Gatuyuriana explains: Why Waitiki ‘squattors’ were not given a Title Deed

Waitiki squattors have accused the Government issuing them a document other than a ‘title deed’ to prove their ownership of the land granted.

Even though their concerns may sound daft to the involved in land matters or people in the legal sub-sector, at Gatuyuriana we admit their concerns are genuine. These issues may be a little confusing to people not in the named specialties.

Uhuru issues title deeds

President Uhuru Kenyatta issuing title deeds to Waitiki squatters in Likoni, Mombasa County. [Photo: Courtesy of the Standard]

 

Indeed, once upon a time, there used to be a document called title deed. However, after the new land laws were enacted in the year 2012, all titles to land (not property), were reduced into two major classifications. You now have either:

1. The Certificate of Title; or
2. The Certificate of lease.

Title deed has only remained a commercial terminology. Just like the term mortagage (there is nothing like mortage anymore).

The Certificate of title is isued for freehold properties, where one owns the property in fee simple, with least conditions, and it can be passed to dependants in continuity or disposed at will.

However, its not a good economic policy to have swathes of land in a country under freehold tenure. This is due to law on perpetuities, that is, land must be allowed to be commoditised and be in circulation, instead of being it tied to one family. Its where the imperative to have leasehold tenure originates.

In Leasehold, you are entited to land for a stipulated period of time under the outlined conditions. The government is the landlord. You only pay periodic rent to the landlord. The rent is mostly at peppercorn (small amount). When the lease expires, the land revert back to government.

If you tranfer a freehold land to a company, or to a foreigner, it immediately converts to leasehold. With these basics explained, we turn to Waitiki.

The land was initially owned by a company, which had a deed of conveyance from the Government. It was under leasehold tenure. Waitiki bought it in 1971 when the company was pulling out of Kenya. He developed it. Then Waitiki squattors invaded. Court ruled they be kicked out. The government was afraid or unable to kick them out. It opted for a settlement.

Note, even where the land is in freehold, the government can always convert it into leasehold during transfers in exercise of zoning powers.

Waitiki land having been under leasehold tenure, the squattors could only get a certificate of lease (which is charged for an amaount indicated) and not a Certificate of title. But they can use it as collateral. They can create other small titles, the sub leases over the land.

Be merry, the Waitiki beneficiaries, for your windfall. It never comes easy

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