Speedy arbitration leaves squatters in fresh land rows

Jeremiah Safari Kesi is a disgruntled and bitter man. He feels cheated after seeing his land given to someone else in an accelerated government process that was supposed to bring order in the allocation and possession of land. Mr Kesi was supposed to get six acres of land in Ngomeni location, Kilifi District just a few metres from the ocean.

Instead, he only got 0.8 acres, and in a bizarre twist to the land adjudication process, his title deed – when it finally came out – had two names.

Kesi’s case has replicated itself across the country in a dash to title deeds ushered in by the government.

After years of wrangling, and politicised allocations of land to well-connected individuals, the government placed the land adjudication under the Rapid Results Initiative, and has since doubled the speed at which adjudications are concluded, deploying special teams to accelerate the process, which it now claims to have completed in Nairobi, Western, Central and parts of Eastern Kenya.

Only at the Coast and in Nyanza are the adjudications not yet complete, with the Ministry of Lands in its November Ardhi Bulletin newsletter claiming that almost two million parcels of land have now been adjudicated.

However, cases of double allocation, misallocation or non allocation have seen many genuine land owners disinherited and a few well-connected individuals become overnight landowners in prime areas.

Moreover, weaknesses in the system have lain the adjudication open to such pressure that in some cases questions have been raised about the untimely deaths of individuals who were holding out for the rights of smaller landowners.

Historically, the land issue in Kenya has been an emotive issue.

It was the main concern leading to Independence, which caused the post-independence government to move to streamline the land sector.

The land adjudication process as initiated by the post-independence government was designed to pull trust land into the official land registry through consolidation and registration.

Trust land is essentially community land by heritage or by ancestry.

The Land Adjudication Act of 1968 still governs the adjudication process and gives powers to the government to ascertain and record rights and interests in trust land.

The aim of the adjudication process is to issue a title deed, as proof of ownership.
However, the process has never achieved conclusion and has frequently become politicised.

Presidential rulings allocating land to squatters have happened repeatedly.

Typical was the allocation in 1995 by the Office of the President of land to 135 ‘squatters’ in and around Malindi, where the ‘squatters’ included the town’s mayor, a local headmaster, the deputy clerk of the National Assembly, a former MP, the then chairman and secretary-general of KNUT, the then chairman of KCC, and so on.

Since the process began, some 7.9 million deeds have been issued.

But the latest move has been to finally complete the exercise, and to do so far more rapidly.

The Act stipulates how the adjudication is to be carried out.

The Minister for Lands declares an adjudication section and appoints an adjudication officer who, in consultation with the district commissioner, “shall appoint not less than 10 persons resident within the adjudication section to be the adjudication committee for the adjudication section.”

The assistant adjudication officer in Kilifi District, a Mr Omondi, explains that once the adjudication area has been identified, the community in the area forms a committee and elects a chairperson.

It is this committee, with the help of the officers, which records the rights and interests to the land and recommends allocation.

“Members of the community have to present themselves before the committee and show their piece of land. The process is community-driven and the work of the officers is just to facilitate the process,” says Mr Omondi.

Over time, the land adjudication process has helped to bring millions of plots into the official Lands registry, thus bringing some semblance of order in the land allocation and registration.

However, the process has also been marred by huge numbers of dubious or double allocations, or complete failure to reach a resolution.

Among just a few sections on the Coast, the individual experiences of just a handful of adjudication committees highlight the problems.

Ngomeni in Malindi has 57 squatters on private land belonging to the Department of Defence (DoD).

The DoD wants them removed, but the squatters are adamant the land is theirs, and that the alternative being offered 20km away at Majenjeni would deprive them their fishing livelihoods.
The land rights were ruled in the DoD’s favour, but the chairman of the committee, legally responsible for recommending the allocation, who has since died mysteriously in a motorcycle accident, was resolutely advocating for a repeat of the adjudication process.

One of the squatters and two of the Ngomeni Land Adjudication Committee members will today be in Nairobi, visiting the Lands Office to check on the original plans of the section to help verify the division and size of each allotment.

As it is, they now hold title deeds often in two names, and which the committee itself contests is not what it recommended.

Another owner

Meanwhile, in neighbouring Marereni-Msumalini, Mr Boniface Baraza, the Chair of the land adjudication committee says the area was declared an adjudication section in 1998, and the process completed in 2002.

However to date, they are yet to receive title deeds.

The reason given by the area’s adjudication officer for the delay of the deeds is that it was caused by a court case on some pieces of land.

Back in Ngomeni, the title deeds did arrive.

Mr. John Nyinge who believed the claim to his own land had been settled, and also happened to be secretary of the adjudication committee deciding the cases, says: “When I went to pick my title deed, I found out that I had been allocated land somewhere else… and to make things worse, my title had another owner.”

Prime land is often at the centre of controversy especially when it comes to adjudication.

Though the concept of allowing the community to determine the proper boundaries seems workable and reasonable, the end of the process, where the land officers finally endorse the committee’s proposals, does not go as planned.

“It’s as if the adjudication officers, in collaboration with the committee chairman take out the sheet map and allocate land arbitrarily or to connected individuals,” says Mr. Nyinge.

But according to a Mr. Wanyoike, an officer in the adjudication department, the allotment of the parcels of land is based on what the community - represented by the committee members - gives the land officers. He purports that members of the committee are sometimes compromised by powerful and influential individuals.

“The strength of the (adjudication) process is based on the strength of the area committee. Land officers have little say in the process,” says Mr Wanyoike.

Asked about Ngomeni, Mr Wanyoike concurs with his colleague, Mr. Omondi, that the section had an issue.
Apparently, adjudication was done on private land, and this caused double allocation in some areas.

Mr. Omondi adds that the government bought land in Majenjeni 118, and offered it to the affected individuals.

“They refused to take the land offered by the government, which in my opinion was in a better location,” says Mr. Omondi.

The adjudication Act does provide for an appeals process.

The adjudication officer, in consultation with the Provincial Commissioner, has the power to form an arbitration board in the event of disputed boundaries and ownership of land.

In Ngomeni, Mr. Nyinge says the land officials are demanding Sh18,000 for the process to be looked at again, for an appeals scheme that should cost no more than Sh3,000.

However, moving back from the small print, exactly similar issues appear to have arisen in many areas.

Nonetheless, the Lands Ministry reports that the land adjudication, land consolidation and registration has been completed in Central and Western provinces, and is in the process in Nyanza, Coast, Eastern and Rift Valley provinces, although it is yet to commence in North Eastern province.

Many cases

So far, 7,975,119.96 hectares of land have been registered after adjudication and consolidating processes were completed.

Very many of these cases have finally been brought to conclusion under the current government.

Typical is the Buoye section, in Kisumu, Nyanza Province, which was declared an adjudication section on 1982 and finality issued in 2008.

In Rift Valley, Enkutoto Section in Narok South was declared an adjudication section in 1986, and finality issued in October 2008.

In Kwale, Coast province, Makwanyeni section, with 650 parcels of land, was declared an adjudication area in 1989. A finality was issued in 2008.

Say some observers, the land settlement sweep under the current government has been the largest ever completed since Kenya’s independence.

Written by James Karuga and Ken Macharia for African Laughter

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