Demolitions: The law is on the side of genuine owners

Bulldozers are bringing down condemned buildings in parts of Nairobi’s Eastlands as a result of the recent collapse of a building in Huruma Estate. Other buildings – I believe – were reduced to rubble to create space for the expansion of the Outering Road in Nairobi. Does the government issue notices before demolitions and also compensate legal owners of affected buildings? What should an investor do upon receiving a notice from the state to demolish his or her building for development purposes?

King’ori, Nairobi.

Yes, the government should issue notices to property owners or tenants to move out before embarking on demolitions. The law requires the government to compensate — at market rates — legal property owners whose investments are acquired or demolished for development.

It is wise to engage a certified valuer to value the property and have a valuation report upon receiving demolition notice from the state. The government often compensates legally registered owners when a property is either demolished or compulsorily acquired for public development.

Owners who feel that the compensation is below their expectations can move to the High Court to demand adequate and just compensation. The Bill of Rights under Article 40 of the Constitution provides for protection of right to private property.

The rights, however, do not extend to owners who unlawfully acquired a property. Provisions may also be made for compensation to be paid to occupants in good faith and may not have title deeds.

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Property owners can also go to court to stop the state from demolishing their buildings to improve infrastructure. Take the case of 29 residents of the posh Runda Estate who moved to court to stop demolitions to pave way for the construction of the 21-kilometre Northern Bypass.

The Kenya National Highways Authority and Kenya Urban Roads Authority told Lady Justice Mumbi Ngugi that the residents constructed their homes valued at over Sh2 billion on a road reserve. The High Court heard that the government had issued notices warning the developers that they were building on a reserve meant for a public road. The case is ongoing.

I want to venture into real estate to reap from its current vibrancy. I have been contemplating starting small like buying plots on the outskirts of Nairobi like in Kitengela, Kajiado, Kiserian and Mlolongo before I start constructing houses. However, traditionally, property was believed to be the preserve of men (some of our mothers bought plots and registered them under the names of our fathers who may not have contributed a coin for the investments). Does the law allow women to be absolute registered property owners?

Moraa, Nairobi.

Women should not view real estate as the preserve of men as the Constitution protects the right to private property – regardless of gender – as long as it was acquired legally. The chapter on land in the Constitution provides for equitable access to land and elimination of gender discrimination.

Separately, the Land Act 2012 provides for elimination of gender discrimination in law, customs and practices related to land and property. It further encourages communities to settle land disputes through recognised local community initiatives and affording equal opportunities.

According to the Land Registration Act 2012 (LRA), spousal rights over matrimonial property are among overriding interests that do not need necessarily to be noted in the register. Section 93 of the LRA provides that subject to the law on matrimonial property, if a spouse obtains land for co-ownership, there is a presumption that the spouses shall hold the property as joint tenants unless they state otherwise.

But even as the law provides for equal rights to ownership to property, women remain concerned about their implementation. According to the National Gender and Equality Commission chairperson Winfred Lichuma, key historical injustices on land include denial of women property rights. Others include customary inhibitions, low percentage of women who have titles to property and women denied rights to land.

In a paper presented at a recent continuous professional development seminar titled, Gender Implications of the New Land Legislation, Lichuma said majority of women lack title deeds required as collateral for securing loans. She argued that courts have also been guided by archaic laws that failed to protect women’s rights — husbands sold matrimonial land without their spousal consent.

According to Lichuma, the current use of customary law to resolve some property disputes favoured men.

— The writer is an advocate of the High Court.