Five important lessons for all from the Mavoko land debacle

A house is demolished on the controversial land belonging to the East African Portland Cement Company in Athi River. [Peterson Githaiga, Standard]

The inordinate focus on land acquisition in urban and peri-urban areas is driven by two primary considerations. It is the first crucial step towards homeownership for many Kenyans who cannot afford to buy ready-built houses in the market.

Second, ancestral land or land in rural areas cannot easily be collateralised. But that in urban and peri-urban areas is easily chargeable to financial institutions to provide capital for various pursuits including house building.

The Mavoko demolitions that took place recently have created a deep sense of despondency. This is in a section of Kenyans whose houses were destroyed. But they have also provided salutary lessons in what to avoid when contemplating land acquisition or home ownership.

The first lesson is that purchasing land through a Sacco or land-buying company does not obviate the need to carry out due diligence. In the Dina Management Ltd Vs County Government of Mombasa and 5 Others Petition 8 of 2021, the Supreme Court dealt with the concept of innocent buyer for value without notice. The gist of this is that purchasers who fail to undertake due diligence cannot claim protection under the law in the face of a superior interest by a bona fide proprietor.

Second, until one generates a title to the property they have purchased, they should not develop the same on the strength of a Sacco certificate. Land Cabinet Secretary Alice Wahome recently said, "share certificates are not documents to confirm ownership."

Third, approval of building plans by local authorities is not proof of ownership. Senior Counsel Kamotho Waiganjo in a newspaper article said, "there is no excuse for anyone entering into transactions on disputed land and proceeding to develop it then blaming the government when caterpillars come calling. It is not enough that one's building plans were approved by the government. When authorising construction, local authorities are concerned with building plans' compliance with building standards, not ownership.

Fourth, the imprimatur of politicians and senior government officials in Saccos and land-buying companies does not sanctify any illegality. Also, there is no onus on the owner of a property to regularise its sale to trespassers just because thousands of Kenyans have, wittingly or unwittingly, participated in a fraud.

Fifth, any person or Sacco purporting to sell prime land at a fraction of the market value should be eschewed like the plague. There is no such thing as a free lunch. Anyone passing themselves off as a benevolent benefactor is most likely bent on taking undue advantage of one.

The Mavoko debacle has the signs of a long con. Aimi Ma Lukenya, the organisation at the heart of it, claims to have been in existence as a registered society from 1980. This has been disproved by a court of law. The mother title deed presented in court by the society stands impeached. Victims of the fraud cannot get compensation from the government because they did not carry out due diligence which would have unearthed these probity gaps.

Perhaps the only redeeming value of this debacle is the cautionary tale it serves prospective victims.

-Mr Khafafa is a public policy analyst