Indigenous and Pastoralist Economic Exclusion in Kenya’s Emerging Land-Based Economies

Author: Winnie Wothaya Murigu, MA

October 27, 2026

Samburu women in traditional dress [Image credit: Ken Kahiri/Unsplash]

Introduction

Since the promulgation of the 2010 Constitution, Kenya has made significant legal advances in recognizing the land, participation, and resource rights of Indigenous and pastoralist communities. The Constitution established a devolved system of government under 47 counties. This decentralization extended significant powers and responsibilities to county governments. This was done to enhance transparency, accountability, and local participation in land administration and planning. The creation of the National Land Commission further introduced an independent body mandated to oversee public land management and allocation. These tasks are critical in addressing historical land injustices faced by pastoralists and Indigenous Peoples. These developments represent a key shift from historical systems that marginalized customary landholding and excluded communities from decisions concerning their territories. However, formal recognition of rights does not necessarily translate into substantive economic inclusion.

Land-based economies are growing, including wildlife conservation areas, forest conservancies, wind energy projects, and carbon market projects. Most of these projects occur in Indigenous and pastoralist territories. These activities can create employment, infrastructure, conservation benefits, public revenue, and new income sources for locals. A community may possess legally recognized rights to its land yet have limited influence over how that land is used to generate economic value. Similarly, participation in a project does not necessarily mean that communities have meaningful decision-making power, while the existence of a benefit-sharing arrangement does not necessarily guarantee an equitable share of the value produced (Kieti et al., 2020). Where communities have limited bargaining power, weak access to information, or inadequate avenues for challenging decisions, formal rights can coexist with continued economic exclusion.

Kenya's Legal Progress

Kenya has several legal processes that protect Indigenous, pastoralist, and community land rights. The Constitution of Kenya 2010, Article 63, recognizes community land as a distinct category of tenure. Article 69(1)(a) ensures sustainable resource use and equitable benefit sharing. Article 69(1)(d) encourages public participation in environmental management. The Community Land Act 2016 recognises that land can be held under customary tenure, that customary rights have the same legal force as registered freehold or leasehold rights, and that the State can acquire community land only through lawful compulsory acquisition for a public purpose and with just compensation. Disposal, conversion, and investment agreements require approval by at least two-thirds of adult community members. Investment agreements must follow a free and open consultative process and address impacts, compensation, royalties, rehabilitation, and benefit sharing. It also gives communities access to forests, water, and other natural resources where they have customary rights, alongside sustainable management requirements. Economic rights from land and resources, including compensation, royalties, and equitable sharing of benefits from investments.

Legal procedures are formally established across various sectors. The Wildlife Conservation and Management Act 2013 provides a legal basis for ensuring that benefits from wildlife conservation are equitably shared among local people. It states that every person has a right to reasonable access to wildlife resources and to enjoy the benefits without hindrance, while respecting other stakeholders’ rights. The Climate Change Act 2016 and its 2023 amendment state that equity and social inclusion must be ensured in allocating climate-related effort, costs and benefits, and to ensure stakeholder participation and consultation. Every land-based carbon project must use a Community Development Agreement setting out the relationship and obligations between project proponents and communities when a project is developed on public or community land. It must identify stakeholders, provide for engagement with affected communities, specify benefit sharing, and support socio-economic development based on community priorities.

Legal Implementation Challenges

Wildlife conservation and conservancies

Kenya's wildlife policy framework identifies community participation and access to benefits as important components of conservation. However, renowned national parks and reserves such as the Maasai Mara and Amboseli have systematically marginalized traditional Maasai pastoralism, often criminalizing customary land-use practices. Amboseli National Park in southern Kenya demonstrates ongoing tensions regarding conservation and Maasai livelihood (Kenya National Commission on Human Rights, 2026). While conservation initiatives emphasize synergies between wildlife protection and pastoralism, governance regimes have introduced complex changes to land tenure and use. These include pressures to subdivide collectively titled Maasai group ranch lands into privately owned parcels, often influenced by international conservation non-governmental organizations (NGOs) striving to secure wildlife conservancies via special land leases. These processes have led to shrinking rangelands for pastoralism and increased land privatization, fueling fears of injustice among Maasai communities. Although new conservation discourses promise welfare benefits for both wildlife and pastoralists, they sometimes obscure persistent power asymmetries and may reinforce the marginalization of pastoralists in decision-making over their land (Unks, 2022; Bostvironnois et al., 2025). 

In early 2026, the African Commission on Human and Peoples' Rights issued a monumental ruling in favor of the Maasai. The commission declared that the Kenyan government had violated the community's fundamental rights to property, life, development, and self-determination (International Lawyers Project, 2026). Similarly, in a court case in Isiolo, residents of the Chari and Cherab wards (Osman & 164 Others v. Northern Rangelands Trust & 8 Others, Petition E006 of 2021, [2025] KEELC 99 (KLR) (Kenya) argued that Northern Rangelands Trust and local conservancy leaders set up the Cherab and Biliqo-Bulesa conservancies without meaningful public participation, community consent, required approvals, or environmental assessments. They said this threatened pastoral grazing land, cultural and burial sites, property rights, and community security, including through allegedly armed rangers. The court declared the creation of the conservancies unconstitutional and illegal because they lacked adequate public participation and violated community land rights. 

Forest Conservancy

For decades, the Ogiek community has been facing evictions from their ancestral land, the Mau Forest, to pave the way for government environmental conservancies. For them, the forest is not just land. It is a sacred space linked to their identity, traditional medicines, and ancestral burial grounds. The Ogiek secured landmark rulings from the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights, establishing first-of-their-kind precedents for Indigenous land rights in Africa (Domínguez & Luoma, 2020; Claridge, 2019). This decision was the first time an international tribunal found a violation of the right to development and the first to recognize Indigenous Peoples' collective rights to traditionally owned lands in Africa.  

In May 2017, the African Court delivered its first judgment on Indigenous peoples' rights, finding seven violations of the African Charter after the Kenyan government issued a 30-day eviction notice to the Ogiek from the Mau Forest in October 2009 (Ndlovu & Nwauche, 2022). The Court recognised the Ogiek as an Indigenous population deserving special protection, acknowledging their centuries-long dependence on the Mau Forest and their voluntary perpetuation of cultural distinctiveness (Claridge & Kobei, 2023). The Court extended the classical meaning of the right to property to include customary tenure, drawing inspiration from the UN Declaration on the Rights of Indigenous Peoples. In June 2022, the Court issued a groundbreaking judgment ordering the Government of Kenya to grant the Ogiek collective title to their lands through delimitation and demarcation (Claridge & Kobei, 2023). Despite the win, forced evictions continued through 2018, 2019, and 2020. In November 2023, roughly 700 community members were removed from their lands. Their homes were burned and their livestock was confiscated. These evictions postdate both the merits and reparations judgments (Forest et al., 2025). 

Wind farms

The Turkana region hosts one of Africa's largest wind farms, yet local communities have received limited economic benefits from the project. This raises concerns about equitable benefit sharing despite the growing recognition of Turkana’s cultural and political identity within Kenya’s devolved governance system (Right Energy Partnership with Indigenous People, 2021). The Lake Turkana Wind Power project is located in Marsabit County. The project involved land associated with Rendille, Samburu, Turkana, and El Molo communities. The Environment and Land Court found in 2021 that the process through which the land was set apart had not complied with the applicable legal requirements. The court noted the importance of the communities' ancestral and user interests in the land and found that due process had not been followed in its allocation to the project. This violates Free, Prior, and Informed Consent when commercial projects are launched on ancestral lands without meaningful consultation, treating communities as obstacles to development rather than primary stakeholders.

Carbon markets

The Maasai’s lands in regions like Kajiado are increasingly targeted for carbon market schemes. Corporate entities including Carbon Solve, Soil for the Future Africa, and Soil for the Future Tanzania are pushing carbon market projects on pastoralist lands. The local Maasai, such as the Oldonyonyokie Group Ranch, have strongly resisted these initiatives, labelling them as climate colonialism. They argue that foreign polluters from the Global North use these schemes to buy cheap carbon credits and outsource their emission responsibilities, effectively putting a price tag on Indigenous nature while threatening to dispossess the Maasai of their land without real consultation or local benefits.

The Kenya National Commission on Human Rights (KNCHR) and international human rights bodies have documented concerns regarding forced evictions without adequate compensation and their implications for economic, social and cultural rights. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) has also raised concerns about limited access to justice, compensation, and redress for Indigenous Peoples’ land rights, as well as the slow and limited progress in implementing reparations for historical injustices. These concerns are particularly relevant to land rights violations affecting communities. In its findings, the Committee called on Kenya to take the necessary measures to fully implement rulings of regional courts and the country’s High Court, including measures to provide compensation to affected ethnic communities (OHCHR, 2024).

Kenya is not a party to ILO Convention No. 169, which recognizes collective ownership and possession rights over traditional lands, safeguarding natural resources, and prohibiting forced removal without free and informed consent. They have also not adopted the UN Declaration on the Rights of Indigenous Peoples, which provides an important international normative framework on Indigenous Peoples' participation, lands, resources, and development. Their principles nevertheless provide an important reference point for assessing participation, consent, land and resource governance, and equitable development. 

Taken together, these regional and international standards highlight that protecting Indigenous and pastoralist communities extends beyond formal recognition of land ownership. It also concerns their ability to participate meaningfully in decisions affecting their territories, exercise control over their natural resources, obtain equitable benefits from their use, and access effective remedies when their rights are violated.

Conclusion

In order to continue legal advances in recognizing the land, participation, and resource rights of Indigenous and pastoralist communities, Kenya should be a party to ILO Convention No. 169 and adopt the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This will provide motivation to pass dedicated national legislation operationalizing Free, Prior, and Informed Consent in line with UNDRIP standards. This will give customary landowners legal power over major commercial, conservation, or extractive projects.

Further recommendations include Kenya fast-tracking community land titling. This would streamline and fund the administrative registration of all customary lands under the Community Land Act 2016 to prevent land grabbing under the guise of green initiatives. They should reconfigure the Wildlife Conservation and Management Act to legally protect seasonal grazing rights inside conservancies and protected areas, treating livestock as a core ecological component rather than an illegal intrusion.

These changes will ensure that Indigenous and pastoralist communities not only retain rights to their territories, but also exercise meaningful control over them and equitably benefit from the economic value generated.

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Glossary

Carbon markets- A trading system where organizations buy and sell carbon credits to offset greenhouse gas emissions.

Community Development Agreements- A formal, legally binding contract that outlines how a project developer or investor will share the benefits of a large-scale project with the local community. 

Conservancies- Protected areas of land managed collaboratively by local communities or private landowners to protect wildlife and plants while supporting sustainable use.

Decentralization- The transfer of control, power, and decision-making from a single central authority to smaller, distributed local groups, nodes, or individuals.

Delimitation- The process of fixing, marking, or describing the limits and boundaries of something. 

Demarcation- The act of setting a boundary or the physical and conceptual line that separates two things. 

Indigenous- It describes original inhabitants, native plants, or local animals that belong naturally to a place.

Pastoralists- People who make their main living by breeding, raising, and moving livestock on large open grasslands and rangelands.

Promulgation- The official and public announcement or proclamation of a new law or decree, making it legally binding.

Royalties- Payments that one party makes to another party that is the owner of an intellectual property or real property asset.  

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References

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9. Ndlovu, N., & Nwauche, E. (2022). Free, Prior and Informed Consent in Kenyan Law and Policy After Endorois and Ogiek. Journal of African Law, 66, 201 - 227. https://doi.org/10.1017/s002185532200002x

10. OHCHR. (2024, December 13). UN Committee on the Elimination of Racial Discrimination publishes findings on Armenia, Ecuador, Greece, Kenya, Monaco, Saudi Arabia. Ohchr. https://www.ohchr.org/en/press-releases/2024/12/un-committee-elimination-racial-discrimination-publishes-findings-armenia

11. Osman & 164 Others v. Northern Rangelands Trust & 8 Others, Petition E006 of 2021, [2025] KEELC 99 (KLR) (Kenya). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/99/eng@2025-01-24

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