BBI report: How Kenya’s land ownership, disputes will be addressed

Besides negative ethnicity, no issue is as divisive and as emotive in Kenya as land. For decades since independence, disputes on land ownership and use have triggered tribal clashes, with extensive destruction of property and, more often, loss of lives.

When the steering committee of the Building Bridges Initiative (BBI) toured the country collecting views on proposed changes to the Constitution, land featured prominently among the issues brought forward.

According to the BBI committee report released two weeks ago, thousands of Kenyans presented complaints about fraudulent land dealings, seeking to have the potent subject looked into as the country changes its laws.

Consequently, the committee warned that deep-seated fraud in land transactions threatens to ‘‘totally undermine integrity of the country’s land registration system’’.

Land grabbing, disputed ownership, mismanagement of land registries, fake land documents, irregular allocation of public land to private use and embedded corruption within the Ministry of Lands and land offices have been a thorn in the flesh of Kenyans since independence.

The net effect of these ills has been loss of billions of shillings by Kenyans to cons, a situation that the BBI report hopes to remedy.

But what specific issues did Kenyans raise? And will recommendations of the committee resolve the country’s longstanding land issues once and for all?

Foremost, if the report and its recommendations are endorsed to become law, the Ministry of Lands will have the power to revoke fraudulently and unlawfully acquired title documents. This, though, will only be done through an amendment of the law.

Ordinarily and legally, it’s enough to carry out an official search at the lands registry only to ascertain the real owner of a piece of land before buying it. Occasionally though, the records conflict with the real ownership of the parcel in question, therefore, misleading the buyer.

It’s for this reason that the integrity of title deeds held by thousands of Kenyans remains a subject of contention.

Currently, the law favours holders of ‘‘valid documents’’ when disputes arise, thus punishing genuine buyers of land who may have been duped to pay money for land whose ownership is contested.

The committee found that some past court pronouncements on land have had undesirable consequences on dispute land ownership in the country. One such ruling is the Court of Appeal ruling in June 2019 (Elizabeth Wambui Githinji and 29 others versus Kenya Urban Roads Authority and four others).

Committee members, therefore, proposed that in order to give real meaning to the security of land rights and to restore integrity in the country’s land registry, the Supreme Court must urgently interpret the controversial rulings to provide clarity on addressing similar contentions.

According to the report, Kenyans living in areas with longstanding land disputes such as the Rift Valley and Coast called for, among others, the implementation  of  previous  reports  by  taskforces  and  land-related  commissions such as the  Ndungu  Land  Commission  (2008) and  the  Truth, Justice and Reconciliation Commission (2012).

The communities also appealed for the speedy formulation of policy frameworks to resolve land disputes among communities through alternative dispute resolution (ADR) mechanisms and traditional justice systems as provided for in Article 159 of the 2010 Constitution.

Furthermore, the communities called for security and protection of land rights through issuance of title deeds.

Since 2013 when the Jubilee government came to power, more than five million title deeds have been issued to Kenyans.

‘‘We are solving the land question by issuing title deeds so that Kenyans can put their land to productive use without fear of losing their property,” President Uhuru Kenyatta said last week in Nairobi when issuing 10,000 title deeds to residents of Samburu County.

If recommendations of the BBI are implemented, communal land will be returned to the community when leasehold land ownership by non-citizens expires.

Pastoral communities in Kenya also want communal land to be registered under the community’s name. This will see large swathes of land in Narok, Kajiado, Samburu, Laikipia, Marsabit, and Turkana counties registered afresh, if the report is implemented.

During the ceremony last week, President Kenyatta also issued a title deed for the 119,000-acre Maasai Mara National Reserve to Narok County, as part of the government’s efforts to conserve wildlife.

Interestingly, the report proposes review of tax on land, commonly referred as land rates, to relieve owners of small parcels of land who often struggle to pay levies to the government.

In September, the County Government of Nairobi threatened to institute legal action against all land rate defaulters in the city if they didn’t pay their outstanding levies within one month.

According to the notice published on September 11, 2020, the city county said it would compel tenants living on defaulters’ land ‘‘to pay directly to the County Government until the land rates and interest due [were] fully paid’’.

The county further said it would cancel or withdraw any licences and permits by businesses operating within premises that hadn’t paid land rates, a move that would hurt innocent traders.

Government officials who facilitate graft in lands offices through processing fraudulent title documents and those who have been involved in such schemes will now face  ‘‘serious  punitive  action’’ under the new recommendations.

Should the report be endorsed to become law, a commission/taskforce will be assembled to address historical land injustices and contested communal land rights. However, the TJRC and Ndung'u report both remain unimplemented.

Historically, Kenya has had two broad categories of land owners: those with very large underutilised and unutilised tracts of land and those with tiny parcels that hardly sustain their needs.

While it doesn’t propose to bridge this ownership gap, if implemented, the report promises to put paid to the decade-old tugs-of-war pitting communities and individuals in the country.

Whether these recommendations will be implemented, however, remains to be seen.