- As President Uhuru Kenyatta recently issued land titles to some Kilifi County residents, he urged beneficiaries not to be tempted to sell their new parcels.
- The advice of the head of state was in accordance with the applicable law.
- Unknown to many, the 2012 Land Law contains a condition that prohibits the transfer of land allocated in settlement schemes, unless the transfer is to benefit the rightful heirs through succession.
As President Uhuru Kenyatta recently issued land titles to some Kilifi County residents, he urged beneficiaries not to be tempted to sell their new parcels.
The advice of the head of state was in accordance with the applicable law. Unknown to many, the 2012 Land Law contains a condition that prohibits the transfer of land allocated in settlement schemes, unless the transfer is to benefit the rightful heirs through succession.
The eighth paragraph of Article 134 of this law specifically establishes that “any land acquired in a settlement scheme established under this Law, or any other law, will not be transferable except through a succession process.”
If the Land Control Boards were to firmly implement this provision, many investors would find themselves in difficult waters.
Most of those who seek to buy land in settlement plans are unaware of this. Therefore, it can easily be used against them, leaving them little choice but to claim whatever monies they may have paid upfront as civil debts.
It should be remembered that, under the Land Control Act, a transaction for the sale or transfer of agricultural land is void unless the land control board of the area in which the land is located has given its consent. regarding the transaction.
Therefore, any such loss can only be attributed to the prospective buyer, whose duty it is to perform pre-purchase due diligence.
But is it correct to limit the transactions of the property rights of the beneficiaries to the land in the settlement plans, while the owners of lands obtained through the adjudication of ancestral lands have the freedom to carry out transactions freely? This is a moot question.
Depending on the contexts and experience, states, through their constitutions and laws, are often left with the duty to regulate the acquisition, use or even the transfer of rights to land.
This is the reason why, for example, since 2010 when Kenya got a new Constitution, non-citizens can no longer have absolute property rights over land. And even for the leased land they may have, the term is limited to 99 years. This was not the case before.
Some types of land use may also be regulated due to planning, health or safety considerations.
The provision prohibiting the transfer of parcels of land in settlement plans was informed by a painful past. Citizens who presented themselves as landless would receive land and soon sell it and revert to the landless.
They would then sit as squatters, waiting to be considered in the government’s next settlement scheme.
The practice became rampant and unfairly undermined the government’s efforts to alleviate poverty and landlessness. Some parts of the Kenyan coast were particularly notorious for the practice.
Therefore, the government had to design and address this systematic challenge. The revision of our land laws provided a good opportunity to stop the practice through legislation.
But I have yet to find any studies that provide information on whether this provision has had an impact as expected.