VERBATIM REPORT ON
LAND SCANDAL IN ATHI-RIVER
In the last two years, numerous complaints have been made to the Ministry of State for Provincial Administration and Internal security regarding insecurity in Athi-River largely attributed to issues of land conflicts. These complaints primarily relate to:-
(a) Outright invasion of public and private lands by invaders, who are not genuine squatters but rather organized groups in a well calculated move to, take possession, subdivide and sell the land to unsuspecting Kenyans at astronomical prices.
(b) The disposal of institutional land for various reasons without offering the local people an opportunity to buy. These lands have over the years been sold to private developers who have put-up elaborate residential and commercial estates.
The affected institutions include:-
i. East African Portland Cement Company (EAPCC)
ii. Numerical Machining Complex (NMC)
iii. National Social Security Fund (NSSF)
iv. National Housing Corporation (NHC) among others.
Among the Cooperative Societies were:-
Lukenya Co-operative Society;
Mitamboni Katani Co-operative Society; and Ngelani Co-operative Society among others
These invasions on public and private lands as well as the displeasure by the local community at the sale of land to their exclusion, has created major differences among the locals and the buyers. This situation has escalated to a breach of security in Athi River District. Efforts by the local leaders to resolve the crisis have not borne fruit and the matter has been heavily politicized which has further escalated the conflict and insecurity.
As a result of the crisis and in order to adequately address the land conflict in Athi River, the Office of the President, Ministry of State for Provincial Administration and Internal Security found it necessary to form a Taskforce to look at the Irregular Appropriation of Public Land and the Squatter Problem in Athi River District.
The Taskforce was gazetted on 22nd July, 2011 vide Gazette Notice No. 8467 and officially launched on 8th August, 2011 and commenced its operations.
TERMS OF REFERENCE
The following were the gazetted terms of reference for the Taskforce:-
1.To examine and inquire into the allocations to private individuals or corporations, of public land or lands dedicated or reserved for public purposes including:
(a) Jumbo (Airport) land
(b) Numerical machines land
(c) East Africa Portland Cement land;
(d) National Housing Corporation/Agriculture Syndicate land;
(e) National Social Security Fund land;
(f) Public land around Daystar University
g.Margaret Wamaitha Humprey’s land (deceased).
2. To collect and collate evidence and information available relating to the nature, causes and extent of unlawful or irregular allocations of such land.
3. To prepare a list of all lands unlawfully or irregular allocated, specifying the particulars of the lands and of the persons to whom or corporations to which they were allocated, the date of allocations, the particulars of all subsequent dealings in public land concerned and their current status.
4. To examine payment of land rates to Mavoko Municipal Council relating to the said parcels of land.
5. To establish the nature of involvement of public officials or any other persons in the irregular appropriations and allocation of public land and to identify the officers involved.
6. To determine the security implications of the squatter problem in Athi River District.
7. o carry out any other inquiries which in the opinion of the Taskforce is necessary in unraveling the irregular land appropriations and allocation in Athi River District.
8. To recommend measures to restore public land irregularly allocated.
9. To recommend actions to be taken against persons involved in the irregular land allocation in Athi River District.
10. To examine transactions of the Land Control Boards against the background of existing legal framework on their functions and powers and explore reasons for their inability or failure or unwillingness or refusal to curtail the irregular land appropriations or allocations in the district.
11. To recommend measures to be put in place to curb future irregular allocations of such land.
In the performance of their tasks, the Taskforce was required to:-
1. Prepare detailed Work Plan indicating the milestones and time lines
2. Develop a prioritized Matrix clearly categorizing the immediate, medium and long-term reforms and budgetary requirements
3. Review any documents relevant to its mandate
4. Hold Consultative Forums with professionals and the public.
1. The Taskforce was required to report to the Minister of State for Provincial Administration and Internal Security and;
2. The Taskforce was also required to regularly advise and keep the Minister appraised on progress of their work.
The Taskforce was given the mandate to regulate its own procedure.
The Taskforce was given forty five (45) working days to accomplish its mandate.
INTERPRETATION OF THE TERMS OF REFERENCE
In the understanding of the Taskforce, the mandate was to collect and collate information on appropriation of land in Athi River District and report the findings and recommend to the Government the necessary action to be taken to appropriately address the prevailing situation in Athi River District.
The Taskforce was required to largely look into and quantify the irregular appropriation of public land and quantify the squatter problem in the District. The Taskforce was to further flag out all inconsistencies and irregularities, persons/officials involved and recommend remedial measures and interventions that enhance integrity of land regime in the District. The Taskforce was to also quantify any private concerns over the land matters as well as hold public hearings and obtain memoranda from interested parties.
The Taskforce endeavored to examine the link between the irregular appropriation of land and the squatter problem to the security threat with a view to making appropriate recommendations. Although the main focus was on public land owned by state corporations and parastatals, the Taskforce also addressed the irregularities and illegal acquisitions of private lands in line with the terms of reference.
The Taskforce adopted a standard formal approach based on the work plan and nature of the task. Letters of invitation, summonses and public notices were done to give the widest coverage as necessary. A temporary liaison office was opened at the Municipal Council of Mavoko for receipts of written memoranda and other enquiries. The findings and recommendations were generated from a rich source of data that was acquired. The following structural format was found favourable.
2.1 BASELINE SURVEYS
The Taskforce relied on the formal reports that had been made to the Government; which by extension formed the basis of constituting the Terms of Reference for the Taskforce.
The Taskforce moved to the ground using the available data that was in possession of the Minister who was the appointing authority. A Technical Team was constituted to prepare a work plan based on the information that was to guide the team in their work. The launch speech by the Permanent Secretary generally gave the direction to the Taskforce and also the first public caution of the situation on the ground. The statement expressly directed that all land transactions within the District must be stopped or suspended.
Among the items captured by the Technical Team were;
(a) An open tour to the affected area.
(b) Organizing public meetings for awareness creation.
(c) Public hearing dates.
(d) Report presentations.
(e) Documentation and validation among others.
2.2 PUBLICITY AND PUBLIC NOTICES
The Inauguration/Launching Speech formed the first public notice. The Local Administration was tasked to ensure the message about the mandate of the Taskforce was delivered to all the people within the District. Public Barazas were planned; however, the idea was shelved as the same was likely to jeopardize and pre-empt the public hearings. This advice was timely as the Taskforce later gathered that the land speculators had misinterpreted the purpose of the Taskforce and were misleading the public that the Taskforce would regularize the illegally invaded farms.
Before embarking on the public hearing, the Taskforce made appointments with all public institution and State Corporations affected by invasions.
The meetings took place in their offices as follows;
a. NMC - NMC Conference Room attended by MD, Legal Officer and the staff members who were handling the subject matter.
b.NHC -NHC Boardroom; attended by a technical team on Investment headed by the Ag. CEO and Senior HODs.
c.NSSF -Boardroom; attended by General Manager Investment, Legal Officer and officers in the department.
d.EAPCC - EAPCC Club House Boardroom; attended by Chairman of the Board, Legal Officer and Senior Company officials.
e.KAA -JKIA Board; attended by MD KAA, Legal officer and Senior Corporate Officers.
The Taskforce thereafter released a paid-up Public Notice in the major dailies announcing the 3 specific dates which ran for two weeks from 6th to 15th September, 2011 daily from 9.00 a.m. to 4.00 p.m. (See annex)
The Taskforce made several field visits to the affected areas. Three among them were:-
a.An unguided tour conducted to generally give the members an idea of the magnitude of the problem in the area.
During this tour members came face to face with the reality on the ground and witnessed how the land speculators were placing beacons on both public and private lands.
Taskforce members during the Field tour.
(b) A second guided tour was conducted approximately one month after commencements of operations. The Taskforce was accompanied by officials from Public Institutions affected by illegal invasions namely NSSF, NHC and EAPCC. This tour exposed the Taskforce members to the reality as gathered during the hearings. During this visit, the Taskforce got an opportunity to interact with members of the Public who were being duped into buying the illegal parcels. They also experienced, how the work of “illegal surveys and placing of beacons was being done.”
(c) Other field visits were made from time to time when the need arose to confirm and verify the reports gathered during the hearings.
The field visits provided very valuable and vital information to the Taskforce members. The members were able to appreciate the magnitude of the crisis and the need for a firm and decisive intervention by the Government.
2.4 PRESENTATION OF MEMORANDA
The Taskforce encouraged affected members of the public and Public Institutions to present written memoranda.
There were several written memoranda that were delivered to the Taskforce temporary office. A summary of the memoranda were captured in the matrix appearing in chapter four.
The Taskforce also received other memoranda that were handed over during public hearings, during visits to corporate bodies and those delivered at the agreed drop points.
LETTERS OF INVITATION AND SUMMONS
The Taskforce invited in writing all public and state corporations to present their cases at appointed times. Invitations were also made to other Government and Public Officers who were considered to be having valuable and vital information of the issue.
Summonses were made to the members of the Public and Law enforcement officers who were adversely mentioned during the public hearings.
Some of those summoned included the then, District commissioner Athi River District Mr Lloyford Kibaara,OCPD Athi River Police Division,DCIO Athi River Police Division,District Officers andArea Chiefs.
Members of the Public and politicians summoned were Nicholas Nzioka Ndambuki aka Willy Kahore Wanjiku,Former chief Katani Location Amos Kilonzo Mutinda,Former Councilors; Joseph Musau Mutuku, Lilian Nduku Musyemi, Angelina Muteithya, Cosmas Musyoka, Miriam Mwikali Mulei and Peter Mailu.
Special sessions were also arranged for Hon. Wavinya Ndeti Member of Parliament for Kathiani Constituency,His worship the Mayor Cllr. Patrick Makau and his council members,Members of District Security & Intelligence Committee (DSIC),District Land Registrar and District Surveyor, Mavoko Municipal Physical Planning Officer and
5David Masika representing the interests of Pravin Bowry, Justice T. Mbaluto, Sam Muumbi among others.
6Gallot Industries’ representatives.
The public hearings were mainly conducted at the Municipal Council of Mavoko Chambers. The Media was present and other interested parties were free to attend. There were, however, some exceptions where the presenters requested to have their presentations made in camera. All such requests were respected.
Considering the intricate nature of land matters some sessions took longer periods than the set time of 20 to 30 minutes for each presentation.
This created a spiral effect on the queue. In order to compensate and cover as many presentations as possible, the Taskforce extended its sitting hours beyond 4.00 p.m. on all days.
By the close of the Public hearing dates, a sizable number of affected persons remained unheard, necessitating the Taskforce to extend the sitting dates to cover Mondays and Fridays. There was also a one week extension of public hearings due to public demand.
Notwithstanding the closing of the Public hearings, the Taskforce willingly continued to receive additional presentations from members of the Public, their legal representatives and memos up to the moment of preparing this report. The information received out of time was given equal consideration as the previous ones without bias. The Taskforce covered as much ground as possible, but remained aware that NOT all affected persons were able to make their presentations.
However, the Taskforce recommendations have covered the entire spectrum and it is expected that they will benefit even those who did not appear or present their specific cases.
The Taskforce engaged inputs from various professionals and their institutions when the need arose. Information gathered during the interactions with the professionals as well as in other forums was carefully considered when making the final submissions of this report.
Letters of allotment and other letters from Ministry of Lands
Land Rent Clearance Certificate – Ministry of Lands
Land Rate Clearance Certificate – Municipal Council of Mavoko
Certificates of Incorporation and Registration
REVIEW OF SUBMISSIONS AND FINDINGS
The Taskforce developed a contemplate structure for reporting as per the nature of its mandate. The task was extraneous considering the large volumes of memoranda and notes generated during the Public hearings. Although most of the issues were repetitive and synonymous, the summary and recommendations have been explicitly captured.
It’s worth noting that the Taskforce did get in touch on phone and email with various persons and authorities where further clarifications were necessary. This was to ensure their presentations were captured with clarity.
The Taskforce worked diligently to minimize error and duplication and where close correlation of a matter arose, the two were captured independently to avoid losing vital details. Extreme care was taken so as not to water down the truth and facts as presented both in the memos and in Public hearings.
As noted in the report, the Taskforce widely explored various options in arriving at clear and concise findings, although the subject matter could have been convoluted and long-winded.
With the above understanding, the Taskforce had reasonable tolerance to arrive at the findings that are within practical and legal structure for both immediate and long term implementation.
The Taskforce engaged professional during compiling the report and give it the high-end finish as presented.
The details as explained above were captured………………………………………..
VALIDATION OF REPORT
CHALLENGES AND LIMITATIONS
The Taskforce faced challenges of time, costs and scope. The taskforce had been given forty five (45) working days within which to submit a report to the Minister of State for Provincial Administration and Internal Security. This time was not adequate bearing in mind the complexity of the Athi River land issues that required thorough investigations before its associated problems of classification, appropriation and use are analysed and conceptualized. The taskforce worked on a tight program often extending working hours beyond 6.00 p.m. to manage the task.
The terms of reference provided that all costs shall be met by the Ministry of State for Provincial Administration and Internal Security. However, the guidelines provided by Ministry of State for Public Service through letter Ref. No. ……….. vide were rather limited. Whereas the members appealed, and while awaiting the response they continued to sacrifice to the extent of using their own means of transport to venues of meetings and incurred personal cost in communication beyond their provision.
Nonetheless, the Taskforce members appreciate the facilitation provided by the Ministry of State for Provincial Administration and Internal Security and by Municipal Council of Mavoko towards meeting all attendant costs in the pursuit of their mandate.
The scope of the Taskforce as set out in the Terms of Reference was more of a fact finding mission with the clear purpose of making actionable recommendations to the Government.
This explains why the Taskforce felt rather limited in deterring invasions, removing land speculators from private and public land or even addressing the many pending land related cases in court as well as the cases brought against the Taskforce in court. The Taskforce overcame this constraint by focusing their energies on the two classifications of land i.e. public and private lands.
The public hearings and consultations with Public Officers such as the Permanent Secretary, Ministry of State for Provincial administration and internal security, Hon. Member of Parliament for Kathiani Constituency and His Worship the Mayor of Municipal Council of Mavoko served to enrich the scope of the Taskforce
HISTORICAL BACKGROUND OF LAND IN ATHI RIVER DISTRICT
LAND TENURE SYSTEMS IN KENYA
Land tenure systems in Kenya are diverse and have complex interactions with the social, environmental, economical and political spheres of the country. The land question in Kenya is one that has aroused the emotional and spiritual feelings of Kenyans as the resulting land-related grievances have become increasingly politicised and divisive.
Land is placed in three broad categories and these are:-
1. Public Land
2. Private Land
3. Community Land
Public land comprises all land owned by the Government and dedicated to a specified public use or made available for private uses at the discretion of the Government. The principal law regulating public land is the Government Land Act (Cap 280).
Private land refers to land held by an individual or other entity under freehold or leasehold tenure. Freehold is the largest interest on land which the sovereign can grant to an individual. While it confers unlimited rights of use and disposition, it is subject to the regulatory powers of the State.
In Kenya, interests in freehold are individually held under the Registration of Titles Act (Cap 281), the Land Titles Act (Cap 282) or the Government Lands Act (Cap 280). The absolute proprietorship was introduced by the Registered Land Act (Cap 300)
Leasehold involves the derivation of rights from a superior title for a period of time, certain or capable of being ascertained and the enjoyment of such rights in exchange for specific conditions including, but not limited to, the payment of rent. Leasehold tenure provides a flexible mechanism for transacting rights in land and for land use control.
It is a private contractual right subject to the conditions imposed by the owner and grants exclusive rights to the leaseholder. Leasehold interests are also regulated by the Registration of Lands Act, Cap 300 alongside other Acts.
Community land refers to land lawfully held, managed and used by a specific community. This community land is not held by an individual but rather by a mixture of personal, familial and economic relationships. This creates a powerful system of land allocation regimes and a tenure system designed to preserve the asset base for current and future generations. Families and individuals are allocated rights to use the land in perpetuity, subject only to effective utilization. The ultimate ownership (radical title) vests in the community.
For a long time, there was no law regulating customary land ownership and these land rights remained unregistered until the mid 1950’s when the process of land adjudication, consolidation and registration was introduced.
CONFLICT OVER LAND RESOURCES IN KENYA
The conflict over land resources in Kenya is traceable to the colonial era and the injustices inherited by the independent state of Kenya.
The colonial land tenure system operated from the premise that land in Kenya was terra nullius (vacant land) and that Kenyan citizens were “tenants at the will of the Crown.” This meant that Africans (Kenyans) did not have legal ownership rights to the land they customarily occupied but only had what the colonialists regarded as “user rights.”
Land was alienated from customary systems usually without compensation for the use of White Settler Farmers who relied on African labour. Africans (Kenyans) were restricted to the native reserves which formed the basis for ethnically-defined administrative units – the precursors of present day districts, divisions and locations.
By 1934, European Settlers, who represented only about 1% of the Kenyan population at the time, controlled all arable land in Kenya whereas the natives were moved to the reserves completely alienated from customary land controls. All the highly potential agricultural areas in Kenya were classified and registered as freeholds or leaseholds to select White Settlers who had authority from the British Crown Government.
At independence, what was known as Crown Land became categorised as Government Land which unfortunately included the communal and ancestral lands of many local Kenyan communities. Legislation regulating Government land at the time did not protect public interest as regards the stewardship or utilization of these lands. The President had exclusive powers over un-alienated government land to make grants which were exercised through the Commissioner of Lands. Therefore land could be alienated from customary ownership and allocated to institutions and individuals.
LAND TENURE IN ATHI RIVER DISTRICT
Most of the land in Athi River District was purely agricultural land and was owned by White Settlers in the form of cattle ranches, sisal estates and cereal farms. Among the cattle ranches included the Beacon Ranch, Lukenya Ranch and the Ngelani Farm. The sisal estates included Katani and Lukenya-Kinanie among others. The Syokimau farm was a famous cereal farm.
After independence, some of the lands held by the White Settlers were purchased by some private individuals and land buying companies while others reverted back to the Government of Kenya. The local wananchi were then advised to organise themselves and form co-operative societies who would then be allocated parcels of land upon the payment of a prescribed fee.
Several local co-operative societies were formed and included:- Katani-Mitaboni, Syokimau, Drumvale, Lukenya and Ngelani Co-operative Societies among others. Upon acquiring the lands, the co-operative societies then subdivided the land amongst their shareholders who were later issued with freehold title deeds to their parcels of land. The Co-operative Societies also set aside some land for public utilities such as schools, health facilities, administrative centres, recreational centres, churches and access roads.
Genesis of Land Conflict in Athi River District
During the sub-divisions of the lands by the Co-operative Societies, many anomalies arose.
Most of the people who were working in the ranches could not afford to buy shares in the society and therefore could not be allocated land leaving them landless. Lands reserved for public utilities were fraudulently sold off by some of the officials of the Co-operative Societies whereas some were settled on by the former landless workers.
It is observed that some of the people genuinely acquired land and registered them in their names, but most of the illegal occupations and irregular acquisitions were never addressed.
In the recent years, Local Authorities have further perpetrated the irregularities and illegalities by sub-dividing and selling off to private individuals some of the land earmarked for public utilities.
The squatter problem in Kenya and particularly in Athi River District can also be traced to the colonial times when the “natives” were moved to the reserves. The emergence of a select few as a wealthy land-owning class created a larger group of poor landless classes who later turned into landless “squatters” unable to register any land that they occupied for several successive generations.
Some of the squatters were formerly workers on the White Settler farms who continued to live on the farms even after the White Settlers had left and the farms had been purchased by the Co-operative Societies, Companies and Private individuals. Most of these were the people who could not afford to acquire shares in the Societies to be allocated land. However, they remained in occupation and several successive generations later, they are still regarded as squatters as they do not own even the land they have occupied for a number of years. Some of the farms affected by the squatter problem in Athi River are:-
I. Lukenya Ranch
II. Ngelani Ranch
III. Mitaboni Katani Ranch
(Katani – Mitaboni Ranch)
IV. Katelembo Ranch
V. Drumvale Ranch
In addition, there were some former workers of the defunct Kenya Meat Commission, Tanning Factory, Sisal Factories at Kinanie, Coral Paints and Katani who became homeless with no source of income. They started looking for areas of occupation and thus created the informal settlements. These informal settlements (slum-dwellings) are scattered all over the Athi River District and include:-
I. Kimongo I & II at Kinanie
with about 1,000 squatters
II. City Carton with over 2000 squatters
III. Canaan with over 2000 squatters
V. Slum 39
VI. Kyelenzi Slum
VIII. Kisumu Ndogo
In total, it is estimated that there are over 10,000 squatters living in these informal settlements in Athi River District. Most of these informal settlements are occupying public utility and privately owned lands.
The National Land Policy has proposed some reforms in order to deal with the ‘squatters’ and informal settlements. The Government should:-
(a) Create a regime of secondary land rights as a means of improving security in informal/spontaneous settlements;
(b) Recognize and protect the rights of informal land occupiers and guarantee their security of tenure; and
(c) Establish a legal framework and put in place procedures for transferring unutilized land and land belonging to absentee landlords to ‘squatters’ and landless people.
This squatter problem is what led to the concept of self-land acquisition-”Ngwata”.
Self-land acquisition phenomenon (Ngwata) in Athi River District
The application of Ngwata (Kamba word to denote self-land acquisition) was first noticed on the parcel of land situated at Mlolongo Area between the old Mombasa Road and the Syokimau Stream. The area had been planned for quarry plots and allocated to business persons involved in quarrying activities who had exhausted their mining operations in Kayole Area, Nairobi.
When the first quarry at the Mlolongo Site started operating, it was realized that the blasting was affecting communication installations at the nearby Directorate of Civil Aviation. The quarrying operations were then stopped and the owners allocated alternative land East of Mlolongo Town, about seven Kilometers away, in exchange for the old sites.
In 1998, the area political leaders realized that the previous owners of the quarries had accepted the new sites but continued to hold on to the old sites. They encouraged groups of people to invade the Mlolongo site which was arbitrarily subdivided amongst the invaders. This is what became famously known as “Ngwata Phase I.”
These invaders led by the local political leaders then formed a Self Help Group known as Quarry Site Self-Help Group that was later registered to oversee the survey and allocation of the sub plots. This self-help group was later registered as Mavoko Land Development Company Ltd which settled their members on the land. The area has since been completely developed.
The original allotees of the Mlolongo quarry site protested over the invasion and entered into negotiations with the Self Help Group whereby it was agreed that the invaders should raise money as compensation to the business men. However, some of the business men were not agreeable and opted to take the matter to court. The case has not been concluded to date.
It was established that the Town Clerk and Councillors from the Municipal Council of Mavoko were involved in the above illegal invasions. They arrogated themselves the responsibility of issuing the allottees with Temporary Letters of Allotment (TOL) so as to give the allotees some confidence in their occupation of the land.
In 2006-2007, the Government through the then Minister for Lands Hon. Kivutha Kibwana decided to form a Special Committee to address the Ngwata issue. Since some of the original land owners had been paid off, the Special Committee recommended that the area be re-planned and the settlement regularized. They were then issued with Letters of Allotment by the Commissioner of Lands. However, some portions of this settlement are still under dispute and now extends to Ngwata Phase IIA and III.
The Taskforce established that the above scenario set a precedent which has since been replicated in several other areas. Land speculators have taken advantage of the apparent squatter problem (landless people) to invade public and private lands in Athi River District in a disguised bid to secure land for this category of people. These current land speculators mainly target unfenced and unoccupied parcels of land and even acquire fake “titles” which they use to sell the land to unsuspecting buyers.
Some buyers have gone further and developed both residential and commercial properties which are massive investments in a bid to give the perception of genuinety of ownership. This creates a presumption that such investments could not be demolished because of the attendant cost implications and the spiral effects that would go along with such an action for demolishment.
The legitimate owners are prevented access to their lands and some have been violently attacked by the invading gangs when they attempt to take possession of their properties. Several of these cases have been reported authorities and captured in this report.