growth, particularly with the emergence of large-scale private sector projects. An integral, albeit often overlooked, aspect of these developments is the process of land surrender by developers for public use, as mandated under the Physical and Land Use Planning Act, 2019 (PLUPA). This requirement serves the public interest by ensuring that essential infrastructure, such as roads, hospitals, schools, recreational facilities and greenspaces, are incorporated into developments in the planning stages. While that all sounds good and fair on paper, in practice however land surrender remains unpalatable to many private developers. This is particularly beyond the provision of public roads due to subdivision, raising questions about the practicality and equity of this requirement especially for master-planned developments. The Concept of Land Surrender in Kenya Article 60 of the Constitution mandates that land be managed in an equitable, efficient, productive, and sustainable manner, while Article 66 empowers the State to regulate land use in the public interest. Regulation 10(2) of the PLUPA (General Development Permission and Control) Regulations of 2021 provides that developers may surrender adequate land at no cost to the County Government for open spaces, amenities, recreational facilities, road reserves, and other public purposes. Section 2 of PLUPA defines “Public Purpose” as land reserved for transport infrastructure, public utilities, security installations, public buildings (such as schools, hospitals, and libraries), recreational facilities, and the resettlement of the poor and landless. Essentially, land surrendered for public use is meant to address the social and infrastructural needs that arise from urban expansion. It is required by law in Kenya that project developers set aside sections of land within their developments for public use. The Third Schedule of PLUPA, read together with Section 55(2) supports this by stating the considerations that may be made when approving an application for development control. One of them being surrender of land for public utilities, linkage of various land parcels, indication of classified roads and other infrastructure availability and adequacy (Paragraph 7). In theory, this concept is grounded in the need to balance private investment versus public interest. However, developers often view the surrender requirements as encroachments on their private property rights, a sentiment bolstered by the constitutional protections afforded to private land under the Bill of Rights, which emphasizes compensation for any compulsory acquisition of land by the Government. Though the law sets forth broad categories for land surrender, it is uncommon to see the enforcement of these requirements beyond the provision of public road networks. Roads, being indispensable for accessing and marketing new developments, are almost universally surrendered without contest. This is not the case with other public infrastructure like parks, schools, or even public buildings, where surrender is more likely to be resisted. The land required for such purposes can be significant, cutting into the profitable aspects of the development making it understandable why Developers are wary of surrendering valuable land without direct compensation or benefits. Can Developers Manage Surrendered Land? One potential area for compromise lies in the possibility of developers managing surrendered land in conjunction with county governments. In theory, this would allow developers to retain some level of control over the use and maintenance of public-purpose land, while still fulfilling their obligations under the law. Though this is a novel concept, it is not entirely unprecedented. In some developments, private companies have successfully negotiated for their right to manage and maintain public amenities. For instance, in mixed-use developments like Two Rivers Mall in Nairobi, management of public infrastructure, including road access and parking, remains under the purview of the developers. Similarly, some high-end residential estates have retained control over communal spaces, such as parks or utility infrastructure, through long-term leases or management contracts with county governments. While these arrangements may not strictly meet the definition of “surrender” as prescribed under PLUPA, they provide a framework in which both the public and private sectors benefit from the development. Developers maintain control over the quality and upkeep of the public infrastructure, ensuring that it aligns with the broader aesthetic and functional goals of the development, while counties benefit from improved infrastructure without bearing the full cost of maintenance. However, the success of such arrangements largely depends on the willingness of both the developer and county government to engage in creative solutions. In some cases, county governments may resist these deals, citing concerns over governance and public accountability, while developers may be unwilling to shoulder the long-term costs of maintaining public infrastructure. Ownership of Surrendered Land: County Government or National Land Commission? Article 62 (2) of the Constitution provides that surrendered land shall be held by a County Government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission. Paragraph 10 of the PLUPA (General Development Permission and Control Regulations) (“the Regulations”) further provides that surrendered land shall be registered in the name of the County Government or the Cabinet Secretary responsible for matters relating to finance in accordance with the Land Registration Act. Sections 102 to 105 of the County Governments Act outline the obligations of county governments in planning and facilitating development within their jurisdiction, which includes the management of public spaces and utilities on surrendered land. The Regulations also require that the County Government notify the National Land Commission (NLC) of the surrender for purposes of allocation, processing and communication to the relevant authorities. The NLC, as established by Article 67 of the Constitution, provides oversight to ensure transparency, equity, and alignment with national policies across counties. Based on the foregoing, we note that once land is surrendered for public purposes, the ownership reverts to the County Government, while the NLC provides administrative oversight to ensure effective management in accordance with public interest. A recurring issue is whether developers who incorporate public utilities within their master-planned developments should be granted waivers from land surrender requirements. Both PLUPA and the County Governments Act lack specific provisions for such waivers, even when public utilities are directly integrated into these projects.. However, under Paragraph 10(9) of the Regulations, a developer may apply to the County Government for permission to use the surrendered land to provide the public service or utility for which it was intended, once the land has been registered in the name of the County Government. Masterplanned Developments without Sub-division: Impact on Land Surrender As we have established above, the PLUPA is clear on how public land/utilities is to be handled in developments where there is a full sub-division. However, what about comprehensive mixed use developments where there is no sub-division taking place? Over recent years, comprehensive mixed use developments have started gaining popularity in the Kenyan real estate industry, with more and more developers opting for masterplanned developments over sub-divisions. One of the main reasons for this being that developers prefer to retain development control by integrating certain terms and conditions into the leases/titles issued to buyers. While, these type of developments are ideal from a developer’s point of view, masterplanned developments where there is no sub-division pose challenges regarding land surrender. Typically, land surrender is guided by subdivision plans that designate areas for various uses, which structure the process and the development. However, in the absence of subdivisions, developers may argue that retaining full control over the land ensures better project oversight and continuity. Sections 104 and 115 of the County Governments Act require that the principles of public access and planning are met despite the fact that non-subdivided development is being implemented to address the public utility needs. Unfortunately, our current legal framework lacks specific provisions addressing the complexities surrounding land surrender in such developments. Case Example: The Tatu City Controversy The potential for confusion and conflict in the land surrender process is best exemplified by the recent dispute involving Tatu City, a private urban development on the outskirts of Nairobi. In 2024, the Kiambu County government requested that Tatu City cede part of its land for the construction of a governor’s residence as well as land for social housing and public purpose at no cost – a demand that sparked controversy and pushback from the developer. The Institution of Surveyors of Kenya (ISK) and the Architectural Association of Kenya (AAK) criticized the request as un-procedural and outside the legal framework governing planning approvals, arguing that land for public purposes must be acquired through compulsory acquisition with compensation. This controversy underscores the ambiguity that exists in Kenya’s land surrender process. While the county government may have acted with the intent of securing land for public use, its failure to follow the established legal framework highlights the broader confusion that can arise when public and private interests intersect. Such disputes erode trust between developers and the public sector, making it less likely that developers will willingly surrender land for public use in the future. A Critique of the Surrender Process. The current legal framework surrounding land surrender in Kenya, while well-intentioned, is fraught with practical and procedural challenges. For one, the notion that land must be surrendered without compensation or recourse to the protections afforded by the Constitution creates disincentives for private investment. Furthermore, the absence of specific guidelines on how surrendered land should be owned and managed leaves a vacuum that developers could potentially fill, but only if counties are willing to work with them. At present, there is no structured way for developers to apply to manage surrendered land in conjunction with county governments, despite the fact that such arrangements could lead to better outcomes for all stakeholders. Conclusion The process of land surrender by developers in Kenya is a critical but underutilized tool for ensuring that public infrastructure keeps pace with urban development. However, the legal framework, as it currently stands, lacks the clarity and enforcement necessary to make this process effective. While the possibility exists for developers to work in partnership with counties to manage surrendered land, such arrangements remain rare and are often hampered by bureaucratic hurdles and conflicting interests. The controversy surrounding Tatu City only highlights the need for clearer guidelines and better collaboration between the public and private sectors. As Kenya continues to urbanize and attract significant foreign investment, it is crucial that the country refines its approach to land use planning and governance. By doing so, Kenya can achieve a more harmonious balance between private development and the public good, paving the way for sustainable urban growth that benefits all stakeholders.