1
Toolkit for Urban Water Supply Projects
Land Use and Land Rights: With a Special Focus on Low
Income Urban Settlements
Table of Contents
1
Introduction .............................................................................................................. 4
2
History of the Establishment of Urban Areas in Kenya ..................................... 5
3
Urban Areas .............................................................................................................. 5
4
Challenges of Urban Planning ............................................................................... 6
5
4.1
Introduction ....................................................................................................... 6
4.2
Rural-urban Planning Strategies ..................................................................... 6
Informal Urban Settlements ................................................................................... 7
5.1
Introduction ....................................................................................................... 7
5.2
Urban Slums ....................................................................................................... 7
5.3
Public Roads ....................................................................................................... 8
6
Compliance with the Public Health Act ............................................................... 8
7
Environmental Impact Assessment ....................................................................... 9
8
Acquisition of Land by Water Services Boards ................................................... 9
9
Types of land Ownership in Kenya ..................................................................... 10
9.1
Categories ......................................................................................................... 10
9.2
Private Land ..................................................................................................... 10
9.3
Government Land ........................................................................................... 10
9.4
Trust Land ........................................................................................................ 11
9.5
Public Land ...................................................................................................... 11
10 Letters of Allotment ............................................................................................... 12
11 Allocation of Public land....................................................................................... 13
11.1
Un-Alienated Land ...................................................................................... 13
11.2
Alienated Government Lands.................................................................... 13
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
2
11.3
Trust Land..................................................................................................... 14
12 Third Party Interests .............................................................................................. 14
13 Issues Arising ......................................................................................................... 15
13.1
Illegality from the Very Beginning (Void ab-Initio) ............................... 15
13.2
Urban lands .................................................................................................. 15
13.3
Urban Lands as Public Lands .................................................................... 16
13.4
State Corporations land. ............................................................................. 16
13.5
Constraints a WSB may Face in Acquiring Land in Urban Areas ........ 17
13.5.1
a) The disappearance of Public Tenure ................................................. 17
13.5.2
b) The rise of informal settlements ........................................................ 17
13.5.3
c) General environmental degradation ................................................. 18
14 Land Transfer Procedures in Kenya .................................................................... 18
14.1
Land Office and Registries: Functions of Department of Lands Office 19
14.2
Scope and Terminology – Conveyancing................................................. 19
14.2.1
Transaction steps ...................................................................................... 19
14.2.2
Historical background of interests ........................................................ 20
14.2.3
Land ........................................................................................................... 20
14.3
Applicable Law ............................................................................................ 20
14.3.1
Registration of Documents Act .............................................................. 20
14.3.2
Land Titles Act ......................................................................................... 20
14.3.3
Registered Land Act ................................................................................ 20
14.3.4
Transfer of Property Act ......................................................................... 21
15 Panoramic View of Conveyancing: Transaction Steps ..................................... 21
15.1
Sale ................................................................................................................. 21
15.2
Leases............................................................................................................. 21
15.3
Investigation of Title ................................................................................... 21
15.4
Drawing an agreement for sale.................................................................. 21
15.5
Disposition of land ...................................................................................... 22
15.6
Execution of agreement .............................................................................. 22
15.7
Obtaining Title documents ......................................................................... 22
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
3
15.8
Advocates undertaking in registration of Titles Act .............................. 22
15.9
Mortgage transaction .................................................................................. 23
15.10
Leases............................................................................................................. 23
15.11
Execution....................................................................................................... 23
16 Conclusion .............................................................................................................. 24
List of References ........................................................................................................... 24
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
4
Toolkit for Urban Water Supply Projects
Land Use and land Rights: With a Special Focus on Low
Income Urban Settlements
1
Introduction1
Kenya and other countries in the developing world have over the recent past
experienced rapid urbanization. With this, has been the immense challenge
posed by the urbanization phenomenon.
Over time, the slow or inappropriate responses have resulted in what is
commonly known as the “urbanization of poverty”, where an increasingly high
proportion of urban residents are experiencing worsening standards of living. In
Kenya for example, an estimated 30% of the total urban population or 1 million
people live in slums and informal settlements that are characterized by poor
housing, lack of access to basic social services and life support facilities such as
water, sanitation, education, health facilities, energy, employment and income
generating opportunities among other basic needs.
The corresponding proportion in capital cities and other principal towns in most
developing countries are even worse. In Nairobi it is estimated that every 3 out
of every 5, or 60% of the total urban population live in slums.
The above situation has continued to fester despite the increasingly sobering
realization that urban areas will be home to majority of the people in many
countries and are therefore critical to our future.
These factors have led to the creation of a dual society with severe inequalities
that are evident in our urban centers today.
Between 1968 and 1975, long-term plans were prepared for most of the towns in
Kenya. Urban planning and management systems at that time borrowed heavily
from the tenets of the planning systems practiced during the colonial period.
This document was prepared by Kimani Watenga & Associates at the request of the Water
Services Trust Fund.
1
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
5
2
History of the Establishment of Urban Areas in Kenya
The history of urban planning and development policies in Kenya is closely tied
to colonial administration, which provided legislative and ideological
foundations on which the present system of urban planning and management
was constructed.
During the colonial period, urban planning was used as a to control access to
land and other services.
Development of infrastructure facilities and other social services and amenities
were concentrated in the cities/towns that were deemed important for the white
minority at the expense of the African majority.
3
Urban Areas
Urban areas are established under the Local Government Act (Cap265) by a
Minister declaring an area as such, defining the boundaries and giving the said
urban area a name.
The urban areas are managed by the corresponding Council made up of
Councilors elected by the local residents from amongst themselves.
Under Section 5.(1) of the Local Government Act (Cap 265), the Minister, acting
in consultation with the Electoral Commission may, either on receiving proposals
under Section 6 or without any such proposals, by order exercise all or any of the
following powers:
a)
establish any area to be or to cease to be a municipality, county or
township;
b) assign a name to a municipality, county or township;
c)
define the boundaries of a municipality, county or township;
d) alter the boundaries of a municipality, county or township, whether by
adding or subtracting from its area or otherwise;
e)
alter the name of a municipality, county or township;
f)
amalgamate two or more counties into one county;
g) transfer a part of a county to another county or to a municipality;
h) transfer a part of a municipality to a county or township;
provided that a municipality, county or township shall not extend outside a
single province.
Under Section 8, the Minister may assign a name to any township and may at
any time alter the name of any township.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
6
4
Challenges of Urban Planning
4.1 Introduction
The challenges of urban planning and management that include managing urban
growth which has been the greatest concern for local authorities and planners
are:

Making city plans tailored to the size of the population as seen in the
demolition of slums and squatter settlements;

Governments discouraging people from migrating to urban areas as seen
on development of state-given targeting rural development especially
attempts to provide employment opportunities and;

Adoption of models of new urban towns and growth centers as a way to
redirect growth for the major urban centers.
Many urban areas are growing faster than their economies, services and
infrastructure can support. Local authorities possess limited resources and
capacities to solve the complex and massive problems in urban areas. This is
manifested by the degraded physical environment, poor housing and
overcrowding, low incomes and unemployment, high crime rates and
deteriorated physical infrastructure.
There is also the emergence of informal city, for example, 60% of the Nairobi’s
population of 3 million live in informal settlements, occupying 5% of the total
residential land area (USAID, 1993:1).
4.2 Rural-urban Planning Strategies
The first Government policy that laid down planning was contained in the
Sessional Paper No. 1 of 1965 on African Socialism and its Application to
planning in Kenya.
Policies relating to slums have evolved from slum clearance before independence
to recognition of their inevitability.
As restrictive laws were abandoned after independence, Africans migrated from
rural to urban areas but the Government continued with the policy of slum
clearance and complementing it with provision of housing units.
In the late 1970’s the strategy shifted to provision of serviced sites supported by
World Bank and USAID.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
7
The development was effected through first, second and third urban projects. By
the late 1970’s the policy shifted to legitimization of the settlement through
security of tenure and provision of basic services.
To-date the Government has formulated the policy of upgrading the slums.
Currently, the Government acknowledges the existence of slums and informal
settlements and is committed to upgrading them
The Sessional Paper No. 3 of 2004 on the National Housing Policy for Kenya
gives policy guidance on upgrading of slums and; together with the National
Housing Development Programme, recognize slum upgrading as one of the
programmes for shelter development.
5
Informal Urban Settlements
5.1 Introduction
In Kenya, distinction is made between the formal urban slums and informal
settlements, each of which has unique indicators and characteristics.
Informal urban settlements consist of unplanned spontaneous squatter
settlements, former colonial villages and those of internally displaced persons.
Informal settlements usually develop in areas that are not authorized for
settlement but in proximity to areas with employment opportunities. These
include railway reserves, road reserves, and by-passes, power lines, way leaves,
sewer lines reserves, steep hazard slopes, noxious industrial areas, Government
land and private lands.
5.2 Urban Slums
Slums on the other end are characterized by general degeneration of formal
urban settlements due to a myriad of factors. These leads to overcrowding and
unsanitary conditions arising from the lack of or pressure on existing
infrastructure and services. Due to numbers involved and the cost implication of
putting up houses and accompanying infrastructure, recognition of slums is
inevitable.
Land ownership regimes in slums and informal settlements will very often
reflect land ownership regimes in the country. Generally it is difficult to pin
point with precision the owners of land in these settlements.
These can be explained by among other factors the origin and growth patterns of
the settlements. For example slum areas which were originally planned and put
up by the Government/Councils will very likely either belong to the developer
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
8
or the tenants depending on the policy applicable at the time. This is the situation
applying in for example slums found in the eastern parts of Nairobi e.g.
Kariokor, Shauri Moyo, Muthurwa and Mkongeni which estates belong to the
city Council and the railways pension fund respectively.
Others like Kibera which were put up on government land still belong to the
government.
5.3 Public Roads
Provided for under Chapter 399 laws of Kenya to refer to:
(a) any road which the public had a right to use immediately before the
commencement of the Act;
(b) all proclaimed or reserved roads and thoroughfares being or existing on
any land sold or leased or otherwise held under the East Africa Land
Regulations, 1897, the Crown Lands Ordinance, 1902, or the
Government Lands Act at any time before the commencement of the
Act;
(c) all roads and thoroughfares hereafter reserved for public use.
These are lines which have met the necessary requirements and have been
established, altered or cancelled for public travel by the Minister accordingly and
gazetted as such. In effect the Minister dedicates, cancels or alters such line of
public travel or converts such road of access into a line of public travel.
Such line/road shall be clearly defined and be absolutely dedicated to the public
as a public road within the meaning of the law.
6
Compliance with the Public Health Act
The Public Health Act provides for the regulation and management of public
sanitation facilities in terms of sewage handling and disposal.
Section 155 of the Public Health Act, provides for putting up additional public
latrines on un-leased public land with approval from the Minister.
The law also provides for the management of cesspits to avoid the breeding of
mosquitoes in such facilities. Further, buildings and facilities may be declared to
be nuisances if they results to being a source of public health peril and thus
would attract sanctions and penalties according to the said law.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
9
7
Environmental Impact Assessment
Provided for under the Environment Law.
Relevant Section is Schedule II of the Act which lays out the categories of
activities for which the environmental impact assessment ought to be carried out.
These are:
1. General - (a) an activity out of character with its surroundings;
- (b) any structure of a scale not keeping with its surroundings;
2. Waste disposal – including:
 Sites for solid waste disposal;
 Sites for hazardous waste disposal;
 Sewage disposal works;
 Works involving major atmospheric emission;
 Works emitting offensive odours.
8
Acquisition of Land by Water Services Boards
The Water Services Boards are constituted as corporations with perpetual
succession and a common seal. The corporate identity is usually specified in the
notification.
The Water Services Boards (WSBs) have powers, in and by its corporate name, to
sue and be sued and, in the exercise and performance of their powers and
functions, to do and permit all such things as may lawfully be done or permitted
by
a
body
corporate
in
furtherance
of
its
objects.
As such water services board may, for the purpose of the provision of water
services—
(a) purchase, lease or otherwise acquire, on such terms as the Minister may
approve,
premises,
plant,
equipment
and
facilities;
and
(b) purchase, lease or otherwise acquire land, on such terms as the Minister may
approve, or arrange for its compulsory acquisition under Section 78.
The First Schedule has effect with respect to the membership and procedure of a
Water Services Board:
 Through purchase, lease or otherwise;

On such terms as the Minister may approve.
Arrange for its compulsory acquisition under Section 78.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
10
9
Types of land Ownership in Kenya
9.1 Categories
Land ownership in Kenya is categorized into three main categories namely:
1. Private land;
2.
Government land;
3.
Trust land.
9.2 Private Land
Private land- is land, the title to which is registered in accordance with any of the
laws that provides for registration of titles. Land may be registered in the name
of the individual, company or organization.
Private land may be created from either Trust land or Government land through
registration after the requisite requirements have been complied with.
9.3 Government Land
Government land – is the land that was vested in the Government of Kenya by
Sections 204 and 205 of the Constitution that was contained in schedule 2
Sections 21,22,25 and 26 of the constitution of Kenya (Amendment Act) 1964.
Government land consists of two sub-categories:

Un-alienated;

Alienated.
Un-alienated Government Land – defined by the Government Lands Act as
Government land which is not for the time being leased to any other person or in
respect of which the commissioner has not issued any letter of allotment. In other
words Government lands are lands vested in the courts and over which no
private title has been created. These lands have not been ceded by the courts to
any other person or entity. Un-alienated Government land is not trust land in
that it is not vested in local authorities to hold on trust for the local community.
Alienated Government land – land which the Government has leased to a private
individual or has body corporate, or which has been reserved for use by a
Government ministry, department, state corporation or other public institution
or set aside by way of planning for a public purpose.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
11
Alienated Government is that land that has been reserved for the use of
Government institutions or has been set aside for the use of the public or has
been leased to a private individual.
9.4 Trust Land
Trust land – This is land described as such and is defined in Section 114 of the
constitution. Under the Constitution and the Trust land Act Cap 288. Trust land
are neither owned by the Government or by the County Council. The County
Council holds land on behalf of the local inhabitants of the area. As long as trust
land remains un-adjudicated and unregistered, it belongs to the local
communities, groups, families and individuals in the area in accordance with the
applicable African Customary Law. Once registered under any of the Land
registration statutes, trust land is transformed into private land. It then becomes
the sole property of the individual or group in favour of whom it has been
registered.
9.5 Public Land
Generally we can summarize that any land which falls under the realms of
public domain is public land. In other words public land is all that land which is
vested in the public or is held under public tenure. It means all that land which
every Kenyan has an interest by being a member of the public.
Public land includes a wide variety of different kinds of land that is administered
by the Government and also by the local authorities, for example:All un-alienated Government land defined above is public land in that it is
vested in the Government of Kenya. The Government belongs to the people of
Kenya. Therefore the Government administers such land in trust for the people
of Kenya. Such land remains public land until it is privatized.
Alienated land set aside for a public purpose or reserved for use of a ministry,
department, state corporations or other public institution could be regarded as
public land.
Land purchased by the settlement Fund Trustees for the settlement of landless
people in public land.
Government land or Trust Land held on leasehold tenure is public land to the
extent that the reversion of the lease vests on the Government.
Under the Land Acquisition Act (Cap 295), private land may have been
compulsorily acquired or an area of Trust Land set aside under Section 117 of the
Constitution making such land public.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
12
10 Letters of Allotment
The Government Land Act (Cap 280) provides for the authority and procedure of
allocating Government Land. The process that is involved is what is referred to
as allocation or allotment of land
In the process of allocation; once the approved candidate has been selected, a
formal offer is made to such person by the commissioner for lands. This offer is
called a LETTER OF ALLOTMENT. This is not a statutory requirement.
However, this is a practice that has the force of law (under the law of contract).
It is only an offer made to the person to whom it is addressed on the conditions
contained in the letter. It is of absolutely of no value to anyone else.
One of the conditions is that the offer is valid for a period of thirty (30) days.
After the lapse of thirty (30) days, it is of no value to anybody at all.
Being an offer to a named person, it cannot be validly ‘sold’ to some other
person.
Any other person other than the person to whom the letter is addressed cannot
use it for any purpose at all.
Letters of allotment also contain as part of the offer the conditions affecting the
land that will be included in the title when it is issued.
One of these conditions is that the land shall not be sold or dealt with in any
manner without first obtaining prior consent of the commissioner of Lands, and
after that the commissioner is forbidden from considering a request for his
consent until the land has been developed in accordance with the development
condition contained in the title.
IF the Commissioner of Lands, in breach of his powers attempts to consent to
such a sale of an accepted letter of Allotment, his consent may amount to an
abuse of office.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
13
11 Allocation of Public land
11.1 Un-Alienated Land
Un-alienated land Government Land – is provided under Section 3 of the
Government Lands Act that the President may subject to any written law make
grants of estates, interest or in or over “un-alienated Government Land”.
The power to allocate un-alienated Government land vests only in the President
and no other person.
The President may delegate such powers to the Commissioner of Lands in
specified limited circumstances.
Section 9 of the said Act provides that the Commissioner of Lands may cause any
portion of a township plot which is not required for public purposes to be
divided into plots suitable for the creation of buildings for businesses or
residential purposes.
Section 12 of the Act provides that such plots shall be sold by auction valuers
unless the President orders otherwise
Similar provisions are contained in Sections 19 and 20 of the same Act with
regard to agricultural land.
11.2 Alienated Government Lands
Public utility lands and protected lands cannot be legally allocated to an
individual or company by either the President or the Commissioner of Lands.
Land such as road reserves, by-passes, play grounds, forests, protected areas etc.
cannot be legally allocated before such lands are allocated, they must be made
available for allocation.
Before public-utility lands can be allocated for any other purpose, they must be
subjected to the legal processes of change of user contained in the relevant
statutes and then re-planned in accordance with the areas master plan making
them available for allocation.
Similarly, lands which are already committed to the use of Government
ministries, departments or state corporations cannot be legally allocated since
they are not un-alienated Government lands.
Protected lands – These are specifically protected under legislation eg. Gazetted
forests, national parks/reserves, security areas, wetlands etc. Such lands would
have to be legally removed from the specific legislations under which they are
protected before they can be allocated.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
14
11.3 Trust Land
The only ways in which trust land can be legally removed from the communal
ownership is through adjudication and registration or setting apart. Adjudication
and registration removes the particular lands from the dominion of community
ownership and places them under individual ownership.
Setting apart removes the trust lands from the dominion of community
ownership and places them under the domain of public ownership.
Allocation of trust land can only be made to the local people of the area.
The area must be declared an adjudication area under the Adjudication Act.
The local people must be given ample notice and opportunity to make claim to
the ownership of the land in accordance with their customary law.
Their rights must be recorded down on the adjudication register by the
adjudication officer.
After everybody is satisfied with the adjudication process, then each person
whose name is on the adjudication register is registered as a proprietor of
his/her particular land under the Registered Land Act.
12 Third Party Interests
Interests of those people who have subsequent to an illegal or irregular allocation
of public land to the original allottee ‘acquired an interest’ in such land e.g.:By way of an ultra vires transfer through purchase or lease from the original
allottee to the third party.
By way of a mortgage/charge of the land by the original allottee to a third party,
e.g. a bank.
By way of a transmission of the allottee’s title to his successor to assign (through
intestacy/will)
By way of transfer through gift by the original allottee to the third party
Those parties who acquire interest in the land in the manner specified above
would claim to have obtained an estate similar and equal in quantum to that held
by the original allottee.
Those acquiring interests over land as mortgagors/chargers can exercise powers
over the land aimed at enabling them realize their security.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
15
13 Issues Arising

Whether such third party titles/interests is legal. If so on what basis?

Whether such third party title/interest is illegal from the very beginning.
If the answer to question 2 above is affirmative, what would such a conclusion
have on the third party/interests?
13.1 Illegality from the Very Beginning (Void ab-Initio)
One of the fundamental principles of law in transactions is that a person (interest
holder) cannot transfer a greater or better interest to another than he himself
holds e.g. A person having a leasehold interest cannot purport to transfer a
freehold interest to another person in the same parcel of land as the latter is
greater to the leasehold. This also means that the holder of an illegal title cannot
hold and pass a legal title to another person in the same piece of land. The
situation would be different when the title in question is an irregular one as
opposed to being out rightly illegal, as the former one can be validated through a
rectification of title.
13.2 Urban lands
“Urban lands” is used in this article to denote all those lands situated in cities,
municipalities and townships.
These lands include “u-alienated Government lands”, “alienated Government
lands” or lands in former trust lands areas which have been set aside for public
purpose in municipalities or townships.
The term “urban” is therefore generic in the sense that it refers to areas that are
mapped to encompass all urban development activities; presently and in the
future.
There are 44 Municipal and City Councils in Kenya.
Information relating to public land in urban areas is to the least hardly adequate.
Un-alienated Government lands are those lands presently vested in the
Government. They do not belong to the individuals or companies in their private
capacities; hence they are not private lands. They are not trust land in the sense
that they are not held by respective County Councils on behalf of the respective
communities.
They are also not local authority land in the sense that they have not been
acquired by the authorities through purchase, allocation by Government or
through setting apart. This category of Government lands is available for
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
16
allocation to individuals or companies by the President in accordance with the
provisions of Section 3 of the Government Land Act Cap 280 of the laws of
Kenya
Alienated Government lands include all those lands that were formerly unalienated but have since been set aside for a public purpose or lands leased to
individuals or companies through the commissioner of lands. They also include
lands that were formerly privately owned but have since been compulsorily
acquired by the Government for public purposes under the Land Acquisition
Act, Cap 295 Laws of Kenya. Finally alienated lands are also those lands that
have been surrendered to a local authority of the area for use as public utility by
an individual or company as a condition for consent to subdivide the land.
Usually 10% of the total acreage is surrendered for public purposes in such
circumstances.
Lands set aside for a public purpose in Municipalities and Townships are those
lands which may have been allocated by the Government to such local
authorities for a specific public purpose; or former trust lands which were set
apart for public purposes.
13.3 Urban Lands as Public Lands
These are lands meant to serve and enhance the public interest. They constitute
what is usually referred as ‘public tenure’
Public utilities e.g. public schools, hospitals, markets, fire stations, police stations,
toilets, cemeteries etc. Are excised and developed out of these lands.
Public interests in these lands are not only inherent but always pronounced. This
is why the law regulates the manner in which such lands are to be transferred to
individuals (if at all) or to be used.
All authorities and institutions having jurisdiction over these lands are supposed
to hold them in trust for the public.
13.4 State Corporations land.
Being bodies corporate, state corporations have powers under the law to acquire
and dispose immovable property.
For state corporations to operate they require land for specific purposes e.g.
Building of offices and housing for their staff. Others e.g. research and
agricultural institutions depend on land for their operations.
Because of these, the Government allocates land for these state corporations.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
17
In the Registration of Titles Act in situations, the government allocates funds
from the exchequer to corporations so that they may purchase land.
It is therefore clear that all land held or owned by state corporations is public
land and therefore the state corporation holds the land on trust on behalf of the
people of Kenya
13.5 Constraints a WSB may Face in Acquiring Land in Urban Areas
The illegal and irregular allocation of lands in the urban areas has led to the loss
of many public utility lands to private interests. Land meant for public
development has been lost in this manner. Instead of being the basis for
development, land has been the subject of speculation. By far the most negative
consequence of the wanton illegal allocation of public land is the disappearance
of planning and administration in the country’s municipalities and would be
cities. Public land has been allocated to individuals and companies in total
disregard of planning legislation especially the Physical Planning Act of 1996.
The abandonment of planning has occasioned a crisis in Kenya’s Public Tenure
system.
In many major towns, buildings and other constructions have been erected
haphazardly without attention to future development or expansion. Thus for
example, residential estates have been put up in the middle of industrial areas.
The result is the uneasy if not conflictual co-existence between manufacturing
concerns and the dictates of urban or residential dwelling. The dangers posed to
urban residents in such circumstances cannot be under-estimated. The reality of
‘a disaster waiting to happen’ continues to haunt the Kenyan public. . Areas
which were originally planned for residential estates have been allocated and put
to other uses such as offices block without a concomitant change in other
facilities such as roads, sewage systems, water supply and other services.
13.5.1
a) The disappearance of Public Tenure
With the intensification of illegal allocations of public land, the problem of Public
Tenure moved from “crisis” proportions to the “extinction” of such tenure all
together. Public parking, public toilets, public play grounds, public cemeteries,
road reserves, social halls and all other open places have all but disappeared.
13.5.2
b) The rise of informal settlements
Another negative effect occasioned by illegal allocation of public land is the
spread of informal settlement in most municipalities, towns and the Nairobi City.
Many allottees of public land either re-allocate them to members of the public or
“develop’ them for onward renting to urban dwellers. The so-called slums and
kiosk have sprung up in most parts of Nairobi and other towns in this manner.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
18
The real beneficiaries of these informal settlements are the grabbers and not
dwellers. If the responsibility of establishing settlement areas were to be left to
the Government and the local authorities, the slums and kiosks phenomena
would be better handled. It must be emphasized that such settlements and
commercial enterprises must be planned.
Kenyans live in these informal settlement in squalid conditions due to congestion
and lack of basic amenities
13.5.3
c) General environmental degradation
The illegal allocation of public health facilities and sanitary areas has grossly
interfered with any efforts of maintaining a public health system. Both solid and
other waste disposal processes by members of the public have been seriously
undermined. The situation has been further compounded by the encroachment
upon or allocation of riparian areas within municipalities, townships, and
Nairobi. Rivers and other wetland areas have been turned into sewage disposal
and dumping sites causing serious environmental pollution.
These developments have resulted to a situation where it becomes very difficult
to establish who the legal owners of these lands are as in most cases they do not
have the actual possession. In addition where survey beacons have been
tampered with (in case the area has been surveyed) and the legal owners may
not be available to pinpoint the boundaries acquiring such land may be tricky.
Other challenges would be removing the inhabitants of the preferred land
because of the n logistical issues involved and the whole issue of resettlement of
these people.
14 Land Transfer Procedures in Kenya
This involves transfer of an interest in land from one person to another by means
of an instrument/transfer document.
Examples of ownership:
-
freehold;
-
leasehold;
-
absolute interest;
-
interest as a lessee;
-
tenant;
-
mortgages and charges;
-
license, easement, right of profit.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
19
14.1 Land Office and Registries: Functions of Department of Lands Office
1. Alienation of all government land and Trust land under GLA;
2. approval of development and part development plans
department of physical planning;
done under
3. preparation and issuance of Title deeds under GLA;
4. approve building plans in respect of Government leasehold lands;
5. approval of extension of leasehold lands;
6. setting up land control bodies and their powers;
7. evaluation of land for various purposes e.g. tariffs, duty, rating purposes
8. setting apart of trust land;
-
Government Land Act and Registration of Titles Act registries located in
Nairobi and Mombasa;
-
Registered Land Act – registries in Districts.
14.2 Scope and Terminology – Conveyancing
-
Involves interest;
-
Know what interest in land you are dealing with eg. Government Land
Act Freehold - nobody’s consent for management, – freehold interest
Registered Land Act - absolute interest.
14.2.1
Transaction steps
1. establish parties capacity;
2. investigate title to establish ownership, size, whether encumbered etc and
Interest created therein;
3. prepare necessary
mortgages, charges.
documents
e.g.
Transfers,
agreements,
leases,
Definition of conveyancing and background of interests
This is an instrument of conveying an interest in land from one person to another
person. This could be in the form of sale, purchases, leases, mortgages and
settlements
Defined under Section 205 of Transfer of property Act 1925 to include a
mortgage charge ,lease, assent, vesting declaration, vesting instrument,
disclaimer, release, every other assurance of property, or of any interest therein,
by any other instrument except a will.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
20
14.2.2
Historical background of interests
Conveyancing developed with colonialism. At the time all land vested in the
crown and the natives were deemed incapable of owning land.
14.2.3
Land
S. 3 Registered land Act defines land to include land covered with water and
anything growing on land buildings and things permanently affixed to land.
S. 2 Registered land Act defines land to include land and benefits that arise
out of land, anything embedded or rooted in the earth, attached to that which is
so embedded, for the permanent beneficial enjoyment, of that which is so
attached or permanently fastened, or attached or any state or interest therein,
together with all parts, passage ways, water courses, liberties, privileges,
easements, plantations and gardens therein or their underlying or being unless
specified.
14.3 Applicable Law
14.3.1
Registration of Documents Act
Any kind of document may be registered under this act. The act does not deal
with land alone. Documents e.g. deed polls, power of attorneys registerable. The
act does not specify what to be registered. However, under Section 6 it specifies
language to be used in drawing the documents i.e. English, Kiswahili, Arabic,
Gujarati.
It applies where a person is leasing only a Section of the land/premises. This is
because one cannot register a lease as against a whole block. The procedure is the
register the relevant plans under this act and the register lease in land against
plot title with reference to the floor plan of area leased. Thus the floor plan gives
details of block
14.3.2
Land Titles Act
Its application is limited. It applies only in Mombasa.
14.3.3
Registered Land Act
This act sets out registration procedures for land registered under the act. For
example Section 108 provides that any instruments submitted for registration has
to conform with to the type of forms prescribed. It also allows registrar to
approve forms.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
21
14.3.4
Transfer of Property Act
Format applicable adopted from Real property Act 1845 & Conveyancing Act
1881 of England. The law was imported in Kenya by an Order -in Council of 12th
August 1897.The format of conveyancing is by a deed. However no real format is
prescribed.
15 Panoramic View of Conveyancing: Transaction Steps
Take instructions depending on the nature of the transaction g. sale, transfer,
conveyance, mortgage, charge, lease etc.
15.1 Sale
Know the owner/vendor while bearing in mid issue of a person in law. Then
identify purchaser. Identify the subject matter. Proper reference of the land
nature of interest is also critical. For example if a lease – identify the term. Then
note the price and deposit payable while cognizant of the law of contract and its
application. The contract should also set out the completion date. Whether the
seller will give vacant possession or not is for the parties to agree. However the
sale of land cannot be a valid reason for evicting tenants.
One may claim land under prescription, 21 years.
15.2 Leases
When conveying an interest in a lease identify the lessor and lessee, the status of
the property to let, the term let, commencement of the lease, whether the rent is
payable periodically or annually. Check also there is any covenant on lease and
the process of determination and renewal.
15.3 Investigation of Title
Investigation of title is done by way of a search at lands office. This could either
be personal which is done by clerk, advocate or an official one which is done by
government official. It may be done by registrar and delivered by post.
Physical inspection of the property to establish whether there are overriding
interests is necessary.
15.4 Drawing an agreement for sale
Drawn on the basis of instruction and investigation by the parties involved. The
agreement must be in writing and signed by all the parties to the contract The
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
22
agreement incorporates all the terms agreed by the parties in one document. The
signature of each party is then attested by a witness, except where land is bought
in a public auction.
15.5 Disposition of land
Includes transfer, bequests and apportionment of property in a will.
Transfer – includes a mortgage, charge, lease, conveyance, assignment, assent,
vesting declaration, disclaimer, release and every other assurance of property
-
Any interest therein by any instrument other than a will or a codicil;
-
Party includes agent, auctioneer, advocate duly authorized in writing to
act in absence of party;
-
Interest in land – estate, charge over land, estate in or charge over
proceeds of sale of land;
-
Sign – making ones mark, writing one’s names as initials, indication that
one intends to bind himself to the covenant;
-
Agreement for sale – drawn by vendor, draft for approval, then
engrossed, then executed.
15.6 Execution of agreement
Executed by signing and sealing. Signing include putting a personal mark, in the
presence of another witness who attests Attestation is witnessing the execution
of an agreement by a witness.
15.7 Obtaining Title documents
Advocate for purchaser prepares the transfer and calls for supporting documents
from advocate for the vendor.
15.8 Advocates undertaking in registration of Titles Act
This is a professional undertaking in Registration of Titles Act:
-
don’t give one you will not honour;
-
by registering documents be sure you will honour your undertaking in
Registration of Titles Act;
-
Registration of Titles Act – attestation by an advocate, R.L.A attestation by
judge, magistrate, registrar, bank officer.
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
23
Transfer executed by vendor:
-
returned to purchaser’s advocate for registration;
-
ensure documents needed for registration;
-
advocate account to client on transaction.
15.9 Mortgage transaction
-
receive instruction from mortgagee;
-
investigate title;
-
know security to be under taken;
-
know amount to be received;
-
know the amount of installments or interest in loan or an overdraft;
-
interest rate variable.
Look at interest:
-
freehold- no interest;
-
mortgage stamped and registered;
-
overdraft – advocate does not get money;
-
term loan – advocate receives money.
15.10 Leases
-
instruction to identify property;
-
identify lessor/lessee;
-
term of the lease;
-
rent payable;
-
how lease may be determined;
-
advocate for lessor draft;
-
send to advocate for lessee to approve;
-
lease engrossed, stamped and registered.
15.11 Execution
-
signing of a document;
-
putting a mark or
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
24
-
sealing of a document;
-
show you intend to be bound by it;
-
sign – only by a living person;
-
corporate personality – in accordance with AA, co-seal in the presence of
two directors, articles may direct who to attest seal;
-
co-operatives societies – check by-laws;
-
people with powers of attorney;
-
ask for power of attorney and No.
-
bodies under Perpetual Succession Act – seal;
-
attested by the person with the seal;
-
bodies under a charter – look at the charter;
-
deceased – executor, intestate – administrator of probate or letters.
16 Conclusion
From the foregoing it is evident that the phenomenal growth of urbanization in
Kenya is a reality this country will have to grapple with. With this growth has
been the challenges posed to a developing country such as Kenya. These are
exhibited by the straining of available resources in our urban areas such as
housing and other social support facilities necessary for providing some humane
living standards gofer these low income urban dwellers. The availability and
usage of land in low income urban areas become an intricate web of the interplay
between the application of various land laws and the de facto status of land
usage in these areas. Thus while land in such areas may be registered either as
public or private land or even unregistered, the likely of such land being
squatted upon may be very high. In such situations accessing such land may
necessitate political/administrative intervention by the government agencies.
This is in addition to the legal process involved in the acquisition of such land.
List of References
1. Crown land Ordinance 1915
2. The Government Land Act (Cap 280)
3. The Physical Planning Act No. 6 of 1996
4. The Land Acquisition Act ( Cap 295)
5. The Constitution of Kenya
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights
25
6. The Environmental Management and Coordination Act 1999
7. The Public Health Act
8. The Trust Lands Act Cap 288
9. The Constitution of Kenya (Amendment Act ) 1964
10. Sectional Properties Act 1987
11. The Survey Act (Cap 299)
12. The Registered Land Act (Cap 300)
13. The Registration of Titles Act (Cap 281)
14. Y.P.Ghai and McAuslan, Public Law and Political Change In Kenya
15. MEGARRY and WADE, The laws of Real Property, London, Sweet and
Maxwell 6th Edition
16. Report of the Commission of Inquiry into the Irregular /Illegal Allocation of
Public Land.
_________________________________
Toolkit for Urban Water Supply Projects
Module 1
Land Use and Land Rights