GHAI & MANJI: Complications that land grabbers cause and Supreme Court’s analysis

Important part that land played in debates about a new constitution is somewhat overlooked.

In Summary
  • Land grabbing throughout post-independence period was a prominent concern.
  • This included the ability of presidents, under the Government Lands Act, to allocate land to friends. 
Land under tea plantation
DISPUTE: Land under tea plantation
Image: FILE

Any Supreme Court decision is an important event. Their decisions do not just finalise a particular dispute, but make law. It only decides cases involving either interpreting the Constitution, or a matter of public importance.

And later courts must follow their judgment on these matters. A case about both the constitution and land will inevitably attract interest, the more so if the background involves a sort of land grabbing by a former President.

Dina Management v Mombasa County (decided by the Court in April) is such a case, and has attracted attention - including disagreements among lawyers.

Amid the controversies about elections, taxes and governance, the important part that land played in debates about a new constitution, and the impact on land of the adopted constitution are somewhat overlooked.

People raised historical injustices including the colonial displacement of communities, politicisation of land through the ministry, handling of land disputes, devaluation of customary rights in land, and their sense that land ownership concerns not just individual owners, but carries with it responsibility to the community.

There were concerns about women’s rights to land. Land grabbing throughout post-independence period was a prominent concern. This included the ability of presidents, under the Government Lands Act, to allocate land to friends, and people they wanted to reward for political loyalty - and to themselves.

Incidentally, just above the offices of the Constitution of Kenya Review Commission were those of the Ndung’u Commission on Illegal/Irregular Allocation of Public Land. From its 2004 Report Kenyans learned that land that should have been available for the public good – the building of medical clinics and schools, for public parks and public transport facilities such as railways – had been misallocated and transformed into private land.

The Constitution did radically change – or led Parliament to change radically – the existing land law in all these respects. People tended to celebrate Article 40, protecting the right to property. (Whether there ought to be a right to property at all is quite controversial. The International Covenant on Civil and Political Rights has none.

But a property-less Bill of Rights would never have got past people like the Kenyan MPs who had to vote on the constitution. Also land grabbing by or with the approval of government or its servants is a real issue in Kenya.)

Clause (6) of Article 40 was particularly welcomed: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”.

Sounds good? But there were at least two legal problems. Firstly, Presidents’ allocations of land, though perhaps morally dubious, had not been unlawful. The old Constitution had no equivalent of Article 75(1)(a): “A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—(a) any conflict between personal interests and public or official duties.”

Secondly, the uncertain workings of a rule developed by English judges to protect people who buy land unaware that there is some problem about it – like the land being mortgaged, or some fraud having taken place.

They developed the idea of the good faith (meaning innocent) purchaser (so, they must somehow have paid for the land not got it as a gift) of land, not knowing that there was some problem with the title to the land.

And that purchaser was not protected if they ought to have been aware of the problem about the land. For example, if they did not inspect the records at the Land Registry so did not realise that there was a mortgage over the land, they couldn’t plead ignorance. This rule is preserved in recent Kenyan land laws.

And there is a practical problem – the venality (the perfect word: it means “willing to behave dishonestly in exchange for money”) of land registry staff, meaning perfect looking documents may be a complete fraud.

The Dina case

This involved the county destroying buildings on land that Dina claimed was its own. That had been allocated to President Moi, despite its having been public land reserved for a road to access the beach. Moi had transferred it to a company who had sold it to Dina.

Courts often say that they will not deal with a matter under the Constitution when it could be dealt with under ordinary law. However, Dina managed to make this a constitutional matter by arguing that their Article 40 right was infringed.

The courts’ response was “You never had any right in this land”. Their reasoning seemed to be two-fold: that President Moi could not be allocated the land and that procedurally he never got the land properly.

The Court of Appeal came very close to criticising Moi severely. But the Supreme Court avoided that. It focussed instead, on something the lower courts had also decided: that Moi could not become the owner of the land, because of the apparent absence of a particular document - a Part Development Plan.

In other cases also allocations of public land have been held irregular because of absence of this document. And the Ndung’u Commission (which, oddly, the Supreme Court did not refer to at all) confirmed that this could be an irregularity in the land allocation. But confusingly the Supreme Court was unclear if the land allocation was - to use Ndung’u language – “illegal” or only “irregular”.

The innocent purchaser problem

But then the issue of being a purchaser for value without notice should surely have been explored in detail. The Court however, assumed that once the original title (to Moi) had been found to be unlawful, that was the end of the story.

This is a complicated. The matter was considered very fully by the Ndung’u Commission. Despite being on the critical matter of the status of land titles, the Supreme Court’s judgment was not fully reasoned, so is disappointing

The law at the time was that once a title to a piece of land was registered, that first registration was valid. And anyone consulting the land register was entitled to assume that it was accurate. The only solution was for a court to order that the entry in the register be changed, which could not be done so as to affect the rights of a good faith purchaser.

On that basis Dina would have been protected – if innocent. The Commission commented that “Courts have ruled that they are effectively prevented from revoking a first registration even when it is clear that such registration has been obtained fraudulently”.

The commission said, however, that as they read the law in the light of the context of land law, this was not correct. They said, “The doctrine does not apply to an illegal title to public land which is purchased by a third party.”

The Supreme court was saying the same thing. But they were not explicit that they were drawing a distinction between that type of defect in the title and others from which the innocent purchaser is shielded. Nor did they explain that they were reversing an established understanding.

The court’s decision means that only some innocent purchasers are protected. It depends on the type of defect of which they had to be totally ignorant. It’s a sort of discrimination among innocent victims.

You might also say that the effect of the court’s decision is that Article 40(6) of the Constitution means “The rights under this Article do not extend to any public property that has been found to have been unlawfully acquired at least if the land was not available for transfer.

The Court suggested rather casually that Dina should have been alert (so was perhaps not innocent) because such beachfront property was very valuable. Did this mean that Dina ought to have realised Presidents might have seized it in the past? And what about land that is grabbed then later becomes valuable? Are buyers expected to guess it might have been grabbed and on what grounds can they reasonably be expected to have this suspicion?’


Ghai is a member of the board of Katiba Institute

Manji is Professor of Land Law and Development at Cardiff School of Law and Politics

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