Titles key to encouraging land investment

Opinion and Analysis

Joseph Kieyah 

By Joseph Kieyah

For over a century, land has been the bedrock of Kenya’s development. The half-century record of land reform notwithstanding, the land question concept remains a mystery.

The inability to diagnose the land question is attributable to the mutative nature of the concept that is further complicated by politicisation of land. The politics of land is driven by a vocal minority on one hand, and silent majority on the other.

Such politics has been diversionary because it tends to focus on the manifestation of the land question rather than the causes. Unfortunately, these political forces have continuously been underestimated, and as a result, never adequately factored in the preparation of the National Land Policy.

Surprisingly, the policy has not explicitly defined the land question but correctly identified the extensive manifestation of the land question.

Moreover, it does not offer prescriptive measures on how to resolve these consequences, leaving them to be spelt out in laws that will implement the policy. However, the essence of the land question is implicitly buried in the policy’s overall objectives.

The overall objective of the policy is to secure rights over land and provide for sustainable growth, investment and poverty reduction. Note that growth sustainability, investment and poverty reduction are derivatives of security of land rights.

To secure property rights and interests over land presupposes that ownership has been established to begin with.

Kenya inherited a dual colonial land ownership system that established ownership of private and public land through land title registration. Such ownership rights were formally established and secured under the English laws.

On the other hand, the establishment and protection of ownership over community land, formerly known as trust land, were achieved informally through diverse African customary laws.

Since independence, the dual systems have mutated. Such mutation has been driven over the years by the political economy changes, including ethnicity and demographic changes, among others.

The rate of mutation has been gradual for the land question to become a priority for policy makers. Rather than researching on the diagnosis of the land question, including its politics, resources were reallocated to address other pressing issues like poverty reduction and education.

Consistent with the land policy, the first logical step to take is to establish ownership of rights and interests within the three categories of land, and then choose the methods of securing those rights and interests.

For private and public land, this may not be problematic except in cases where land deals were transacted informally. The challenge remains with community land, which is non-adjudicated, like in northern Kenya.

To offer maximum protection of land ownership, there are two universally accepted systems; title registration and a recording system.

Land recording system is predominantly used in the US, allowing potential buyers to verify title by searching the record of past transfers, theoretically back to the root of ownership.