Dealing with property disputes

It is no secret that majority of civil cases in our courts touch on property. Even some of the criminal cases can be traced to wrangles over property distribution or disinheritance.

Kenya’s law, which is modelled after English laws, has little regard to local customary laws when it comes to issues of inheritance and more particularly land. Cases related to property might take several years to conclude and this impacts negatively on both litigants as they spend lots of money and time filing appeals, claims and counter claims.

Land registration

An insight into our land registration systems sheds more light on the numerous property disputes in the country. Before independence in 1963, the republic was known as Kenya Colony and Protectorate. In essence it was two countries in one.

The Protectorate was the ten miles coastal strip along the Indian Ocean, which was the domain of the Sultan of Zanzibar who had an agreement with the British Empire to govern the strip on his behalf with certain conditions. The land registration system applied here is the Land Titles Act Cap 282. Majority if not all private landowners here professed Islamic faith and Kadhi courts were used to resolve property disputes.

The crown colony was the hinterland of Kenya where two registration systems applied as follows:

1. The Registration of Titles Act Cap 282, was applied in the former white highlands which was reserved for the European settlers and also covered some of the trading centres where Indians did business. Resolving of property disputes in the white highlands was purely based on English laws.

2. The Native Land Registration Ordinance (Repealed), was applied in the African Native Reserves where the African Court (Repealed) presided by a panel of elders resolved disputes. The repeal of this ordinance paved way for the enactment of the Registered Land Act cap 300. This Act covers the former native reserves and some of the former white highlands now changed into settlement schemes by the Government or through Individuals private initiatives. The Act was supposed to supersede all other land registration systems.

Negative effect

The biggest setback in the Registered Land Act is that any title deed obtained during first registration cannot be challenged even if it was obtained through fraud. This has disinherited many people.

The setting up of the Land Dispute Tribunal Act of 1990 to settle land disputes has not helped much as the awards of those tribunals are always challenged in the courts of law on the grounds that they acted beyond their jurisdiction and have no powers to determine ownership disputes over registered land.

Dispute resolution

The best method, when circumstances allow, is to use arbitration and other Alternative Dispute Resolution (ADR) methods to resolve property disputes as proposed in Sessional Paper No 3 of 2009 on National Land Policy on Dispute Resolution Principles.

The first step in ADR is for the claimant to negotiate with the respondent. If that fails, the second step is to mediate where a neutral party acts as a go between.

The other step is to arbitrate where both the claimant and respondent choose a single arbitrator or two arbitrators. The advantage of arbitration and ADR is that it is friendlier, confidential and does not break up families or business associates.

—The writer is a survey and

mapping professional