Records that lie: The new brewing land crisis

By Alfred K. Nyairo

Kenya: The real time bomb in our land crisis is not the oft-referred phenomenon of grabbed land, it is the existence of contaminated records. Sadly, many of these counterfeit records have seemingly been validated through their use at lands registries countrywide.

The frightening thing about this is that the Government is no longer the repository of “clean” records. Nor is it the custodian of a sacrosanct narrative of land history.

The process of creating a uniform land registration system is underway. However, until the Cabinet Secretary promulgates the new rules, the old and parrallel land registration systems are still in use. And these systems, as we have come to realise, are riddled with fraud.

Historically, the Lands Office has had two systems of record keeping running side by side. In the first system, the land registry retains only a photocopy of the title deed. The original is held by the owner.

As well, the original of any transfer or a mortagage document, in the event of a transaction, is held by the proprietor of the interest in the land. So in the event of a mortgage, the bank would hold that original. And in the event of a transfer, the new owner of the land would keep the original title.

This is the system contained in the recently repealed Registration of Titles Act (RTA), Registration of Documents Act (RDA) and the Land Titles Act (LTA). LTA is only used at the Coast.

These three land registration systems are the ones the colonial government initially put in place. And then in the 1950s they established the second registration system. It was borrowed from Australia and was known as the Torren’s System. At the time it was introduced in Kenya, it was thought to be the simpler system and the safer one.

Land certificate

That is because under this system all original documents are retained by the government. The owner of any interest merely holds a copy or a certificate of lease or a land certificate.

Strictly speaking, a lease is time-bound for instance, 99 years. By contrast, a freehold denotes absolute and eternal ownership. Under this second system, the owner of such an absolute interest used to hold a land certificate. However, during his tenure, President Moi issued a roadside declaration that land certificates be referred to as Title Deeds. This second registration system in which the government is the custodian of all original records is contained in the similarly repealed Registered Land Act (RLA).

Distorted records

It is this second system that has suffered the worst violations, distortions and defacement. Once you remove the original documents of an RLA parcel at the Lands Registry, you have virtually erased the track record of its ownership and its history.

If the formulators of our lands registry system were to wake up today, they would be horrified to learn what has become of their genius!

There is now an industry of brilliant people who know the workings of the Ministry of Lands and who live off distorting records to the extent of making bogus title documents. It is their trade, their craft, their source of more than a livelihood — it is a highly profitable income driven by our notoriously high and constantly rising values for land. Armed with a fake title document, conmen find unsuspecting buyers and sell a parcel whose real owner has no idea that such a transaction is taking place.

That is the reason why we now have so many media adverts announcing that a particular piece of land is “not for sale”. Sometimes, frustrated landowners will go to the extent of pinning such a notice on the actual piece of land.

Our courts have had to deal with protracted cases of land fraud. Take for example Nairobi High Court Civil Case No. 1054 of 2001 Iqbal Singh Rai versus Mark Lecchini and the Registrar of Titles.

Mr. Rai was the owner of a piece of land in Muthaiga. On one of his visits to the land, he found a wall being erected on his plot. When he conducted a search at the lands registry, he found that the land was now registered in the name of Mark Lecchini and yet Rai still held the original title deed and had never sold the land. Yet the records at the land registry purported that he had.

Fake titles

In his evidence, Mr Lecchini said that he responded to an advert in the local daily offering the parcel for sale. The seller had a “title deed” and after negotiations, Lecchini paid the seller and effected the registration of a transfer at the lands registry using the title deed he had been given. If the lands office – which is the issuer of titles - cannot itself identify a fake title, who can?

In one particularly unfortunate instance, the Government used the compulsory acquisition rules to secure a parcel for the construction of a by-pass through Runda.  The owner of that parcel was duly paid by the Government which proceeded to draw up its construction plans.  He then went back to the same government, suppressed the compulsory acquisition records, obtained permission to sub-divide the land, acquired new title deeds for the resultant parcels and found a new buyer in the form of a real estate developer.

Unaware of the compulsory acquisition the developer built multi-million shilling houses which were sold to innocent home-owners. The tragedy here is that each one of these buyers carried out due diligence from the lands office and there was never any record of the compulsory acquisition.

Bank titles

Many of these homeowners borrowed to buy these houses. They presented to the bank titles that appeared genuine. The banking industry uses title documents as security for borrowings. And yet it now has in its vaults titles that appear to have passed the test of fidelity. What is the remedy of the bank? What of the borrowers?

The preponderance of contaminated records is the reason that the much-vaunted Ndungu Report is a “gospel” fraught with serious errors. It relied on contaminated records at the Lands Office and never invited a right of reply from those who were adversely named.

Our process of untangling this chaotic mess at the lands registry is far worse than what happened to Uganda under Idi Amin. Amin regularly allocated property to his cronies but once peace returned, the situation was easy to rectify because the primary records at the lands registry were intact. Amin and his cronies had only succeeded in altering the physical occupation of the properties.

Tainted records

Compare our lands registries to a bank. Banks rely on the information systems to capture transactions and reflect how much is in each account. If you were to distort what goes in and out of the system it will lead to a total collapse of both the bank and its customers.

Nobody will know how much is genuinely held in each account or even what the real total holding of the bank is.

Juxtapose the government position on land against this. The truth is that the Kenya Government cannot tell you how much reserve land it actually holds. Worse, its records are tainted and inaccurate.

We have invested a lot of hope in the new Land Commission and its work of rationalising our land issues. But has it fully grasped the magnitude of what needs to be done? Declaring so-and-so’s land grabbed and therefore repossessed is the easier part. Proving that this is indeed so and mounting the irrefutable evidence that this is indeed so, will be the bigger headache.

The writer is a lawyer practising in Eldoret. [email protected]