The 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.

The Survey Act and Registration of Title

Far too many times, I have had to privately advise on who should undertake title surveys in Kenya. It’s therefore perhaps time I did so to a wider audience. Title surveys, commonly referred to as cadastral surveys by the surveying fraternity, are regulated under the Survey Act. All surveys undertaken for the preparation of any plan for registration of title to land in Kenya are governed by this law. It specifies who should do survey and to what standards, and further provides details of examinations and procedures for admitting surveyors to undertake such surveys. Title surveys are tightly controlled by statute since title deeds and leases enjoy state guarantee. Land owners are indemnified against any errors or incorrect description of their land, and can therefore sue the state for correction or compensation. The Survey Act dates back to 1923 but has since been severally revised. It’s however yet to be aligned with the 2010 constitution and today’s realities, technology and laws.

If you own land bordering a river or through which one passes, how far from the river should you construct or farm? What guides you? Our national law on river, or riparian reserves, is unclear. It confuses professionals, developers and landowners! It’s therefore unsurprising that in practice, we have so much breach. I suspect most of it is unintended.

Unfortunately, the laws relating to riparian reserves have been with us for a while now, leading to a situation where compliance and practice is largely dependent on the legal framework one was schooled on. We therefore have a situation where developers, professional practitioners, landowners and state regulators read from different scripts. A number of laws dwell on the issue, some explicitly, others implicitly! Let me highlight some.

In Kenya those with registered private land hold either freehold or leasehold interests. A freehold interest in land is held for an unlimited period and is the kind of interest held by Kenyans in most rural areas. They are easily managed and inherited. On the other hand, a leasehold interest on land is held for a defined period after which the land reverts to the person who granted the lease. In Kenya, most leasehold interests are found in urban areas. But many leases were granted by the colonial government to promote Kenya’s agriculture and for religious purposes in various Counties. Many of these have since been passed on to local people and companies. Leasehold interests require careful management to ensure adherence to the conditions attached. If for instance one needs a bank loan when the remaining term is short, banks will require that the term be extended. If the term is close to expiry, a renewal is required if the holder is still interested. If renewal isn’t granted, complex issues over developments on the land arise.

Over the holiday season, I’d to spend some time advising on some simple disputes. In the process, I appreciated that many, including state officers, political leaders and land owners at the rural level, haven’t fully understood their roles, rights and obligations under our current dispensation. This adversely exposes private land rights while leaving state and political leaders vulnerable to arguable lawsuits. Some experiences help to underscore.

Need to assert ownership rights

While we operated the old constitution, I was called in to help some land owner reclaim parts of his land that had been ‘declared’ public land and converted to a road of access by an area Councilor. As it turned out, the councilor was ‘feared’ in the locality. It therefore took effort to convince the land owner that he held discretion to assert his rights and reject such intrusion.