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Waitiki land beneficiaries face uncertain future, say experts

REAL ESTATE
By Harold Ayodo | January 28th 2016

One by one, they stepped forward with joy as they received the land ownership documents they had waited for over a decade. But this joy may be short-lived. The over 5,000 Waitiki land beneficiaries awarded new certificates of lease last month in an elaborate ceremony presided over by President Uhuru Kenyatta are coming to terms with the conditions in the ownership documents.

Odenda Lumumba: “They must abide by lease conditions.” (PHOTO: COURTESY)

The first shocker came when they learnt the land the government was giving was not free, after all: Holders are required to pay the government Sh182,000 each within 12 years. President Kenyatta directed the beneficiaries of the certificates to pay at least Sh1,000 monthly for 12 years before eventually ‘fully’ owning the plots.

CAN‘T sell

The holders are also learning that they cannot sell the plots at will. It will also be hard for them to use the plots as a collateral for a mortgage. Most of them initially thought they had been given titles, which offer more rights than leases.

Unlike a title deed, a certificate of lease strictly limits the sale of land as there are caveats that the leaseholders must consult both the national and county governments before transaction. A title deed confers absolute and limitless ownership rights as opposed to a certificate of lease whose ownership is limited in time.

“A title deed has a commercial advantage, especially when the property is to be used as security,” says Paulette Achieng, a lawyer. “Title deed holders are not also held at ransom with restrictions before transaction compared to lease holders who must obtain consents from county and national governments.”

The 780-acre land in Likoni originally belonged to businessman Evanson Waitiki, but was invaded by squatters in 1997. Before the deal that saw him transfer the land to the government, Waitiki had been in and out of court trying to claim it back. Last month’s beneficiaries are mainly squatters who invaded the land almost two decades ago.

Squatter rights

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Kenya Land Alliance CEO Odenda Lumumba says that interests and rights of the squatters are set out and limited by the lease terms and conditions of lease.

“They cannot expect anything else and must abide by the terms and conditions of the lease — failure to which they forfeit the rights and interests,” says Lumumba.

Unless captured in the lease terms, there shall be no automatic renewal of the certificates of lease.

“When the lease period shall expire, the residents may be forced to vacate and the land reverts to the government,” Lumumba says.

According to lawyer Crispine Odhiambo, the Waitiki Farm settlement was a prudent Government scheme to settle squatters.

“I think that the government leased the farm to the residents. It is important to understand the nature of the tenancy relationship and its legality,” Odhiambo says.

He explains that the nature of the relationship is a periodic lease because Sh1,000 rent is payable monthly.

“The residents have exclusive occupation right to use the land but they cannot sell their respective plots to third parties,” Odhiambo says. He explains that there are consequences when the lessee defaults in paying rent: “The lessor (government) has an option to terminate the contract by giving at least a one month notice to the defaulting lessee(s) or exercise the right of forfeiture through a court order.”

The government can also exercise forfeiture without the court process where the lessee is not occupying the land.

“The government used its resources and is now the default landlord. The Sh182,000 is not only land rent but includes other costs incurred by the government such as survey fees and registration fees,” says Achieng.

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