Governors protest law that gives firms land until 2109

Workers use a machine to pick tea in a plantation in Nandi Hills. [Kevin Tunoi, Standard]
Multinational companies holding hundreds of thousands of acres across the country will continue owning the land for another 90 years.

It has emerged that the countdown for 99-year leases began afresh in August 2010. With the promulgation of the new constitution, all 999-year leases of freehold titles held by foreigners were formally converted into the shorter leases.

Many multinationals and large landowners were subsequently caught up in land tussles with county governments who had declined to renew their leases.

The county governments claimed the large acres of land owned by the multinationals were not benefiting the locals. 

But former National Land Commission (NLC) chair Muhammad Swazuri told The Standard that  NLC’s position was that the new 99-year leasehold kicked off in 2010.   

“That is the correct position. All land that had more than 100 years of leasehold or absolute ownership reverted to 99 as from 2010,” Prof Swazuri said.

This development deals a blow to 12 counties that have been fighting to take back huge tracts of land held by foreigners because it means the earliest such land will be available is 2109.

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Landowners who had, for instance, been granted leases in the 1920s under the 999-year rule are among beneficiaries of the new order as they will continue using the land up to 2109.

According to the law, the firms that manage tea estates, sisal, coffee and dairy farms, ranches, pineapples and other crops are assumed to have possessed the land for only nine years.

Swazuri’s position was supported by Zablon Mabea who served as the country’s last Commissioner of Lands before the NLC was formed.

“The next step was for NLC to come up with regulations on how to change the leasehold to reflect 99 years and also prescribe the fee payable for the process,” Mr Mabea said.

As for the counties that are demanding the land, the ex-commissioner argues that the devolved units should have engaged with the land owners and agreed on taxation and land rent to be paid.

“Land is only important if it’s used for economic gain. Surrendering the land only for counties to sub-divide it won’t be prudent economic use of the same. Let governors negotiate with the firms and agree on the land use and its applicable rates,” said Mabea.

Lawyer Nzamba Kitonga, who chaired the Committee of Experts that drafted the 2010 Constitution, also affirmed NLC’s position.

“I have checked our notes and it’s true that the 999-year leasehold reverted automatically to 99 as from the year 2010,” Mr Kitonga said.

Wealthy land owners

But Nandi Governor Stephen Sang said the interpretation of the law was meant to protect wealthy land owners.

“That’s a mischievous and obnoxious interpretation of the Constitution to serve the interests of land owners.  The Constitution did not confer new leases but reduced the leasehold from 999 to 99 years and this does not mean a renewal,” Mr Sang said.

He added: “If the Constitution would have intended the new leases to commence in 2010, it could have stated so. As far as counties are concerned, if your lease was granted in 1920, it expires this year and you must commence the process of renewal.”

Sang said counties will use the renewal process to re-survey land owned by multinationals. He claimed the firms had ‘grossly under-declared’ their acreage to deprive counties of taxes.

The governor also insisted that public participation must be conducted before leases were renewed.

“In Nandi, for instance, they have declared about 40,000 acres yet we suspect its size is three times that. These multinationals have already taken us to court to stop an NLC recommendation to re-survey the land and also levy new rates.”

The governor also said counties will now be at liberty to grant new leases within a period of their choosing and not necessarily 99 years.

“We can give them 33 years, 45 years or 63 years and not the maximum 99 years. Fortunately, the Constitution has provided a robust process of renewal of leases through public participation and involvement of the county governments.” 

Kericho, Bomet, Nyamira, Nandi, Laikipia, Kilifi, Taita Taveta, Kwale, Kajiado, Nakuru, Kiambu and Murang’a are among the counties where foreigners own huge parcels of land.

Yesterday, our attempts to get comments from governors Paul Chepkwony (Kericho), Mwangi wa Iria (Murang’a) and Granton Samboja (Taita Taveta) - whose counties have witnessed disputes over land leases - were futile as they did not pick our calls or respond to texts.

Last year, Sang told UK Deputy High Commissioner Susie Kitchens that his administration had no intention of granting lease extensions to multinational tea estate. He said he wanted them to surrender the land to the county at the end of their 99-year leases.

The dispute over the land leases and land rent has already gone to court in Bomet, Kericho, Nandi, Murang’a and Kiambu.

Del Monte Kenya Ltd, for instance, had sued the leaders of Murang’a and Kiambu counties for refusing to renew its lease. Last year, Kiambu Governor Ferdinard Waititu announced that the county had renewed the lease for Del Monte’s 8,000 acres after the American firm surrendered 635 acres to the county

But neighbouring Murang’a refused to renew a lease for 22,000 acres with Del Monte managing director Stergios Gkaliamoutsas claiming that local leaders had demanded 3,000 acres to be surrendered first.

Two petitioners, James Mwangi and Ephantus Githae, have since moved to court seeking to halt the process of renewing Del Monte’s lease until public bidding is done.

Del Monte grows pineapples as its principal business and owns a large parcel of land extending between the two central Kenya counties.

The Kenya Tea Growers Association representing 11 tea companies, including James Finlays, Sotik Highlands, Tinderet Tea Estate, Nandi Tea Estates and Kaimosi Tea Estates, went to court to stop implementation of a recommendation by NLC that counties get involved in running of tea estates.

The counties are also demanding a survey to establish the actual acreage the multinationals occupy, with Bomet and Kericho saying the tea firms own up to 200,000 acres and not the 89,000 acres they claim.  

Mr Chepkwony has already commenced the process of repossessing the lands as he pushes for compensation from the British Government for “atrocities meted on their people by colonialists”.

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Multinational companiesNLCMuhammad SwazuriLawyer Nzamba Kitong2010 ConstitutionJames FinlaysSotik Highlands