WAYS IN WHICH YOUR RIGHT TO LAND CAN BE LOST.

The Right to own and enjoy property as envisaged under section 40 of the Constitution is not Absolute.

The constitution of Kenya provides that all Land belongs to the people of Kenya. Still, there are restrictions to this right that are of higher status to the individual.

1. Compulsory Acquisition.- Article 40 of the constitution provides that the state is not permitted to 

     deprive any person of land or interest in land unless that deprivation is for a public purpose or for 

     public interest. Public purposes are such as infrastructural development and construction of public 

     utilities like roads, bridges, and hospitals.

     The government is mandated to fully compensate the Landowner/owners during the exercise of 

      compulsory acquisition. This extends to bonafide occupants of land acquired, who may not hold 

      title to the Land.

      Upon acquisition being undertaken, the Landowner is called for surrender of the documents of title

      to the Registrar for cancellation, This cancellation dispenses the interests that one may have 

      otherwise had in relation to the land. If only a portion of the land is acquired; then the Land is 

       subdivided and resultant titles issued.

     People like investors who invest in projects that greatly benefit the public can apply to the 

    government to acquire land for the proposed developments if they manage to demonstrate that 

    those projects are for a public purpose and for the public good.

Illegal and Irregular Acquisition of Land

There is a requirement placed upon the Commission to undertake review of grants and dispositions 

relating to public land to determine their propriety or legality. The role of the commission is limited to determining the proprietary or legality of grants and dispositions and issuing a directive to the register to revoke those that have been acquired unlawfully or irregularly.

In the event a determination is made on revocation is made and the registrar revokes the disposition an interest in the affected land ceases to exist. Revocation of title has far-reaching consequences on investments with the land owner standing to lose all the large-scale investments made thereto.

Such revocation of title may have far-reaching consequences as any investment thereon for instance buildings are lost; where security is involved, financiers lose such security. Practitioners ordinarily have to look into the history of the Land to determine its origin, and the Ndung'u report to assess if the land was irregularly or illegally acquired at any point in the history of the parcel.

Historical Land Injustices.

Another way of losing title to Land is by revocation of title after an investigation on historical injustices. The land commission is empowered the conduct such investigations either suo moto or upon application by a claimant. 

The distinction between a historical injustice and an illegally or irregularly acquired land is that the former is a claim that is not verifiable in court, is a claim that has no basis in the law that was in force at the time of the injustice and one that has been debarred under the limitations of actions Act.

Where an investigation has been concluded and found there has been and injustice, the commission makes recommendations on how to remedy the injustice. Some of the remedies would be; revocation of Title, Restitution, Creation of wayleaves, and easements,  sale of Land and sharing of proceeds, resettlement on alternative Land compensation and refund to bonafide third party purchaser. Through such recommendations, the owners of the Land lose their rights thereof.

Non-Renewal of Leasehold Interest

Freehold or leashold is the land holding tenure in Kenya. Kenyan citizens or companies fully owned by Kenyan citizens can hold either freehold or leasehold tenure. A non-citizen or company not fully owned by Kenyan citizen can only hold leasehold tenure for a term of no more than 99yrs. 

Where the leasehold term expires the Land reverts back to the headlessor. If the lessor is the government, right of renewal of the interest is not automatic or guaranteed. If the lesser is non-Kenyan the right of the lessee to the said land extinguishes on expiry of the lease term.

If the lessee is a Kenyan citizen, they enjoy a pre-emptive right to the re-allocation of the Land. The Land Commission is mandated to issue a Notice of  expiry of the lease to the lessee as well as the right to reallocation on application 5years prior to the expiry term.

The right to reallocation is only available if the land is not required by the National or County Goernment for public purposes. In such a scenario the lease is not renewable and the interest to the individual extinguishes.

Adverse Possession.

This is another way through which a Landowner can lose right to land. Adverse Possession in Kenya is grounded on the principles of limitations of actions and equitable doctrines of latches. The Act bars a person from bringing an action for recovery of Land after twelve years from the day the right to action accrued. If 12 years lapse, the registered owner is barred from instituting an action and has no legal means of exerting his title over the property as against the adverse possessor.

For that reason, the adverse possessor's possession and claim over the Land becomes immutable. To succeed in a claim for adverse possession the adverse possessor needs factual possession with physical control peaceful uninterrupted and open enjoyment of the land for the specified period and that the adverse possessor dealt in the land as an occupying owner might have been expected to and at the exclusion of all others.

If you are an Absent land owner you must be vigilant to ensure your land is unoccupied or is occupied with your consent in writing failure to which you stand to lose your claim to the said land.

 Disclaimer: This article is for information purposes only and should not be taken as legal advice. The author is not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in thus article and in no event shall be liable for any damages resulting from reliance on or use of this information. 

For any legal advice; contact the author  Wangu Kimure Advocate, 0716912966, kellenkimure@gmail.com