Reforming Kenya’s land sector through land banking: a comparative legal study of Kenya and South Africa

Abstract

This research critically examines Kenya's land banking and investment frameworks and explores how South Africa's established land banking system could serve as a transferable model. The study analyzes legal instruments including Kenya's Constitution (2010), Land Act (2012), Land Registration Act (2012), Urban Areas and Cities Act (2011), Physical and Land Use Planning Act (2019), and the National Land Commission Act (2012), alongside policy frameworks such as the National Land Use Policy (2017), Recommended National Land Policy (2023), Kenya Investment Policy (2019) and Kenya Vision 2030. The research employs a qualitative methodology through comparative legal analysis, documentary review, and case study examination to identify structural weaknesses in Kenya's institutional architecture. The findings reveal critical limitations in Kenya's framework, specifically the fragmentation of institutional mandates between the National Land Commission, Ministry of Lands and county governments, inadequate definitional clarity regarding land banking processes, and insufficient legal provisions for strategic land acquisition and management. South Africa's Land Bank, established through dedicated legislation (Land Bank Act 1912, revised 1944 and subsequently 2002), offers valuable lessons through its specialized financing mechanisms, governance structures, and institutional oversight. The study identifies the Blended Finance Scheme and Proactive Land Acquisition Strategy as particularly successful interventions that could be adapted for the Kenyan context. The research recommends enacting a dedicated Land Banking Act to establish a clear legal framework for land banking in Kenya. This Act would define land banking, designate the National Land Commission as the lead authority, create a Land Bank Committee and Registry, and establish a Land Banking Fund. It also proposes amending existing land laws to align with this framework. Implementation of these recommendations would create a more coherent, transparent, and effective land management system to support Kenya's development objectives while addressing historical inequities in land distribution.