More than one in six cases reported to the Advocacy and Legal Advisory Centre (ALAC) in Kenya are about land: disputes over title, conflicts over succession, and battles to assert ownership rights.
For land sits at the heart of the Kenyan family and prosperity, but its ownership remains fraught for many, and continues to be one of the most distressing and time-consuming issues before the country’s courts.
Yet as Kenya has moved to a new land administration structure, in which the National Land Commission (NLC) is key, a legal overhaul has left some land laws in place, and others repealed, in a restructuring that has never defined the new rules for recognising title deeds issued under old laws, or even for how new titles should be issued.
The result was the intervention by the High Court earlier this year to declare more than three million new title deeds issued since 2013 as illegal, on the basis that the Land ministry did not take into account the input of the NLC.
At base, however, the Land ministry came unstuck in processing the titles on the fact that there is simply no regulation yet in place on how to issue title deeds in accordance with the Land Registration Act.
Embedding a new Constitution can take a generation of work filling all the procedural holes that arise on a new legal framework.
Likewise, it takes time to perfect an overhaul of land legislation to accommodate the precedents, reality, and resolution of disputes that have touched on most families in the country at one time or another.
But the hanging status of title deed processing in Kenya should rightly be far higher on our political agenda, in a situation where land transfers and proof of ownership cannot remain frozen for years on end without profound economic costs, as well as countless personal tragedies.
For citizens seeking transfer, the administrative roadblock does, at least, affect everyone equally. It doesn’t open the door to advantage for one buyer, seller or owner over another.
Right now, everyone is stuck in an administrative quagmire in concluding any title deed to final issue. But none of the original title deeds are actually invalid.
Government did repeal a raft of legislation in the current land law restructuring. It also moved land administration to The National Land Commission, which now manages and administers public, private and community land.
Yet none of that should have been too traumatic. The core problem for the country’s citizens was that the legal shake-up then generated a vast process of converting title deeds issued under the old laws into title deeds recognised under the new laws.
Under the old land law, title deeds were issued under the Registered Land Act (RLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA) and the Government Lands Act (GLA), all of which have been repealed.
However, title deeds issued under the RLA and RTA continue to be valid under the new laws. It is the title deeds issued under the GLA and LTA that must be examined and registered afresh under the new laws.
Yet there is no deadline for this. The new laws lay out no timespan in which the GLA and LTA titles should be reregistered, except that it should be done ‘as soon as conveniently possible.’
In the meantime, the current regulatory hiatus does not mean GLA and LTA title deeds are invalid. But they will only be recognised under the new laws after their examination and fresh registration.
For the hundreds of thousands and possibly millions of people who have sought to achieve a land transfer in the last seven years, the fact that the existing deeds are not invalid, but merely not recognised, may provide little comfort.
But there can be no short-cut to reregistration until the process has now been hammered out and defined, standing the test of our courts, and reflecting the will of our legislators.
Until then, we can only run on the paper we already hold – and wait.