WAYS ONE CAN LOSE LAND OWNERSHIP RIGHTS

Kenya Celebrated the promulgation of the new constitution in the year 2010 .  One of the major wins for Kenyans were the clear provisions on land. The right to ownership and use of this highly sought-after asset was guaranteed in the Constitution. The Constitution sought to reinforcement this right by drawing a clear distinction between;

i)                     Private land, public land and communal land and

ii)                    Individual rights vis a vis the collective rights of the people of Kenya.

The Constitution defines private land as land registered and held by any person under any freehold and leasehold tenure, and any other land declared as private land under an Act of Parliament.

Then came the passing of the Land Act, the Land Registration Act and the National Land Commission Act which codifies and consolidates all laws relating to land in Kenya in 2012. The passing of the said Acts strengthened the right to private ownership of the land.

The Kenyan  Constitution provides that all land belongs to the people of Kenya. The right to the use and enjoyment of land has certain limitations that are superior to the individual. This article discusses the ways in which this right can be lost. The ownership of land in Kenya is not absolute and this right can be lost in the following ways;

a)      Non-renewal of leasehold interest

Land ownership tenure in Kenya is either free hold or leasehold. A Kenyan citizen or a company that is fully owned by Kenyans can own land  on freehold( Absolute title )  or leasehold tenure. A foreigner or a company that is not fully owned by a Kenyan (s) however can only hold land on a leasehold tenure for a term of no more than ninety nine years.

At the end of the leasehold term the land reverts to the head lessor who in this case is the government. The right to  renew the interest in land in such a case is not  automatic or guaranteed. If the lessee at the time of renewal is a foreigner any right of the lessee to the said land extinguishes on expiry of the term.

b)      Compulsory Acquisition

Land ownership rights can be lost through compulsory acquisition. The constitution provides Under Article 40 that the state is not allowed to deprive any person land or an interest in land unless that deprivation is for a public purpose or for public interest.  

In cases of compulsory acquisition the land owner is supposed to be compensated fully  and for this compensation to effected prove of ownership is required.  What then would  happen to those without evidence to prove ownership?

c)       Illegal and Irregular Acquisition of Land

Land acquired unlawfully or irregularly may be revoked by the land registrar.  

d)      Historical Land Injustices

Land ownership rights can be revoked  after an investigation on historical land injustices. The Commission is empowered, either on its own volition or on application by a claimant to investigate a historical injustice. Once an investigation is done, and there is found to there have been a historical injustice, the Commission makes recommendations on how to remedy the injustice. Some of the recommendations of remedies that the commission may make include among others as 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.

e)      Adverse Possession

Adverse possession in Kenya is premised on the principles of limitation of actions and equitable doctrine of latches. The Limitation of Actions Act bars a person from bringing action for recovery of land after a period of twelve years from the day the right to action is accrued. At the lapse of twelve years, the registered proprietor is barred from instituting an action and has no legal means of exerting his title over the property as against an adverse possessor.