Seven years and four successive Cabinet ministers later, Kenya is yet to fully usher in a new land administration regime as envisaged in the Constitution, enquiries by the Sunday Nation reveal.
And the result has been disastrous to the economy, affecting families and businesses and severely eroding confidence in the sanctity of title deeds and security of tenure.
Multiple interviews indicate that a combination of State capture by vested interests with a tight stranglehold on the land sector, lack of political will and a compromised leadership at Ardhi House – the Land ministry headquarters – ensured the 10th and 11th parliaments passed a raft of new land laws but efforts to implement regulations to give teeth to the laws have largely stalled.
The result has been while new laws were passed as required by the Constitution, the old order of land grabbing thrived and expanded, with wananchi treated to incessant public altercations between the ministry, the National Land Commission (NLC) and county governments over legal mandates at the expense of service delivery.
Many of the battles over land have ended up in court, including audacious hostile grabbing of prime properties – particularly in Nairobi – by powerful shadowy groups.
A new breed of sophisticated cartels aided by senior civil service cohorts sitting at Ardhi House are as audacious as they are ruthless, with rogue government officials complicit in altering records.
They have been described by veteran Nairobi lawyer Fred Ojiambo as “a group of highly organised individuals and a resourceful cartel operating with the support of high ranking politicians and civil servants”.
The Nation’s enquiries found that one of the most riveting examples of the headache at Ardhi House is an ongoing court battle which involves a building on Nairobi’s Kenyatta Avenue where a property owner alleges making an application to have the lease extended upon expiry.
But instead of being granted the extension, a new title deed was given to a new entity, effectively transferring the property to another owner.
The lease for the property on which Caxton House stands was 99 years and was first granted in January 1911, coming to an end in January 2010. It is owned by Sayani Investments Ltd, an old family business.
Documents in our possession indicate that Sayani Investments Ltd applied for an extension of the lease in 2007, three years before it elapsed, but which has never been granted.
Instead, files relating to the property, applications for lease extension among others went missing from the Land Registry at Ardhi House, and come January 2010, the 99 year lease lapsed.
In an appeal to the Attorney-General’s office for intervention on March 31, 2015, lawyer Fred Ojiambo of Kaplan & Straton pointed to the apparent web of predatory tactics against Sayani Investments Ltd extended to the Registrar of Companies.
“Attempts have also been made to hide and destroy the Sayani Investments Ltd records at the companies registry with a clear view to misrepresent the Sayani Investments Ltd no longer exists. The file has gone missing since 2010, and all attempts to update the directorship appointments since the demise of the founder have gone unrecorded in the system,” Mr Ojiambo wrote to Attorney-General Githu Muigai.
As Sayani Ltd went back and forth between various government offices, including Ardhi House, NLC, the State Law Office, the Directorate of Criminal Investigations, among others, for intervention, two new entities — Sadhani Ltd and Keibukwo Investments Ltd — entered the scene, and on October 1, 2013, were issued with a title deed to the three properties on which Caxton House stands. Records show Sadhani was registered in 2011.
Sayani Ltd lawyers went to the High Court for judicial review to compel the Director of Survey, NLC and the registrar of titles not only to grant lease extension to the company, but also for conservatory orders to bar the companies from depriving Sayani of its properties or transferring it to “any other person or persons other than the applicant”.
Among other orders, Lady Justice Roselyne Aburili ordered on September 21, 2016 that: “The order of mandamus is hereby issued compelling the National Land Commission and the Chief Registrar of Titles to consider issuing grants to the applicant in respect of the suit properties for a renewal of term of 50 years as per the approval for renewal granted in 2007 with effect from December 1, 2007”.
Sadhani Ltd and Keibukwo Ltd have appealed the High Court decision.
The law says land whose lease has expired reverts to the public – held in trust by NLC for national or county government – and which reserves the right to extend the lease, reallocate the land or repossess it for other physical planning needs.
In the meantime, Lands Cabinet Secretary Jacob Kaimenyi, says he is determined to leave a different legacy at Ardhi House from his predecessors.
From Wednesday next week he will kickstart the process of enactment of regulations on land.
Among these include guidelines requiring NLC to write to property owners whose leases are about to expire five years in advance, with elaborate procedures including location visits and informing leaseholders of pre-emptive rights, complete with an appeals board.
The last five occupants of the 12th floor of Ardhi House since 2003 either left office under a cloud of controversy or are haunted with probity questions over their actions in office.
In an interview on stalled land reforms, Prof Kaimenyi said: “I wish to be remembered as the Cabinet secretary that ushered drastic reforms in this important sector without fear or favour. The Jubilee government made promises to the wananchi, and this is what the public expected of us.”