Daily Nation, Thursday 8th August 2013, DN2 Cover Story

Posted On  Wednesday, August 7, 2013 |  by SAMWEL BORN MAINA This e-mail address is being protected from spambots. You need JavaScript enabled to view it

You know the story quite well by now. As demand for land and housing cracks the ceiling, more and more people are falling into the traps of fraudsters who collude with officials at the Ministry of Lands to plant fake title deeds at government offices.

You also know that, with the papers safely tucked in their pockets, these people go on to pump millions of shillings into these pieces of land, and years later men turn up carrying cans of paint and brushes then proceed to draw unsightly Xs on the walls of these properties. The explanations are invariably the same: “Your house stands on a road bypass, public land, road reserve or the lease on this piece of land expired 10 years ago.”

But does this keep happening? What is wrong with the systems at the Lands Ministry what is going on in the docket Kenyans are send to everyday cannot be monitored? And why does it take years for concerned officials to notice that a 10-storey flat is encroaching on public land? After all, houses do not just sprout from the Earth overnight. You notice movement: trucks offloading sand and cement, workers putting up a perimeter fence, women cooking githeri for workers around the site... basically, you see movement.

Fraudsters having a ball

We put these questions to land experts and the opinion is so divided on who is to blame that it is clear that Kenyans will keep being taken for a ride for the foreseeable future. The people we talked to over the past week could not agree on whom to blame in the event one’s house is demolished despite possessing official documentation, including letters of allotment and title deeds, from the Ministry of Lands.

The National Land Commission chairman, Mohammed Swazuri, is clear, though, that fraudsters are having a ball and that most of those who end up losing their money and property probably never did the right background checks. “Any property that is acquired legally will have all the accompanying documents in order,” he says, “but many of those who eventually cry fould do not have such proof of ownership.”
Swazuri outlines four basic procedures land buyers should follow before going ahead to sign on the dotted line and close any land deal.

“There must be a Gazette notice indicating ownership of that piece of land, a planning notice, a request for surveyors and, finally, involvement of the Lands Registrar in the whole process.” Swazuri says properties acquired through this systematic procedure seldomly attract any controversy later on.

Swazuri’s guidelines are corroborated by the national coordinator of the Kenya Land Alliance, Odenda Lumumba, who says that, increasingly, a lot of people are bypassing the right property purchasing procedure either because they want to close the deal fast or are under pressure from the fraudsters selling the land.

“Most people, especially those buying sub-divided plots, never ask for the root title deed,” says Lumumba. “But it is important because the mother title will show you a lot of things about the land you intend to purchase and whether there are any controversies on notices on it. You may be shocked to realise that the mother title belongs to the government, meaning that the title deeds being hawked around are actually fake.”

Swazuri and Lumumba’s advice comes at a time when the country is witnessing yet another round of demolitions to pave the way for the construction of a road. Earthmoving machines rolled into the Lang’ata neighbourhood of Nairobi two weeks ago and brought down mansions as their owners watched helplessly. As the demolitions continued, Nairobi Senator Mike Mbuvi “Sonko” rushed to court seeking a temporary injunction to stop the demolitions, but by the time his plea was heard and granted, it was too late for a number of those Lang’ata residents.

As happened after the Syokimau demolitions of two years ago, the government was once again under pressure to explain what had happened while the investors were hard pressed to explain the legitimacy of the documents they owned and whether they had learnt any lessons from Syokimau.

Syokimau was, for the property sector, a wake-up call. After basking in the glory of multi-million investments, most of them within a decade, the place had literally become the property capital of Nairobi suburbs. Land prices had shot up as speculators cashed in on the boom and everyone wanted to own a piece of this new Canaan.

Then, out of the blues, and as many put the final touches to their new homes, the Kenya Airports Authority woke up from its deep slumber and laid claim to part of the land on which the houses stood. Where have you been all this time? the investors asked. KAA responded the Kenyan way: With bulldozers and excavators and anything that could bring down a house.

The chaotic scenes of demolition gripped the nation and its effect rattled all the way to Parliament, where MPs summoned the then Lands minister, James Orengo, and his Local Government counterpart, Musalia Mudavadi, to explain what was happening. KAA had its way... and the dust settled. Then Lang’ata happened...

International standards

This time, though, Swazuri is adamant that the government is right and that whoever has built on a road reserve will pay for the negligence. “We use international standards to measure the width of roads,” he says, “and that’s what we are employing in this case.”

The Ndung’u report, which studied the often emotional land issue in the country, reported that there are more than 200,000 fake title deeds and that little fact, Lumumba says, is “a recipe for a looming land crisis”, and that “legal action should be taken against those who issue title deeds without following due processes”. On the Lang’ata demolitons, however, Lumumba sides with Swazuri, arguing that maps for the Nairobi bypasses were drawn up in the 1970s and that any document that contradicts the original masterplan is not valid.

The die, then, seems to have been cast for the affected families, at least as far as the government is concerned. But Ibrahim Mwathane, a consultant in land surveying and information management, says it is wrong to blame investors when there is no effort to dig deeper to find the root cause of the problem. He adds that the frequent demolitions of properties are “immoral” and should not be allowed to continue.

“Public offices and any other officers responsible for initiating these flawed and fraudulent processes should be held accountable,” says Mwathane. “It is high time our courts addressed themselves to the underlying injustices in this matter.”

The land expert outlines systematic solutions that could help the government end land problems.

“Since a lot of previously acquired public land is not reflected on official property maps, the National Land Commission, in partnership with the roads agencies and other infrastructure providers, should establish a technical team to work backwards and mark out all the public land that was compulsorily acquired or reserved from private or communal use countrywide. This will help to forewarn planners and buyers to avoid and respect such land,” he says.

Mwathane also says the Ministry of Lands should computerise its data to clearly reflect all the existing and proposed road reserves and all other reservations for public facilities.

“Such system should be maintained by Survey of Kenya and be made accessible to all service providers, planners, local authorities, and land registration officials. If well done, this would help to avoid this unfortunate ownership and land use overlaps,” he suggests. On individual purchases, Mwathane advises that investors do thorough background checks on the root of any title to properties they are interested in, preferably through the joint efforts of an experienced lawyer, surveyor, and planner, and that they visit the land they are about to buy and seek to know its history from the local residents.

“Any unusual indicators such as a corridor or parcel of land standing idle against old developments all around them should be a call for further check-ups,” he says, adding that land buyers should seek the services of surveyors to confirm the road widths with the roads authorities, including the Kenya Urban Roads Authority, the Kenya National Highways Authority, and the Kenya Rural Roads Authority.

No full authority

Still, even after doing all these background checks, Swazuri says genuine owners of a particular land do not have full authority over it.

“If the government is satisfied that there is a need to create a way for the public good, then it has a right to demolish houses on such land under the Compulsory Land Acquisition and Compensation Act,” he says. “If the government says it wants to put up a road in Buru Buru, the law provides that it should be allowed to go ahead so long as it compensates those affected.”

“The surveyors will visit the place, estimate the value of the property, and then inform the owner,” he says. In the event the owner is not willing to let go of his or her land and obtains a court order, the demolition will still proceed. “We cannot stop demolitions especially when we are racing against time to erect a road,” he says. “I advise Kenyans to read the law.”

Swazuri says millions of money, in form of compensation, are lying with the Ministry of Lands because affected owners did not agree to have their houses demolished. “Kenyans have a tendency of seeking court injunctions for everything,” he laments. “But what we normally do is tell the owner to collect his or her money, put the petition aside, and proceed with the demolition.”

On victims of leases, the ministry says parcels of lands under lease will only be renewed if the land has served the purpose listed in the lease. “If you have 1,000 acres of land on lease and signed for 99 years saying you will do farming, when the time elapses, how you utilised the land will be key and if you fail, you automatically lose the land,” he says.