Do land title deeds mean anything?

By Pravin Bowry

The naming in Parliament of the beneficiaries of land allocated in the Mau complex and the planned eviction raises legalities related to the Constitution, land law and even criminal law.

Each allottee, it can be assumed, was given a title deed after an elaborate legal process by a State organ - Commissioner of Lands – involving demarcation, surveying, beaconing and registration.

Enter the Constitution. Can the Government having lawfully given a title deed, tear it to shreds, take away the land and undo the whole legal process which took place before the issuance of the document?

The Constitution by virtue of Section 75(1) gives protection to an individual from deprivation of property and direct access to the High Court if the provision is flouted. No compulsory acquisition can take place without fair compensation. Is there then sanctity of a title of a land lawfully obtained in Kenya? Every Kenyan is rightly asking what holding a title means in law.

A recalcitrant allottee who does not voluntarily relinquish the Mau lands will keep the courts busy for years.

The Kenya Anti-Corruption Commission is presently engaged in an elaborate exercise of retrieving land on basis of fraudulent and corrupt overt acts as is evidenced by many advertisements in the papers, but Kacc cannot move on presumptions.

Laws Disorted

Concrete evidence of criminality may not exist and if it exists it may be difficult to prove. Once an allocation has taken place questions as to why, by whom and on what criteria the land was allocated become irrelevant.

Just when Kenya was gaining independence in 1963, the Registered Land Act was enacted with the intention of having one universal and comprehensive system of land law and registration process. It was hoped that the conversion from over 20 land Acts to one would take only 18 months but the reality has been quite different – the process is still on going!

Since independence, the Executive – mainly through the Office of the President – has kept a complete and absolute control of allocation of lands. Various land law acts have been distorted in their application to declare allocation the preserve of the influential without ordinary Kenyans ever dreaming of allocation through a fair legal process.

The present situation is that most old titles are held under the Government Lands Act. The unallocated lands all over the country are mostly held in trust for the people under the Trust Lands Act, the Government being a trustee, others being vested in county councils, municipal authorities and forest reserves.

Weak System

There is provision for the trust lands to be demarcated or allotted to the people who have been on the property under the Land Adjudication Act.

All new allocations these days are given titles under the Registered Land Act and so weak is the system of registration that double, triple or more titles are known to prevail bearing the same title number relating to the same land. Recently, the Kilifi Land Registry virtually came to a standstill due to horrendous interference with title records in the registry.

How new lands should be allocated, to whom, on what criteria and by what transparent process are the challenges posed by the Mau Forest Complex dilemma. Hopefully lessons are being learnt, even if history will not forgive many a culprit for the ills of land grabbing syndrome seen in the country for decades.