Jubilee’s three million title deeds may be declared illegal

President Uhuru Kenyatta (right) and Deputy President William Ruto present a title deed to a resident of Chebyuk settlement in Mt Elgon, Bungoma County, during a ceremony at Kapsiro grounds. [PSCU]

More than three million title deeds issued by the Jubilee administration since 2013 may be rendered illegal.

This is due to failure to comply with a court order issuing steps to regularise them.

The High Court on December 19, last year, ruled all title deeds issued without the involvement of the National Land Commission (NLC) and enactment of requisite regulations by Parliament were irregularly processed and therefore illegal.

But Justice Joseph Onguto suspended the adverse order to give the Government a year to fix legal shortcomings.

As the deadline expires next Monday, the Government is yet to effect the legal requirements.

Yesterday, top officials were scrambling to prepare to move to court to seek another extension.

This was as experts warned of a looming upheaval in the real estate and financial sectors, and the economy in general, should the decree that the title deeds are illegal come into force.

It was in light of the far-reaching consequences that the order revoking the crucial land ownership documents would have, both politically and economically, that the judge suspended the directive on invalidity for a year (365 days) to give the ministry time to regularise the papers.

Compliance default

In default of compliance with the order within 12 months, all regulations and forms promulgated shall stand null and void for all intents and purposes on the 366th day, the judge ruled.

The deadline is less than a week away (December 18), yet Parliament, which goes on recess today, is yet to discuss the regulations which have not been tabled in the House despite having been forwarded to the August House last month.

Nairobi lawyer Anthony Otiende, who had moved to court in 2015 seeking to nullify regulations and forms for preparing leases that were promulgated by then Lands Cabinet Secretary Charity Ngilu, says after next Monday, the documents will automatically become unlawful.

“The order is self-executing. By dint of the Justice Onguto decision, the titles issued since 2013 shall stand null and void after 18th December 2017,” Otiende said.

In June, when President Uhuru Kenyatta issued 7,137 title deeds to Tharaka Nithi residents, the Government reported more than three million land papers had been given by the Jubilee regime in the last four years, nationally.

“We said we had a solution to the land problem and promised to deliver three million titles so that Kenyans get title deeds to effectively use their land to improve their lives,” President Kenyatta then pointed out.

Yesterday, NLC Chairman Muhammad Swazuri said his agency had played its part and it was now up to Parliament to do its part.

He said the regulations were forwarded to MPs last month.

“The only way is for someone, probably the ministry, to go to court and seek a stay order to allow Parliament time to approve the regulations,” said Swazuri.

Lands Cabinet Secretary Jacob Kaimenyi acknowledged there were concerns about the validity of the vital documents in light of Parliament’s calendar, but sought to assure the public the State was taking appropriate action to ensure the title deeds are not declared illegal. 

“We are as concerned as everyone and we are taking action to ensure the matter is addressed. We submitted them (regulations and rules) to Parliament and unfortunately Parliament is going on recess without approving them.

"We will go to court to seek an extension to allow Parliament to return from recess to approve them,” said Prof Kaimenyi.

Attorney General Githu Muigai also acknowledged the State would not meet the Monday deadline to comply with the directive, adding an application will be made seeking a half-year extension.

“The State counsels attached to the Ministry of Lands are under instructions to make an application seeking a six-month extension. We are doing it in good faith since we will not be able to comply with the remaining days,” said Prof Muigai.

Land expert Ibrahim Mwathane who chaired the task force warned that if immediate action is not taken, the consequences of the ruling would be severe, not only to the land sector but also to the economy.

"The experts have done their part and it's now time for the government and political class to do whatever they can within law, including probably convening a special session of the House to approve the regulations.

"Otherwise failure to act will have immense, severe and far-reaching implications on the sector and the economy," cautioned Mwathane.

Kenya Bankers Association (KBA) said financial institutions are among those who risk suffering losses and hope a remedy can be found in law to insulate them.

KBA chief executive Habil Olaka said following the appointment of a task force which came up with the regulations, the State can use that to go to court and seek an extension.

"With credible reasons, we believe the courts can grant an extension. Title deeds form the biggest form of immovable property that borrowers use to acquire loans," Mr Olaka said.

Judge Onguto had found the Ministry of Lands proceeded to prepare lease documents in violation of the law governing land matters by ignoring NLC's input.

The judge further ruled the ministry had erred in processing the titles as there were no rules in place to guide the process in accordance with the Land Registration Act.

The CS then moved to appoint a 14-member task force on January 2.

The team drew its membership from the Lands ministry, NLC, Kenya Law Reform Commission, State Law Office, Law Society of Kenya, Institute of Surveyors of Kenya, Kenya Institute of Planners and Nairobi City County Government.