Land rent and rates

Suits have been filed contesting the slapping of land rates to freehold tenure properties. Due to widespread misunderstanding between land rent and land rates, some of these will be needlessly lost. Land rents are tenure specific, and are payable to landlords for land they may have leased. Therefore, where one has leased land from either the county or national governments, they are eligible to pay annual rents to these governments.

On the other hand, land rates are jurisdiction specific, and are payable for leasehold and freehold tenure land within a defined and rateable jurisdiction. They are charged to support service provision therein. It’s however important to take note that the new National Rating Act, which received presidential assent in December last year, has introduced a fundamental exemption. The Act, which has been undergoing formulation for quite a while, provides a standardized framework upon which county governments may assess and impose rates on land and buildings in Kenya.

Riparian reserves: Encroachment

The rains are pounding. And floods are here, threatening lives and property. Yet again! While a number of factors contribute to the threat, a major one remains the obstruction of river reserves, popularly known as riparian reserves. Semi-permanent, and sometimes permanent developments which divert fast flowing flood water with adverse consequences, aren’t uncommon along rivers streaming through densely populated urban areas. In trying to address the matter, Cabinet Secretaries to line ministries responsible for matters environment, water, lands and internal security have often talked tough, finger pointed and driven evictions.

Need for harmonised laws

Survey Act: Origin

A lecturer called Robert Arthur Caukwell taught me cadastral survey during my undergraduate studies at the University of Nairobi. He greatly enjoyed the subject. In his 1977 Masters thesis on cadastral survey in Kenya and its role to development, Caukwell explains the origin of the Survey Act, which governs the practice of title surveys in Kenya. This includes regulating professional standards, and the licensing and regulation of surveyors. Caukwell points out that in 1923, the survey aspects of the rules and regulations to the laws that supported the registration of title to land in the colony at the time were consolidated into a Land Surveyors Ordinance. This Ordinance was later replaced by a revised version in 1951. A further revision in 1961 gave us the Survey Act (Cap 299) that we’ve used to date.

Need for substantive review

Planning law and development approval

Prompted by emerging issues, I reviewed and reflected upon our planning law. I looked at other land laws and the constitution too. There are fundamental questions. I formed the opinion that the provisions requiring the surrender of private land upon applying for development approval under the Physical Planning and Land Use Act 2019 are flawed. It may be only a matter of time before the constitutional court expunges the offending provisions. They undermine private tenure rights. One wonders how they slipped into this important law.

See, we come from a background where previous planning law was abused to illegitimately move private land from proprietors seeking development approvals to some holders of strategic state and political offices. This is how it happened. Proprietors would make applications for the subdivision of private land, which would require the approval of the then Commissioner of Lands, and the respective local authorities, where applicable. Regulations under the Land Planning Act, Cap 303, now repealed, required that land for proposed public uses such as schools, hospitals, shops, markets and open spaces, among others, be freely surrendered. In some development schemes, this would amount to quite a lot of land. Once approval was accorded, the proprietor would lose such land to public purposes. Ironically, the land administration regime of the time would have such land covertly allocated to preferred public officers or political leaders, or quickly sold out to willing buyers at below market rates. This fate befell many company and cooperative farms whose subdivision approval was sought at the time.

The Lands Ministry has lately been on overdrive to amend land laws and regulations. Laws are dynamic and need occasional amendments to keep them abreast with contemporary realities, and to eliminate gaps or overlaps. However, in making and amending laws, it helps to keep the load realistic, and carry practicing professionals, and the user community, along. Where the load gets overwhelming, state departments do have difficulties managing multiple amendments simultaneously, and adequately involving practicing professionals and the user community. Moreover, the capacity of parliament to provide quality oversight gets overstretched.

Amendment Bill: Multiple statutes