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 Regulations under the Land Planning Act, Cap 303, now repealed, required that land for proposed public uses such as schools, hospitals, shops, markets and open spaces, among others, be freely surrendered.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

Last week, Generation Z took to the streets to protest the Finance Bill. Besides forcing a rejection of the same, the protests informed other unexpected outputs. As I went through routine updates on the protests, I hardly expected to stumble onto matters land. But I did!

Public interest through social media

Posts began popping up on my X (formerly twitter) page attributing a proposal to slap an annual levy to freehold land to the Finance Bill. I knew this to be incorrect. While factual, the proposal was not part of the Finance Bill, but some Land Amendment Bill, tabled by the Leader of the Majority in the National Assembly way back in 2023. Before long, some friends “WhatsApped” me the same provisions, seeking clarification. When the same started doing rounds on some rather serious WhatsApp Walls such those belonging to business lobby groups, my high school Alumni and professional associations, I thought it wise to intervene. This would help to debunk the mix-up, and give direction.

Leasehold properties

From routine enquiries, one appreciates that some leaders aren’t yet sufficiently informed about the proposed annual levy on freehold land in the amendments pending enactment by parliament. Let’s close this gap. Holders of leasehold properties in rateable jurisdictions in Kenya currently pay annual rates. In addition, those who are lessees to government, meaning that they have been leased the land for a term of years by either the county or national government, pay an annual rent. This is the rent that they pay to the government every year as the owner of the land, or the lessor, under a mutual contract.

Freehold properties