The Homa Bay Lands Registry, where more than 41,000 title deeds are uncollected . PHOTO| BARACK ODUOR
24.May 2018
The Ministry of Land’s decision to digitise all transactions was prompted in part by the desire to curb fraud.
Land Principal Secretary Nicholas Muraguri recently said in a statement that the ministry has completed the re-engineering of the way it carries out its processes through the new online Land Management Information System.
And Land Cabinet Secretary Farida Karoney indicated that the new system will be available in Kenya’s 61 registries by 2020.
The ministry’s move to curb fraud has seen fraudsters move to the rural areas, where many people are still not well-versed in technology.
Mr George Mboya, a secondary school teacher in Homa Bay County, knows just how devastating being conned can be.
Mr Mboya, who wanted to build a home where he could retire, thought buying land was a good place to start. But after paying Sh780,000 for a piece of land in Homa Bay town last year, he has nothing to show for it.
“There was a firm advertising a plot in Homa Bay town. I knew that land transactions, especially in urban centres, often go awry, but since this company had an office in the town known to many people, I believed it was legitimate,” he says.
Mr Mboya paid for the land with his life savings, and the firm’s directors promised to process his title deed fast. But months after he paid them, the directors went quiet. All his attempts to contact them were unsuccessful.
Unfortunately, Mr Mboya’s case is not unique; many people have lost money and parcels of land to smooth-talking fraudsters.
Mr Kenneth Obonyo, the Director of Lake Surveyors Company, says: “Many Kenyans, especially those upcountry, have lost money, and even parcels of land, to conmen because they do not know the processes of land transactions.”
Mr Obonyo advises those intending to buy land to ask the owner to give them a copy of the title deed so that they can use it to conduct a search at the Ministry of Land offices to determine its true owner(s).
“The search document indicates in the encumbrance section whether other institutions such as banks also have a claim to the land. This helps you avoid buying land which the owner has used to acquire a loan, for instance,” says Mr Obonyo.
Some fraudsters have invented new tricks to steal land, including resurrecting the dead to seal deals!
In the new trend that is worrying legal experts, the fraudsters sell the land to unsuspecting people and vanish into thin air after pocketing millions of shillings, leaving the buyers and the disinherited person(s) to battle it out in court.
The question that arises, therefore, can a title deed fraudulently acquired on a freehold piece of land can be revoked?
According Mr Tom Odero, a land surveyor, the law is very clear that a title acquired fraudulently can be revoked.
“If you can prove in a court of law that the title was acquired fraudulently, then a court order can be issued to the relevant land registrar to expunge the contentious records from the land register,” says Mr Odero.
FRAUD
At the Homa Bay County Lands Registry, where more than 41,000 processed title deeds are lying uncollected, fraudsters are taking advantage of community opinion leaders trusted by villagers to commit fraud.
Homa Bay County Lands Registrar Violet Lamu says unsuspecting residents have been conned through people they trust and have appointed to transact land matters on their behalf.
“Many fraudsters have colluded with those trusted by the people to transact matters on land on their behalf to defraud them,” says Ms Lamu.
In February this year, the Physical Planning and Housing department in Kisumu announced that it will not approve any sale, or transfer, of land to until a three-month probe is completed.
This suspension of land transactions is meant to forestall increasing cases of fraud. In the past month, the county’s Physical Planning and Housing department was inundated with complaints by investors who had lost millions of shillings to fraudsters.
Land brokers were reportedly hawking fake title deeds in a chain process reportedly involving officials at the Kisumu land registry.And to tame the fraudsters, the county authorities placed a caveat, through a gazette notice, on land targeted for prospecting.
According to Lands and Physical Planning Executive Nerry Achar, his office will not approve any building plans until a task force completes its investigations.
Mr Achar said his office wants to rid the county of illegal land transactions.
Kisumu Governor Anyang’ Nyong’o expected the task force to look into irregular and multiple allocation of public land, private leases and institutional houses in Kisumu. This came amid growing public complaints about fraudsters who had conned buyers millions of shillings.
Land tussles are also increasing in Kisii and Nyamira counties.A criminal network that specialises in land grabbing has been blamed.
Targeted for grabbing are pieces of land purchased, but not developed, by Kenyans living abroad.
Land transaction rules stipulate that the owner surrender the original title deed in order to facilitate the creation of the new one.
Mr John Maobe, a resident of Daraja Mbili in Kisii town, says the targeted lands are in Kisii town and its environs, with the most affected areas being Ombaba, Jogoo, Nyamataro, Mwembe, Nyabururu, Nyanchwa, and Nyangena estates.
In Kajiado County, processing land transactions has been heightened through issuing of new-look allotment letters with tamper-proof features aimed at eradicating land fraud. The allotment letter has special security features that make it difficult to forge.
In 2013, former Kajiado Governor David Nkedianye created controversy when he stopped land transactions in the county, citing massive corruption. The move was condemned and praised in equal measure. Those who supported him argued that the he had come to the rescue of poor landowners who had had their land corruptly transferred to others by crooked officials.
Demand for land in Kajiado, coupled with its proximity to Nairobi, has seen the value of property rise rapidly.
An eighth of an acre in areas such as Kitengela and Isinya goes for between Sh3 million and Sh20 million, depending on its location. Not surprisingly, this has attracted fraudsters.
ALL MANNER OF TRICKS
In Thika Town in Kiambu County, land fraudsters are using all manner of tricks to steal parcels of land and sell them to unsuspecting private developers.
The prices of centrally located land parcels have skyrocketed in Thika since the completion of the Superhighway.
In Siaya County, several families have been dispossessed of their land by conmen who secretly acquire title deeds in Bondo.
All the fraudsters need to do is partner with land officials to pluck out the original documents from the land registry and have new ones issued to facilitate the sale or grabbing of the property.
After Bondo Senior Lands Registrar Gideon Mwinzi announced that more than 30,000 title deeds were lying uncollected at his office last year, Mzee Cornel Sewe from Rahondhe village in Nyamonye Sub-location went to the office to collect the document. But he was shocked after a clerk told him that a person claiming to be his son had collected the document
The land registrar assured him that the matter would be addressed, but five months later, the-72-year-old, who reported the matter at the Usenge Police Station, is yet to get the title deed.
Mr Mwinzi has admitted that such incidents are inevitable in a busy land office with hundreds of employees. He said investigations are conducted and appropriate action taken against the culprits.
“We have come across such cases but after we investigate and confirm that a document was irregularly issued, we initiate the process of revoking it,” he said.
When conducting the search, take note of the land’s leasehold. Most land in Kenya has under a 99-year lease.
Another due diligence process that people overlook is finding out how much money the county government claims on a piece of land. Some landowners do not pay annual land rates, so they have huge backlogs.
For instance, a buyer might pay, say, Sh5 million for a piece of land, only to realise that the county government has a claim of Sh3 million on it in the form of unpaid land rates.
Confirming that a piece of land actually exists in the area’s survey map is particularly important when conducting a title search. This is because, while conmen forge title search results, survey maps are not easy to tamper with.
After getting the survey map, it is advisable to go with it to the site and use it to trace the specific piece of land. This can be done with the help of a professional surveyor.
For a land transaction to be completed, it must get a nod from the district land control board. The boards sits once a month, and both the seller and the buyer should appear before it to show that they are conducting the transaction in good faith.
Paying for land based on verbal promise is foolhardy. Get a lawyer or a qualified company to draft a sale agreement that spells out the terms and conditions of the transaction.
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START READING THE ‘KENYA GAZETTE’
SOURCEMr Kenneth Obonyo, a surveyor, says that one platform fraudsters use to con people is the Kenya Gazette, a small booklet released every Friday afternoon by the Government Printer. It contains government notices, and is also the legal instrument land fraudsters often use to hide their crime.Many people have never seen or read it.Mr Obonyo says there are many ways in which fraud is done through the publication.Fraudsters, often in cahoots with unscrupulous officials at land offices, create new documents for the parcel they plan to gain from. They then substitute the original documents, especially the copy of the title deed kept by the Registrar of Lands.Thereafter, they report the “loss” of the title deed to the police and get a police abstract.They then swear an affidavit affirming that they are the legal owners of the land before registering a deed of indemnity in order to recreate the file for the lost title deed.At the Land ministry, the registrar overseeing the case has to ascertain that the land actually belongs to the person claiming it.This can be done in many ways. The owner might be asked to present himself or herself in person to answer basic questions such as when they bought the land, its location and size.Meanwhile, they use the affidavit sworn for the lost title to request the director of survey to issue a certified copy of the deed plan to replace the lost one.After ascertaining that he or she is the “true” owner of the land, the registrar publishes a 60-day notice in the Kenya Gazette for lost title.This period is crucial because it is at this time that anyone with an interest in the land can lodge their case before the land officials. This includes challenging the validity of the ownership.If there is no objection at the lapse of the 60-day notice, the Ministry of Land issues a copy of the title using the deed plan ( a document by which the sale of unregistered land is effected) issued by the Survey of Kenya.With the provisional title and a deed plan, the person who sold the property earlier can get a new title and proceed to sell it to yet another unsuspecting person.When the potential buyer goes to the ministry to conduct a search on the land, what he or she often finds is the fake title, which he or she assumes to be genuine.What follows is eviction from the land by another unsuspecting buyer and then, of course, the inevitable long-drawn costly court case.The truth often comes out when the unsuspecting buyer starts developing the land, only to be confronted by the real owner waving genuine documents.
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