The Land Issues In Kenya

 The land issues in Kenya

Land issues in Kenya are complex, multifaceted and highly politicized. Understanding the land issues in Kenya is multifaceted. To understand today's problems, we need to understand the colonial and post-colonial political contexts that have shaped the structure of property rights across time and space. Next we have to see the national elites who used land and land access rights, land tenure and land control institutions.

Even in the constitutional referendum in Kenya, the issue of land - ownership, quantity and usage - remains the most controversial, with proponents and opponents suggesting different interpretations of land rights detailed in the draft.

Foreigners can own property in Kenya on their behalf. The Constitution (2010), Lands Act (6/2012) and Land Registration Act (3/2012) grant everyone the right, either individually or in association with others, to acquire and own land in Kenya, subject to certain restrictions. This is important as many foreign investors have been led to believe that they cannot own land in Kenya in their own name.

In the same breath, however, the possibility of owning land is limited.

Restrictions on foreign property in Kenya are found in the Constitution and the Land Control Act (Cap 302).

According to Article 65(1) of the Constitution, "a person who is not a citizen may only own land on the basis of leasehold ownership, and such leasehold, however granted, shall not exceed ninety-nine years". However, after the lease has expired, an extension of the lease can be applied for. Article 65 further provides that any document purporting to confer on a foreign investor an interest in immovable property with a lease term exceeding 99 years shall be deemed and treated as giving that foreigner a 99 year lease and no more to lend. This means that foreign investors can purchase leasehold land for more than 99 years. However, the constitution implies that only a 99-year leasehold right is assumed to be conferred on the foreigner.

Any foreigner should be warned not to own land in Kenya. Essentially it's very simple, everyone in Kenya wants to own property. Now when a foreigner buys land, signs a contract with the Ministry of Land, pays, then he's rid of everything, his money and land.

In the pre-colonial period, land rights were mainly administered as commons. That is, “by a social hierarchy organized in the form of an inverted pyramid, with the top representing the family, the middle the clan and lineage, and the base the community” (Okoth-Ogendo 2002:108). For Kenyan law professor Okoth-Ogendo, such structures enabled societies to govern their country based on collective values ​​and principles, taking into account both current and future needs and responsibilities to protect the group's territory. Essentially, pre-colonial land management depended on subsistence farming and pastoralism (Haugerud 1989). Next, “The shepherds also had better organized warriors, to expand and protect their territories... [although] both agrarian and pastoral societies left large tracts of land for resource management purposes...” (Wamicha and Mwanje 2000:20). In short, the administration of land rights as part of the commons meant that such rights “were not susceptible to inter-living transfers outside of any level of social organization, although the broad exchange of functional rights was and remains common” (Okoth-Ogendo 2002:108).

During colonization, the Coloni issued a series of ordinances aimed at land use patterns (...)

During colonization, land in Kenya considered unoccupied by the British settlers was declared Crown Land, that is, land on which the Commissioner acted on behalf of the Queen of England (Crown Lands Ordinance 1902), and Trust Land (Kanogo 1987; Okoth-Ogendo 1989)3. Access to and control over land thus shifted from earlier forms of social ownership to 'market-oriented' or private ownership systems. As Haugerud explains, “The Kenyan state had nowhere the capacity to keep land registers up to date…” (Haugerud 1989:61), so the “aims were to replace the uncertainty of customary tenure with a system of individual land titles, which are registered and guaranteed by the State; and expand cash crop production to improve agricultural techniques and to encourage agricultural investment, once fragmented holdings were consolidated into units of economic size, once registered titles could be used as collateral for agricultural loans" (ibid.: 63). This view is not shared by all Kenyan scholars such as Okoth-Ogendo, who argue that the colonial regime's introduction of concepts such as "property" obscured other forms of property that existed, and that the absence of land registers in itself did not mean that lack of a land regime. He writes: "The accepted notion of property has always been laden with the values ​​of Western materialism... [and that] for example, it has been assumed that ownership is always bound up by a bond called a title.

What is certain, however, is that the modern colonial state ... "has done most to replace customary land rights and to assume the role of 'landowner' for peasant producers in some of Africa's most advanced and commercialized agrarian economies" (ibid.: 1312). Indeed, “until 1939 most of the remaining high-potential crown lands remained under the direct control of the governor, and the native lands recategorized as 'trust lands' were under the control of land boards accountable to the governor are” (Klopp 2000: 15). Although some of the new land tenure practices were aimed at stemming dissent from interest groups such as the Mau Mau anti-colonial struggle movement (Kanogo 1987),

In the post-colonial era, property rights were mostly "conquered" by the elite. Land occupied by white settlers, particularly British, was acquired by the post-colonial regime of Jomo Kenyatta (1963-1978) and eventually sold to national elites, who gained control of the property structure (Kanyinga 1998; Okoth-Ogendo 1989). This trend continued under the regime of Daniel arap Moi (1978-2002), who was known for allocating public lands for political purposes (Greiner 2013; Klopp 2001). Land regimes have therefore become associated with post-colonial national politics in Kenya, with successive governments being reluctant to redesign land regimes to address the irregular land allocations over the years. Because land rights have become instruments for shaping political relationships, connecting elite “landlords” in different regions with the central state (Greiner 2013; Onoma 2010). This link of interdependence is captured by Boone's observation, which suggests that "the direct link between central government agencies and land users has often existed over time through indebtedness, patronage, and/or access to land in the absence of official titles... [and that ] these past and ongoing relationships provided historical and political (if not legal) basis for the claims of Rift Valley politicians for prerogative over land allocation in the present and near future” (Boone 2011: 1313). This could explain why national elites,

In short, postcolonial land tenure regimes have been manipulated by various national elites to influence ethnic conflicts (Médard 1996; Oucho 2002), to illegally allocate public lands such as forest lands for personal interests and political gain (Klopp 2001; Ndung'u Report 2004) and to stifle the activity of land institutions (Okoth-Ogendo 2002; Onoma 2010). And as Klopp (2000:15) puts it: "One could say that Kenya was founded by successive acts of land grabbing, and hence land grabbing is as old as, if not older than, Kenya itself."

So much for the historical data. What is the current situation in Kenya?

The Republic of Kenya has an estimated population of 56 million people with a growth rate of about 2.6%. The population fluctuates, no one knows the exact number. The population is believed to be around 53 million. About 25% of Kenya's population lives in urban areas in major cities like Mombasa and Nairobi, the capital. About 5 million people live in Greater Nairobi with an annual growth rate of about 3.6%. About 1.4 million people live in Mombasa, the oldest and second largest city in Kenya, with an annual rate of change of about 3.5%. Most of Kenya's population lives in rural and suburban areas, mostly as subsistence farmers, cultivating crops and raising animals to feed themselves and their families.

Here is some advice if a foreigner wants to buy land in Kenya.

How do you know you are being scammed when buying land?

Surely you have heard stories of innocent Kenyans - and not just these - who have lost their money to people pretending to sell cheap land in prime locations. It's also one of the reasons many people are reluctant to trust companies that do legitimate real estate deals.

The seller does not want you to inspect the property

You have dreamed of what your future home should look like in terms of the landscape and the place where you want to build. Then you find the perfect piece of land and start imagining your dream home.

But the seller won't let you view the property so you can make an informed decision. After numerous viewings, the seller will always find a way to tell you why you can't go and will always get you out of the way.

If the offer sounds too good and you are dying to buy the property, don't be tempted into paying for it thinking you'll miss out on an offer.

We always advise people not to pay for something they haven't seen. You're probably familiar with the phrase "pay for air" which means paying for something you didn't see.

Inconsistent information in the ad

If you see someone selling a property online and the information they provide does not match when you investigate further or even meet in person, that is a red flag. How can it be that the person selling does not know the exact location of the property?

It's even worse when you ask for more information about the seller to check their references and they are unable to provide documentation. For example, you could ask about their website and social media profiles, and if they have an office (if it's a business).

If it is a private seller, you can always request the original ID and title deed of the property being sold in order to conduct a title deed search through Ardhisasa.

If you don't feel confident doing this, you should hire a lawyer. These are experienced in providing background checks and due diligence when purchasing land or other property.

Wouldn't you rather invest Kshs 40,000 to pay a lawyer than lose Kshs 500,000 to a scammer?

Fake customers during a viewing

This type of scam involves multiple people, so you need to keep your eyes and ears open at all times.

You agree with the seller to inspect the property. The seller even arranges a tour bus to take other people to tour the property.

They lure you in with free transportation and lunch. Who wouldn't want to save some money?

You go on the journey with the other potential buyers and you reach the goal. Now, not all the people on the bus are scammers. You have to make the journey look as real as possible. And they're probably targeting other innocent buyers.

But it's hard to tell who's honest and who isn't. This is where your intelligence should come into play. So the "seller" will sell you the property.

He'll explain why you should invest in that particular area, what other potential buildings are out there, and finally convince you enough to leave you in no doubt.

Some scammers will even go as far as showing you a map to give you an idea of ​​how big or small the property will be. But when you look at the actual size, you realize that the map doesn't make any sense at all.

Or if the property has no boundary markings. You may be shown someone else's property.

A smart shopper will talk to the others on the tour, ask questions, and think twice if something doesn't make sense to them.

0Then, on another day, visit the same property alone or with a friend and ask the neighbors more questions. Most of the time, the neighbors know who owns the property and if it is for sale.

They can give you the best information about the place you want to buy. A scammer won't have time to train all the neighbors to lie to you.

The seller cannot hand over the title deed

It is not uncommon for property owners to use intermediaries to help them sell their property. However, you will be scammed if the seller does not provide you with a title deed to conduct a land search, as this is the only way to determine the rightful owner of the property. Chances are he doesn't have them either.

Another scenario would be when the owner enters into a contract with the seller. The seller pays a deposit to the owner and promises to sell the property. Once it is sold, the seller receives the balance.

The problem with this arrangement is that the seller sells and uses the money to buy another property and never pays the balance to the owner. This means that the seller never receives the title deed, meaning they cannot pass it on to you either.

Purchase of company shares and discounted acquisition of land

It's so heartbreaking when companies play with people's feelings and money. We've heard of companies that have done everything they can to lure potential buyers with discounts, only to walk away with people's investments.

A company may look legitimate, but it's up to you to find out more about the company in question. do you have offices Who are the directors? Is the company registered and how long has it existed?

You will hear from some that these are shell companies with no offices or company ID. Not all of them are scammers but you have to be very careful not to get scammed.

Transfer to personal accounts

When you are happy with the property and have made sure all the other documents are in order, the payment part comes along. But wait, the seller wants you to make a payment to his personal account. A warning sign!

A reputable seller will provide you with the payment details of the owner of the property. If something happens to the seller, it will be difficult to prove that you paid the rightful owner for the property.

If you work with a company that sells land, they will provide you with their bank details for the transfer. If you don't stick to the right payment process, you could end up undoing all the good work you've done to get to this point.

If you are unsure, seek professional advice from a lawyer. The process will be much easier, faster and less stressful when you buy a property. It's always right. If you don't like something, get to the bottom of it. And don't be afraid to keep looking. Listen to people who have already successfully bought land. They know what they're talking about. Don't pay for something you haven't seen. Always visit the place where the land you want to buy is located. Exercise due diligence before parting with your money. Good luck with your search and remember, if the offer sounds too good, think twice.

Fraud is everywhere. Kenya is no exception. What does everyone have to watch out for in order not to be cheated. In Kenya both men and women have perfected the art of cheating.

Most of the time, the person who introduces you to a "deal" is someone close to you, someone you trust, and in most cases they know each other (buyer, seller, and intermediary). If the deal goes wrong, he/she will always play the victim to you. He will always act like he didn't know this was going to happen and you feel sorry for each other as you try to figure out what to do next. When you two victims are arguing about what to do next, he informs the others, and they're always one step ahead of you. Beware of the so-called close friends.

When you are first introduced to a "business" they take you as a friend to watch and it is human nature to be greedy. If you see money (envelopes in envelopes disguised as cash in a larger A5) changing hands and the other side being paid in cash and being offered something in return, know that it is bait trades and you will lose money through your greed.

Bibliography

AfroCave, Colonial Practices and Land Injustices in Kenya

Land Conflict in Kenya: A Comprehensive Overview of Literature, Philip Onguny et Taylor Gillies

Land-related conflicts kenya policy and legal implications, O. Lumumba

Africa, Africa and the World, major problems facing Kenya today

How To Not Get Scammed When Buying Land, buy rent kenya

VENAS NEWS, Shocking! This is How People are conned in Kenya. How To spot an Conman