Residents of Kiambu County are a worried lot. This is after a new directive by the county government rendered the lifelong plans of many obsolete. According to the directive, houses on plots measuring 40 by 80 feet will be demolished, while no plans will be approved for houses to be built on land less than 0.0045 hectares.
The directive borrows heavily from the proposed Minimum and Maximum Land Holding Acreages Bill 2015. The bill, which was tabled by acting Lands Cabinet Secretary Fred Matiang’i before the Constitution Implementation Commission, has already got policy-makers holding seminars to debate it. The bill proposes a cap on the maximum and minimum acres an individual can own.
“The bill is bad for investors. It is a question of philosophy. Is Kenya a socialist state or are we a capitalist state? If it becomes law, it is restrictive and anti-capitalist,” says Sam Manjau of Abec Real Estate. “It puts a limit on the success of a country.”
Land use
According to the architects of the bill, there is a need for a legal framework to manage private land ownership. This grand plan will ‘reduce inequality and promote equitable distribution of land’.
The bill also seeks to have sub-division of land managed to ensure the set-up is economical and sustainable. While pushing for equity, the bill puts a lot of emphasis on the maximum use of land, whether for residential, business or agricultural purposes.
Article 68 of the Constitution, requires Parliament to enact laws that prescribe maximum and minimum land holding acreages in respect to private land. “It was an ill-thought out clause in the Constitution,” Manjau argues.
The First Schedule will determine the actual acreage that a private entity will own. The cabinet secretary for Lands will have a big part to play if the bill becomes law.
He or she will carry out a review of the minimum and maximum acreages a person can hold after every eight to 12 years. In short, the holder of the office will determine if there is a need for you to own more acres than stipulated or not.
The bill seeks to have individuals hold a maximum of two hectares (4.9 acres) of land for residential use whether in the city, towns or municipalities. The minimum acreage is determined by the population, with individuals in high-density areas expected to own land of not less than 0.02ha in cities and 0.04ha in towns and municipalities.
Maximum holding
Individuals in agricultural zones can own up to a maximum of 10 hectares (24.7 acres), while those in less fertile zones can accrue up to 15 hectares (37 acres).
The bill goes ahead to list the minimum and maximum acreage for educational and health institutions, industries, commercial businesses, petrol stations, cemeteries and even landfills.
“If the intention is equity, then it is a good bill. But the challenge is how the authorities plan to implement it,” says Aaron Gitonga, a quantity surveyor and a director at Getso Consultants Limited. “Availability of land goes a long way in developing of a country. If land was readily available, the country development record would have been much higher than it is now,” he adds.
The question is: What becomes of the current situation if the bill becomes law? “Many individuals could turn their large tracts of land into land-holding companies to beat the law. That will be an easier way out other than selling the land. It would be chaotic if the law touches on land-holding companies because most large farms are owned by companies,” says Manjau. “Or would it be fair for the Government to run Galana-Kulalu (one-million acre irrigation scheme) and restrict other companies from engaging in agrobusiness?”
Effect on prices
According to Gitonga, land prices would go higher if the bill becomes law. “Land prices would shoot up because demand will be higher than it currently is. It will also lead to a rethink for most investors who plan for large residential projects that sit on large acreage,” says Gitonga.
Ibrahim Mwathane, the chairman of the Land Governance and Development Institute, says that individuals who own land that is less than the minimum acreage stipulated will suffer.
“The decree on land under the bill will ignite unnecessary animosity because it basically blocks Kenyans who currently own small parcels of land from registering them,” he said. “If the law is passed, some of the parcels will be considered too small to have papers.”
Mwathane is speaking for Kenyans like the thousands in Ruiru and Juja whose houses are in line to be demolished and their building plans rejected. These people, in addition to million across the country, will be forced to sell their parcels of land or risk losing them.
This is not the first time the Government has tried to regulate the ownership of land. A similar move was pulled by former Lands minister in the NARC government Amos Kimunya, who wanted to cap minimum land acreage to 2.5 acres. The idea was rejected. The current bill has faced opposition, with stakeholders lamenting that they were not consulted in drafting the bill.
“The bill was to act as a redress to past injustices but now, it has nothing to that effect. How did they arrive at what is minimum and maximum acreage and why has the Lands Cabinet secretary been given sweeping powers?” asks Odenda Lumumba of the Kenya Land Alliance.
Loophole
The bill is not rigid, though. On application to the Cabinet secretary and thereafter getting approval, an individual can hold more than the required acreage but on grounds that they need the land for large-scale farming, wildlife, nature conservancy and forestry, education, religious or charitable trusts, major investment plans or cattle ranges in arid areas.
“That is one of the best clauses in the bill because it gives investors a chance to apply for more land. Since the Cabinet secretary will be working for a pro-capitalist government, he or she will have no option but to approve any application that has the best interests of the Government at heart,” says Manjau.
Other than the Cabinet secretary, all sale, lease, transfer or sub-division of land must be approved by a sub-county Land Control Committee. Any person who contravenes the bill when it becomes law will be fined Sh200, 000 or face a prison sentence of not more than five years.
The bill, however, faces uncertainty after a new proposal by Majority Leader Adan Duale, who tabled a new Land bill on August 11. Duale said his bill was approved by the Cabinet and overrides the one Matiang’i had earlier presented.
