Many national government ministries and other entities regulate and enable different aspects of the affordable housing value chain in Kenya.
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Through Executive Order No. 1 of 2022-The President: Organization of the Government of the Republic of Kenya, the current administration elected into office in August 2022, reorganized the relevant Government Ministries and Departments into the following:
Ministry of Lands, Public Works, Housing and Urban Development;
Ministry of Trade, Investments and Industry;
Ministry of Co-operatives and Micro, Small and Medium Enterprises (MSME) Development;
Ministry of Water, Sanitation and Irrigation;
Ministry of Environment and Forestry;
Ministry of Roads and Transport;
Ministry of Energy and Petroleum;
The National Treasury and Economic Planning;
Ministry of Labour and Social Protection;
Ministry of Mining, Blue Economy and Maritime Affairs;
Ministry of Health.
Notably, the re-organization of Government Ministries vide Executive Order No. 1 of 2022 issued in October 2022 which brought the Public Works, Housing and Urban Development dockets, as well as the respective State Departments, into the Ministry of Lands (to now read, Ministry of Lands, Public Works, Housing and Urban Development) is a very welcome move as it will ensure that all key agencies are under a single ministry thereby ensuring synergy and efficiency. The dockets of Public Works, Housing and Urban Developments were formerly in the Ministry of Transport and Infrastructure which was separate from the Ministry of Lands and Physical Planning thus complicating efforts at dealing with all issues in the housing value chain.
The above reorganization of Government changed the Ministries and State Departments as they were during this report's maiden release (as set out under Executive Order No. 1 of 2020 issued on 14 January 2020) which are detailed below:
The (former) Ministry of Lands and Physical Planning
(The text below describes how the Ministry operated prior to changes in October 2022. From October 2022, it is now functions as the Ministry of Lands, Public Works, Housing and Urban Development )
The Ministry of Lands and Physical Planning (MLoPP) in the previous national government was the main institution enforcing the Land and Physical Planning frameworks in Kenya. The Ministry is headquartered in Nairobi (Ardhi House) but has offices and land registries spread out in various counties around the country. Vide Executive Order No. 1 of 2020, the Ministry of Lands & Physical Planning was vested with the following functions:
National Lands Policy and Management;
Physical Planning and Land Use;
National Spatial Infrastructure
Registration of Land Transactions;
Land and Property Valuation Services Administration
Survey and Mapping;
Land Information Management Systems; and
Land Adjudication.
The National Land Commission is a distinct and independent Constitutional Commission created under Article 67 of the Constitution and the National Land Commission Act of 2012, to ensure the proper management of public land. The National Land Commission also has offices in every county (County Coordinators) that carry out the function of the Commission in the counties.
Functions of the National Land Commission include:
Management of Public Land on behalf of national and county governments;
Recommending a national land policy to the national government;
Advising the national government on a comprehensive programme for the registration of title in land throughout Kenya;
Initiating investigations, on its initiative or a complaint, into present or historical land injustices, and recommending appropriate redress;
Assessing tax on land and premiums on immovable property in any area designated by law;
Encouraging the application of traditional dispute resolution mechanisms in land conflicts.
In National Land Commission v Attorney General & Others, Advisory Opinion Reference 2 of 2014 (paras 309-315), the Supreme Court delineated the powers of the Ministry of Lands and Physical Planning vis a vis the NLC, following wrangles between the two agencies and upon request for an advisory opinion by the National Land Commission. In rendering its decision, the Supreme Court however, noted the difficulty and near impossibility of allocating discrete functions to either of the agencies as requested by NLC, making the point that “the vital subject of land-asset governance runs in functional chains, that incorporate different State agencies; and each of them is required to work in co-operation with the others, within the framework of a scheme of checks-and-balances—the ultimate goal being to deliver certain essentials to the people of Kenya.” The Court further held that “The NLC has a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law confers upon it the power to register titles in land. The task of registering land title lies with the National Government, and the Ministry has the authority to issue land title on behalf of the said Government.” The Supreme Court went on to add that in its view, the NLC ‘bears a brains-trust mandate in relation to land grievances, with functions that are in nature consultative, advisory, and safeguard-oriented' and that accordingly, ‘co-operation and consultation with other State organs will be important, in identifying, and defining urgent tasks on the NLC’s agenda.’
The NLC has the authority to consent to leases of public land or change of user on government-leased land. Since a significant portion of privately owned land in urban areas is on leasehold tenure from the government, NLC is involved in providing the necessary consent to transfer or deal in such leasehold interests. The total acreage of public land is estimated at about 10% of total Kenya’s land mass.[1]
Article 62(2)(a) and (b) of the Constitution provides that other than land held, used or occupied by a national State organ, public land shall vest in and 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. This means that there is a need to work with the National Land Commission and county governments for the latter to provide land for affordable housing projects. However, land held, used or occupied by national state organs does not vest in the national government or county governments, and the National Land Commission has no role in the management of such land as per Article 62(2)b and 3 of the Constitution. Accordingly, it would fall upon such national state organs to make decisions on whether they wish to release such land for use in affordable housing.
(Former) Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works
(the text below describes how the Ministry operated prior to changes in October 2022. Post the changes in October 2022, the Ministry is now Ministry of Roads and Transport).
Within the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, seven institutions are relevant to affordable housing:
The State Department of Housing & Urban Development provides policy direction and coordination of all matters related to housing and urban planning and development. Other functions include housing policy management; management of Civil Servants Housing Scheme; and registration of various professionals etc.
The National Housing Corporation(State Corporation overseen by the State Department of Housing and Urban Development) is a statutory corporation charged with implementing the government’s housing policies and programmes. It also houses the National Housing Development Fund which was established in 1967 (initially named as ‘Housing Fund’) and financed by parliamentary appropriations, borrowed loans and repayments of interests on loans. The Fund is established to lend or grant money to local authorities (precursor to county governments); to organizations charged with promoting the development of housing; to companies, societies or individuals to enable them to acquire land and construct approved dwellings, or to acquire land and construct dwellings for rent or sale to citizens (section 8 of the Housing Act). The NHC is involved in the development of housing on public land for sale or renting to civil servants and other government employees.
The National Construction Authority (State Corporation overseen by the State Department of Public Works) is a state corporation which regulates, streamlines and builds capacity in the construction industry. It also undertakes project registration for developments and conducts inspections on buildings as well as accredits construction workers.
The State Department of Public Works is charged with the responsibility of planning, designing, construction and maintenance of government assets in the built environment and infrastructure development. It also lays policy for all the built environment (eg green buildings) to be then followed by both private and public developers.
Within the State Department of Public Works, the National Building Inspectorate (NBI) is mandated to audit buildings for conformity with land registration, planning, zoning, building standards and structural soundness. However, its role and that of the National Construction Authority seem to overlap.
The mandate of the NBI was cited by the Environment and Land Court in Homeboyz
Entertainment Limited v Secretary, National Building Inspectorate & 2 others [2019] eKLR, to profile unsafe and dangerous buildings and structures and to demolish such structures; to demolish and remove unlawful encroachments on road reserves, riparian land, wayleaves set aside for power lines, railways, pipelines and sewer lines.
Within the State Department of Public Works, the Kenya Building Research Centre is charged with spearheading Building Research Services in Kenya with an aim of reducing the cost of construction. It is undertaking programs and projects on cost-effective building materials.
The State Department of Transport and the State Department of Infrastructure coordinates all transport matters nationally. To date, there has been an emphasis on delivering roads to connect parts of Kenya. However, a key area for coordination is emphasizing and aligning improved provision of public transport as a necessary step towards delivering affordable housing.
It is expected that the reorganization of the 2 key ministries under the new government is likely to ease the coordination along the value chain for delivery of affordable housing.
NEMA is a statutory agency responsible for the management of the environment and environmental policy. NEMA is charged with approving and issuing Environmental Impact Assessment Licences, approving qualified persons/companies to undertake EIAs, and enforcing environmental orders.
Ministry of Industrialization, Trade and Enterprise Development (changed to Ministry of Trade, Investments and Industry in October 2022, however, the functions below will still hold)
The Ministry of Industrialization, Trade and Enterprise Development deals in industry and trade. In this broad mandate, the Ministry develops standards and coordinates trade and various enterprises, all of which have an impact on housing in terms of affecting the sourcing and costs of raw materials and construction. The Kenya Bureau of Standards which certifies that all materials including those used in construction meet the required standards, is a state agency under the Ministry.
In addition, the Ministry hosts the Sacco Societies Regulatory Authority (SASRA) and the Commissioner of Cooperatives, which are the regulators of SACCOs and cooperatives that are key in financing housing.
[1] P Kameri-Mbote, Kenya Land Governance Assessment Report June 2016 p.19 https://openknowledge.worldbank.org/bitstream/handle/10986/28502/119619-WP-P095390-PUBLIC-7-9-2017-10-9-20-KenyaFinalReport.pdf?sequence=1&isAllowed=y
Ministry of Environment and Forestry
