Boundary ‘is the center-line of river’

“The boundary is the centerline of the river” reads a popular refrain on survey plans for many parcels of land bound on one side by a river. The statement seems to confer unqualified land use rights to the registered propriety up to the river center line without regard to any riparian reserve. Is this appropriate? Then the regulations in the Survey Act have another interesting provision. That “swamps of an average width of 150 meters or more shall be excluded from farms…”.

Swamps less than 150 meter wide deemed part of private property

Interpreted, this implies that swamps of any width less than 150 meters are assumed part of private property on registration. But remember that a swamp of merely 100 by 100 meters measures approximately two and half acres in size. Yet, this, according to the survey regulations, need not be excluded for registration as public interest. And they are not. They are indeed considered part of the private interest and owners usually proceed to plant bananas, arrowroots, sugar cane or fodder grass on that part of “their” land. Nothing statutory at all obliges them to protect and preserve. Should we then be surprised that our wetlands and rivers are drying up from farming and other human activities?

Respect 60 meter width above high water mark on coastlines

Around our lakes, the survey regulations require that a band of not less than 30 meters wide be left above the water edge at high water while at our coast, a band width of not less than 60 meters above the high water mark should be respected. But has this been so around Lake Victoria, Naivasha and others? And our Indian Ocean foreshore is littered with five star beach hotels in breach of the statutory 60 meter band width. But one could also pose the question, as I have elsewhere for the 30 meter band width required above the high water mark for tidal rivers, whether these standards are realistic and practical. Or what really went wrong that violation is so widespread and blatant. One would want to ask why state agencies allow the issuance of titles in breach. One would want to know why the respective local authorities approve development applications in utter disregard.

Need for harmony of relevant policies and laws

There is lots of confusion on this matter and some aspects beg action. The government must provide and adopt a clear overarching policy. The land policy, the environmental policy and sectoral legislation should converge on the matter. Existing standards and relevant legislation need to be reworked to ensure this. This includes the Survey Act, the Water, Agriculture and the Physical Planning Acts. Until this is done, the application of the Environmental Management and Coordination Authority (EMCA) Act to resolve conflicts will remain undermined by the specific or implied provisions in these statutes.

Undertake national wetland mapping exercise

Kenya will also need to undertake a specific national wetland mapping exercise in order to develop an inventory of our wetlands within public and private properties, to enable specific protection. With modern science, this should be easy. In fact, most of the major wetlands can be deduced from existing aerial photography and satellite imagery. Maps to required standards can be derived from such existing databases and gaps filled through fresh procurement. Such maps will then begin to guide the responsible ministries on the best course of action for protection and redress.

For the time being, it will remain difficult to criminalize and police riparian reserves when land owners are able to cite and exploit gaps and conflicts in our laws and standards. As an interim measure, the state could close part of this gap by cultivating goodwill and cooperation of communities, landowners and developers through smart engagements, public education and the provision of suitable incentives.