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No end in sight for land rows pitting owners and squatters

Sunday February 19 2017

Sirikwa Squatters Group who were allocated 25,000 acres of land around Eldoret International Airport. PHOTO | FILE | NATION MEDIA GROUP

Sirikwa Squatters Group who were allocated 25,000 acres of land around Eldoret International Airport. PHOTO | FILE | NATION MEDIA GROUP 

BENSON WAMBUGU
By BENSON WAMBUGU
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A World Bank report released last week painted the grim picture of the perennial yet unresolved issue of land ownership and squatters in the country. Anguish, court cases, violence and in many instances dispossession have been the trademarks of land disputes pitting owners against squatters.

Even after the formation of the National Land Commission to augment the work of the Lands ministry, no meaningful achievements have been made to address contentious land issues. 

Analysts accuse both the successive governments and the opposition of exploiting the situation of squatters for political gain rather than resolving the problem. 

In a country where the number of peasants swells by the day, the informal settlement problem has become a thorny issue, a situation brought about by the injustices in the allocation of land rights. 

For instance, a World Bank report released last week said lack of title deeds for Nairobi’s Kibera slum could be costing the economy a whooping Sh103 billion through the tiny clique of faceless investors who have built houses for the estimated population. 

These slumlords, according to the report, make their kill through rent and other service charges at the expense of bigger economic benefits which would be derived if the land was titled and had permanent buildings. 

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“Kenya’s economy is robbed of $1 billion (Sh103 billion) in missed capital value for not developing the slum,” said the report.

The report concludes that Kibera land is owned by the government but managed by slumlords and political elites who control the land and have no interest in developing it.

Courts across the country have played their role in trying to bring sanity into disputes involving land owners and squatters but courts’ efforts have been frustrated because eviction orders issued against land intruders are never obeyed. 

Mr Evanson Waitiki, who fought for decades to reclaim his 930 acre land in Likoni, Mombasa – invaded by more than 10,000 squatters after the 1997 ethnic clashes – can attest to the fact that eviction orders are never obeyed. 

His pile of court orders to remove the informal settlers from his Waitiki Farm were either ignored by the local police boss, who is duty-bound to oversee success of an eviction, or were overtaken by events. The vast land was last year acquired by the government for Sh1.2 billion to settle thousands of squatters. 

Former Taveta MP Basil Criticos suffered a similar fate when squatters invaded his 2,970 acres Machungwani Farm in Taita Taveta County. For years he was fighting to reclaim his land in Nairobi and Mombasa courts.

He recently got a reprieve when thousands of squatters were forcibly evicted. Police and farm security guards, executing a court order, torched the squatters’ houses and removed nearly 5,000 families who had encroached on the land. His expansive land is one of the many farms held by politicians and tycoons in Taita Taveta. 

A majority of the squatters are known to take advantage of the doctrine of adverse possession, a provision under the Laws of Limitation Act. The law allows the squatters to legally claim ownership of the land they have openly occupied with hostility and continuously live in for a period of 12 years. 

EXPLOIT PROVISION

Adverse possession may occur when the legal land owner, in the absence of any witnesses, verbally requests a relative or a friend to look after the property. If this caretaker occupies the land for 12 years, he or she can betray the legal owner by filing for adverse possession. The occupant must prove the intention to possess and not own and prove that the act of possession was inconsistent with the rights of the real owner without a legal title. 

A number of squatters have exploited this provision to claim ownership of various properties in the country.  

Last week, the High Court in Eldoret ruled in favour of more than 1,000 squatters after Justice Anthony Ombwayo ordered that they be settled in 25,000 acres after a decade-long dispute with the late prominent politician Mark Too. 

Justice Ombwayo, however, allowed Mr Too’s family to retain part of the land near Eldoret International Airport. The family said they would appeal the decision.

The judge also directed that the squatters be issued with valid title deeds. The court estimated the value of the land at Sh100 million. The squatters filed the case in 2007, accusing Mr Too of grabbing the 25,000 acres.

They claimed they were bequeathed the land by retired President Moi in 1998 but Mr Too illegally acquired it. Mr Moi has since denied ever allocating them the land.

Another group that appears to have been completely forgotten by the successive governments is the colonial village squatters particularly in Central region.

Last year, Lands Cabinet Secretary Jacob Kaimenyi promised he would issue over 2,850 title deeds in over 200 villages scattered across the region. 

Although a few villages which include Gatitu, Kihatha and Kihuyo were issued with titles, villages like Kahigaini, Njoguini, Kanjora, Kiamathambo, Ngoru and Kanyinya in Nyeri County are yet to receive titles.

The government said it would spend over Sh95 million to resettle people living in eight colonial villages in the second phase of the project.  

Some of the court cases include a private developer who is embroiled in a legal tussle with squatters. The case has halted the proposed construction of a multi-billion-shilling project at Embakasi in Nairobi County.

Efforts by the investor to kick out the informal dwellers from the 35-acre land through court orders have been unsuccessful as the illegal occupiers are said to continue growing. Embakasi Developers Ltd had proposed to build a Sh3 billion complex known as City-within-a-City. The developer has now appealed to the national government to intervene.

In July last year, the Court of Appeal overturned a High Court decision directing the Kenya Airports Authority (KAA) who were evicted from land near Wilson Airport in Nairobi.

The dispute over the land measuring 163.67 hectares involves KAA, Lands commissioner and Attorney-General against Mitu-Bell Welfare Society and Mitumba village residents.

Justices Erastus Githinji, Wanjiru Karanja and Otieno Odek set aside the High Court judgment saying the judge failed to evaluate the security and safety of the flight path as compared to the structures in Mitumba village.

High Court Judge Mumbi Ngugi had on April 12, 2013, directed the government to resettle 15,325 residents whose shanties around the airport were demolished in 2011.

A separate group of squatters recently won the first round of a suit against the KAA and a private company over ownership of yet another prime land near Wilson Airport.

High Court Judge Joseph Onguto stopped KAA and Maasai General Agencies from evicting the 5,000 squatters until the ownership dispute was heard and determined.

Two weeks ago, a judge blocked police and a private developer from evicting 1,000 squatters and their families from a Sh2 billion land parcel in Kasarani, Nairobi.

Justice George Odunga said the families who have been residing on the land for over 30 years would suffer irreparable damage.