The law is clear on the status of grabbed land

The ghost of land grabbing returned to haunt investors after President Uhuru Kenyatta directed cancellation of titles of 500,000 acres in Lamu County.

The President said that the titles were illegally acquired by 22 entities and 13 out of 21 berths for the Lamu Port were also allocated to individuals. The grabbers were allegedly targeting the multi-billion shilling Lamu Port, Southern Sudan-Ethiopia Transport (Lappset) corridor project.

The President said that the Government stumbled on the shocking reality when it started issuing title deeds in the area.

According to the President, 70 per cent of land available for settlement was allocated under dubious circumstances between 2011 and 2012.

Even as the presidential directive to repossess the grabbed land continues to elicit political accusations and counter-accusations, the law is explicit on grabbed public property.

It is not only the Constitution that outlaws land grabbing, but also Section 158 of the Land Act which provides that any public property obtained through corruption is outright illegal.

And the corruption mentioned includes illegally or irregularly obtaining a building or land through a government official who may issue a certificate of ownership.

The law further explains that such property transactions would be illegal from inception and considered null and void.

Unlike the traditional property laws, the Land Act describes illegal transactions, which include that either party has been convicted of the fraudulent deal.

Property transactions

Others include property transactions that result in interdiction or retirement of a government official in public interest on grounds of graft.

A court of competent jurisdiction can also rule that a property transaction is fraudulent and revoke the deal.

Moreover, anyone found in possession of public property obtained through a corrupt transaction would be forced to forfeit it to the Government without compensation.

And a person found in possession of property obtained through fraud shall be obliged to comply with the terms and conditions of the transaction.

Furthermore, he or she will be liable to legal remedies applied to a person who has breached a valid sale agreement complete with penalties.

As realities of the new law sink, crude investors who make their daily bread from fraudulently acquired public property are realising that the future may not be very bright.

Transition Authority Chairman Kinuthia Wamwangi recently threw the first salvo when he warned local authorities against illegally transferring assets belonging to county governments.

He said that the authority would form a committee of technical experts to receive complaints of illegal and fraudulent transfer of assets.

Wamwangi issued the directive after the Transition Authority received more than 20 complaints from the public alleging transfer of assets despite a freeze order by the Cabinet last year.

The Authority said that some of the complaints were aimed at local authorities in Nairobi, Mombasa, Kwale and Kitui.

The Government had put on hold transactions on some dealings in public property for three years to secure them from fraudulent transfers.

The Local Authority Transfer Fund Chairman Kariithi Murage said the directive was designed to allow timely auditing of government and local authorities’ assets to avoid submission of erroneous information in its report.

According to Murage, the transition government was meant to compile a report on the properties and other government assets. Therefore, the transfer of assets before then would impact negatively on the audit.

— The writer is an Advocate of the High Court