By Pravin Bowry

Every person has the right either individually or in association with others to acquire and own property of any description and in any part of Kenya.

This is termed a fundamental right to the protection oAll Postsf right to property under theConstitution.

Additionally, the security of land rights is preserved and land lawfully registered in the name either as freehold or leasehold titles are given the sanctity and protection by the State.

In the backdrop of these constitutional and State protections, it is disturbing to see that in some parts of Kenya there is currently a trend of individuals and groups taking the law in their hands and unilaterally allocating and alienating registered parcels of lands to third parties.

Physical confrontation

Land owners in Ukambani and, in particular in Athi River area, are witnessing groups of individuals forcefully marching on pieces of lands, arbitrarily planting beacons, and barring rightful owners from their properties.

The unlawful and illegal grabbing of land has resulted in a political crisis and security concerns are becoming an issue with physical confrontations having been reported.

Fuelled and fired by public Statements in what is perceived as a pre-election tactic, dubious land buying cartels have been set-up in the precincts of Nairobi who ‘sell’ small pieces of land, collect huge amounts of monies from unsuspecting purchasers, give fake receipts and then disappear setting up a confrontational scenario between the registered landowner and hundreds of allottees

The State organs in the form of Provincial Administration, Internal Security personnel and the police most unfortunately have not appreciated the mammoth security risk being created, with the police force unable to contain the dilemma due to logistical

Challenges.

It has been reported that lands mainly in the Municipal Council of Mavoko of public institutes such as East Africa Portland Cement Company (EAPCC) Numerical Machine Computer, National Hospital Insurance Fund (NHIF) and National Social Security Fund (NSSF) have been encroached upon, in addition to over 50 private landowners owning land from 20 acres to up to 500 acres.

Internal Security PS Francis Kimemia constituted a task force to evaluate the predicament and a preliminary report has reportedly been handed to the Internal Security Assistant Minister Orwa Ojode and the full report is due in about two weeks.

It is believed that cartels of Government officers, officials and elected State councillors and chiefs are condoning the goings on in the Athi River scams.

The problem is further compounded by cases of multiple allocations of titles over the same pieces of land pitching the original landowners who have valid titles against those who have been able to get new titles unlawfully.

Underlying issue

Many constitutional and legal questions are likely to be posed by the goings on in the Ukambani area. What is the sanctity of a title?

Does the State owe a duty to protect the landowners and what are the statutory limits of State organs to intervene?

Title to any property cannot be a piece of paper but must be a union of all elements — ownership, possession and custody — constituting the legal right to control and dispose of the property.

The title must be a legal link between a person who owns the property and the property itself.

In all this, the underlying conceptional issue is the inability or reluctance by the State organs to discover, investigate and bring to book the criminals who contrive the schemes of fraud by zeroing in on lands, accepting huge monies — the task force is said to have receipt books in its possession from only one office showing that over Sh250 million was collected from unsuspecting Kenyans — and then showing pieces of land in which the purchasers place beacons with the help of quack surveyors.

Precedent setting

It can be summarised that what is happening in Athi River area may well be a frightful prelude to the breakdown of law and order in the country and if not controlled, eradicated and investigated can spread to other parts of the country — a recipe for tomorrow’s chaos.

Public utterances by politicians to break the law amounts to criminal acts, and the earlier the Government grapples with the problem the better.

Land titles and title owners must be respected, and the Task Force report is awaited as a precedent setting move to bring legal sanity in areas where land grabbing is rampant.

The writer is an advocate of the High Court of Kenya.

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