Why Enforcing Property Rights and Responsibilities is Critical

by | Aug 25, 2020 | Buying, Selling, Leasing & Rentals, Property Market Advisory Series, Real Estate Market Intelligence | 0 comments

  • Enforcing Property Rights and Responsibilities: An Introduction

  • Enforcing Property Rights and Responsibilities: A Simple Comparison

  • Enforcing Property Rights and Responsibilities: What Are Property Rights?

  • Enforcing Property Rights and Responsibilities: Active Measures

      • #1. Visit your property regularly and be appraised of its condition.

      • #2. Property Markers, Delineation of Boundaries, Fencing and Signage.

      • #3. Maintain Regular Property Search Records

      • #4. Keep Up With Owner Obligations

      • #5. Maintain Records of Ownership Connected to Your Property

      • #6. Registration of Restrictions

  • Enforcing Property Rights and Responsibilities: Why Is This So Important?

  • Key Takeaways

“Strengthening rights is dependent on strengthening the connections – conceptually and behaviorally – between rights and responsibilities.”

– Arthur J. Dyck,
Rethinking Rights And Responsibilities: The Moral Bonds Of Community

A bird in hand, they say, is worth two in the bush. Sometimes we get distracted by our toils and concerns as we work towards that often-elusive “brighter future” that we fail to notice the things that would trip us up – neglecting our responsibilities, or failing to observe the schemes that may derail our grand plans – as we pursue even more.  Enforcing your property rights and maintaining the responsibilities created by your ownership of the same is an obligation placed on every property owner.

If you own a piece of land or some form of property, the onus is upon you to ensure that you meet the obligations that come with owning that property. Most land-owners, particularly those who invest primarily for capital gains, fail to consider the possible outcomes of leaving their land unattended or, otherwise maintained by the standards of the obligations placed upon them merely by owning it. The very real risk of losing your property ownership happens at every moment and instance you, the owner, fail to enforce your rights or meet your obligations.

Property ownership is secured and administered by law, which also clearly defines ownership, the rights and responsibilities that attach to it. Ownership rights bestow to the holder the discretion to deal with the property as they deem fit within the law. The single greatest threat to property owners rights might just be inaction on their part in securing those rights by duly exercising both the rights and the obligations created by the mere act of ownership. Sounds simplistic I know, but indulge me by reading on.

Enforcing Property Rights and Responsibilities: A Simple Comparison

Let’s draw a simple comparison, for the sake of understanding, of ownership rights and responsibilities with another asset which may be privately owned but largely operated in public, say a motor vehicle.

If you bought a car today (ok, even yesterday!), you would be obligated (by the laws of the land) to register it and operate it within certain rules. For example, you may only operate it, or cause it to be operated by a duly licensed driver. You would be obligated/duty-bound/responsible to insure it, ensure that it bears its designated registration marks, and ensure that it is operated safely and within the law. If it is involved in an accident, for example, or even say in the commission of a criminal act, you will become liable, as its owner, to the extent that the law deems. You will be required to pay any import duties and taxes before it is registered. If that vehicle is a public service vehicle, you may bear even heavier responsibility with the imposition of additional regulations as regards the condition and operation of the vehicle. If you fail to meet your obligations, your rights of ownership over the vehicle may be interrupted. Your license may be revoked. Your vehicle may be impounded. It may be subjected to inspection to assess its roadworthiness. You may have to pay fines and penalties for any other breaches and infractions of laws and regulations that govern the use and operation of motor vehicles that you may be subject to.

Would it be correct then, to assume any different with an asset such as land?

Enforcing Property Rights and Responsibilities: What Are Property Rights?

When you own real property, you have certain rights that go along with that ownership, including:

  • Right to control and possession of your property
  • The right to confer use of the property to others (i.e. the right to lease or license your property)
  • Right to disposition (the right to transfer the property – by sale, by gifting or by succession/inheritance)
  • Right to privacy, right to use and the right to quiet enjoyment. These include the right to exclude others or use the property to secure development finance, for example.

Complementary to these rights are several others which attach to the property on account of the ones above. For instance, the owner of a property has the right to subsurface rights, meaning that they can mine valuable resources on the land (again, within the regulations permitting the mining of natural resources). If the property is adjacent to a natural water body, say a river or lake, then the owner has the right to use the water, say to fish or irrigate their land or for such other permissible use. These rights are often referred to as riparian rights and may be governed by laws such as wetlands management, environmental and conservation laws. Equally, an owner has the right to use the surface of the land and may make improvements/developments to the property subject to, say, the zoning laws and local authority ordinances within the jurisdiction that the property falls (development rights). They have the right to use the space above the land subject to any preferential rights that may take precedence over this right. For example, a landowner situated close to an airport may be restricted from building a structure taller than a certain height, or number of floors.

You cannot protect that whose existence is unknown to you. Knowledge of your responsibilities is the surest way of securing your rights to ownership of the property. It is imperative to understand what responsibilities are created on the owner of the property because ownership is only secure if you exercise both your rights and responsibilities.

Enforcing Property Rights and Responsibilities: Some Practical Measures

So, you’ve gone ahead and purchased a property and had it duly registered in your name. What basic steps can you take to proactively secure your property rights? You own the property but are there any natural or unintended consequences of failing to enforce your property rights? Under what circumstances could you lose your ownership rights over their property? Why would it be necessary for you to understand any of this?

Acquiring land usually requires significant financial resources and the consequences of failing to secure your property rights would, therefore, come at a high price. With the likelihood that you could lose your property, the less painful choice would naturally be to do all within your means to enforce your rights.

This list is far from exhaustive but here are some basic measures you can take to protect your property rights:

#1.  Enforcing Property Rights and Responsibilities: Visit your property regularly and be appraised of its condition.

Ensure that you regularly visit the property, or have an independent pair of eyes watching over your property. This will help you establish that your right to control and possession of your property is free and clear and is not being infringed upon. In the alternative, take measures to protect your interests. This will also ensure that you are appraised of new developments in the area and understand factors influencing property values.

#2.  Enforcing Property Rights and Responsibilities: Property Markers, Delineation of Boundaries, Fencing and Signage.

Ensure that you not only know the boundaries of your property, but that these are clearly delineated according to official property maps. This may require you to have your property beacons reestablished and for you to put in place physical measures, for example fencing and property signage warding off potential interference. If your property boundaries have been violated by a neighbor (encroachment) you might attempt to mutually arrive at a consensus on how to resolve the matter without undue or expensive litigation. This may take the form of hiring an independent property surveyor to delineate the boundaries afresh and to have the issue documented and recorded in the event it is required for future reference or resolution of further disputes. In the case of squatters, you will need to take more drastic measures such as reporting the matter to local authorities to have them removed. Depending on how long they have settled on your property, the period of illegal entry and occupation can allow squatters to counter your claim to ownership and might even give them access to apply to the courts to have your title extinguished. At the earliest moment, you should not only notify the authorities and the trespasser of their infringement on your property rights, but you must also demand that they immediately desist from the property forthwith. It is important that you have documentary evidence of whatever measures are taken to remove trespassers. You might also want to demand proof of any legal interest a trespasser has on your property and to document this so that they may not later rely on or adduce proof of legal interest beyond what they originally stated or provided.

#3.  Enforcing Property Rights and Responsibilities: Property searches.

Ensure that you regularly undertake a search on your own property. This will help you ascertain that there haven’t been any irregular actions performed on the property that you may be unaware of or uninformed about. What would the search reveal? It might reveal any changes to ownership and/or ownership rights, any registration of restrictions against the property or such other notable information relevant to you, the owner.

#4.  Enforcing Property Rights and Responsibilities: Keep up with your obligations

Ensure that you keep up with any obligations for land rent and rates, and these are maintained in your name as the title holder. This is only applicable for leasehold property. Certain rights, for instance the right to transfer property, will be impeded where you fail to meet these obligations. In the event of fraudulent transfer, you may also be able to support your claim by demonstrating that you were indeed the one who undertook maintenance over your property.

#5.  Enforcing Property Rights and Responsibilities: Keep and maintain records of obligations in owners name(s)

Ensure that any utilities or services connected to the property are made out or registered in your name. Where registered in the name of third parties, especially individuals who may be leasing or otherwise using your property, they could potentially use this as evidentiary proof of exercising ownership rights to your property.

#5.  Enforcing Property Rights and Responsibilities: Registration of restrictions

If you have encountered scenarios where you find people actively enquiring about your property as if it is on sale with the full knowledge that you never put the property up for sale, then you may even consider more austere approaches to protecting your property for instance registering a caution on your own property and keeping it in place as long as you hold the property.

Enforcing Property Rights and Responsibilities: Why Is This so Important?

There is an alarmingly high volume of land fraud cases and the fraud is becoming increasingly convoluted. Even more concerning for property investors, are the twin problems of squatters and illegal allocations which deprives many property owners of their rightful possession and control over their investments.

One of the more interesting cases reported in the media lately involves a case where a fraudster secured financing from a financing company which proceeded to register a charge on the property. The registered owner only discovered the fraud when he attempted to sell a portion of his property and his buyer discovered that there was a registered charge on the property after he had already paid a deposit on the agreed purchase price (which the seller then had to refund).

At issue is the contention that the financing company, which purported to issue the loan and proceed to charge the property on the basis of sound and proper due diligence, is now making a claim to dispose of the property on the grounds that the “owner” of the property had been in default since the loan was issued in 2016. The individual who had received the funds had somehow vanished into thin air and the actual, verifiable owner, now has to contend with the very real possibility of losing the property.

Did the owner lose the property you ask? Sadly yes. In this and other similar instances, there is no way to determine how the case might play out in the end. I would hate to be in the owner’s shoes being dragged into a legal tussle over a huge debt that I never benefited from and being unable, in the intermittent period, to do anything with the property as it remains the subject of a legal dispute, or as in this case, losing your property due to fraudulent act.

The court noted that the owner’s conduct showed “the image of a man who dealt with the issue in a casual manner”, that despite having reported the alleged forgery to police, he never gave samples of his signature for verification, never followed up the issue with the police, when confronted with the information that the property had been charged he still tried to sell the property and never did anything to protect his ownership rights. The owner only sought the protection of courts when statutory notices were issued and didn’t even bother to enjoin the borrower (the company that charged the property) in the proceedings, or attempt to press any criminal charges against the individual who committed the fraud. The property was valued at approximately KES 80 million and the matter is under appeal.

Can you imagine walking in his shoes?

Conclusion

Before you find yourself in the middle of legal entanglement, consider how much simpler, better it would be to just enforce your property rights. Land tends to elicit a lot of emotion because of its intimate connection to human aspirations, historical injustices and cultural roots. It doesn’t help that it is also regarded as a significant measure of one’s success. Taking the steps to enforce your rights can make the difference between a long and protracted legal battle which could culminate in significant losses or the peaceful, quiet enjoyment of your labours.

The practice of enforcing your rights starts at the point of engaging to acquire the property (due diligence). But it doesn’t end there. It extends to keeping up with the obligations that ownership places on you, and a culture of maintaining your interest beyond the transaction to acquire the property or merely acquiring it for speculative purposes.

One of the simplest ways to ensure that your land is secure is to ensure that the land is under productive use, even if it is just a simple project that can generate some income.

Don’t be one of those people who tend to forget their obligations and only remember their rights. There cannot be one without the other! If you require assistance securing your property and don’t know where to start, check out our retail service offerings and get in touch – let’s have a conversation to see how we can help you.

The 5 Key Things You Need To Do Before Leasing Land In Kenya

by | Aug 12, 2020 | Buying, Selling, Leasing & Rentals, Property Market Advisory Series, Real Estate Market Intelligence | 1 comment

  • Leasing Land In Kenya

  • Considerations for Leasing Land in Kenya vs Buying Land in Kenya

  • Leasing Land in Kenya: What is a Lease?

  • Five Key Steps to Leasing Land in Kenya

      • #1. Search For The Property

      • #2. Undertake Due Diligence

      • #3. Crafting a Written Lease Agreement

      • #4. Register Your Lease Agreement

      • #5. Develop an Exit Plan

  • Leasing Land in Kenya: Key Takeaways

Before you enter into an agreement for leasing land in Kenya, it is essential that you have a clear understanding of the nature of the undertaking you are committing to get into. Private leases for land are invariably for long periods of time, some even as long as twenty years or longer.

Because of the commercial interests you would be creating around the land you intend to lease, you would naturally want to be assured that you will enjoy unfettered use of land for the duration of time that you have agreed to contract it out on lease from its owner(s).

You would want reasonable assurance that the arrangement is rock-solid and will not be interrupted over the tenure you have agreed on. The dispensation of leases is to a large extent the subject of The Registered Land Act, Chapter 300 of the Laws of Kenya

Leasing Land In Kenya: Why Lease & Not Just Buy?

Leasing Land in Kenya has not been a common or traditional practice associated with the proprietorship of land. However, it is becoming an increasingly popular enterprise as the availability of agricultural land close to the erstwhile urban centres in the country continues to wane and also due to the high capital outlays for outright purchase of commercial land which has good access to surfaced roads and public transport networks.

Ultimately, people and businesses lease land for a variety of reasons, usually with an underlying commercial reason or benefit which ensures the sustainability and profitability of the respective enterprise they wish to undertake.

It is notable that one of the many benefits (motivators?) of leasing land in Kenya is the tax-reducing nature of lease costs over business revenues and profits. In urban areas, some of the most common enterprises leasing land include roadside eateries (food vibandas and mama mboga stalls), fuel stations, garages, carwash businesses, churches, roadside car dealers and so many more. An increasingly popular venture on leased land is container malls/parks – semi-permanent structures established for business premises which can be easily relocated upon expiry of the lease.

Leasing of land for agricultural purposes is far more common. The types of agri-business that lease land range from commercial-scale green housing operations which produce a wide range of horticultural produce like wheat, flowers and even herbs, to animal-rearing enterprises which lease land for the purposes of breeding and rearing stock for sale to markets within proximity of the leased land.

The purposes are as varied as the commercial interests may be. Personally, I even know entrepreneurs who have leased land for the purpose of growing commercial forests.

Leasing Land in Kenya: What is a Lease?

A lease is a commercial interest in property granted by the owner of the property (proprietor/lessor) that confers on the person granted that interest exclusive possession of the property (lessee/tenant) for the period of time and under the terms and conditions defined under their agreement.

Basically, the agreement to lease defines the individuals making the agreement, the period of the lease, the rental/lease fee and all other terms and conditions under which the agreement has been made.

Under Section 56 ( a) of the Land Act no. 6 of 2012, the proprietor (owner) of land may lease it, or part of it, to any person for a definite term (or if for an undefined period either party may terminate the contract of lease).

Are you considering leasing land to promote or develop a commercial interest? What then are the five most critical things you need to do before you make the arrangement to lease land from its owner(s)?

# 1. Search For The Property

Now that you have established that you want to lease land for commercial reasons you will go to the market to find potential lessors willing to lease to you land suitable for your purposes. You will have identified the why (usually the reason for which you want to lease like say an agri-business) and the when (when you wish to commence operations and for how long you want to run the lease). And once you find potential lessors, you will negotiate some basic terms (I hear people using the phrase “irreducible minimums”) before hashing out a final agreement.

You can source for information from a wide variety of sources including the internet, newspapers and other publications, property agents, lawyers, local administrators and many others.

#2. Undertake Due Diligence

In law, there is a general principle which loosely translated from its Latin maxim, nemo dat quod non habet means that “one cannot give what does not have”. Undertaking due diligence can therefore be loosely said to the process of establishing whether the person giving you the “thing” has the capacity to do so. While the principle largely relates to contracts of sale, in the case of leases, it is relevant.

This process should help you clarify and ascertain the following:

  • The Who: Who exactly owns the land you intend to lease
  • The What: What are you leasing and exactly how much acreage are you receiving?
  • The Where: Where exactly is the land you are leasing situated?

A lessor cannot purport to issue or confer the rights of ownership of land such as exclusive possession unless they really, truly are the owner of the land, unencumbered. It will be important to not only clearly identify the owner but also to identify the parcel of land you are leasing including its boundaries.

You will also want to ascertain that there are no other third parties that have rights to the land that may supersede or interfere with the right to exclusive possession being granted to you by the owner. These can be revealed by a simple search and may show up as registered interests such us encumbrances.

Why is any of this necessary? Let’s take a simple example where a landowner seeking to lease out the land does so to an unsuspecting tenant without disclosing the fact that the property is under a bank charge. Here are a few challenges that will arise in this scenario:

  • What happens to the lessee/tenant in the instance where the owner defaults on their loan repayments during the tenure of the lease?
  • Would the tenant have made the same decision to lease the land were they aware of this fact and would they have opted for an alternative commercial engagement that would have completely avoided the risk of a legal entanglement?

These are just some of the possible complications that could arise. Now perhaps you may be perceiving the reasons why it is important to ensure that you are fully appraised on the ownership and status of the land you want to lease before you proceed.

Due diligence is often thought of as merely a formal search exercise. However, one can also take a broader view by asking probing questions about the veracity of ownership and by going as far as visiting the local administration offices to ascertain the status of the land.

Sometimes, an informal enquiry can yield much more than a formal one, providing many unexpected answers. It is usually a sign of bad faith when certain revelations on paper are markedly different from what is stated as knowledge on the ground, especially if the owner fails to disclose a material fact or makes misstatement of facts.

If you are going to have commercial interests established on a piece of land, it behooves you, the investor, to ensure that that interest is protected. It starts with a keen undertaking of due diligence measures.

#3. Have a Written Agreement

While certain oral agreements can be recognized by law in the event of a dispute, there may be finer points within the agreement that can only be clarified by having a written agreement. It is therefore good practice to always have a written lease agreement.

The preference for a written agreement would really be to ensure strict adherence to what was discussed and concluded by both parties but it also favors you who is taking on the lease by ensuring that your rights are recognizable in defense against an owner who may seek to renege on your agreement.

A written agreement also precludes messy oral arguments outside of what was agreed upon and recorded. The law only recognizes oral leases that do not exceed a two year, non-renewable term. The agreement will cover much wider terms other than price and duration to include issues such as assignment of responsibility for government levies (ground rent and rates in the case of leasehold land), maintenance, removals as well as any other responsibilities, termination of the agreement, assignment of costs for restoration of the property, payment of registration fees and much more.

A written agreement helps the parties to go over and beyond the legally implied rights and responsibilities. The debate as to whether to have an oral or written agreement can be solved by the following question – do you want to be crystal clear as to where both parties stand, and in particular, in the event of a dispute regarding the land?

#4. Register Your Lease Agreement

If you are entering into a lease agreement that is, at the minimum, a two-year renewable lease agreement, then it is important to have the lease registered under the relevant land registry.

Get professional assistance to have the terms and conditions of the agreement brought into resolution with the lessor. If you want to exercise the option of renewing the lease at the end of the term or to have the first right of purchase in the event that the lessor wants to sell the land at the end of the lease period, it is important to ensure that the lease is registered.

The reason for registration of leases is for the protection of both the lessor and lessee’s rights to be duly noted with the implied rights, duties and obligations of both parties taking precedence. In the event, for example, that a landowner is declared bankrupt or dies, a registered lease may serve the purpose of recognizing and protecting the rights of the lessee when a trustee to the bankrupt person or administrators to the estate of the deceased lessor are appointed.

For the purpose of registration, leases that have a duration of for 25+ years are treated in much the same way as transfers, with stamp duty payable at the applicable rates for transfers.

Ultimately, however, even with a registered lease, the rights of ownership still vests with the lessor so that, for example, the lessees may not sublet the land without the authority of the lessor

#5. Create an Exit Plan

It is rarely considered at the beginning of a venture to have an exit plan or to plan too many steps ahead of all the details that need to be sorted out at the time you are entering into the lease agreement. However, it is smart practice to have a clear sense of the end from the beginning, especially for commercial reasons.

One of the implied conditions on expiry of a lease is that the lessee will hand over possession of the land in the condition in which it was delivered to him by the lessor. While this may be provided for in the registered lease agreement, it is important to consider clearly and plan ahead for the exit, which will include planning for what happens to any improvements you may have added on to the land in the time you were leasing it, and the costs associated with returning the land back to the condition in which it was originally handed to you, the lessee.

Your exit plan simply provides for the period immediately prior to disengagement with the lessor.

Leasing Land in Kenya: Conclusion

After signing a new lease agreement, be sure to have it registered. Some lessees go as far as to even register restrictive instruments. It may seem like “overkill” but in the age of broken agreements, it may eventually prove to be wisdom.

By recording your interest in a property you are leasing, you will secure your right to be notified of any changes in the status of the property, thereby avoiding the misfortune of later learning that the property was perhaps sold by the owner to a third party or that the property has been encumbered during the tenure of your lease to a third party with rights that supersede your own and which may later interfere with your tenure over the property, even when you are keeping up with your obligations to the owner.

If you would like to understand more about leasing land in Kenya, a good place to start is to understand some of the jurisprudence established on the same. Here is another resource that can help to clarify issues like the difference between a licence and a lease, rights, obligations and other implied conditions of a lease on both the lessor and lessee and much more.

Land Reforms in Kenya Sorely Require Active Political Goodwill

by | Jul 2, 2020 | Real Estate Market Intelligence, Writer's Commentaries | 0 comments

  • Land Reforms in Kenya: The Early Foundations of Change

  • Addressing Judicial Land Reforms in Kenya: Ndung’u Land Commission

  • Formulation of National Land Policy: A Step in the Right Direction Towards Administrative and Judicial Reforms

  • Land Reforms in Kenya: Legal, Policy & Institutional Reforms

  • Land Reforms in Kenya: Some Progressive Administrative Reform Gains

  • Land Reforms in Kenya: The National Land Commission’s Role in Transforming Land Governance

  • Land Reforms in Kenya: Administrative Reforms Expected

  • Land Reforms in Kenya: The Road Ahead

Land Reforms in Kenya: The Early Foundations of Change

Before the enactment of the Constitution of Kenya, 2010, the Government of Kenya had already begun laying important groundwork for what would later become a more comprehensive reform agenda. Early efforts towards Land Reforms in Kenya sought to confront long-standing structural challenges in land administration and management through a series of legislative, policy, and administrative interventions aimed at improving governance and restoring order to a historically complex system.

These initial reforms were driven by the recognition that land occupied a central place in Kenya’s political economy and national identity. Indeed, land had long stood at the heart of the country’s independence struggle, shaping patterns of ownership, access, and inequality in the post-colonial period. The early reform agenda therefore reflected both a practical necessity to modernise land administration and a deeper historical imperative to address the unresolved tensions embedded in Kenya’s land question.

Land Reforms in Kenya: The Ndung’u Land Commission and the Public Land Question

A defining moment in the evolution of Land Reforms in Kenya came with the establishment of the Commission of Inquiry into Illegal and Irregular Allocation of Public Land, chaired by Paul Ndung’u in June 2003. Building on earlier reform attempts, the Commission represented one of the most comprehensive and authoritative efforts to interrogate the historical and systemic misuse of public land in Kenya.

Its mandate exposed the depth and continuity of irregular land allocations, particularly where public land had been appropriated through administrative loopholes, weak oversight, and entrenched political patronage. The findings traced these patterns across multiple eras, from colonial-era land administration structures, through the immediate post-independence period, and into the contemporary governance framework of the time.

The Commission’s report, an extensive and thorough exposé, laid bare how institutions designed to safeguard the public interest had, in many instances, been distorted to facilitate private accumulation of land by politically connected actors. In doing so, it brought unprecedented visibility to the structural weaknesses and governance failures embedded within Kenya’s land tenure system, reinforcing the urgency of deeper Land Reforms in Kenya.

Despite its significance, the full report has never been fully released to the public, a fact that continues to underscore the sensitivity of land reform and the enduring political stakes surrounding the management of land in Kenya.

Land Reforms in Kenya: Formulation of National Land Policy

Simultaneously, the formulation of a National Land Policy involving the full spectrum of stakeholders commenced in earnest in 2004 and culminated with approval of the Draft National Land Policy (2007) and preparation of Sessional Paper No. 3 of 2009 on the National Land Policy for presentation to Parliament in June 2009.

All these efforts were geared toward the much-needed land reforms in Kenya that were envisaged to bring the country into a more equitable society where the rights and freedoms guaranteed under the new constitution would be attained.

Along the way, however, land reforms in Kenya have faltered or been still-birthed – held captive to the political machinations of successive regimes. To understand why, one might find clues in the political and elite class’ illegal allocations and theft of public land and their domination in terms of private land ownership. The fish truly rots from the head!

Land Reforms in Kenya: Legal, Policy & Institutional Reforms

These reforms required to be anchored in legal, policy and institutional frameworks, improved administrative processes and efficient management structures. It also required bold measures by the executive to address the past corruption, a herculean task by no means because the names involved, particularly in the illegal allocation of public land, span the breadth of Kenya’s political bigwigs and dynasties.

The administrative land reforms and initiatives thus far have been, to some considerable extent, inclusive and consultative, taking into account multi-sectoral stakeholder inputs from the public, private and civil society organizations, as well as expert opinion in arriving at the raft of measures recommended for land reform in the country.

Land Reforms in Kenya: Progressive Gains

While the reforms that have taken place cannot be dismissed as paltry, they could be described as slow, perhaps even token. Notably, there was the passing of the Matrimonial Property Act, 2013, which ensures greater protection over matrimonial property for the benefit of both spouses and brought in some degree of social equity, in particular for women who were hitherto disadvantaged in matters of family property.

Indeed, in terms of administrative reforms and the improvement of service delivery, there have been huge strides taken forward including the digitization of land records in some registries and steady progress toward rolling out of the land information management systems (LIMS). In the past 10 years as well, a vast majority of the legislative and policy reform agendas and milestones have been achieved. The Ministry of Lands and Physical Planning has also put developed a raft of regulatory proposals and draft policy frameworks all geared towards administrative reforms.

However, the underlying measures to bring greater equity in the distribution of land resources in the country have hardly taken root. There are established pathways for the progress towards land reforms but the pace at which the impact of these reforms will be felt is in great part dependent and hinged on political goodwill.

The bigger question, with a clear overview of Kenya’s murky history on this issue as detailed in the Ndungu report, is whether successive governments are willing to pay the political price for what these reforms will ultimately cost. It is unlikely that they will because those who stand to lose the most out of the reforms process are the very ones of whom reforms are demanded.

This legacy is likely to just be passed on from one government to the next. Certain changes might happen, but the real issues that have brought about inequality in land justice and reform might take longer to bring to resolution.

A good example to illustrate this point would be the stagnation of the bill on the minimum and maximum land holdings which was one of the most contentious issues during the process of enactment of the Constitution of Kenya 2010.

Five years after the law was drafted in line with the mandate of the Constitution Implementation Commission (CIC), the bill is yet to come to life in legislation as was envisaged by the constitution. With the rushed timeline that the CIC had to complete their mandate, the proposed bill was not subjected to public participation. The process by which the bill was developed lacked sufficient stakeholder engagement and was reputedly hurried through without significant research implying that certain thresholds on transparency, accountability and good governance would not be met as anticipated by the constitution. Given the constraints, it is debatable whether the CIC could have achieved more. Certainly, it is telling of the current government’s political goodwill to complete some of these pending tasks in service to the goals of land reforms.

Unlike most other investment markets in the country, while the real estate market is quite robust, it lacks significant regulation and protection mechanisms across all market segments that can adequately cater to investors. For example, capital markets have a unitary regulator, the Capital Markets Authority while traditional lenders of financial products (mortgages) are governed through existing frameworks of regulation on banks, specifically the Central Bank of Kenya. However, there are currently myriad investment products in the real estate market that sold on the open market that are not regulated except only by self-regulation mechanisms.

For instance, off-plan investment schemes and other non-regulated financial products may be benchmarked against industry-practice but the channels for redress to investors when property developers fail to deliver are negligible. Much more needs to be done to rein in other players including marketers and advertisers, property developers, industry consultants (valuers, property agents, architects, lawyers and engineers).

Back to the issue of minimum and maximum holdings, some context is required to understand why this was a critical concern at the formulation of Kenya’s Constitution 2010. For the rural masses often living in poverty and even for many families that might be considered as middle class, land is primarily a resource for the sustenance of livelihoods. They perceive and use land for economic productivity and for self-sustenance. However, for those in the upper echelons of society, land is primarily a store of value, for the accumulation of capital gains and a tool for the transmission of wealth across generations. It may also be considered a factor of production for them, but the impact on their livelihoods and survival is of far less significance than it is to say a subsistence farmer. This presents the problem that while land is the greatest factor of production, productivity would likely to remain low if land large tracts of land were concentrated in the hands of the few, as it is in Kenya.

Land Reforms in Kenya: The National Land Commission’s Role in Transforming Land Governance

The story of Land Reforms in Kenya is ultimately the story of building a land governance system that is transparent, equitable, and capable of supporting sustainable economic development. At the centre of this transformation is the National Land Commission (NLC), a constitutional commission established under Article 67 of the Constitution of Kenya, 2010 to champion accountability, fairness, and efficiency in the administration and management of land.

The National Land Commission plays a pivotal role in advancing Land Reforms in Kenya through its mandate to manage public land on behalf of the national and county governments, advise on national land policy, promote equitable access to land, investigate historical land injustices, encourage sustainable land use, and monitor the registration of rights and interests in land. Together, these functions strengthen the legal and institutional framework upon which Kenya’s land sector depends.

In collaboration with the Ministry of Lands, Public Works, Housing and Urban Development, the Commission has supported several landmark initiatives that continue to shape Land Reforms in Kenya. These include the digitization of land records through the ArdhiSasa platform, the modernization of land registries, improvements in compulsory land acquisition processes, the promotion of alternative dispute resolution for land conflicts, and reforms designed to improve transparency in land administration. Collectively, these initiatives are helping to reduce fraud, improve record integrity, streamline land transactions, and strengthen public confidence in the land registration system.

The long-term objective of Land Reforms in Kenya extends beyond administrative efficiency. It is about creating a land governance framework that protects property rights, attracts investment, promotes responsible land use, and provides greater certainty for landowners, developers, lenders, and investors. While the reform journey continues to evolve, the National Land Commission remains one of the country’s most important institutions in delivering a land administration system that is more secure, more accountable, and better equipped to support Kenya’s social and economic development.

Land Reforms in Kenya: Overdue Administrative Reforms Expected

It is increasingly clear that meaningful Land Reforms in Kenya require more than legislative change. The launch of the country’s land administration system continued to be delayed by fragmented records, manual registry processes, lengthy transaction timelines, and persistent concerns over fraud and document integrity. The consensus among policymakers is that sustainable reform would depend on modernising the institutions responsible for land governance.

The government’s proposed National Land Information Management System is touted to become one of the most significant administrative reforms in Kenya’s land sector. If successfully implemented, the platform would digitise land records, facilitate online land searches and registrations, streamline approvals, enable electronic payments, and create a secure digital audit trail for every land transaction. Such a system has the potential to reduce opportunities for corruption, improve service delivery, increase transparency, and significantly enhance public confidence in land administration.

Land Reforms in Kenya: The Road Ahead

For Kenya’s elite who can leverage national development agendas, there would be a negligible need to focus on land as a factor of production when they could simply steer development in the direction of their holdings and reap higher land values that come with an increase in settlement. With only 20% arable land, the goals for which the Bill was conceived included the promotion of equitable distribution of land, regulation of subdivision of land to ensure that agriculturally productive zones were retained as such, preservation of ecological zones, creation of employment and reduction of poverty, sustainable utilisation of private land and promotion of national security and economic stability.

Adequate reforms coupled with strong regulation can create and improve social equity and justice, without which prevailing inequalities will continue to persist.

Investors will need to make sound decisions with a clear understanding of microeconomic risks. Stakeholders can do more to proverbially hold the feet of the ruling class to the fire in ensuring that reform and regulation become institutionalised and engineered into the fabric of land administration in Kenya and to protect investments in the marketplace.

There is plenty of hard work still left to be done, but for the security and heritage of future generations, it will take a radical rethinking of policy and a forward-looking attitude that doesn’t just focus on the legacy of colonialism and the bane of political patronage. Will that happen any time soon? That’s anyone’s guess.

An authoritative report published by the African Centre for Open Governance (Africog) on the progress of the implementation of the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (the Ndung’u Commission), and by extension, on the progress of land reforms in Kenya, indicts political actors in implementing the necessary reforms required to address land injustices in Kenya. While much has changed in the 10 years since, there is still very slow progress!

Adverse Possession: Why You Could Lose Your Ownership Rights to Squatters

by | Jun 15, 2020 | Property Market Advisory Series, Real Estate Market Intelligence, Writer's Commentaries | 2 comments

In the simplest of definitions, adverse possession can be described as the result of what happens when a landowner (titleholder to a property) tacitly allows a “squatter” to live on their property without taking action to enforce their right of ownership over the property over a specified period of time. A squatter, as distinguished from a tenant, is a person who settles on or occupies a property with no legal claim to it.

In Kenya, the Section 7 of Limitation of Actions Act, Chapter 22 of the Laws of Kenya states “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

The same statute, in Section 38(1) states that “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land
comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.

The effect of these clauses is simply that anyone who has had continued, uninterrupted use of land which violates the interest of the proprietor of such land for period of up to 12 years, can apply to the High Court in Kenya to have the land registered in place of the original proprietor, in effect having the rights of ownership appropriated to themselves.

Most absentee landowners – whether because they live in-country but far away from their investments, or whether they live abroad – rarely have someone trustworthy who they can assign responsibility for their property. That being the case, many choose to assign the responsibility to a relative or such other nominee until such time as they are available to take possession and undertake some sort of activity on the property. In some instances, the property has been purchased sight unseen and so the actual owner may not even be able to ascertain the physical location, landmarks or dimensions of the property.

With increasing frequency, unfortunately, having built their livelihood on such property, those not expressly appointed with custody, and those who may trespass on another’s property can legally take ownership of such property without further reference to the actual owner (title holder) by the claim of adverse possession.

Where such a custodian is able to meet the standards set out in jurisprudence, they can successfully apply to have your rights of ownership over the property extinguished. The individual needn’t even be someone known to you, the landowner. They only need to meet the prescribed standards determined by the law.

Adverse Possession: Legal Precedent & Effect

The law, in form of judicial precedent, has established that adverse possession is fundamentally a situation where a person takes possession of the land and asserts ownership rights over it while the person having title to it omits or neglects to take any action against such person in the assertion of his title for a certain specified period.

Adverse possession, which is also referred to as “squatter rights”, should not have been asserted by some use of force, neither should it have occurred in secrecy or without the authority or permission of the owner. The law deems that the proprietor of land has consented to such possession if it has occurred within the period stipulated and has occurred openly, continuously and without interruption.

In Black’s Law Dictionary, adverse possession is defined as the enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.

The number of judicial precedents that describe adverse possession and the principles required to demonstrate it and those surrounding its determination in law are numerous. And while the individual circumstances may vary from case to case, judicial precedent is highly instructive in determining the conditions against which a plaintiff’s claims can be entertained and the technicalities around the individual case can provide guidance, on the balance of facts, as to how courts are likely to rule on any subsequent matters.

The principles of adverse possession primarily recognize that land is a factor of production and that for this reason, therefore, it would be inequitable to remove the person(s) who has (have) been utilizing the property (within what is often referred to as the statute of limitations), especially where they can prove that they have established their livelihoods on that property and have had unfettered use of the same for the period prescribed in law. The matter for determination by courts is one of equity – ensuring that the rights of the “deemed” owner are not interrupted.

To assert adverse possession, squatters who, for example, erect their home or permanent structures on the property, subdivide the property, fence off the property, connect utility services to the property in their name, conduct some sort of livelihood activities including operating businesses on the property can make and lay claim to such property. In judicial precedent, to assert their claims, squatters on your land will invariably cite raising their families on the property, conducting rites of passage ceremonies (including marriage ceremonies) and even burials on the property.

In effect, adverse possession extinguishes the rights of a titleholder and confers the rights of ownership to the person who has enjoyed unfettered possession of the property for a period of 12 years or more. Simply stated, the one in possession of the property becomes its new owner.

Adverse Possession: Absentee Owners

It is incumbent upon every investor to take measures to protect their assets. Adverse possession proves that it isn’t merely sufficient to hold title to your assets and brings to life the legal maxim that possession is nine tenths of the law! The sad reality of investing in a property only to lose it to squatters is perhaps a most unfortunate happenstance but it is a fate that has befallen many property investors in Kenya.

In most instances today in Kenya, the circumstances that give rise to adverse possession quite often arise without the knowledge of the owner. This is particularly the case with absentee owners, mostly Kenyans residing in what is quintessentially referred to as the diaspora. With the myriad property subdivision schemes all across the country, it is not uncommon for many property buyers – even locals – to buy property, specifically vacant land, in places where they do not live or frequent regularly. Without ascertaining their purchase beforehand, many might typically be unaware of the actual condition of the property, including whether it is actually occupied even at the time they acquired it. Some typically allow the seller to continue using the property in their absence and many acquire property mired in entanglements by failing to undertake proper due diligence or by acquiring property held under letters of allotment (without formal title).

Adverse Possession: How Can You Secure Your Assets?

The most obvious question that many would therefore raise is, “How can one escape such a fate?” The simple answer would be to enforce your rights as an owner, in whatever way, shape or form. Obviously, it would be ideal to simply enforce the right within the law, and of course before the expiry of a period of time where your rights of ownership would become tenuous. In Kenya, that often takes the form of unsanctioned evictions of squatters from the property. In some instances, property owners have taken the law into their own hands by using underhanded tactics, including the wanton demolish of any temporary or permanent structures erected by squatters by whatever means necessary including bulldozing and arson!

But are there more “reasonable” ways to deal with the problem?

It is needless for a titleholder to lose their property due to adverse possession. In this market, most smallholder land is acquired with the view to develop down the road, perhaps construct a residence in the future, or held for a period of time as investments and then eventually disposed to a secondary buyer for capital gains. In the intervening period between the time they are purchased and eventually developed or disposed of, most remain vacant and unused – for the most part, because they are either so highly fractured that they might not be able to viably sustain any robust economic venture or because their owners live at a distance and cannot manage the properties themselves. Enforcing your property rights shouldn’t be too difficult if there was a consideration of some economic activity that the property could sustain, prior to its acquisition, or if you had more than just capital gains in mind at the time of the acquisition, or if your plans to develop the property are not in the too-distant future.

Of course, you may not be able to make predetermination of either of these scenarios at the time, or prior to acquisition. However, there are some other basic measures that you can take to secure your property.

  • You can appoint a manager/trustee to ensure oversight of your property and provide effective reporting of developments in the neighbourhood over the time you hold it. By engaging an independent property manager/custodian over the property and ensuring that you regularly change out such custodians so that at no time has any single individual exercised possession over the property for longer than the period defined in law entitling them to take adverse possession of the land ensures that.
  • Physical deterrents: You can ensure proper demarcation of the property by erecting fencing and even erect temporary structures on the property to deter encroachment and secure your ownership.
  • Undertake some sort of legally contracted commercial activity on the property. You can undertake high-value (but low-impact) projects that don’t require frequent, hands-on project management which can generate handsome returns into the future.
  • Keep up with the payment of any government levies and dues on the property and ensure to keep records of the same demonstrating that you have maintained the privileges of the ownership of the property.
  • Depending on the location of the land, you can aggregate your property with others in a cooperative (chamas) to scale and increase your ability to undertake commercially viable projects, increasing the productivity of their holding(s).

If your property has already been adversely possessed by a squatter(s), you can get a lawyer to write them a demand to vacate the property or face legal action or report the trespass to the local authorities, including administration officials and police.

It is best to do so in writing to ensure that there is a physical record of your objection to the use of the property by the trespasser. The possible solutions around what to do with vacant land are innumerable and rather than expose yourself to adverse possession you may exercise any of the many options at your disposal, even including contractually leasing your land to others who can provide a return on your investment. You can even deploy a combination of these and several other strategies to effectively deter the threat of adverse possession by squatters.

The incidence of adverse possession claims is seemingly on the rise; attributable in part due to the increased investment in smallholder property fueled by speculation in growth in property values. But there are a myriad social and economic factors responsible for increased adverse possession claims and this trend will continue even into the future.

If you would like to inform yourself further on the subject, here are some select legal precedents that might help shed light on the subject of adverse possession:

These are just a few precedents that have been established in Kenya on the subject of adverse possession. Obviously, they can only offer insight based on the individual circumstances presented and a shrewd investor may be served well in taking the time to understand more comprehensively what the law says on adverse possession.

Now that you’re slightly more informed, what would you like to do to secure your property?

How can we assist you to better secure your investments? Don’t forget to check out our services page >>> we have the professional expertise to help you secure your investments!

Buyer Agency Explained: Why It’s a Game-Changer for Kenyan Property Buyers

by | Jun 10, 2019 | Bargain-Hunting Series, Property Market Advisory Series, Real Estate Market Intelligence | 0 comments

  • What Is Buyer Agency and Why It Matters

  • How Buyer Agency Works in Kenya

  • Benefits of Buyer Agency in Kenya

  • Common Misconceptions About Buyer Agency

  • When Buyer Agency Is Most Valuable

  • Choosing the Right Buyer Agent

  • Enhanced Buyer Agency—Adding Value Beyond the Basics

  • Final Thoughts on Buyer Agency

Navigating Kenya’s real estate market can be complex, and that’s where Buyer Agency shows its true value.

In Kenya, the real estate market has traditionally been oriented towards sellers, creating the widely held presumption that property agents primarily represent sellers in the market.

Buyer agency is almost a myth.

With dedicated representation, buyer agents help you find the right property, negotiate better terms, and safeguard your interests from start to finish.

Let’s explore how partnering with a buyer agent can deliver smarter, more efficient property transactions.

What Is Buyer Agency and Why Does It Matter

Defining Buyer Agency

Buyer Agency is a professional arrangement where the agent represents you, the buyer, not the seller. This ensures loyalty to your interests through the entire transaction.

Core Responsibilities of a Buyer Agent

  • Identifying properties matching your criteria
  • Conducting market research and due diligence
  • Guiding you on pricing and negotiation
  • Coordinating inspections, paperwork, and legal support

Fewer hassles in managing the due diligence, documentation, transfer and registration processes. Reduced time between the identification of properties matching your requirements and closing. Less money paid on the capital cost(s) of the transaction. Fewer mistakes and a guaranteed best-value deal.

Buyer agency allows buyers to leverage the superior industry knowledge, connections and networks of property agents who are better placed to secure you the best deal possible.

Against the possibility of expensive mistakes, the decision to go the buyer agency route may also be justified.

How Buyer Agency Works in Kenya

The Buyer Agency Agreement

This formal contract outlines:

  • Scope and duration of representation

  • Fee structure—who pays and how much

  • Conflict-of-interest policies and confidentiality clauses

Exclusive vs Non-Exclusive Buyer Agency

  • Exclusive: The agent works solely for you, never for the seller

  • Non-Exclusive: You retain the flexibility to work with multiple agents

Advantages of Exclusive Agency

With exclusivity, your agent’s loyalty is guaranteed, increasing their motivation to leverage networks and time to find the right deal for you.

Benefits of Buyer Agency in Kenya

Access to Off-Market Properties

Buyer agents uncover hidden deals through their network, giving you a first look at unlisted properties.

Expert Negotiation on Your Behalf

With in-depth data and market insight, agents negotiate on price, closing terms, and even seller concessions to your advantage.

Streamlined and Professional Process

From inspections to legal review, a buyer agent ensures smooth coordination, saving you time and stress. 

Common Misconceptions About Buyer Agency

“Buyer Agents Are Too Expensive”

While there’s a fee, buyer agents often save you more than they cost by avoiding hidden issues and negotiating better deals. Gathering, understanding and assimilating market information necessary to make the best-informed decision can be a tall order.

The buyer’s agent is better-placed to do this; helping you to analyze offers on the basis of comparables and market trends; using their market intelligence built-up over time to find you bargain offers – not just the ones that may be in their repertoire of offers – that will save you money, using their intimate knowledge and networks to help reduce the hassles, stress and time between searches and the likely hurdles that will be encountered along the path to completion of registration of the transfers.

“I Can Do It Myself”

Without expert support, buyers can overpay, miss key risks, or struggle with complex legal steps. A buyer agent provides protection and clarity.

Real estate transactions are an emotional affair that can induce panic, fretfulness and exhilaration all at once. It is understandable that these emotions will show up because of the money involved. A sober, clear mind can be helpful.

When Buyer Agency Is Most Valuable

Ideal for First-Time Buyers

If you’re new to property buying or unfamiliar with legal processes, buyer agency is a valuable guide.

Essential for Investors and High-Value Buyers

For multiple or high-value property purchases, strategic representation helps optimise your portfolio.

Unlocking Off-Market Opportunities

Agents with strong networks can reveal exclusive listings before they hit the public market.

Buyers agents don’t just search for comparable offers that match your requirements, they seek to find bargain offers providing you with you greater value.

In addition, they will negotiate the most favourable price and terms and make sure that all pertinent documentation and disclosures are handled at the appropriate stages of the transaction.

Industry knowledge can be critical to the buyer for conveyancing advocates, financing (securing mortgages), property valuations, insurance, and all other relevant matters from acceptance to close. 

Choosing the Right Buyer Agent

Important Vetting Questions

  • Do you represent only buyers?
  • Can you share past negotiation examples and savings?
  • What is your fee structure and contract term?
  • Are you experienced in our target locations and property types?

Red Flags to Observe

  • Dual representation of buyers and sellers
  • No clear written agreement or fee transparency
  • Limited local market knowledge or lack of proven track record.

Enhanced Buyer Agency—Adding Value Beyond the Basics

Data-Driven Market Insight

Top buyer agents review comparables, title histories, and valuation reports to guide your offers.

Legal & Due Diligence Support

Rather than navigating legal disclosures alone, your agent connects you with trusted lawyers and helps interpret key documents.

Customised Deal Structuring

Know your financing—from cash, mortgage, or instalment—agents ensure your offer aligns with your financial profile and lender terms.

Conclusion: Final Insights on Buyer Agency

When you partner with a Buyer Agency, you gain more than access to listings—you gain a strategic advocate. In Kenya’s fast-paced and often opaque property market, this representation can be the difference between overpaying and securing your dream home at fair value.

Facebook
X (Twitter)
LinkedIn
LinkedIn
Share
WhatsApp
URL has been copied successfully!