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ELECTION 2022

Land registration laws can help resolve historical injustices

COMMENTARY
By Joseph Kieyah | Oct 4th 2015 | 4 min read

Notwithstanding its centrality to the sustainability of Kenya’s development, the role land reforms in the current development strategy is not been sufficiently amplified. This policy oversight is attributable to historical misdiagnosis of the land problem that continues view land for its sentimental value, which is above the market value. The sentimental valuation has severely restricted the accessibility of land as reflected in the diverse tenure systems that governs  public, private and community land.

Among the three land categories, only private land is viewed as factor of production and land owners’ rights are legally registered to facilitate usage and conveyance. In the other two categories whose sizes amount to 67 per cent of total acreage, land is sentimentally held and owners’ land rights are registered to a third party which acts on their behalf. Protecting the sentimental value embodied in community and public and market value in private land would be later prominently enshrined in the Constitution.

With land registration principles embedded in the Constitution,   reforming the registration process was inevitable. Nonetheless the Constitution does not offer prescriptive measures but rather it lays general principles. The substantive and procedural details of land rights registration are a legislative responsibility of ensuring that the new land registration laws indiscriminately define and protect land rights.

The primary purpose of land laws is to define and protect the land rights to promote vibrancy of the land market. The absence of a well-functioning system of protecting land titles has been cited as a single major impediment to growth in many developing countries. Accordingly, ownership is represented in formal legal documents like title deeds or certificates of title. And depending on the jurisdiction, the protection of the ownership is governed by two competing protective systems.

First, the recording system entails maintaining public records of all consensual transactions of a piece of land. The record serves as evidence to the prospective buyer that the current possessor has a good title, but it does not establish the title. If a flaw due to theft or recording error in the line of title is discovered, the current owner is at risk of losing the property to the last rightful owner. While the recording system has a higher search costs, the systems is not susceptible to corruption. As protection against the possibility of losing the title, the property owner can purchase title insurance to indemnify from such possibility.

A second registration system is predominately employed to protect land titles. Under the registration, government certifies ownership at the time of a transfer thereby protecting the owner against all claims. The government guarantees title ownership by ensuring that the possession of certificate of title is conclusive evidence of proprietorship. Any future claimant carries the burden of proof to be indemnified by the court with value of indemnity capped.

The registration system saves on transaction costs by eliminating the need for repeated searches of the record, and  it legally establishes title against nearly all competing claims, thus greatly reducing the need for title insurance. The aforementioned advantages promote efficiency of land conveyance through which capital is generated property. However, the government’s guarantee eliminates of risk of the title, which makes the system susceptible to corruption. In the past, the government’s efforts to uphold the sanctity of the title registration have been compromised by lack of integrity of the land administration institutions. The integrity issue emanates from the absence of effective mechanisms to hold such institutions to account. Specifically, cases of abuse of public office in form of conspiracy to illegally and irregularly allocate private and public land are public record.

Increased threats of the sanctity of title deed that is seemingly driven by a combination of increased land values and poor record keeping call for a re-evaluation of the title registration system. It is this context an objection has been raised against the proposed Land Law (amendment) Bill that empowers the Registrar to discretionary record or delete an entry in the register with approval of Cabinet Secretary for land. The objection insinuates abuse of such powers would compromise the resolution of the historical land injustices that are yet to be addressed.

Sadly the rhetorical utterances over historical land injustices have been purposively choreographed to stir emotions. Such approach has precluded us from searching for legal remedies within the existence laws. Fortunately the registration law provides a solution for some cases like victims of the historical land injustices who are bona fide land owners. From the aforementioned discussion, registration laws protect the interest of the current title holder against any future claim. Therefore legitimate victims of land grievances cannot reclaim their land but rather they are entitled for indemnity claim upon successful application to the court.

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