A unique land tenure system is proving popular in parts of Kenya’s Coast region, where building and house owners do not own the land upon which their properties sit.
Homeowners reportedly ‘purchase’ parcels of land and build houses on them, but have no legal documents to declare ownership. The term ‘purchase’ is lightly used due to an abridged purchasing system.
In essence, a goodwill sum is paid to a landowner prior to a developer building on it. Ideally, after the house or apartment is built, subsequent monthly ground rent is to be paid to the landowner.
It is a mystery to locals and law enforcers in the Coast region on how the trend came to be, with different hypothesis and theories coming to light.
Some historians say that the idiosyncratic land-owning system was established under the governance of the Sultan of Zanzibar before independence, and is common in Kisauni, Likoni and portions of Kwale and Kilifi Counties.
Concurrently, culture poses another cause due to informal inheritance of land in the Swahili and Islamic heritage.
However prevalent, judges say that this structure goes against a common law where property owners have rights to the plot of land itself, the air above it and the ground below.
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Furthermore, authorities are inhibited from approving buildings on land without titles leading to minuscule growth of investments in the region.
In a 2015 Land case Ruling by Justice Oscar Angote, he stated, “Indeed, the operative land statutes do not recognise this concept of a house without land any longer. The concept of a house without land, although recognised under the repealed Land Titles Act, defies the existing definition of “land” and “lease” in our laws.”
Even with the Land Act and Land Registration act that annulled the Land titles act which propagated this odd system, county governments still approved building on land without direct interest on the land itself.
“What will happen in the event the owner of the land demands his land back after a person has invested in constructing on it? The answer can only be one— the person will lose his investment because the land has been defined by the Constitution to include the surface of the earth and the subsurface rock,” added the Justice.
Justice Angote asserted that his views were cautionary to the individuals contemplating to put up buildings and homes on land that does not belong to them.
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