Settlement Schemes: Limitations on transfers

As President Uhuru Kenyatta recently issued title deeds to some residents of Kilifi County, he urged the lucky beneficiaries not to be enticed into selling off their new land parcels. The Head of State’s advise was consistent with the applicable law. Unknown to many, the Land Act of 2012 contains a proviso that outlaws the transfer of land allocated in settlement schemes, unless the transfer is to benefit the legitimate heirs through succession. Subsection eight of section 134 of this law specifically states that “any land acquired in a settlement scheme established under this Act, or any other law, shall not be transferable except through a process of succession”. If Land Control Boards were to firmly implement this provision, many investors would find themselves in difficult waters.

Most of those who seek to purchase parcels of land in settlement schemes are unaware of it. Therefore, it can be easily used against them, leaving them little option but to reclaim any monies they may have pre-paid as civil debts. It should be recalled that under the Land Control Act, a sale or transfer transaction on agricultural land is void unless the land control board for the area in which the land is situated has given consent in respect of the transaction. So any such loss can only be blamed on the prospective buyer, whose duty it is to do pre-purchase due diligence.

State regulation

But is it right to limit transactions in the property rights of beneficiaries to land in settlement schemes, while landowners to land obtained through the adjudication of ancestral land have the latitude to transact freely? This is a moot question. Depending on contexts and experience, states, through their constitutions and laws, often leave themselves the duty to regulate the acquisition, use, or even transfer, of land rights. This is why for instance, from the year 2010 when Kenya obtained a new constitution, non-citizens can no longer hold freehold rights to land. And even for the leasehold land they may hold, the term is limited to 99 years. This wasn’t the case earlier. Some types of land use may also be regulated on account of planning, health or security considerations.

Landlessness

The provision barring transfer of parcels of land in settlement schemes was informed by a painful past. Citizens presenting themselves as landless would receive land and soon sell it off and resume ranks among the landless. They would then sit put as squatters, awaiting consideration in the next government settlement scheme. The practice became rampant, and unfairly undermined government efforts to mitigate landlessness and poverty. Some parts of Coast Kenya were particularly notorious for the practice.

The government had therefore to style up and address this systematic challenge. The review of our land laws provided a good opportunity to stem the practice through legislation. But I am yet to find any study that provides insight on whether this provision has indeed impacted as intended.

Dated: 6^th August, 2021