Experts baffled by unique home ownership system practised in Coast

When you own a house, it is presumed that the land upon which it stands also belongs to you.

However, this is not the case in some areas in Coast region where a unique land tenure system makes people own houses but not the land on which they are built. The concept, practised at the coast for decades, is deeply entrenched among local residents.

It has left many land experts, legal practitioners and even judges perplexed on how it came to be and how residents have been able to practise it.

In most cases, a person who intends to build a house pays a “goodwill” sum of between Sh300,000 and Sh1 million to the land owner. And, once the house is built, the owner is expected to pay a monthly ground rent of at least Sh300. However, most residents, after payment of the “goodwill”, refuse to pay the ground rent, claiming that the initial payment is enough.

“I bought a parcel of land and paid the money (goodwill). I built my house but I refuse to pay monthly ground rent,” said a resident of Likoni where the land tenure system is rampant.

The resident, who sought anonymity for fear of getting into trouble with the land owner, said many people have “bought” land and built houses on it, but have no legal documents to prove ownership.

Another Mombasa resident, Mohamed Mohamed, said he entered into an agreement with a land owner where he paid the “goodwill” and is now expected to pay Sh250 every month as ground rent.

“I have no problem with the concept, most of us know each other, I paid the money and was allocated my portion,” said Mr Mohamed.

Coastal strip

The origin of the concept is not known, but some historians attribute it to the land tenure system prevalent on the 10-mile coastal strip, which was under the governance of the Sultan of Zanzibar before independence. The concept is prevalent in Kisauni, Likoni and parts of Kwale and Kilifi counties. A judge once described the concept as “one that defies the common law concept of land expressed in the Latin maxim, cujus est solum ejus est usque ad coelom et ad inferos (property owners have rights to the plot of land itself, the air above it and the ground below”.

Some legal scholars have attributed the concept to the issue of absentee landlords in the coastal region.

They argue that the concept has also led to the slow growth of investments since the authorities cannot approve buildings on land without titles.

They further argue that county governments could approve the buildings and then the “real” owners of the land show up later to contest the approvals.

Swahili culture

Lawyer Yusuf Aboubakar attributes the concept to Swahili culture and Islamic heritage, where people tend to leave land to their relatives without formal registration to change ownership.

In his 2015 ruling in a land case between Alwi Mohamed and Swaleh Omar, both of whom had bought houses without land, Justice Oscar Angote of the Environment and Land Court, then sitting in Malindi, said it was time the concept of house-without-land was “buried and forgotten”.

The Land Act and the Land Registration Act repealed the Land Titles Act, which recognised the house-without-land concept.

“Indeed, the operative land statutes do not recognise this concept of a house without land any longer. The concept of a house without land, although recognised under the repealed Land Titles Act, defies the existing definition of “land” and “lease” in our laws,” said Justice Angote in his 2015 ruling.

Unconstitutional definition

At the time, he wondered why, with the changes in the laws, a county government would approve construction of a building by a person who does not have a beneficial or legal interest in a piece of land on which he proposes to put up a house.

“What will happen in the event the owner of the land demands his land back after a person has invested in constructing on it? The answer can only be one— the person will lose his investment because land has been defined by the Constitution to include the surface of the earth and the subsurface rock,” Justice Angote had ruled.

He added that, with the repeal of the Land Titles Act, any other definition of land was unconstitutional.

Justice Angote went on to say that his observations on the issue were just cautionary to the people intending to put up buildings on land that does not belong to them, considering the changes in the country’s land laws.

These are contracts that bind two people

Another lawyer, William Kenga, described the concept of house-without-land as based on contracts that have been given recognition by court.

“These are contracts that bind two people, the land owner and the house owner,” said Mr Kenga, adding that, to have the contract terminated, compensation must follow.

He explained that, the moment a land owner leases the land to someone else, he ought to compensate the house owner, should he want them to leave.

In 2014, some residents of Kongowea, in a case filed at the Environment and Land Court in Mombasa, said they were owners of Swahili houses under the unique system. They told the court they had occupied the land for more than 20 years and had various businesses going on in their houses, which were also their sources of livelihood and accommodation.

They said between a company and an individual who both claimed ownership, they did not know the real owner of the land.

They wanted the court to issue an injunction against the individual claiming ownership and another whom they had sued, stopping them from selling their houses.

And in his decision in April 2018, Justice Charles Yano said he took judicial notice that under the Land Titles Act (repealed) the peculiar phenomenon of “houses without land” was recognised and that the houses belong to the residents.

The court ruled that the houses could not be attached and sold by the defendants or the owner of the land without notice being given to the occupants.