I recently bought land on the outskirts of Nairobi with the intention of putting up rental units. Three months ago, some adjacent plot owners started saying that the boundaries of my plot had eaten into their parcels of land. We tried to settle the matter out of court, even inviting a surveyor, but we still have not agreed. I intend to move to court but I am worried about the delays in hearing and determining property matters in court. How can I ensure that my case is heard and determined faster and can I trust the Environment and Land Courts?
Mohammed Omar, Nairobi
If you have decided to have the dispute resolved in a court of law, then it would be wise to consider filing the case before the Environment and Land Court. These are specialised courts established to specifically hear and determine land disputes under the Environment and Land Court Ac.
The courts’ mandate is to preside over cases relating to property contracts, land use, titles, boundaries, tenure and rates.
Other roles are rent, valuations, compulsory acquisition of land, administration and management of land and disputes relating to environment.
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Before he left office, former Chief Justice Dr Willy Mutunga gazetted guidelines to ensure smooth operations and faster resolution of land disputes.
The directions are contained in a special issue of the Kenya Gazette Notice No. 5177. Before the directions were issued, property cases dragged on as some courts referred commercial matters like breach of sale agreements to the land courts.
For instance, in Nairobi alone, about 60 per cent of the pending cases in the High Court relate to small plots in Ruiru and Kayole, where the value of one plot in most cases is less than Sh500,000.
On your fears over court delays, some land conflicts that have seen their way to the court for resolution have been allegedly characterised by foul play, corruption, inefficiency, delays, technicalities and solutions that mainly leave the disputing parties as enemies.
Land disputes involve not only technical matters but complex issues that relate to traditional and customary practices in the management and administration of land.
Alternatively, you may re-consider settling the matter out of court — which would be faster and cheaper. You indicated that you tried to settle the matter out of court but didn’t explain how.
The Constitution under Article 159 (2) (c) requires the Judiciary to encourage the use of Alternative Dispute Resolution (ADR) mechanisms in resolving issues, including land matters.
It further requires the National Land Commission to encourage the application of traditional dispute resolution mechanisms in land conflicts.
The National Land Policy mandates the community land boards to use as much as possible ADR mechanisms such as negotiation, mediation and arbitration.
ADR mechanisms are preferred because its advantages, which include speedy resolution of disputes, flexibility, less technicalities, cost effectiveness, ability to involve experts, privacy, saving on courts time, among others.
— The writer is an advocate of the High Court.