Roles, rights, obligations about land not understood by many

During the holiday season, I spent some time offering advice on several simple disputes. In the process, I appreciated that many people have not fully understood their roles, rights, and obligations under the current dispensation. This adversely exposes private land rights while leaving state and political leaders vulnerable to lawsuits. Some experiences helped to underscore this.

I was once called in to help a landowner reclaim parts of his land that had been declared public and converted to an access road by the area councillor. The councillor was feared in the locality. It, therefore, took long to convince the landowner that he held discretion to assert his rights and reject such intrusion.

There were two issues involved. First, the access road was narrow and needed to be widened. Two, a group of residents needed a shorter road to a nearby highway. So the residents had appealed to the area councillor for help. In response, the councillor brought a grader early one morning, widened the road, and introduced a new and shorter road to the highway. This made some people happy and left those who had lost their land hurting.

Whereas public roads of access are important, registered landowners, both in the old and the new constitution, retain full rights to their land. Only land use can be regulated. Therefore, institutions such as power and water companies can only negotiate the right of way with the affected landowners. Similarly, road authorities at the county and national level can only expand or introduce new roads on private land after negotiating with and compensating the affected owners. Despite his good intentions, the councillor was wrong and could be sued for trespass, disturbance, and loss of use. Some chiefs are guilty of similar transgressions.

But there is a flipside. Landowners also hold the discretion to donate parts of their land for public use. We have seen some do this for churches, schools, and even roads. For instance, nothing stops a landowner from benevolently allowing the introduction of a shorter alternative access road through his land. Furthermore, landowners suffering the constraint of a narrow road to their residences can agree to donate parts of their land to have it widened. These are perfectly legitimate voluntary actions. But they should be followed by subsequent amendments of the relevant registry maps and the land register by authorised offices.

PRIVATE OWNERS

Local leaders need to acquaint themselves with the rights of private landowners under the Constitution and land laws and, when approached for help, navigate around them carefully. They could use their influence, for instance, request the local administrator to call public meetings to sensitise and appeal to affected landowners for voluntary donations. Or they can seek their indulgence for token compensation or swaps with any available public land. If owners insist on market compensation, then the respective public processes and agencies would have to be called in. But with well-placed appeals, most landowners would be willing to make concessions to help.

It is opportune to mention an incident in Kiambu where a landowner attempt to sell parts of a public road to an innocent buyer. How? Because when land acquisition, compensation, and road construction were concluded, the registry maps and the land register in Kiambu were not amended to reflect the new status.

This can be avoided if the respective public offices liaise well with the offices of the Director of Survey, the custodian of land registry maps, and those of the Chief Land Registrar, the custodian of the land register. Action to amend maps and the register, along with ensuring that the extent of road reserves is well marked should follow and forestall such fraud. All roads and bypasses should be charted on registry maps and noted on the affected titles.

Ibramim Mwathane is a surveyor.

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