From left: National Land Commission Chairman Gershom Otachi, Land economist Dr Mwendwa Makathimo and NLC Commissioner Esther Murugi.
The uncertainty expressed by big landowners has been a key factor against the enactment of legislation to prescribe minimum and maximum private land acreage ownership in Kenya, but yet another attempt is being made to breathe life into the law.
The legislation has remained elusive for almost 15 years following the enactment of the 2010 Constitution, which introduced reforms in the land sector.
The uncertainties are compounded by fears that those who hold huge tracts of land could be targeted for disinheritance even as the government agonises over excessive fragmentation, particularly in agricultural areas.
The need for the maximum land holding provision was meant to promote equity and offload excessive land that is not in productive use to the market. The minimum acreage requirement, on its part, sought to ensure that land is not subdivided into small uneconomical sizes.
Article 68 (c) (i) of the Constitution states that Parliament shall enact a legislation to prescribe minimum and maximum land-holding acreages in respect to private land.
Prior to the promulgation of the 2010 Constitution, the Kenya National Land Policy of 2009 required the government to put in place a system to determine economically viable minimum land sizes and promote conformity of land subdivisions with the set minimum economically viable land sizes.
Although National Lands Commission (NLC) Chairman Gershom Otachi says work was going on to actualise this, he admits “it is not an easy thing.”
Mr Otachi made the comments as he referred the Weekly Review to the 2025 draft advisory document on minimum and maximum agricultural land size in Kenya that NLC in collaboration with the University of Nairobi and Ministry of Agriculture and Livestock Development has come up with.
“There is a need for implementation of development control on agricultural land the same way it is enforced on leasehold land tenure,” the draft document says.
It adds; “a clear policy on minimum land sizes for agricultural land in different agro-ecological zones is, therefore, necessary to guide land subdivision without undermining food security.”
Experts say land fragmentation among the country’s rural households, which has resulted in declining land holdings, has worsened food insecurity.
Urbanisation, with the pressure of an increasing population, has also affected land holdings with more people leaving rural areas for towns and cities. Land fragmentation and underutilised large holdings present challenges that call for a more structured intervention.
There were an estimated 10 million people suffering from undernourishment as per the 2010 report of Kenya Food Security Steering Group (KFSSG), a multi-agency body that coordinates efforts to address food and nutrition security. This figure was projected by the Agricultural Sector Coordinating Unit to increase to 30 million people by 2030, if measures to alleviate food security are not undertaken.
Richard Cheruiyot bought the land from David Jonathan Grantham in March 2023 for Sh152 million, just eight months before the renowned architect died.
According to KFSSG, approximately 2.1 million people required emergency food assistance in 2021.
Dr Mwenda Makathimo, a land economist, says that the prescription of minimum and maximum land acreage ownership was “a noble idea” to curb land fragmentation and ensure productivity “so that we don’t get to situations of food insecurity.”
“Right now, we have a serious fragmentation of agricultural land, which has hindered productivity. This is a low-lying threat to food security,” said Dr Makathimo as he blamed the Ministry of Lands, which is the policy lead in the attainment of the law.
But even as Dr Makathimo spoke, implementing this constitutional requirement has in the past faced pushback from political leaders and powerful landowners, who fear that it could lead to forced redistribution.
The land expert notes that fears that those who hold huge tracts of land — largely figures in politics, the Executive and the business world — could be targeted for disinheritance, presents a challenge to the enactment of this law.
“Since the bearers of political influence are in Parliament and the Executive, they can easily influence the political system to ignore the law. This helps promote lethargy towards this law,” said Dr Makathimo.
Economic use of land
This is compounded by the fact that Article 40 of the Constitution protects the right to property.
“What the Constitution desires is sustainable and economic use of land. But what do you do with the ones holding huge tracts of land? How do you ensure that their rights are protected?” posed the land expert adding that “the State cannot legislate to disenfranchise its people.”
The land economist further notes that even as the country continues to grapple with the challenge of minimum and maximum land acreage ownership, “equity demands that land should not just be held for speculation or primitive accumulation.”
“We need a system that ensures that the land they are holding is meant to produce. Otherwise hoarding of land is discouraged. There needs to be distributive equity such that those who can’t produce release the extra land to the market for the economy to flourish,” the land economist says.
The National Land Policy 2009 identified land fragmentation as one of the largest threats to agricultural productivity in Kenya thus a hindrance to attaining food security.
Mr Otachi told the Weekly Review that the shrinking arable land is driven by inheritance, weak laws and speculation, which he warned threatens to cripple the country's agricultural backbone.
The dire land fragmentation situation in the country was captured by the Kenya National Bureau of Statistics (KNBS) in the 2019 Social Economic Report.
The KNBS report established that for 30 years, the number of smallholder farms — those with less than five hectares — increased by 55 per cent while those owning between five and 10 hectares reduced by 71 per cent.
This comes as those with more than 10 hectares reduced by 85 per cent as a result of land fragmentation.
According to NLC Commissioner Esther Murugi, as the commission works on an advisory to actualise the implementation of minimum viable agricultural land sizes, which has remained elusive for years, land fragmentation remains the elephant in the room.
“The true daring reality today is that land has been fragmented into small uneconomic sizes as the owners seek to cash in on high demand. Our insatiable appetite for land has driven individuals into using any means possible to own land,” says Ms Murugi, who is also a former MP for former Nyeri Town.
In 2015, then Lands Cabinet Secretary Fred Matiang’i drafted the Minimum and Maximum Land Holding Acreage Bill, which stalled in Parliament and has never been republished.
The Bill sought to establish maximum and minimum land holding acreages for private land, to reduce inequality and address historical land injustices.
The proposal provided for varying limits based on agricultural potential, with wealthier agricultural areas having lower maximum acreage limits.
Reducing inequality
The draft law had proposed procedures for reducing inequality and promoting equitable distribution of land, regulating the subdivision of land to ensure that land is held in economically and viable parcels.
It also sought to provide for regular review of land holdings and the re-organisation of rural settlements and facilitating self-employment, sustainable utilisation of private land and promotion of national security and economic stability.
In complying with this, the Bill had proposed for regular revision of the minimum and maximum land holding acreages while giving powers to the Cabinet Secretary for Lands to cause the review to be undertaken at intervals of not less than eight years and not more than 12 years.
The review was to be undertaken through a participatory process.
According to NLC Chief Executive Officer Kabale Tache, land is deeply tied to identity, a source of livelihood and a foundation for peace.
“Therefore, how we manage it, how we use it, and how we plan for it — particularly through the lens of appropriate landholding sizes — is as urgent as it is essential,” says Ms Tache.
The minimum and maximum land holding acreages was to be determined after taking into account ecological zones, demographic factors, land use and physical planning standards, land tenure system and economic factors.
The others are cultural and customary practices, infrastructure, public health and public order and “any other factor relevant to national strategic interests.”
The Bill had proposed to zone private land into agricultural, livestock and pastoral land and urban and peri-urban in cities, municipalities, towns and urban areas.
The agricultural land was to be categorized into cash crop farming, food farming, subsistence and commercial farming, and “such other categories.”
The livestock and pastoral land were to be categorised into pastoral farming, beef farming, zero-grazing dairy farming, sheep and goat farming, poultry farming, fisheries and other relevant categories.
Under the urban and peri-urban land in cities, municipalities, towns and urban areas, the categorisation was to centre on low, medium, mixed-user and high-density residential areas.
It also proposed the light, medium and heavy industrial areas, commercial areas, and educational, health and religious facilities.
