Buying property? How you can avoid being conned by 'cartels'

Demolitions at a controversial land in Athi River on October 16, 2023. [Peterson Githaiga, Standard]

A lot of finger-pointing and blame games are going around regarding the demolitions in Athi River. It is truly sad to watch palatial homes, churches, and schools being flattened by bulldozers. But amid the ruins, the one establishment that should be demolished remains standing: The cartels in the real estate industry.

Cases of irregular government land allocation and land grabbing by "cartels" remain a reality in the real estate sector, exposing developers and individuals to losses. The intricate web extends to government officials who falsify land records to criminals printing land titles in "River Road" targeting innocent and sometimes gullible Kenyans in pursuit of cheap land deals.

A 2021 report by the National Crime Research Centre shows a high prevalence of land-related crimes. Double allocation came first at 36.5 per cent, removal of land beacons at 31.5 per cent, collusion with government officials at 25.4 per cent, forging of land documents at 23.2 per cent, alteration of land maps/boundaries at 22 per cent, and conspiracy to defraud at 21 per cent. These are the top methods perpetrators use to steal from their victims.

One may ask why the long arm of the law has not caught up with the perpetrators of these schemes despite the establishment of a dedicated unit at the DCI to deal with land issues and the establishment of the Environment and Land Courts.

The Ndung'u Report of 2004 established that political incitement and court delays were contributory factors in the fraudulent acquisition of public land. Additionally, the commission found that corruption at the Lands registry was a significant cause of land-related crimes and offences. It said that what the country was experiencing in the land sector was just a ripple effect of a series of historical crimes, sometimes orchestrated by high-ranking state officers.

"Instead of playing their role as custodians of public resources, including land, county and municipal councils have posed the greatest danger to these resources ... the most pronounced land grabbers in these areas were the councillors themselves...The corruption within central government has been replicated at the local level through the activities and omissions of county and municipal councillors," said the report.

It is because of these challenges that we at the Estate Agents Registration Board are working closely with the government to re-engineer the real estate industry. Our aim is to ensure that the estate agent who facilitates your land transaction is regulated and accountable for their actions. Even as we do so, we urge investors to be cautious. When buying property, one should do their due diligence. This goes beyond a normal search at the Land's registry.

A recent case best illustrates this. While presiding over a case of a contested piece of land, Justice Anthony Ombwayo, a land and environmental judge in Nakuru, said that obtaining a certificate of official search only was not enough, and property buyers should do a higher due diligence because the cartels were becoming more complex.

The case was between Jacqueline Kwamboka Makori, a widow, and one Osimba. Osimba claimed to own the plot Njoro/Ngata Block 1/1381 (New Kiambu), having acquired it from Michael Koskei, the "owner", on October 8, 2011. The case was ruled in favour of Mrs Makori, the widow, after Osimba's title deed was refuted. Justice Ombwayo, in his judgment, said that the court had no duty to protect unlawfully obtained title deeds, even if one is an innocent purchaser, so long as it is proved the title was unlawfully obtained.

To do thorough due diligence, you can start by carrying out an official search at the Land's registry through Ardhisasa or a manual search. Ardhisasa is an online platform formed to digitise the land registration system and records. Here, you can check the background of the property and a list of the previous and current owners. If possible, review the parcel file to confirm the history of the land, including a review of the mother title before subdivision. Check whether the parcel of land is mentioned in the Ndung'u Report and National Land Commission's record of public land. In 2017 and 2018, the National Land Commission carried out an extensive review of grants and dispositions of public land and published their finding and recommendations in the Kenya Gazette Vol. CXIX No. of July 17, 2017 and Vol. CXX - No. 138 of November 9, 2018.

Also, the administrators like the local chief, the Assistant County Commissioner and the Deputy County Commissioner are normally well aware of parcels of land with controversy in their areas of jurisdiction. The local county offices are also a good source of information. Don't buy grabbed land cheaply hoping that the government will regularise the allocations later. Use your instincts. If a deal feels wrong, it probably is. As they say, when the deal is too good, think twice.

When buying property, use the services of professionals like registered real estate agents, land surveyors, property valuers, physical planners and lawyers. They will help you verify the title deed and other essential documents like the Deed Plan or Registry Index Maps. When dealing with professionals, always ask to see their registration status with their regulatory body.

It is good to verify the seller's National ID (if buying from an individual), and the KRA pin linked to the property with evidence of land rates paid through it. If purchasing from a company, you should equally research the company and ask for the company registration details, KRA PIN and other documents like CR 12. If dealing with a land buying company, check out if they have a success history in dealing with land sales.

We urge investors to do their part by doing thorough due diligence as we do our part in uprooting rogue brokers in the real estate industry. We also urge relevant government agencies to uproot the criminal land cartels in the sector. The Ministry of Lands should also speed up the digitisation of land records.

The writer is the Chairperson of the Estate Agents Registration Board.