LANDHOLDING BY NON-CITIZENS –AND HOW SUCH LAND CAN REVERT TO THE STATE

 Article 65 sections (1) And (2) of The Constitution define the terms under which a non-citizen may hold land in the Republic of Kenya setting a maximum period of lease to 99 years. It states under section (2) that “If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen, an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety nine year leasehold interest and no more”.

      Under section (3) a of the same article it states “a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and (4) that “property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.

       The question that remains unclear in the minds of many Kenyans is the manner in which cases of land solely owned by non-citizens will be treated upon expiry of the 99 years which in many cases may have already expired. Will it be the case of  some new owners  quietly assuming “ownership on a willing buyer willing seller basis” without considering the interests of many other landless persons who are yearning to own a piece of land?

      There appears to be no clear policy or procedures to deal with such cases in the light of great public interest in matters of land ownership.

       Kenya with its record of fair and equitable manner of handling of many other national issues in accordance with established laws is unlikely to go the Zimbabwe way. Therefore there is every possibility that it will not in any way compromise the interests of owners who have held possession of vast tracts of agricultural land for many decades. But, if and when need arises for acquisition of any such land there is need for some clear policy on the manner and method of compensation including determining a fair price payable to the owners.

      In a recent interview on a local TV station with the Chairman of the National land commission, he elaborated about its mandate and powers it could exercise, that  appeared so extensive and would make some believe that all hell was about to break loose for any one owning land in Kenya. This may be so in the case of public land or land under the jurisdiction of Municipalities in our cities and townships that were illegally acquired in total disregard of its future use for other public purposes.

     Article 61 section (1) classifies land in three categories as (a) public (b) community and (c) private. In the case of public land section (4) sets out the manner in which such land shall be disposed of subject to terms of an act of Parliament specifying the nature and terms of that disposal or use. This new constitutional requirement is a welcome development as long as the legislators act in the greater good of the people of Kenya without considering their own vested interests or interests of other groups for whom they may act.

     Compulsory acquisition of private land for legitimate public use may not have posed any serious challenges in the past since the procedures for doing so are well defined in law and there appear to have been very few or no reported cases  of disputes in the recent past.

     A good case in point is the recent demolition of major developments along Mombasa road that were brought down to pave way for the new northern bypass including other developments along Langata road that may face a similar fate for the same purpose. It is believed that the owners of the demolished properties were paid a fair compensation that was made up of the current market value of the property plus an additional 15%.

     The recent acquisition of farmland owned by Rose Brothers in Mau Narok for the purpose of settling IDPs may perhaps be a case in which the manner of acquisition and the price paid to the owners appears to be shrouded in secrecy since the takeover did not fall within the provisions of the law relating to compulsory acquisition for public use.  There is no doubt that the transaction was concluded on a “willing buyer willing seller” basis but what remains uncertain is how the valuation was carried out and if the transaction was subjected to the requirements of the current policy relating to  Public procurement procedures. In recent months the public was informed through full page advertisements in the local print media about awards of contracts for goods and services to successful bidders, but in the case of the Mau Narok land purchase no such information appears to have been made public.

    Since most agricultural land in Kenya is classified as high, medium or low potential, the lack of any official guidelines about what may be considered a fair current market value per acre; this therefore leaves the issue of price open to the dictates of market forces, and in such a situation the rule of supply and demand comes into play favoring only those with abundant resources to benefit since any transactions can only take place on a “willing buyer willing seller” basis at a mutually agreed price. The scramble for purchase of land in Maasai land is a clear evidence of this trend. The prices demanded by sellers and accepted by buyers is unrealistically high and makes no economic sense, yet those with cash resources continue to purchase land!

     For the  ordinary Kenyan, he continues to live in the hope that the state will one day find sufficient land to settle the multitudes who aspire to own land for establishing a homestead. This is certainly an improbability if not altogether impossible since the state has very little land at its disposal for this purpose. In the recent past the term “willing buyer willing seller” in respect of land transactions seems to have been “stigmatized” but that is and will remain a reality in a free market economy.

Why are Kenyans so obsessed with owning land? Is it because of some outdated belief about disposal of their dead? In some communities the burial of their dead in public cemeteries is considered a taboo.

While many landless continue waiting and hoping for the state to find land to settle them, the landless should not lose sight of the serious challenges facing some local authorities in obtaining suitable land for public cemeteries. In recent months allegations of corruption have been reported in the media in relation to purchase of land from private sources, which suggests there is no state land available for such purpose. That being the case, how feasible is it for the state  to find, say  10 acres of land to settle a landless family when land to bury the dead ,who are far fewer, has become almost impossible?