5 Ways in Which Right to Own Land in Kenya Can Be Lost

 

The right to own and use the land, a highly coveted asset, in Kenya, is clearly spelt out and guaranteed in the Kenyan Constitution.

According to the constitution, as promulgated in 2010, land in Kenya is categorized as either private, public or communal.

Aside from the Kenyan constitution, there are several other legislations that govern land ownership and use. They are; The Land Act, the Land Registration Act and the National Land Commission Act – these three Acts codifies and consolidates all laws relating to land in Kenya.

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As much as land ownership in Kenya is guaranteed and protected by the constitution and several other Acts, there are several instances in which such right can be lost.

They include:

Non-renewal of the leasehold interest

In Kenya, you can own land on either freehold or leasehold.

A Kenyan citizen or company fully owned by Kenyans can hold land on a freehold or leasehold tenure while a non-citizen or a company that is not fully owned by a Kenyan can only hold land on a leasehold tenure for a term of no more than ninety-nine (99) years.

Where land is held on leasehold tenure, on expiry of the term, the land reverts to the head lessor. Where the head lessor is the government, the right of renewal of the interest is not automatic or guaranteed. If the lessee at the time of renewal is a non-Kenyan any right of the lessee to the said land extinguishes on expiry of the term.

Where the lessee to the land, at the time expiry of the term is a Kenyan, such individual enjoys a pre-emptive right to the re-allocation of the land. Five years prior to the expiry of the term, the National Land Commission (“Commission”) is obligated to notify the lessee the date of expiry of the term and their right to reallocation, on application.

The right to reallocation is available to such lessee only if it is not required by the national or county government for public purposes. Where the land is required for county government for public purposes, the lease is not renewed and the interest to the individual extinguishes.

Compulsory Acquisition

A landowner can lose the right to their land through compulsory acquisition. Under Article 40 of the Kenyan Constitution, the state is not allowed to deprive any person of land or an interest in land unless that deprivation is for a public purpose or for the public interest. These public purposes include infrastructural developments and construction of public utilities such as roads, bridges and hospitals.

In undertaking compulsory acquisition, an owner of land ought to be promptly compensated in full. Provision for compensation may also be to occupants in good faith of land acquired who may not hold title to the land.

Once an acquisition has been undertaken, a landowner is required to surrender the documents of title to the Registrar for cancellation. The cancellation extinguishes the interests that one may have otherwise had in relation to the land. If not all but part of the land is being acquired then, the land is subdivided and resultant titles issued.

Illegal and Irregular Acquisition of Land

The Commission is required to undertake a review of grants and dispositions relating to public land to determine their propriety or legality. The role of the Commission is limited to determining the propriety or legality of grants and dispositions and issuing a directive to the Registrar to revoke those that have been acquired unlawfully or irregularly.

Once a determination on revocation is made and the Registrar does indeed revoke the disposition, an interest in the affected land ceases to exist.

Historical Land Injustices

Another way of losing the title to land is by a revocation of title after an investigation on historical land injustices.

The National Lands 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.

Should the authority mandated with enforcing the remedies carry through with remedies such as revocation of title, restitution creation of wayleaves and easements or sale of and sharing of proceeds, either way, the landowner loses their right to the said parcel of land.

Adverse Possession

A landowner may also lose their right to land through adverse possession.

Adverse possession in Kenya is premised on the principles of limitation of actions and the equitable doctrine of latches.

The Limitation of Actions Act bars a person from bringing an action for recovery of the 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.

Consequently, the adverse possessor’s possession and claim over the land becomes immutable.

Baoriat Agencies is committed to helping you find the best place for you to settle in Eldoret town. We walk you through the entire process of acquiring your own property in Eldoret until it has been transferred into your hands.

To learn more about buying a property in Eldoret, 

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