Why land in Athi River is a ticking time bomb

HAROLD AYODO reveals a conspiracy by lawyers and landowners as he traces the cause of the uncertainty that has hit the city frontiers of Athi River and Mlolongo where the Government halted land transactions For Fiona Kimani, purchasing land to construct a family home in Mlolongo was a dream that turned into a nightmare.The mother of three took caution before buying the quarter of an acre parcel where her mansion sits pretty."An estate agent introduced me to the company that sold me the land at Sh300,000 four years ago before I started construction," Kimani says.The businesswoman confesses that she never used a lawyer during the transaction as the sellers had sold to several other homeowners in the area."I inquired from my neighbours who moved in before me and they said they bought their plots directly from the company and disputes have never emerged," Kimani says.Unfortunately, a man recently parked in front of her gate and asked her how the home was constructed on his land without his knowledge."He says he was out of the country for three years and planned to construct his home there on returning," Kimani says.Surprisingly, both Kimani and the man who claims the land have similar certificates of ownership issued by the company that sold them the land.Ghost land companies"The thought that my dream family home sits on a disputed piece of land gives me sleepless nights. The other owner wants me to vacate," Kimani says.For Rosemary Wambua, a plot she bought jointly with her husband at Sh600,000 in Athi River is haunting them."I ran out of breath when it emerged that the property we bought with three other owners — all with letters of allotment, is in dispute," Wambua says.Wambua and her husband have engaged lawyers to enable them settle the dispute in court, arguing they are the real owners.Several other investors bought plots along Mombasa Road that either had no title deeds or letters of allotment or are sold by ‘ghost’ land companies.On the flipside, many homeowners fraudulently obtained plots with palatial homes already built by the registered owners.However, many prospective investors who bought ‘non-existent’ parcels of land along Mombasa Road are victims of cartels.As land prices shot up within Nairobi, many middle class investors tripped over each other for cheaper plots along Mombasa Road.However, many lawyers declined to represent clients in transactions in the area, as many plots there lacked title deeds.Legally, transactions on property with title deeds are safer as they are proof that land adjudication occurred and are registered with the Government.Furthermore, with a title deed, lawyers can perform official searches at the Ministry of Lands to establish the registered owner of the property.Unfortunately, many plots in areas like Mlolongo lack title deeds and buyers rely on handwritten registers of companies for names of alleged owners.Mostly, the companies take cash from buyers, cancel a name from the manual register and include details of the new ‘owner’.Cautious estate agents say they kept away from property along Mlolongo following disputes.According to lawyer Richard Onsongo, prospective investors purchasing property from limited liability companies must hire lawyers to cushion from fraud."Lawyers shall conduct due diligence, which involves a search at the Registrar of Companies," Onsongo says.Unregistered plotsOnsongo explains that obtaining a copy of the memorandum and articles of association of the company, exact names and personal details of the directors are important."Obtaining copies of the minutes of the company’s annual or special general meeting is part of the diligence," Onsongo says. "The minutes will show deliberations by the company to sub-divide and dispose the land on what price, and the share certificates issued." David Basweti, Brilliant Ventures’ communications director, says lack of title deeds made them avoid transactions in the area."We advise our clients never to take chances as disputes on land can take forever in court," Basweti says.According to Basweti, the rush to acquire property along Mombasa Road among the middle class dates five years ago."We cautioned others from spending their fortunes on unregistered plots, but the deals were too good then and they ignored our advice," Basweti says.Basweti says real estate is a lucrative venture where bogus agents are making a kill from unsuspecting buyers."There are several plots in the area with double or even triple allocations, meaning many people have lost fortunes," Basweti says.Consequently, a section of affected investors have moved to court towards getting their money back or declared legal owners.Currently, the Government has stopped land transactions in Athi River in a bid to crack down on fake dealers.According to Francis Kimemia, the Internal Security Permanent Secretary, transactions have been frozen until a task force examining the land deals winds up."Those who may have bought land that is not genuine should report to either the police or task force for investigations, prosecutions and further action," Kimemia says.The PS says the Lands Control Board in the area should stop processing further property transactions until the task force completes its final report.Former Provincial Commissioner John Abduba who is chairing the task force says they will complete next month.Official searchesOther members are representatives from the ministries of Land, Internal Security, Nairobi Metropolitan, Industrialisation and Labour.Lower Eastern Regional Commissioner and Mavoko Municipal Council town clerk also sit in the task force. The task force should prepare a list of land that was irregularly allocated and particulars of people allocated and why the Lands Control Board could not stop the transactions.Other objectives are to establish whether land rates were paid to Mavoko Municipality and name public officers involved in the irregular allocations.Legally, buying property without a title deed — no matter how good the deal is — is equivalent to digging your own grave.Lawyer Faith Waigwa, a partner at Nungo, Oduor & Waigwa Advocates reiterates the importance of title deeds."Investing in a property that has no title deed is a risky venture because there is no authenticity of what exactly one is purchasing," Waigwa says.According to Waigwa, prospective buyers must conduct due diligence before purchasing property."Buyers must first conduct official searches at the Ministry of Lands to establish registered owners," she says.Waigwa explains that searches also reveal identities of plot owners who can legally sub-divide the property before sale."It is advisable to physically occupy the sub-divided property after purchase, especially when holding a mere share certificate or allotment, to avoid disputes," she says.However, there could be hope for investors in property without title deeds if the companies they bought property from keep registered registry index maps.The registries would make identifying sub-divided portions easy, as allotment letters would describe the plots as described in the registry index map.According to Waigwa, prospective investors in real estate should tread carefully when purchasing plots with allotment letters.Generally, the validity of an allotment letter is based on the legality of the title deed held by the entity issuing the letter.For instance, an allotment letter from a land buying company or the council is valid only if the company or municipality is registered as the owners of the property.Informal transfersOnsongo says genuine allotment letters are issued either by the Government or the local authority that owns the land.Therefore, majority of investors along Mombasa Road who are counting their losses may be victims of a corrupt system, as allotment letters may have been irregularly acquired."Local authorities must be allowed to issue allotment letters through a full council meeting and the sanction of the minister over land held by it in trust," Onsongo says.Legally, the Commissioner of Lands should sign the letters of allotment for and on behalf of the Government.Furthermore, the town clerk or the clerk to the council must sign the document for and on behalf of the local authority.However, the Government would still retain ownership of the property based on the doctrine of eminent domain.According to the doctrine, the Government retains the ownership of all land and can — subject to the Constitution — acquire any parcel when required."When Amos Kimunya was Minister for Lands, he stopped transactions involving allotment letters issued by the Government," Waigwa says.Kimunya termed the transactions ‘informal transfers’, which denied the Government revenue as purchasers never paid stamp duty.

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