VERBATIM REPORT: Part
two of Mavoko land taskforce
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| Members of the Taskforce during a tour of one of the affected areas |
LEGAL, INSTITUTIONAL AND REGULATORY FRAMEWORK OF MANAGING LAND IN ATHI RIVER DISTRICT
LEGAL FRAMEWORK
In carrying out its work, the Taskforce have noted that land administration is governed by the following Acts of Parliament; Land Control Act (Cap 302)The Land Control Act was enacted in 1967 to provide for a legal framework for controlling transactions and managing agricultural land in Kenya. The Act establishes three-tier hierarchical system of land control boards to encourage efficient land use also empowers the Minister for Lands and Settlements to declare any part of the country as land control area under the Act.
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| Mavoko Town Hall, where the taskforce held its sittings |
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| A section of members of the Taskforce during a sessio |
Other members include two nominees from the local government and no more than two public offi cers. The District Commissioner (DC) or District Offi cer (DO) acts as the Chairman. The DLCB regulates all controlled transactions in its jurisdiction. Provincial Land Control Appeal Board (PLCBAB) is an appellate tribunal and consists of the Provincial Commissioner as chairman, not more than two appointed public offi cers, and between two and fi ve appointed members from the community where the land in question is located (Government of Kenya, 1989). The Central Land Control Appeal Board is an appellate tribunal and a fi nal arbiter. It consists of the Minister for Land and Settlement as the Chairman, the Attorney General, Ministers for Home Affairs, Economic Planning, Agriculture and Co-operatives and Social Services (Government of Kenya, 1989).
Government Land Act (Cap 280)
Registration of Titles Act (Cap 281)
Registration of Lands Act (Cap 300)
Physical Planning Act (CAP 286),
Survey Act (CAP 299)
Rating Act
GLA (Cap 302) gives provisions to the establishment of Land Control Boards and their operations viz sale, transfer, lease, sub lease, charge and partition.
GLA(Cap 280) deals with alienation and management of government land. This includes development control i.e approvals for sub-division, change of user, extension of lease and extension of user. The GLA gives provision on how government land should be alienated.
RTA(Cap 281) – This is a statute that guides on how transactions on land registered under the Act will be carried out. Title Grants under this Act are only registered in Nairobi for the rest of the country and Mombasa for Coast Region.
RLA(Cap 300) – gives provision on how transactions on titles registered under this Act may be carried out e.g. transfers, charges, subleases. It also caters for the land which has been converted from RTA to RLA.
Survey Act (Cap 299) – gives authority to carry out any survey by the Director of Survey and the licensed surveyor.
Physical Planning Act(Cap 286) – deals with planning and development control on land.
INSTITUTIONAL FRAMEWORK
(a) Commissioner of Lands
(b) District Land Registry
(c) Municipal Council of Mavoko
(d) District Plots Allocation Committee
REGULATORY FRAMEWORK
(a) Land Control Board
(b) District Land Tribunal – Machakos
(c) District Physical Planning Liai son Committee
CHAPTER FOUR
RESERVATION AND ALLOCATION OF LAND IN ATHI RIVER DISTRICT
PUBLIC LAND
In this chapter of the report the Taskforce embarks on a situational analysis of the illegally appropriated lands in Athi River District. For clear analysis the taskforce found it necessary to broadly categorize the affected lands as follows;-
PUBLIC LANDS
l State Corporations
l Public Utilities
PRIVATE LAND
l Cooperative Societies and Churches
l Private Individuals
3.1.0 STATE CORPORATIONS
State corporations are established under Cap 446 Laws of Kenya; each state corporation falls under a specific Ministry while the government retains the authority to appoint members of the management board and the chief executives of the respective corporations.
The Government allocates land to a State Corporation to carry out its mandate. Others may also procure land with approval of their Boards to carry out its mandate. The Government may also compulsorily acquire land for the purpose of a State Corporation. All land held or owned by a State Corporation is public land in the sense that it was either excised off Government or trust land, or the funds used to purchase that land were tax-payers money. The corporation therefore holds land on trust for the people of Kenya.
In the area under our mandate the following State Corporations, Companies and Institutions were analyzed; 3.1.1 East African Portland Cement Company (EAPCC) – 13,000 acres
The ownership of East African Portland Cement Company (EAPCC) is as follows;- GOK 25%, NSSF 27%, NAVAL (LARGAGE) 42% and Public 6%.
EAPCC owns the land tabulated here below;
Parcel (LR.NO. Acreage (Acres) Status 7815/1 2095
Invaded by illegal trespassers(“land speculators”)
8784/4 1332
Kunkur finished and it is earmarked for disposal but invaded by illegal trespassers and are undertaking illegal sub-division
8786 745
Invaded by illegal trespassers and are undertaking illegal sub-division
10424 4298
Invaded by illegal trespassers and are undertaking illegal sub-division
10425 4313
Invaded by illegal trespassers and are undertaking illegal sub-division
8785 - Parcels sold and a modern housing Estate is fully developed.
Total12,782.6
Observation and Findings
It should be noted that the above mentioned parcels exclude the areas covered by the office blocks, manufacturing plant and residential area. On parcel LR. No. 10424, there is a road reserve totaling 41 acres. The Taskforce visited parcel LR. No. 10425, and found a group calling itself Kenya National Organization of Victims of Ethnic Clashes (KNOVEC) sub-dividing among its 900 members out of whom 300 have been allegedly resettled.
EAPCC has challenged the illegal invasion in the High Court at Machakos HCCC No.93 of 2009 and obtained a Court Order restraining any person from interfering with the land and maintain the Status quo. EAPCC informed this Taskforce that the police are investigating an account with KShs. 62 Million opened by some leaders of the land speculators with a name disguising as East African Portland Cement Company.
Findings and Recommendations
l EAPCC has offered to sell LR No. 8784/4 with priority to the local community and Company Staff provided they organize themselves in groups through the participation of local leaders.
Illegal trespassers be evicted without any further delay.
EAPCC should consider securing their land as advised elsewhere in the report.
3.1.2 NUMERICAL MACHINING COMPLEX (NMC)
The ownership of Numerical Machining Complex (NMC) is as follows:-
Kenya Railways – 51%
University of Nairobi – 49%
In the year 1992 the Government allocated a total of 1700 acres to NMC parcel number LR .11895/20, IR No. 63767 totaling 1700 acres for the purpose of developing industrial park. In the year 2001, NMC hived out 500 acres for disposal to offset an outstanding debt amounting to KShs. 78 Million. There was a Cabinet Memo authorizing the sale.
Observation and Findings
Out of the 500 acres, 470 acres were sold out to individuals and private companies and has since been developed. However, 30 acres are illegally invaded by illegal land speculators, therefore, the company has not been able to provide vacant possession to the buyer. This parcel of land is being claimed by two firms namely; Naritoi Agency and Benrose Agency. Both firms are in possession of titles with the same LR number but different IR numbers.
The remaining 1,200 acres of land have since been invaded, by some 17 self help groups among them - MAVEMBA, TUPENDANE and others. NMC had gone to Machakos High Court vide HCCC No. 252 of 2010 and obtained restraining order dated 22nd December, 2010 against the invaders, to-date this order has not been enforced.
Some records captured show that members of the MAVEMBA self help group were paying 400,000/= per plot to their officials and issued with a share certificate upon payment.
The land has been earmarked for the construction of a steel mill complex towards leading the country to achieving its industrialization vision as one of the key flagship projects as envisaged in Vision 2030. This Taskforce noted that NMC has signed an MOU with an international investor to establish a steel mill on this land. The project has attracted 115 Million US dollars from the investor.
Visit to this parcel of land by the Taskforce established that the entire 1,200 acres is heavily invaded by the speculators who have dotted the whole area with “uni-hut” like iron sheet structures.
Findings and Recommendations
l The illegal invaders should be evicted immediately to enable NMC give vacant possession to the investor.
l The officials of the self help groups and Land buying companies involved should be investigated, arrested and prosecuted for swindling unsuspecting members of public.
3.1.3 NATIONAL HOUSING CORPORATION (NHC)
NHC was established in 1960 under the housing Act (Cap 117) Laws of Kenya mandated to provide quality and affordable housing to Kenyans through partnerships.
The Corporation owns a number of parcels in Athi River District and the affected parcels are as listed hereunder;
Parcel 1- LR. No. 25298 -initial allocation was 80 Hectares(Ha.) allocated on 2/7/1994 Ref. No. 39711/XX/III with a Deed Plan.
When the Survey was done it was realized that some parts had been excised. The balance of 33.16 Ha. was issued with a fresh letter of allotment Ref. No. 397711/XX/II dated 23/4/1999 by the Commissioner of Lands. NHC made a part payment of KShs. 558,940/= as stand premium. However, it was realized part of the land had been allocated by the Commissioner of Lands to a private developer leaving NHC with 12.57 Ha.
The Commissioner of Lands further issued a fresh allocation on 6/9/2005 Ref. No. 206313/22. On 9/9/2005, NHC paid to the Commissioner of Lands Kshs. 330,040/= but while processing the allotment letter, it was further realized that LR No. 25298 had another letter of allotment issued to a private developer hence the processing of Title of ownership to NHC was stopped. To date, the Ministry of Lands is still investigating the double allocation of the land.
Observation
(1) NHC does not own any land as at now, but has continued paying a total of KShs. 888,980/= to the Commissioner of Lands who was still issuing the same land to private developers.
In view of the above;
(a) The Commissioner of Lands is responsible for the double allocations.
(b) The Commissioner of Lands collected quite a substantial amount of money while knowing very well that the same parcel of land had been allocated to private developer(s).
(c) Some official land transaction documents were not availed to the Taskforce by NHC.
(d) The Commissioner of Lands has a responsibility to resolve the ownership dispute and expedite issuance of title to NHC to enable the Corporation undertake the desired housing development.
Parcel 2- Agriculture Syndicate Ltd And NHC- LR No. 10426/81 IR 126719 (155 Acres) with Title available in the name of Agriculture Syndicate Ltd.
On 7/2/2011, NHC entered into a sale agreement with Agriculture Syndicate Ltd at the price of Kshs. 822,700,000/=. NHC paid the following installments:-
(i) KShs. 300 Million
(ii) KShs. 250 Million
A Balance of KShs. 272,700,000/= was still outstanding as at 15/8/2011.
In order to facilitate the transfer of the land to NHC, Agriculture Syndicate Ltd. paid land rates of KShs. 393,740/= on 28/1/2011 to the Mavoko Municipal Council through its lawyer Harit Sheth. A Rates Clearance Certificate was issued on 28/1/2011and a Transfer done on 8/3/2011.
Observations
l While the current legal owner, Agriculture Syndicate Ltd. was in the process of transferring the said parcel of land to NHC, they realized that the same parcel is being claimed by other parties namely:-
(a) Local residents – No documents available
(b) Group of Maasais – No documents
(c) Kibwezi Mining (2002) Company Ltd. – have a copy of title LR. No. 10426/81 IR 143032 measuring 60.56 Ha.
(d) Richard Mwalili Mulu and Joseph Mwalili – Have a Certificate of Title LR No. 10426/29/3 and IR 105259 measuring 157.5 Ha
l It is further observed that Messrs Kibwezi Mining (2002) Co. Ltd. does not exist in the records of Registrar of Companies as per the letter from the Registrar of Companies Ref. CR 13-General and dated 11/5/2011.
l The Chief Land Registrar in the letter Ref. IR 105259 dated 13/5/2011 while verifying the authenticity of the titles states that:-
(1) The title held by Agriculture Syndicate Ltd. LR No. 10426/32 IR 105259 was subdivided and resultant titles issued in the same name. A further subdivision was done and LR No. 10426/81 IR 126719 was registered in the name of NHC and charged to Agriculture Syndicate Ltd while LR No. 10426/82 IR 126720 remained under Agriculture Syndicate Ltd.
(2) He further confirms that the title held by Messrs Kibwezi Mining LR 10426/81 IR 1043032 is a forgery.
Finding and Recommendations
LR No. 10426/81 of IR 126719 is genuinely registered in the name of NHC having been transferred from Agriculture Syndicate Ltd as per the confirmation from the Chief Land Registrar vide his letter.
In view of the foregoing, the claim by the local residents, Maasais, Kibwezi Mining Company, Richard Mwalili Mulu and Joseph Mwalili over the same parcel of land is fraudulent and their occupation is illegal hence legal and administrative mechanisms should be put in place to ensure their eviction.
The NHC is advised to complete payment of the balance amounting to Kshs. 272,790,000/= in order to expedite the process of ownership of the said parcel of land.
Some titles owned by other private individuals were revoked by the Registrar of Titles under Gazette Notice No. 3454 dated 1/4/2010 in favour of NHC for the purpose of public utilities and these are:-
LR No. 27791
LR No. 27792
LR No. 27793
LR No. 27794
LR No. 27796
The parcels of land whose titles had been revoked except one were held in trust by the PS-Treasury for Ministry of Housing under new LR numbers namely:-
LR No. 28454
LR No. 28455
*LR No. 284456
LR No. 28457
LR No. 28458
The above parcels of land were given to NHC by the Ministry of Housing after NHC applied for allocation of land in Mavoko Municipality for Housing development. All the above titles came out in the name of Permanent Secretary, Treasury.
On allocation, NHC commenced construction of a factory called EPS on LR. No. 28458 at a cost of KShs. 578 Million (the original number is LR. No. 27796).
On LR No. 27792 – there is a perimeter wall under construction by an unidentified person. On LR No. 27793 – there is a barbed wire fenced by yet another unidentified person.
A Mr. Abdiraham Adam Mohamad was awarded parcel LR No. 27783 (formerly LR No. 284456) through a Court Order. NHC is concerned that there is a possibility of the remaining parcels of land being similarly challenged in a court of law.
l The Permanent Secretary, Treasury be requested to release all titles he is holding in Trust to NHC.
l NHC is advised to regularize their ownership of the titles.
3.1.4 National Social Security Fund (NSSF)
The National Social Security Fund is a public trust which was established in 1965 through an Act of Parliament Cap 258 of the Laws of Kenya. The Fund initially operated as a Department of the Ministry of Labour until 1987 when the NSSF Act was amended transforming the Fund into a State Corporation under the Management of a Board of Trustees. The role of NSSF is to provide social security protection to workers in the formal and informal sectors. NSSF has not been vested with any land by the Government but all the parcels owned by NSSF were purchased between 1992 and 1994 from individuals and from companies.
In total, NSSF owns 1,371.62 Acres within Athi River District. The Board of Trustees has earmarked about 50 – 80 acres for disposal through a local leadership-stakeholder process. A total of 1,010.3 Acres have been earmarked for Public- Private Partnership development as per their International Tenders of No. 05/2010-2011 which invited expression of interest (EOI) for joint venture development. The intended development will include a modern city comprising of between 20,000 to 30,000 housing units of various categories offering the necessary public amenities e.g security structures, schools, hospitals, shopping complex and recreation facilities, modern transport infrastructure (public railway and road network) among others. The rest of the land shall later be developed.
Observations and Findings
The Invasion/encroachment on NSSF land is two-fold in nature;-
(a) On the one hand, NSSF accuses Municipal Council of Mavoko of aiding and abetting dumping of soil by construction companies that have no specific dump site for their excavation works on the parcels of land belonging to NSSF. NSSF further claims that the people who dump the soil engage the services of some youth with the intent of scaring away NSSF staff and security. The youth also collect a dumping fee from the vehicles dumping the soil.
(b) On the other hand, among the parcels earmarked for PPP (Public-Private-Partnership) specifically LR. No. 24578 of about 577.2 Acres in the Katani Area has illegal beacons erected on it and the same is being sold to unsuspecting third parties. Local youths are hired by illegal land speculators and agents to harass the NSSF officials on this particular land among others when they attempt to secure their property which creates a security threat. These youth agitate that they are squatters who need land yet from the initial findings, the Taskforce has confirmed that there are no squatters in the area and there have never been initial occupants of the lands in question.
Recommendations
l The Taskforce appreciates the NSSF offer to dispose off the parcels of land which they find difficult to develop e.g. in the dumping areas, through the envisaged participatory process giving priority to the local communities.
l NSSF should be facilitated by the Government through the provision of security to clearly identify and put permanent marks on their parcels of land using cost-effective measures preferably by the digging of trenches.
NSSF should erect billboards identifying their land for the purpose of deterring land speculators/invaders from interfering with their land and also as a way of creating awareness to the members of the public.
The invaders and encroachers should be evicted immediately and their officials/leaders investigated, arrested and prosecuted.
3.1.5 KENYA AIRPORTS AUTHORITY (KAA)
KAA was vested with land pursuant to Section 4 of the Kenya Airports Authority Act (Cap 395 of the Laws of Kenya).
A grant was issued for LR No. 21919 measuring 4,674.6 Hectares (Ha) on 1/8/1996. However, there was a variance in the area surveyed and that which was reserved for the development of the Airport.
In 2002, a re-survey was done by the Director of Surveys to correct the variance and subsequently KAA surrendered the title for LR No. 21919 was issued with a new grant for LR No. 24937 measuring 4,398.7 Ha giving a variance of 275.9 Ha. However, there are indications that KAA petitioned the Commissioner of Lands on the excisions on Airport land and this has prompted disputes with the neighbouring community, now variously referred to as Jumbo Uungani and Mulolongo Brothers Land.
The following issues were raised by KAA:
(a) There are some people with valid title documents with developments along the flight path and KAA’s contention is that approval for any development along the flight path must be subject to the provisions of the KAA Act for purposes of International Safety Standards.
(b) Squatters numbering about 200 along the flight path who also encroach on the airport land and are viewed as a security threat.
(c) Out of the 1600 acres of illegally acquired land of out of which 400 acres are the subject of two pending court cases viz:-
l HCCC No. 206 of 2004
l KAA – Vs – Mlolongo Bros (LR. No.
14231)
l HCC No. 489 of 2004
l KAA – Vs – Uungani Settlement Scheme Self Help Group (LR No. 13512)
Findings and Recommendations
l The Taskforce recommends that court survey be done on the two parcels LR. No. 14231 and LR. No. 13512.
l KAA should to urgently pursue the conclusion of the pending Court Cases.
3.1.6 SHEEP AND GOAT/KENYA MEAT COMMISSION (KMC)
The KMC/sheep and goat project owned LR. No. 10029/2 measuring 2912 acres. The land is used for livestock breeding and diversification including introduction of quails and guinea fowls for breeding.
The project is however unable to fully utilize the land because of the following:- Illegal occupation by squatters, Illegal grazing and cultivation by trespassers, Unauthorized quarry operations on the land numbering to ten(10), Land grabbing through political incitement and Vandalism of the Sheep and Goats project equipment and property.
Findings and Recommendations
(i) The land is legally owned by KMC through Sheep and Goat Project.
(ii) The land is critical for their continued operation i.e livestock holding.
(iii) If the land grabbing menace is allowed to continue unchecked, it will jeopardize the sheep and goat project
(iv) The Squatters should be evicted and the land properly secured.
3.1.7 MEAT TRAINING INSTITUTE
This important institute is situated at the heart of Athi River Town and owns land LR No. 337 zone 5/3 Athi River measuring 86.5 Acres.
However, the Taskforce learned that part of the institute’s parcel of land has been excised by the Commissioner of Lands and directly allocated to the following;
(1) Mathew Musyimi Nzuve 7.9 Acres
(2) Ms Malu O. S. Ltd 9.8 Acres
(3) A Mr. Muthengi 9.8 Acres
Finding and Recommendations
l The Permanent Secretary, Ministry of Livestock have put a caveat
l The Taskforce recommends that the allocation be revoked and the land reverted to the Meat Training Institute.
3.2.0 PUBLIC UTILITIES
3.2.1 Stadium
Stadium was allocated to 157 beneficiaries comprising of commercial/residential plots and to two industrial plots (Apex Steel and ……..)
3.2.2 6. 26699/29 Numerical Machining
6. 26699/29 Numerical Machining
1. LRNo. 12715/267 Syokimau
2. LRNo. 12715/256 Syokimau
3. Mavoko Municipal Block 6/576 – Site and Service
4. Mavoko Municipal Block 6/309 – Site and Service
5. Mavoko Municipal Block 6/787 – Site and Service
6. LR 26699/29 Numerical Machining
7. Mavoko Municipal Block 7/249 – Slota
8. LR 26699/27 Numerical Machining
9. LR 26699/22 Numerical Machining
10. LR 26699/146 Numerical Machining
11. LR 26699/23 Numerical Machining
PRIVATE LAND
3.2.0 PRIVATE LAND AFFECTED
(A) In this section there are numerous private land with different types of land related issues namely outlet invasion parallel titles, fake titles forged documents and illegal allotments.To highlight a few;i. The late Wamaitha Humphrey land parcel – LR. 1504/7 size 400 acres situated at Mlolongo Athi River District. This parcel of land has a pending succession case handled by two different law firms namely;
A.F. Gross and Lukas Naikuni Advocates. Late Wamaitha died on 14/03/2009 and left a will on how this particular parcels of land be distributed among the members of her family – which is lead by Lukas Naikuni Advocate which the original title is under the custody of the other law firm A.F. Gross Advocates. · In our opinion the two lawyers have failed to work together in coordination to resolve this pending succession case.
l This opened a door for land speculators to invade the land in question.
INTERMEDDLING
During our public hearing encounter and field visits we established the following;-
(i) Massive illegal and unapproved permanent storey building on construction.
(ii) One by the name Nicholas Nzioka Ndambuki aka Willy Kaore Wanjiku claims the ownership of the whole parcel through suspected forged documents. It was further established that he has embarked on sub-division and allocation to the members of the public.
(iii) We further noted, three different letters of administration were issued to the three different individuals, of which two were granted to the two of her sons and one to Nicholas Nzioka Ndambuki who has no biological claim to the late Margaret Wamaitha Humphrey’s family.
(iv) We have also gathered each of the three sons, are secretly and individually receiving money for their daily upkeep either as resent or deposit for further land sale which can cause further conflict. Since there is a lot of intermeddling in this parcel, it is proposed that the public trustee takes over the control of the deceased to prevent further invasion.
t Other ;private land affected by invasion include:-
t Mr. Justice Mbaluto
t Mr. Sam Muumbi
t Mr. David Marika
t Prof. Irina
t Mr. Provin Bowry
t Mr. Mungai Ngaruiya
t Mr. Ngugi Kiuna
t Mr. Justice Maranga
This parcels among others have been comprehensively invaded with illegal beacon being placed by quack surveyors and structures erected and legitimate owners denied access to their properties. This land vary in size from 20 to 500 acres.
3.2.1 CO-OPERATIVE SOCIETIES
The current land invasion going on in Athi River district did not spare even properties owned by Cooperative Societies; among the affected in this category include; Katani (Mitaboni), Ngelani, Lukenya, Drumvile Cooperative Societies.
We also note that these Cooperatives have issues regarding abuse of office by the officials by way of irregular allocation of their plots to members.
3.2.2 CHURCHES
Properties owned by Faith Based Organisation are similarly affected, Among these;
(i) Lanyevu Gardens belonging to Nairobi Pentecostal Church
(ii) Catholic Diocese of Machakos (Mbui utiiti land in Numerical Machine Complex – Sabaki)
(iii) Deliverance Church
In addition to the above, the Champion of Christ Temple was conned of substantial amount of money under false pretence of being sold non-existence land by a group of current & former Councillors.
The finer details of this are covered under the Matrix Chapter.
3.2.3 UN-HABITAT/MULINGE SCHEME
The scenario in this case is considered as double allocation in that UN-Habitat was granted land by the Commissioner of Lands for the purpose of slum upgrading project. This allocation overlapped an existing allocation in the Mulinge Settlement Scheme hence displacing a few allotees of the later scheme land owners.
Recommendation on UN-Habitat
Since the UN-Habitat has already developed slum upgrading housing, its our recommendation that the Commissioner of Lands do look for alternative to compensate the affected individuals.
LAND RATES IN ATHI RIVER DISTRICT
(Write up from the Council and the Land Control Board)
The Land Control Act compels parties of a controlled transaction to seek consent from the appropriate Divisional Land Control Board (DLCB) within six months after the agreement has been made. The parties use a prescribed form to apply for the consent in which they give a detailed account of the nature of the transaction.
Some transactions such as sub-division may require additional information. After filling the application, the parities are requested to attend one of the bimonthly meetings. If the application is accepted, the consent is granted and parties involved are required to complete the transaction through the process of title registration.
Controlled transaction becomes void if the consent is denied and the statutory limitation has expired. If the board denies consent, the parties may terminate the transaction, appeal or refuse to comply. The appeal to Provincial Land Control Board or Central Land Control Board (CLCB) must be initiated within thirty days after the denial. Non-compliance is a punishable offence but non compliance cases are not prosecuted due to budget limitation.
The LCA exempts the decisions of land control board from judicial review, but it empowers the President to overrule the decisions.
The President can grant exemptions to any controlled transaction (Government of Kenya, 1989).
