Great North Road

While enroute to Debre Zeit from Addis Ababa for an event with the African Land Policy Centre, I made the comment that the highway looked great and really enabling for high speed traffic. Next to me was a land expert from the African Development Bank who quickly observed, “We supported its construction. It’s part of the great North Road and goes right south to connect with Kenya at Moyale.” I felt quite challenged about this information gap on my part as he went on to remark that Kenya recently completed its part of this road by tarmacking the Isiolo-Marsabit-Moyale section.

While on a mission with the Land Development and Governance Institute a few months later, I’d the opportunity to witness the Kenya-Ethiopia connection! An excellent A2 class road now connects us to Ethiopia at Moyale. It’s wide, smooth and fast to drive on. So smooth that one can comfortably work their computer while on the drive. It takes you through about 750km of diverse cultural and geographical terrain between Nairobi and Moyale. And please be disabused of the notion that you need security between Isiolo and Moyale. That’s in the past. We drove all the way with none at all. But there are reassuring police checks along the way! At Moyale, we walked over to the Ethiopian side, giving me a first-hand opportunity to appreciate that road A2 takes one all the way to Addis Ababa. Another 774km and one would be taking injera in Ethiopia’s capital city. Citizens of Western, Nairobi and Central Kenya who keep imagining what this part of our country looks like need to rev up and go have an experience of their lives. For policy planners and political leaders, this new tarmac road spells tremendous potential for business, tourism, economic and cultural inclusion for the region and nation. Let’s harness it! Let me not go into further details on this experience lest I divert from today’s subject.

Africa is gradually appreciating that though comparatively well-endowed with much unutilised or under-utilised land, rapid population increase and horizontal developments may be its bane in future. Consequently, individual nations have been responding to the challenge by adopting vertical developments, with commensurate changes to their policies and laws. But how will purchasers obtain secure individual titles to their units in such high rise residential or commercial blocks, yet the units share a common base?

High rise development

Indeed, high rise or multi-level developments can be divided into several units that can be separately owned, with the common areas collectively owned. Such common areas may include the roof, walkways, parking lots, driveways and gardens. These common areas are managed collectively through some association or company. Different jurisdictions carry different names for this concept where people can own separate units but have collective use and ownership of the common areas. In the United States and Canada, they are referred to as condominiums. Australia and New Zealand call them strata development and the associated titles are referred to as strata titles. Sectional property development and sectional titles are the terms used in South Africa and here in Kenya.

Africa is gradually appreciating that though comparatively well-endowed with much unutilised or under-utilised land, rapid population increase and horizontal developments may be its bane in future. Consequently, individual nations have been responding to the challenge by adopting vertical developments, with commensurate changes to their policies and laws. But how will purchasers obtain secure individual titles to their units in such high rise residential or commercial blocks, yet the units share a common base?

High rise development

Indeed, high rise or multi-level developments can be divided into several units that can be separately owned, with the common areas collectively owned. Such common areas may include the roof, walkways, parking lots, driveways and gardens. These common areas are managed collectively through some association or company. Different jurisdictions carry different names for this concept where people can own separate units but have collective use and ownership of the common areas. In the United States and Canada, they are referred to as condominiums. Australia and New Zealand call them strata development and the associated titles are referred to as strata titles. Sectional property development and sectional titles are the terms used in South Africa and here in Kenya.

Dichotomy between policy and constitutional provisions

The report of the Taskforce on the extension and renewal of leases released late last year highlights a major dichotomy between our 2009 land policy and the 2010 constitution regarding the terms of leases on public land! The report points out that while the policy specifies that the duration of all leases should not exceed 99 years, the constitution does not preclude citizens from owning 999 year leases. While the constitution is explicit in its article 65 that terms of leases held by non-citizens shall not exceed 99 years, it remains silent on the limits for tenure terms of leases held by citizens. The gap can therefore be seized to effect transfers of 999 year leases from non-citizens to citizens! Clarity and direction on this matter is therefore needed. Luckily, our national land policy is due for review in 2019 and the dichotomy can be addressed during the imminent public discussions, alongside other policy concerns. But it will be important to keep in mind that proportionately, there aren’t too many 999 year leases in Kenya and the debate should therefore be kept objective and futuristic when the time comes.

Conversion of non-citizen held freehold interests to leasehold

Following an earlier discussion on achievements under the constitution 2010, let’s look at some challenges. Much as the styles of the different high level office holders such as the Cabinet Secretary and Principal Secretary to the Ministry, along with that of the Chairman of the Land Commission, do make a difference, it’s been evident that the coming into office of the Commission disrupted status quo. But the complementary check and balance roles between the two institutions remain necessary. Forwards, it’s been suggested that the high level office holders devise mechanisms to consult internally and resolve pertinent issues before they spill over to the public. Unless adequate effort is made to ensure this, not even further changes in law or the constitution will help. Style and attitude matters!

There’s need for robust leadership and technical support to ensure that the Ministry, the Commission, County governments, the special land courts and all other new organs synergise to improve the sector. The courts haven’t yet done justice to workload. Their number ought to be increased and their human and technical capacity improved. Overall, the implementation of the constitution and policy should be more structured and systematic. A suitable plan, to guide actions by institutions and stakeholders, would be helpful. Evaluation, short and medium term budgetary projections for use by parliament and partners, and interventions by stakeholders, would also be easier.

More specifically, there’s need to review the Survey, Land Control, Valuers and Valuation for Rating Acts. The revved up titling programme must give greater attention to quality control. Errors in survey and on titles as reported from Waitiki, Kihiu Mwiri and Embakasi Ranching schemes need to be minimised. Focus must be given to the preliminary manual processes such as preparation of beneficiary lists, plot numbers and sizes. The application of the Community Land Act, which will impact over fifty per cent of Kenya’s land, has been poor. There has been evident lack of public awareness on this law; a gap the Ministry and stakeholders could close. To manage competing land uses, there’s need to roll-out the implementation of the land use policy in earnest.