iii. County Governments

Since their establishment through the 2010 Kenya Constitution, County governments (and their entities/agencies) play an important role in the housing value chain in Kenya.

The roles and responsibilities of county governments are set out in the County Governments Act of 2012, having been established under Article 176 of the 2010 Kenya Constitution. Article 176(2) provides that every county government is required to decentralize its functions and provision of its services as far as is efficient and practicable. This means that county governments can establish further agencies and units at a more localized level to ensure that services reach the grassroots. The Constitution delineates the functions of the national government and those of the county government under the Fourth Schedule of the Constitution. The national government is largely concerned with policy-making for land use and housing sectors. The county governments on the other hand are charged with planning, development control and providing necessary facilities within areas of their jurisdiction.

The relationship between national and county governments under Article 189 of the Constitution should be one of collaboration and interdependence and one that respects the functional and institutional integrity as well as the constitutional status and institutions of government at either level. There are potential areas of collaboration in the affordable housing sector: For instance, county governments can provide land for the affordable housing programme; provide infrastructure in areas under their jurisdiction, conduct demand analysis of housing for each county, and expedite planning approvals. The provision of land and requisite infrastructure is a responsibility touching on both levels of government. In the past, there have been discussions between the Ministry of Lands in the national government and County Executive Committee Members responsible for land and planning in the counties, and County Attorneys where they have stressed the need to work together in promoting the delivery of housing. The State Department for Housing and the National Land Commission (an independent constitutional commission) have also engaged in capacity building for counties and provided technical support in mapping, engineering surveys, and development of plans for housing to counties. Additionally, the national government signed Memorandums of Understanding with 24 counties in 2019 for delivery of 2, 000 housing units in each county. About five counties had set aside land for planning and project implementation.

County governments are responsible for creating and enforcing spatial plans for the counties’ development. These spatial plans are used to guide development within the county and inform development approvals.

The County Executive Member responsible for planning in County Governments is mandated to approve development permissions, change and extension of users and other aspects of development control. Counties enforce development control on all land, whether freehold, leasehold or community land.

Counties are mandated to collect property taxes (rates) to support the effective management of the county.

County Governments also hold unregistered community land in their jurisdiction on behalf of the community until it is registered; and levy other charges for services they provide including cess on roads (tax on movement of goods) and other charges in markets. Article 209(4) of the Constitution empowers county governments to impose charges for services rendered. In this regard, county governments levy various charges through the Finance Act passed annually. The Supreme Court in Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) emphasized that such charges can only be levied for services or amenities rendered by the county government. In this case, the Supreme Court held a ‘road service charge’ imposed on each truck passing through Mombasa County’s jurisdiction as unconstitutional since the county government was not providing any service in return for the charge.

County Governments are responsible for providing the necessary infrastructure to support delivery of housing.

County governments are required to decentralize their functions and provision of their services to the lowest level to the extent that is efficient and practicable under Article 176(2) of the Constitution. Further, section 48 of the County Governments Act 2012 provides that the functions and provision of services of each county government shall be decentralized to— (a) the urban areas and cities within the county established in accordance with the Urban Areas and Cities Act (No. 13 of 2011); (b) the sub-counties equivalent to the constituencies within the county established under Article 89 of the Constitution; (c) the Wards within the county established under Article 89 of the Constitution and section 26; (d) such number of village units in each county as may be determined by the county assembly of the respective county; and (e) such other or further units as a county government may determine. Accordingly, county governments should endeavour to further decentralize their services such as planning approvals to the lowest level to enhance access, based on these legal provisions. For instance, the new administration of Nairobi City County has proposed to create boroughs in the city each with an administrator to devolve services.

The National Government land registries are located across the country within the jurisdiction of the various counties. However, the operations of the land registries are a national function under the Ministry of Lands and Physical Planning.

Similarly, the various courts are located across the country within the jurisdiction of various counties even though they are a national function and are under the Judiciary arm of government.