Lucas Barasa And Bernard Namunane
23 May 2008
Nairobi — Key parcels of land in Nairobi, Mombasa and other major towns are to be affected by a major government directive cancelling leases issued before May 1909, it has emerged.
The order by Lands minister, James Orengo, has drawn reactions with most people describing the move as a timely and the correct prescription to the endemic problem of land ownership.
Former commissioner of lands, Sammy Mwaita, who served in the sunset days of former President Moi's, rule disclosed Wednesday, that the cancellation of the leases affects all plots along Kirinyaga Road, some buildings on Tom Mboya and Kimathi streets, Parklands, the majority of plots in Mombasa Old Town and prime land in Kericho, where tea estates are located, such as Brooke Bond.
The leases for the said parcels were issued before 1909.
"The minister acted within his powers and the decision he took will affect several parcels of land. I have just mentioned a few," he says.
Mr Orengo also reveals that the move is likely to throw banks into panic because they are holding most of the leases as security for loans.
As a general rule, he said that banks never accept titles whose leases are less than 50 years.
Mr Mwaita observes that the approach should have been holistic.
He submits that colonial and grassland lease holders, whose tenure is 999 and 66 years, were not affected, yet they are at the centre of the problem.
Perhaps, he would have preferred the matter to be sorted out through the review of the Constitution or through a Parliamentary task force.
"There is wide range of land tenure and one wonders what will happen to those who hold land on temporary basis. What the minister has done is right but the approach is the question.
Mr Mwaita, who has been at the centre of the land transactions, says the asset is at the heart of Kenyans and could easily lead to civil strife.
The Institution of Surveyors of Kenya welcomed Mr Orengo's order, saying it will help re-plan urban and rural areas.
"The Government can take advantage and reorganise rural settlement.
"The City Council of Nairobi can also now liaise with Ministry of Lands and replace one storey buildings on River Road, whose leases were issued before 1909 with, like 20-storeys ones," ISK chairman, Mwenda Makathimo said.
Mr Makathimo said the directive could also boost plans for a Nairobi metropolis by the Government repossessing some land and establishing car parks and other amenities.
The State, he said, could further establish a land bank for future establishment of centres and decongesting of major towns.
Mr Makathimo said it was the discretion of the Government to renew or not renew the leases.
"Most people were given the leases by the colonial government and they were renewed at independence. The social and economic terms were given by the queen.
"Owners have been paying nothing for the land. Others have just been paying as little as Sh100 and Sh300 as rent for thousands of acres.
"The rent should now be paid as per current market value," the chairman said.
Some agricultural land leases, he said, were given regardless of local population "yet we all need to participate in nation building.
"The Government should take advantage of the expiry of the leases to re-plan rural settlement so that the poor and landless people can get an opportunity to own land.
"Mr Orengo's move should be commented and supported," Mr Makathimo said.
He gave an example of Uasin Gishu, where 30 percent of the people were landless.
The chairman said leases of multinationals, which pay taxes and create jobs, should be renewed.
Blanket directive
Nairobi lawyer, Kibe Mungai, said some multi-billion shillings property in Nairobi were among those affected by Mr Orengo's order.
Mr Mungai, however, questioned why the minister had issued a blanket directive.
"Ordinarily, the leases are handled on case by case basis and not collectively. In this case, it seems it has been done through a declaration," Mr Mungai said.
The lawyer said those who had applied for renewal of their leases would want to know their fate.
He said people are entitled to renew their leases and that refusal has to be justified.
But former Law Society of Kenya chairman, Tom Ojienda, a land expert who has been teaching the subject at university for more than 10 years, said Mr Orengo's directive was long overdue, would help sanitise the sensitive sector and repackage land holding.
He said the titles targeted were issued under Crown Ordnance law of 1902 and Land Titles Ordinance of 1908 and included the likes of Delamere and Criticos farms in Rift Valley and Coast Province respectively.
Some of the farms, he added, had however since been converted into Registered Land Act.
Mr Ojienda said Mr Orengo's move would ensure the implementation of a National Land Policy "once the Government has been able to secure the land whose lease has expired".
"What Mr Orengo has done is the correct position of the law. Although land is a sensitive issue, it must be administered," he said.
The lawyer further urged the Government to review terms of those who had been granted leases for 999 years.
Making the announcement on Wednesday, Mr Orengo, said all land leases issued before May 1909 and other short term leases that had expired, now revert to the Government.
He said "The leases have not been granted any extension. They have all reverted to the Government."
He said leased land should be used for purposes that will benefit the community.
Mr Mabeya said that land is leased out on condition that after expiry, it is given back to the Government.
One is expected to have recouped his or her investment at the time the lease expires, he said.
The first leases
Kenya Land Alliance national coordinator, Odenda Lumumba, said what has surprised many land owners was that they could not imagine the 99 years would end.
He said the first leases, which ended in 2001/2002, were renewed without knowledge of many Kenyans and that "many of the holders did not use the front door to renew them, which is not good for national planning."
He said following population growth, the country needed to broaden access roads, sewerage and other infrastructure.
Mr Lumumba said property developed on land is an interest one derives from it and that one is expected to have recouped his investment within 99 years.
He said the reversal of land to government was a worldwide phenomenon "and that is why people find some buildings have changed when they return to some cities."
The official asked the Lands ministry to enforce the law equally and not favour the political class.
"The Government should not be bombarded with selfish interests. Mr Orengo should tell us how he is going to enforce the order.
"The Government should also review 999 years agricultural leases in places like Laikipia to accommodate more Kenyans," Mr Lumumba said.
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