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The ambers of the often emotive and confrontational issues relating to land ownership and land use in Kenya lingers on.
In 2010, Kenya celebrated the passing of a new
Constitution. One of the big wins for Kenyans were the clear provisions
on land. The right to ownership and use of this highly coveted asset was
no longer left to the whims and caprices of Parliament- it was and is
guaranteed in the Constitution. The Constitution sought to buttress this
right by drawing a clear distinction between private land, public land
and communal land and a distinction between individual rights vis a vis
the collective rights of the people of Kenya.
The Constitution defines private land as land
registered and held by any person under any freehold and leasehold
tenure, and any other land declared as private land under an Act of
Parliament.
In 2012, another big win for Kenyans was the
passing of the Land Act, the Land Registration Act and the National Land
Commission Act which codifies and consolidates all laws relating to
land in Kenya. The passing of the said Acts buttressed the right to
private ownership of the land.
But is this right absolute? Do I own my land to infinity?
The Constitution provides that all land belongs to
the people of Kenya. The right to the use and enjoyment of land has
certain caveats that are superior to the individual. This article
discusses the ways in which this right can be lost. The ownership of
land in Kenya is not absolute and this right can be lost in the
following ways;
Non-renewal of leasehold interest
Land holding tenure in Kenya is either free hold
or leasehold. A Kenyan citizen or a company that is fully owned by
Kenyans can hold land on freehold or leasehold tenure. A non-citizen or a
company that is not fully owned by a Kenyan however can only hold land
on a leasehold tenure for a term of no more than ninety nine years.
Where land is held on leasehold tenure, on expiry
of the term, the land reverts to the head lessor. Where the head lessor
is the government, the right of renewal of the interest is not automatic
or guaranteed. If the lessee at the time of renewal is a non-Kenyan any
right of the lessee to the said land extinguishes on expiry of the
term.
Where the lessee to the land, at the time expiry
of the term, is a Kenyan, such individual enjoys a pre-emptive right to
the re-allocation of the land. Five years prior to the expiry of the
term, the National Land Commission (“Commission”) is obligated to notify
the lessee the date of expiry of the term and their right to
reallocation, on application. The right to reallocation is available to
such lessee only if it is not required by the national or county
government for public purposes. Where the land is required for county
government for public purposes, the lease in not renewed and the
interest to the individual extinguishes.
Compulsory Acquisition
A land owner can lose the right to their land
through compulsory acquisition. Under Article 40 of the Constitution,
the state is not allowed to deprive any person land or an interest in
land unless that deprivation is for a public purpose or for public
interest. These public purposes include infrastructural developments and
construction of public utilities such as roads, bridges and hospitals.
In undertaking compulsory acquisition, an owner of
land ought to be promptly compensated in full. Provision for
compensation may also be to occupants in good faith of land acquired who
may not hold title to the land.
Once an acquisition has been undertaken, a land
owner is required to surrender the documents of title to the Registrar
for cancellation. The cancellation extinguishes the interests that one
may have otherwise had relation to the land. If not all but part of a
land is being acquired then, the land is subdivided and resultant titles
issued.
Investors, who are investing on projects that
greatly benefit the community can apply to the government to acquire
land for the proposed developments if they are able to put forth their
case that those projects are for a public purpose and for the public
good.
Illegal and Irregular Acquisition of Land
The Commission is required to undertake a review
of grants and dispositions relating to public land to determine their
propriety or legality. The role of the Commission is limited to
determining the propriety or legality of grants and dispositions and
issuing a directive to the Registrar to revoke those that have been
acquired unlawfully or irregularly.
Once a determination on revocation is made and the
Registrar does indeed revoke the disposition, an interest in the
affected land ceases to exist. Revocation of title has far reaching
consequences on investments with the land owner standing to lose all the
large scale investments made thereto. Revocation of such a title can
have far reaching effect as any investment thereon such as buildings are
lost and if the land had been used as security, the financier loses
such security. There is no sure way to know if a parcel of land was
illegally or irregularly acquired and practitioners often need to look
into the history if the land to determine origin and the Ndung’u report
to access if the land was irregularly or illegally acquired at any point
in the history of the parcel.
Historical Land Injustices
Another way of losing title to land is by
revocation of title after an investigation on historical land
injustices. The Commission is empowered, either on its own volition or
on application by a claimant to investigate a historical injustice.
A distinction is drawn between a historical
injustice and an Illegally or irregularly acquisition land with a
historical injustice being a claim which is not verifiable in court, is a
claim that contradicts the law that was in force at the time when the
injustice occurred and it is a claim that has been debarred under the
Limitations of actions Act.
Recently, the regulations providing for the investigations into historical land injustices in Kenya were enacted.
Once an investigation is done, and there is found
to there have been a historical injustice, the Commission makes
recommendations on how to remedy the injustice. Some of the
recommendations of remedies that the commission may make include among
others as revocation of title, restitution, creation of wayleaves and
easements sale of land and sharing of proceeds, resettlement on
alternative land, compensation and refund to bonafide third party
purchaser.
Should the authority mandated with enforcing the
remedies carry through with remedies such as revocation of title,
restitution creation of wayleaves and easements or sale of and sharing
of proceeds, either way the land owner loses their right to the said
parcel of land.
Adverse Possession
A land owner may also lose their right to land
through adverse possession. Adverse possession in Kenya is premised on
the principles of limitation of actions and equitable doctrine of
latches. The Limitation of Actions Act bars a person from bringing
action for recovery of land after a period of twelve years from the day
the right to action is accrued. At the lapse of twelve years, the
registered proprietor is barred from instituting an action and has no
legal means of exerting his title over the property as against an
adverse possessor.
Consequently, the adverse possessor’s possession and claim over the land becomes immutable.
To succeed in a claim for adverse possession the
adverse possessor needs factual possession with physical control,
peaceful uninterrupted and open enjoyment of the land for the specified
period and that the adverse possessor dealt in the land as an occupying
owner might have been expected to and at the exclusion of all others.
Absent landowners must be vigilant to ensure that
their lands remains unoccupied or are occupied with their consent
failing which they stand to lose their claim to the said land.
Conclusion
The right to land ownership is not absolute and
the state reserves the right, subject to the provisions of the law, to
recall on such right. As noted the right to compensation does not always
exist and it is therefore critical that in acquisition or other dealing
with land, a thorough investigation is undertaken to uncover matters
that would otherwise cause the loss of land.
If you need more information, please contact Nyawira Kirubi, Partner or Oliver Kibagadi, Junior Associate
Disclaimer: This
article has been prepared for informational purposes only and is not
legal advice. This information is not intended to create, and receipt of
it does not constitute, a lawyer-client relationship. Nothing on this
article is intended to guaranty, warranty, or predict the outcome of a
particular case and should not be construed as such a guaranty,
warranty, or prediction. The authors are not responsible for any actions
(or lack thereof) taken as a result of relying on or in any way using
information contained in this article and in no event shall be liable
for any damages resulting from reliance on or use of this information.
Readers should take specific advice from a qualified professional when
dealing with specific situations.