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Why your land title does not guarantee ownership

By Peter Theuri | September 17th 2020 at 12:00:00 GMT +0300

What if you were told that your land, whose title you hold, does not belong to you, unconditionally?

That the government could decide to claim it at some point, and there is little you could do about it?

You could get compensated, it is in law, but then that is all for the government telling you that your piece of land is actually not yours.

The compensation, according to land surveyor Bernard Wanjohi, is not guaranteed; at least not immediately.

“The legal process is sometimes too long and cumbersome that some people opt to just let the land go,” says Mr Wanjohi.

This comes about because the government, which is the holder of the radical title, reserves some rights to the land.

A proprietor of land has a title document as proof of their right to the property. As such they have the right to use and dispose of the land (lease, sell or surrender) or transfer some interests at will.

Other people might also have rights to the land, including the right of way, the natural right of air and support, way-leaves (reservations for power lines and watercourses such as pipelines) and even the right to enter the land and take something out for profit.

The government reserves such rights, and that means they could take over the land whenever one of the provided situations arises.

Main among these ‘situations’ are mineral, navigation and riparian rights.

One of the most famous land ownership maxims is “Quicquid plantatur solo, solo cedit,” Latin for “whatever is affixed to the soil belongs to - or is part of - the soil)”.

It is a legal principle related to fixtures, which means that something that is or becomes affixed to the land becomes part of the land. Consequently, whosoever owns that piece of land will also own the things attached to it.

But if there is a mineral attached to your land, you, sadly, do not own it.

The Mining Act provides for compensation of parties whose land the government acquires compulsorily.

“In any case where the government is acquiring ... any land held under a lease, exclusive prospecting licence, special licence or location, compensation shall be payable in respect of any disturbance of prospecting or mining rights, in addition to any other compensation,” says the law.

As such, the government is liable to pay the owner of the land if they discover a mineral on it and intend to go ahead with the mining process.

And if the government feels that your land provides the best location for the passage of a highway or a canal, then, in a similar way, you will be moved out, but the State will compensate you.

The same thing happens when you are carrying out an economic activity, or building near a riparian reserve.

Kenyan laws define riparian land as being a minimum of 6 metres and up to a maximum 30 metres on either side of a riverbank from the highest watermark.

“This considers the centre in the normal course of a river, or in the event that it floods, the new width of river is considered,” says Wanjohi.

This distance is based on the width of the river and the water volume at any given time.

Objectives of the Kenya National Land Policy Sessional Paper No.3 of 2009 include those that relate closely to land use and privacy rights as well as compensation.

While it seeks to assure all Kenyans access to and use of land and operational land markets to support land-based investments, the policy integrates the element of sustainability, which necessitates government intervention in land use practices.

“In addition, land acquisition, ownership and use shall be guided by the principle of transparent and good democratic governance of land,” reads a 2013 Africa Biodiversity Collaborative Group (ABCG) report.

The holder of the radical title, the government, is also in a position to claim back land at the expiry of leaseholds or in a freehold where the proprietor dies without apparent heirs.

Inland ownership, one could either be a full proprietor for leaseholds and freeholds or enjoy use benefit rights on land granted by State for temporary use.

And while principles of the Torrens system of land administration present the owner of the land as the undisputable claimant with no limitations expected to their claim of such property, the government, sometimes, will have the last laugh.

The Torrens system was established by Sir Robert Torrens as a new title system based around a central registry of all the land embodied in the Real Property Act 1886.

The ABCG report explains the provision of compensation in Kenya after the acquisition of land by the State.

“In Kenya, policy and law as reflected in practice, authorised compensation for various kinds of use restrictions include land-use restrictions imposed by the physical presence of wildlife on private lands under the Wildlife Management and Conservation Act; easements, entry orders, access orders, public rights of way, damage caused by official entry upon land and restrictions imposed by government authorised mining activities under the Land Act of 2012,” says the report.

Others include environmental easements, conservation orders and other use restrictions under the Environmental Management and Coordination Act; land preservation orders under the Agriculture, Fisheries and Food Authority Act, and; establishment of nature reserves under the Forests Act.

But if the State decides that your land is to be put into disuse, or should no longer belong to you due to interests from the holder of the radical title, then your title document flounders in its role to keep you attached to your property - compensated or not.

 


Bernard Wanjohi Land ownership Title deed
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