Validity of titles being tested

By Harold Ayodo

Recent pronouncements by Agriculture Cabinet Secretary Felix Koskei have sent shockwaves in the real estate sector.

Property owners were caught flat-footed when Koskei raised a red flag over an estate in South B allegedly constructed on government land.

The Diamond Park estate, whose current market value is slightly over Sh16 billion and the 18,000-seater Winner’s Chapel are at the centre of the controversy.

Koskei says the mega investments, which also contain two other residential blocks, were built on land belonging to the veterinary department acquired illegally. According to him, 70 per cent of the 210 acres were acquired illegally.

Koskei issued notice to the tenants that the land would be taken back, meaning the over 600 investors may be staring at demolitions in the face. Even as Koskei blew the whistle, Diamond Park Housing Company Director Mohammed Khalif Ali said the firm bought the land from the National Social Security Fund (NSSF) in 2003.

It then subdivided it to 600 individuals, with some of the buyers purchasing complete housing units and others buying plots and later putting up houses.

Syokimau

With demolition of palatial homes in Syokimau three years ago still fresh in our memories, prospective investors are now not sure about the validity of their ownership documents.

Some of the homeowners in Syokimau claimed that their property was reduced to rubble, despite having valid title deeds.

Much as it was painful for the homeowners to lose their investments, some of them to date cannot prove legal ownership. The majority of the owners of the demolished homes never had valid title deeds but share certificates or certificates of ownership.

Legally, a title deed from the Ministry of Lands is the only proof of ownership of property — not certificates issued by land selling companies.

That means only property owners with valid title deeds can have grounds for compensation in court should their property be demolished by the government.

Their arguments would be weightier if it is proved that they bought property after conducting official searches at the Ministry of Lands and relied on the results to purchase it.

In the wake of increased fraudulent property transactions, it is prudent to be more vigilant before paying a cent. It is the responsibility of the lawyer representing the buyer to conduct the search to cushion the client from potential fraud.

The search, which is an investigation of the title, establishes the land reference number, registered owner, registration particulars, encumbrances and covenants.

It also shows whether the property is freehold or leasehold to determine whether land rent should be paid or not.

A prospective buyer may obtain positive results from an official search but another individual or institution may also claim ownership.

For instance, Kenya Airports Authority (KAA) had published advertisements in the mainstream media 10 years ago, warning prospective investors from buying its land in Syokimau.

Furthermore, KAA went to court in 2004 and 2005 to stop illegal transactions on its land but fraudsters continued sub-dividing and selling it to unsuspecting buyers.

Even as confusion surrounds property transactions, Article 40 of the Constitution provides protection of the right to property.  The Constitution further provides for non-interference in legally owned private property and compensation to valid owners in cases of interference.

The affected property owners have the option of suing people who sold and issued them with dubious title deeds and allotment letters.

Legally, it can also be contested in court why local authorities approved constructions of the buildings on ‘illegally’ acquired land.

 — The writer is an advocate of the High Court