Business Daily (Nairobi)
Ibrahim Mwathane
2 November 2009
opinion
Last week, I demonstrated how the invocation of section 143(1) of the Registered Land Act on first generation titles has been effectively used to defeat justice in parts of Kajiado District.
This clause will also be used to stand in the way of Hassan Noor Hassan's committee charged with repossessing irregularly allocated land to restore forest cover in the Mau.
They will go to court and cite it.
The High Court and the Court of Appeal appear impotent in the face of it.
We stand watch to see how the courts and the Hassan committee will handle.
But what's the genesis of the clause and what's the conventional argument in support?
And does the Registration of Titles Act also outlaw the cancellation of first registration titles where omission, fraud or mistake is proven?
At introduction, the Registered Land Act was meant to expedite mass titling in former Trust Lands in Kenya.
The Act provided for cheaper and faster methods of registration and transactions in property.
Trust Lands, held in Trust by County Councils, were declared adjudication areas, surveyed and allocated to indigenous communities who were issued with titles under the Act.
Titles issued out of such exercises were deemed first generation and were cushioned from any litigation even if issued fraudulently or through misrepresentation.
Noble as it may seem, the clause has had its demerits.
Politicians, public officers and businessmen have exploited it to obtain land in areas otherwise meant for the indigenous landless for whom such land had been held in trust.
This has happened in many areas countrywide.
And once flagged, such persons sit pretty knowing that the law protects their irregularly obtained land grants.
It is also used to defeat state attempts to repossess titles issued under the Act in sensitive areas like the Mau and Mt Kenya catchment areas.
The clause may have also been used to largely defeat the interests of the Mau Mau uprising veterans who were away during the adjudication of land within their ancestral areas.
Their land was hence allocated to "loyal" citizens and registered under the Act.
Being first generation titles, redress in their favour was closed. That remains so to date.
But on the other hand, titles issued from government land under the Registration of Titles Act were left open to cancellation through due process.
Section 23 of the Act provides that certificates of title issued under the Act are conclusive evidence of ownership and shall not be subject to challenge except on the grounds of fraud or misrepresentation to which the registered proprietor is party.
So then why the double speak?
Remember that this Act, applied in 1920, was meant to register land allocated to the colonial settlers and other loyalists in government.
Land in the former white highlands and the urban areas of the day was registered under it.
One can therefore see it as the elites' registration Act while the Registered Land Act was the natives' registration Act.
That perhaps explains the double speak.
This anachronistic provision has remained embedded in our laws long after independence.
The Lands Ministry introduced The Land Law (Amendment) Bill in 2005 to redress this position along with establishing a Land Titles Tribunal.
The Bill lapsed before debate and has never been re-introduced.
The national land policy pending parliamentary discussion provides that the government shall review the principle of absolute sanctity of first registration under the Registered Land Act, but will protect land rights acquired legally and legitimately.
But some with hangovers from our colonial past are opposed. It would be interesting to hear what reasons they hold and in whose interests.
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