Columnists

Why we must gallantly protect property rights

house-Nyayo-estate

Housing developments are becoming much more common, but poor management can lower the value of property under this ownership system. Photo/FREDRICK ONYANGO

In 2017, I chaired a task force under the then Ministry of Lands and Physical Planning. The task force was established to investigate the processing of extension and renewal of leases since the year 2010.

The precursor to the establishment of this task force by the then Minister Prof Jacob Kaimenyi was ominous.

Demolition squads waving parallel lease documents had raided properties in Nairobi, forced out occupants, and swiftly demolished pricey developments.

ALSO READ: MWATHANE: Expanded lands docket packs power and pressure for the new minister

Parklands, the City Center, and River Road were particularly targeted. This ruthless and traumatizing trend was worrying.

Often, the parallel lease documents turned out fraudulent, either irregularly prepared following the death of a lessee, or the expiry of an original lease, even in instances where renewal applications pended in Lands offices.

These aren’t legitimate methods for accessing property rights.

During public hearings and a review of pertinent procedures, the task force noted that bureaucratic institutional processes and fraud driven by collusion between external and internal agents, along with a poor public understanding of the management of lease instruments, greatly contributed to prevailing circumstances at the time.

The extension and renewal of land leases need not occasion pain and loss.

Process integrity, transparency, clarity, short and strict timelines, and effective public sensitization would be most helpful.

And even as the government moves to digitize records and automate processes as measures towards perfecting processes, efforts must be made to ensure that requests for extension or renewal of leases aren’t unreasonably delayed or denied.

Unless in circumstances where public interest compels, the current law allows the immediate past holder of the leasehold interest the pre-emptive rights to the land allocation.

Ways must also be found to stop fraudsters from using fake ownership documents to evict legitimate beneficiaries from the properties of deceased persons before the conclusion of succession proceedings.

ALSO READ: MWATHANE: Lessons from KU land replanning and reallocation saga

In other instances, we’ve had auctioneers pounce on unsuspecting occupants of buildings and forcefully throw them out, destroying valuable property in the process.

Granted, in some of the cases, such court orders may be merited following a breach of contractual obligations where such properties had been offered as collateral.

However, it behooves auctioneers and lenders to note that such property seizure methods breach our current law, which requires adequate notification to the affected.

Furthermore, this law requires that the affected persons be given priority to demolish and/or salvage their property.

Our constitution protects rights to property unless was unlawfully acquired. This is the policy position, which is mainstreamed in our current land laws.

Property rights, and their enjoyment, must therefore remain predictable and secure. Like other basic rights, they must be safeguarded. This is the primary responsibility of the state, the judicial and enforcement organs.

A recently reported demolition incident in Nairobi evokes memories of 2017. We must gallantly guard against a resumption of the pre-2017 practices where process irregularities were rampant, and demolition squads ran amok.

Such an environment undermines property investments and the businesses thereon.

The author is a consultant on land governance.

[email protected]