It has now been established that Kenyans obeyed a non-existent law on transfer and ownership of prime beach plots for 44 years.
The revelation came after a court invalidated a decree by Kenya’s founding President Mzee Jomo Kenyatta that only the head of state could authorize the sale and transfer of land on the front and second row of beaches at the Coast.
The order, ruled the court, amounted to nothing more thana roadside declaration.
“Neither the Registered Land Act, Registration of Titles Act nor the Land Titles Act, now all repealed, nor even the current land law regime has such provisions. Nor is there any statute or legal basis for requiring such consent,” Appeal Court Judges Hannah Okwengu, Milton Makhandia and Fatuma Sichale said.
In the ruling, the judges dismissed an appeal by the Attorney-General and supported an earlier one by the high court that the decree was overtaken by events.
The issue of transfer of prime property and the powers given to the president in allocating and transferring land was critical in the clamour for a new constitution.
A new law creating the National Land Commission with powers over land matters was prompted by the misuse of such decrees.
If the presidential consent was not obtained, lands officials would reject an application to transfer the plots and when challenged, they would explain that the consent was required for security reasons and was in the national interest.
“Being a roadside declaration and having not been anchored in any law, where would the paper the appellants are demanding of the respondents be found?” the judges posed.
The petition had been filed by former Mombasa Law Society officials, led by chairman Mohammed Balala, against the Attorney-General, Commissioner of Lands, Mombasa chief lands registrar, Coast registrar of titles and registrars of land in Kilifi, Lamu and Kwale counties.In the High Court ruling, Lady Justice Mary Kasango had noted that the decree was an appendage of yester years, when presidential decrees were equated to law, and it therefore had no place in the Kenyan society today, since it is discriminative in nature.
With that, the judge prohibited lands officials from demanding a presidential consent as a pre-condition to register transfers of land or lease situated on the first and second row along the beach.
This ruling now gives landowners the freedom to conduct transactions on their property without the tedious and lengthy land procedures experienced in lands offices.
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