"Shifting" riparian boundaries

Recent media reports highlighting remarks by the Chairman of the National Land Commission on the matter of receding ocean waters rekindled my concern on a lacuna that persists on this matter. During the recent Environment and Land Court Judges’ annual conference held in Naivasha, the Chairman was cited to have observed that some hoteliers have been approaching the Land Commission requesting to have their leases extended to include the land left behind by the receding Indian ocean. He further observed that at the Kenya coast, the ocean has reclaimed some villages and it is time the issue of riparian land was addressed to resolve the subject boundaries. This matter is moot, and calls for discussion and answers. However, I doubt that the courts can provide answers in the absence of some guiding policy and law.

Our laws are clear on the matter of receding ocean and lake waters. Any land left between the cadastral boundaries of the front row beach properties and the high water mark after water recedes becomes public land. Whether such land should be allocated to those with properties next to the shore, or others, is a matter for planning, environmental conservation and land administration. A lacuna is however evident where the reverse happens. When ocean or lake waters rise and encroach onto registered properties, what’s the policy and legal position? What’s the recourse for the affected proprietors?

Submerged property: What recourse?

This matter hit me as I undertook some assignment for a client at Watamu which is near Malindi. I discussed part of the experience on the 30^th June 2018 edition of the Saturday Nation. Developers along this Indian ocean shore were struggling to keep ocean waters from overrunning their properties. It was tough! Rising ocean water invades with force, and is hard to keep out. Consequently, some proprietors have watched helplessly as parts of their land, including developments, get submerged. And with continuing global warming, this phenomena may continue. It occasions affected landowners loss or destruction of property, and denies them the enjoyment of parts of their land, as guaranteed under the titles they hold. The same has been happening to some proprietors with properties abutting lake shores, as for instance happened around Lake Baringo. But since those affected by such loss of property, or the use of parts or the whole of their parcels of land are comparatively few, there has not been any befitting policy debate.

Policy solution necessary

Yet when one looks at our land policy and laws, there’s no guidance at all on the recourse available to those aggrieved. Should they get compensated? If not, why, yet the titles they hold are guaranteed? Should they just count their loss and move on to seek alternative investments? The matter of riparian boundaries that shift to overlap the boundaries of neighbouring private properties should provoke thought, discussion and solutions. While doing so, let’s also keep in mind landowners who suffer landslides and flooding, rendering their parcels non-existent or unusable.

Dated: 17^th August, 2023