The history of
land relations in Kenya is one characterised by firstly, foreign subjugation
and occupation and secondly by wanton abuse of legal trust vested in the
government in relation to land as well as in failure to redress the colonial
legacy of injustices by the post-colonial
government.[1]
A Commission of Inquiry to the
Illegal/Irregular Allocation of Public Land was appointed by President Mwai
Kibakiin June 2003, under the lead of Paul Nderitu Ndung’u, hence the name
Ndung’u Report. It was mandated with inquiring into the illegal allocations of
public lands, ascertaining the beneficiaries of the illegal allocations,
identifying public officials involved in the allocations and making
recommendations for suitable measuresfor the restoration of illegally allocated
lands to their rightful purpose, for prevention of future unlawful allocations
and measures for appropriate criminal prosecutions against the identified
allotees.
For the achievement of its mandate, the
Ndung’u Commission analysed official government records and reports of past
commissions and presented its findings and recommendations to the President.
Genesis of Irregular Allocations
The Report, most importantly, notes that
Land grabbing in Kenya has its genesis in pre-independence when white settlers
took over the best agricultural land. The subsequent Kenyatta and Moi regimes
used the land formerly held by settlers to obtain political gain and building
alliances.
Most interestingly, the commission found
that most illegal allocation of land took place before and soon after
multiparty general elections of 1992, 1997 and 2002 reinforcing its view that
public land was allocated for reasons of political reward or patronage.
Scope of public land covered in the Ndung’u Report
The illegal/irregular allocations of
public land investigated by the Ndung’u Commission focus on the plunder of:-
·
Forests
·
Agricultural Land
·
Settlement Schemes and
Trust Lands
·
National Parks, Game
Reserves, Riparian Reserves
·
Other Environmental
Resources
Findings on the instigating factors for irregular land allocations
The report indicates that numerous
methods were used to grab land falling under the categories mentioned above.
1. Widespread abuse of presidential discretion
Public land was exclusively vested in
the President. The President had the exclusive power under the GLA to grant and
dispose of any interests or rights in or over unalienated government land. The
President made grants of land to individuals without neither consideration for
public interest nor proper pursuit of legal procedures. This was principally
for political reasons.Furthermore, the President illegally converted his
constitutional powers as trustee of public lands to de facto ownership powers.[2]
2. Usurpation of Presidential Powers by the Commissioner of Lands
The discretion of the President in
allocations of public land could be delegated to the Commissioner of Lands
under Section 3 of GLA. Land In cities, municipalities and townships were
apportioned indiscriminately by Commissioner of Lands abusing the Presidential
discretion[3].
Most of them made grants through the use of underhand tactics such as forged
letters and documents.
3. Illegal Allocation of Land reserved for Public Purpose by the Commission of Lands
Land that was acquired compulsorily such
as that of the proposed Nairobi by pass was irregular allocated to private
individuals and companies and then sold on to other 3rd parties.
Further, land that was preserved for public purposes e.g. schools, playgrounds
and hospitals had been sold off without consideration of the law by local
authorities and Commissioner of Lands.
This was fuelled by the then
Constitution which empowered county councils to set apart land vested in that
county council for occupation by a public body or authority or any other
private persons for public purposes[4].
It is worth noting the case of Wangari
Maathai and two others v City Council of Nairobiand 2 others, whereby
the Late Nobel Laureate Wangari sought to stop the sale of a piece of land by
the city council, notably Uhuru Park which was used by the public for
recreational purposes.
4. Use of corporations for land Grabbing
Land grabbers hid behind corporations,
to illegally allocate public land to themselves. Land allocated to state
corporations, already being alienated land, would be illegally allocated to
individuals or private companies. The land would be sold at very low values to
allotees who would then re-sell it to other corporations at exorbitant prices.
The commission identified the State
corporations that lost large tracts of land to include Kenya Railways, Kenya
Airports Authority, Kenya Agricultural Research Institute, Kenya Power and
Lighting Company, Kenya Industrial Estates and Kenya Food and Chemical
Corporation.
5. Illegal allocation of settlement schemes, trust lands and agricultural Lands
Settlement schemes and trust lands,
initially for the settlement of African small holders were abused. The
commission found that, overall while the establishment of settlement schemes
and their allocation in the early years of independence generally conformed to
the initial objectives, in later years there was a lot of deviation with land
being allocated for purposes other than resettlement. the interests of the landless
were ignored in favour of those of District officials, their relatives, MPs,
Councillors and prominent politicians from the area, Ministry ofLands and
Settlement.as regards Agricultural land, land initially designed to provide the
needs of research, developing high quality seeds or livestock etc. were
illegally established as settlement schemes and subsequently illegally
allocated to individuals and companies as political reward.
6. Allocations of private lands to the Government Ministries and Local Authorities
Government ministries and departments
therein schemed with successive commissioner of Lands to have land allocated to
them unlawfully. The commission identified the affected ministries to include
Ministry of Livestock and Fisheries Development and National Youth Service.
Trust lands, which were legally held by
local authorities in trust for the benefit of residents of the local authority,
were illegally allocated to individuals and companies by county councils. The
report specifically depicts the councillors themselves as the most pronounced
land grabbers in Kenya.
7. Illegal Allocation of Gazetted Forest Land
The report denotes that the result of
illegal and irregular excisions of forest lands have reduced its land mass to
1.7% from 3% at the time of independence. The illegal excisions were conducted
without proper procedure or under the guise of settlement schemes. The
beneficiaries of such allocations were schools, government institutions,
religious bodies, private individuals and companies.
8. Illegal Allocation of Riparian Reserves
Many illegal allocations of land around
riparian sites were illegally allocated by the Kenya Wildlife Service. For
example, in 1995, to some 14 beneficiaries around Lake Naivasha.
More findings included[5]:
9. Illegal
transfer of undeveloped leasehold land
10. Illegal
allocation of land compulsorily acquired for public purposes
11. Double
allocations of public land under different statutes
The reforms partaken on the matter of
the land by the Constitution of Kenya 2010 alongside the new land laws have
greatly been influenced by the findings and recommendations of the report by
the commission.
The main recommendation was that the
government was that the government revokes or rectifies the titles of all
irregularly or illegally acquired land and repossess these lands.
Under the Constitution, Article 62(4)
provides that public land shall not be disposed of or otherwise used except in
the terms of an Act of Parliament specifying the nature and terms of that
disposal or use. This is instrumental in reducing or rather abolishing
presidential discretion in allocation of public land and ousting the authority
of the commissioner of lands in public land allocation.
In this regard, The National Land Commission
is now empowered to manage public land on behalf of the national and county
governments.[6]In
doing so, the commission, before allocating any public land is required to
issue, publish or send a notice of action, to the public, the governor in whose
county the public land is located, the head of the governing body of any
administrative division having development control on the said land and other
interested parties, atleast 30 days before offering for allocation, tracts of
public land.[7]
In respect of irregular allocation of
trust lands and group lands, the Constitution addresses this providing for
communal land tenure and vesting such land on communities based on ethnicity,
culture or similar community of interest. It also resolves that such community
land shall only be used or disposed in accordance with relevant legislation.[8]
One of the findings in the Report was
that forests, National Parks, game reserves, riparian reserves and specially
protected areas had been illegally allocated to individuals. This has been
resolved by Article 62(1) of the Constitution which outlines that such land is
public land which shall not be disposed of except as otherwise expressly
provided for legislation.
The Land Act gives the National Land
Commission is a duty to ensure that any public land that has been identified
for allocation does not fallwithin land within forests, wildlife reserves,
mangroves, wetlands, watersheds, rivers, lakes, beaches, fish land areas and
other riparian reserves. Public land reserved for security, education, research
and other strategic public uses should not also be allocated.[9]
The Commission is also to take appropriate action to ensure ecologically
sensitive areas that are within public lands are not subjected to environmental
degradation and climate change.[10]
In resolving the general issue of
irregular and illegal allocation of public land, the National Land Commission
is mandated with allocating such land should work in consultation and
cooperation with national and county governments subject to the national values
and principles of governance.[11]These
include national unity, rule of law, human dignity, social justice,
inclusiveness, human rights, integrity, transparency, accountability and
sustainable development.[12]
Further, allocations should comply with the guiding principles outlined in
Article 60 of the Constitution which are reiterated in Section 4 of the Land
Act.
In this regard, public land is not to be sold,
subleased or subdivided unless it is developed for the purpose for which it was
allocated and where such land is not developed accordingly, that land
automatically reverts back to the National or County government.[13]
These provisions go a long way in ensuring land is used for the rightful
purpose and not schemingly being used for the benefit of a few individuals.
Land should now be invested in a way that benefits local communities and the
economy as denoted in Section 12(4) of the Land Act.
Most importantly, to curb corruption in
land, a land transaction relating to public land which is obtained or induced
by corruption, shall be illegal from its inception and have no illegal effect.[14]
Land that has been suspected of previously being allocated under such
circumstances as denoted in the Ndung’u Report could be subject to
investigation and scrutiny by the National Land Commission. [15]The
Commission has power to gather relevant information such as official records
and documents from any source and may compel if necessary in order to establish
allotees of illegally allocated land in Kenya.[16]
In respect of settlement schemes being
used by the local authorities as a means of grabbing land as they were the ones
fully in charge of the land, the Constitution has vested such land in the
county government in trust for the people and its administration shall be the
National Land Commission. The Commission, on behalf of the national and county
governments, is entitled to implement settlement programmes to provide access
to land, shelter and livelihood. It is to reserve public land for the
establishment of approved settlement programmes or purchase private land where
no public land is available.[17]
On the finding of corporations being
used as conduits for land grabbing, the Constitution under sec 65(3) provides that allocation of
land to corporations is regulated by whether the corporation is owned by
citizens or not. Land held by non-citizens is strictly on leasehold interest.
Further, through the values and principles of public service which include
accountability for administrative acts, transparency and high standard of
professional ethics, state corporations are to abide by the principles and thus
cannot be involved in unlawful allocations of land.[18]
The Land Registration Act provides for
the registration of land which could result in a leasehold or freehold interest
in the land.[19]
There is also a general land register which shall be kept public and open for
inspection by the public.[20]
This reflects of the principles of accountability and transparency applicable
to all.
In addition, a certificate of title is
to be issued as conclusive evidence of proprietorship and it shall be
indefeasible except where land is acquired illegally by fraud,
misrepresentation, unprocedurally or through a corrupt scheme.[21]Where
the National Land Commission finds that title was acquired in an unlawful
manner, it shall take steps to correct the irregularity and make consequential
orders.[22]
Thus, illegal allocations mentioned in the Ndung’u Report cannot reasonably
surpass the test of time. There is also a change of the jurisprudence of the
court as regards this matter whereby the court decided in Elija Syekei v The
HeadmasterAfraha High School[23]that
fraudulent registration of title cannot suffice as good title.
The court notably mentioned that the decision
in Obiero
v Opiyo and others[24]
which suggested that title to land obtained on first registration by fraud or
mistake is indefeasible, could not be good law and should be departed from.
The developments brought in by the new
frameworks include the establishment of the county land management boards[25]
and the Environment and Land Courts. Matters pertaining to land disputes can
only be originally heard in these courts.[26]
Conclusion
The land reforms instigated by
revelations such as those of the Ndung’u Report have been instrumental in the
creation of checks of balances to ensure lawful allocations of public land.
There has been various court decisions
seeking to nullify titles of land acquired illegally. In Republic v The Senior Registrar
of Titles, Exparte Brookside Court Limited[27],
Justice Warsame declined to give an order of prohibition against revocation of
title as the respondents maintained that the initialallocation of land to the
exparte applicant was illegal and unconstitutional as it constituted land to be
preserved for public purposes.
It is also worth noting the case of Daniel
Toroitich Arap Moi v Malcolm Bell whereby, the plaintiff, the retired
president of Kenya had to give back land that he had acquired illegally/
arbitrarily and which principally belonged to the defendant’s family.
The recently appointed National Land
Commission has a huge task of discharging its mandate and particularly
addressing the historical land problems in which are the prime drawbacks towards
proper framework for administration of Land in Kenya.
References
1. A
summary of the Ndung’u Report
2. Conveyancing-
Principles and Practice by Tom Ojienda
3. The
Constitution of Kenya 2010
4. The
Land Registration Act No.3 of 2012
5. The
Land Act No.6 of 2012
6. The
National Land Commission Act No. 5 of 2012
7. The
Constitution of Kenya: Contemporary Reading
8. Kenya
Law Reports
[1]Peter Omuodho in ‘Legal framework to deal with
past misdeeds related to land in Kenya. Katiba News Issue No.08.08, August ’06
Newsletter Media Development Association
[2]Section 3 of The Repealed Government Lands Act
[3]The Constitution of Kenya: Contemporary
Reading, p 152
[4]Section 117 of the Repealed Constitution
[5] Conveyancing- Principles and Practice by Tom Ojienda pg.270
[6]Art 67(2) Constitution of Kenya 2010; National
Land Commission Act, Sec 5; Sec 12 Land Act
[7]Section 14, Land Act No. 6 of
2012
[8]Article 63(1) Constitution of Kenya 2010 ; Section
37, Land Act No.6 of 2012
[9]Sec 12 (2) Land Act No.6 of 2012
[10]Sections 11
and 17 Land Act, No. 6 of 2012
[11]National
Land Commission Act, Section 17
[12]Article
10 Constitution of Kenya 2010
[13]Section
12(8) and 12(9) , Land Act No.6 of 2012
[14]Land Act
No.6 of 2012, Section 158
[15]National
Land Commission Act, Section 14
[16]National
Land Commission Act, Section 6
[18]Article
232 Constitution of Kenya 2010
[19]Section
24, Land Registration Act
[20]Section
10, Land Registration Act
[21]Section
26, Land Registration Act
[22]Section
14(5), 14(6). Land Registration Act
[23][2012] eklr; Civil case 320 of 2009
[24][1972] EA 227
[25]Section
18, National Land Commission Act
[26] Section 150 Land Act,
Sec 101 Land Registration Act, Art 162(2) Constitution
[27]2012 eklr; Judicial Review 77 0f 2010
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