Vast unregistered territory

Most community land is to be found at the Kenya Coast, the South Rift and Northern Kenya. In parts of the North, it stretches for hundreds of kilometers. For instance, community land swathes strand over five hundred kilometers between Isiolo and Moyale. And over six hundred between Garissa and Mandera, most of it unregistered. While communities in these regions have a fairly good idea of the positions of their common boundaries, only specific mapping will help to capture and reflect them on Kenya’s cadastral maps. Only then can such land be registered against the respective communities as is provided under the 2016 Community Land Act.

Investor negotiations difficult

Stakeholder sensitisation

Last week saw the Lands Ministry demonstrate the National Land Information Management System (NLIMS) to the Kenya Private Sector Alliance (KEPSA) and Kenya Property Developers Association (KPDA) at the KNSDI building at Survey of Kenya, Ruaraka. This was part of a series of forums that the Ministry has been holding to sensitise internal and external stakeholders about the imminent launch of NLIMS. During question time, the expert at it was challenged to prove that the demo wasn’t a mere theoretical pitch.

So, with random land reference numbers provided, abracadabra, he quickly displayed the specifics and locations of the corresponding properties in Nairobi’s CBD. He could have easily provided the owner particulars, but that would have been inappropriate. The point had been made. That for once, we do have some GIS-based live system linking up the parcel maps to their corresponding attributes for Nairobi County, even if this is still work-in-progress.

Private valuers to undertake valuation for stamp duty

Earlier in the year, the Government allowed the use of private valuers for the assessment of stamp duty on land transfer transactions. This is anticipated to reduce delays hitherto occasioned by the exclusive use of government valuers who have always been rather few. The Stamp Duty (Valuation of Immovable Property) Regulations 2020, contained in Legal Notice No 151 of 5^th August, 2020, gives property buyers the option to use either government or private valuers to assess stamp duty of their properties. The Regulations mandate the Chief Government Valuer to maintain a list of ‘appointed valuers’, which means a list of private valuers appointed by the Chief Government Valuer under the Stamp Duty Act.

Applications invited from interested private valuers

Communal tenure rights

For about three years now, the Land Development and Governance Institute (LDGI) has been busy researching on the application of Kenya’s Community Land Act. Focus has been on sites in Isiolo and Marsabit Counties, where community land is vast. As the research progressed, I was amazed by the asymmetry in the appreciation of tenure rights for private landowners and for those living in the communal areas. Here’s what a group I chatted near Chalbi Desert, Marsabit County, had to say about access to water.

“We would uproot the fence, beat you up, and even the Chief himself until our herds access the water. Water belongs to no one. Water is God given”, they told me. I had suggested that I could sink a borehole in my land, fence it off and, to recover my investment costs, charge each of them an entry fee to water their animals. To deter forceful entry, I posited that I’d bring in the area Chief and law enforcement officers.

In most cases, land forms a major component of the asset portfolio left behind by deceased persons. This could be land on which stand residential or commercial businesses, or even both. It could be land under agricultural production. In a number of cases, such land could be held speculatively in the form of undeveloped large tracts or plots held in disparate locations. A major challenge arises where the deceased held land or small plots in locations totally unknown to the legitimate beneficiaries. It’s a lot worse where processes to register such land would have been incomplete. It’s not uncommon for such land to be seized by unscrupulous people altogether, such as the sellers or even friends. So let us beware this danger. No one ever intends that their wealth goes to unintended beneficiaries. It therefore pays to ensure that someone within the family always gets to know the land or plots we own!

Estate distribution

To move land from the names or companies of the deceased to the beneficiaries, due process must be followed. An administrator must be duly appointed whose duty is to ensure that the deceased’s estate is distributed in accordance with his will, and where there’s none, with the agreement of the intended beneficiaries. If the land is to be distributed without subdivision, then the administrator’s duty is to ensure that each of the parcels left behind are identified then move the court to award a grant specifying the parcels to be bequeathed each beneficiary. Once processed by the courts, the awarded grant is used to move the land control board where applicable, else the land registry, to transfer the parcels in accordance with the inventory approved by the courts.