Why titles given to Waitiki land beneficiaries may be irregular

The validity of the title deeds issued to the beneficiaries of Waitiki land in Mombasa County recently is suspect as the procedure used is not supported by any existing land law. Maybe this is because the process was actually the formalisation of an illegality to benefit those who had invaded the land.

The initial invaders claimed it was their ancestral land. They went on to demarcate the land and sold plots to unsuspecting buyers who later transformed from purchasers to squatters to benefit from the settlement programme for the landless and internally displaced persons.

President Uhuru Kenyatta hands out a title deed to a Waitiki land beneficiary. Some experts are questioning the law on which the process was based. (PHOTO: COURTESY)

This trend is dangerous as it goes against the principle of land policy, particularly in regard to security of land rights, which is enshrined in the constitution. The principle states that any Kenyan has a right either individually or in association with others to acquire and own property of any description in any part of Kenya as long as the acquisition is lawful.

As such, nobody can be arbitrarily deprived of his or her property except in the case of compulsory acquisition of land for public purpose. It also calls for prompt payment in full or a just compensation to the previous owner, which can only be denied on discovery that the previous owner also acquired the land unlawfully.

Claim of historical land injustices

There are numerous complaints of historical land injustices all over the country. One of the functions of the National Land Commission is to initiate investigations on its own or on a complaint into present or historical land injustices and recommend appropriate redress. The commission has not achieved much on this front.

With no single case of historical land injustice investigated, questions are being asked about the authenticity of claims by Waitiki land beneficiaries that it was a case of historical land injustice. Many Waitiki land beneficiaries cannot prove ancestral claim, but can qualify under the settlement scheme programmes.

Speculators and professional squatters will be in a rude shock as they will not be able to sell the plots. This is because any land acquired in a settlement scheme is not transferable except through a process of succession.

Planning and survey

Waitiki Settlement Scheme is as a result of invasion. It started as an informal settlement with little regard to proper land use planning. Bearing in mind that Waitiki land had already been informally demarcated and settled with little regard to planning standards, due diligence to the whole process of titling was mandatory.

Did proper topographic survey carried out to enable proper planning or re-planning of drainage system, roads, zoning and provision of public utility plots? Were the necessary approvals and consents obtained by the time ownership certificates were being issued? Considering the speed at which the whole formalisation process was undertaken, something does not add up despite arguments that the whole process was fast-tracked with the assistance of modern technology.

Land registration principles

Waitiki land was previously a private agricultural land held under leasehold tenure. Change of user was therefore mandatory. Was proper disposition procedure followed as laid down in the Land Registration Act?

It was revealed that the national and county governments have not agreed on issues relating to land rent and land rates. This calls into question how the occupants obtained land certificates without land rent and rates clearance certificates.

As much as the government’s intention to settle the landless is commendable, observation and application of existing laws on land transaction is pre-requisite to avoid legal tussles over the validity of titles and leases.