Inside the Coast land disputes that have “refused to go away”

This is the time leaders preach about historical injustices against the people, and make promises that are never fulfilled once the elections are over. 

The land question has largely remained unanswered, as successive governments have underplayed it, and the people remain squatters despite pledges by leaders to help them.

This has left the affected people to either follow the legal route to claim ownership rights, or to manually reclaim what they think rightfully belongs to them.

In Kwale, thousands of settlers are at the mercy of the courts as a dispute on the ownership of 187 acres at Diani beach plays out in the Court of Appeal.

The dispute dating back to 2010 involves more than 700 individuals and entities against Leisure Lodge Resort. 

A decision rendered by the High Court blamed government officials for displaying impunity in dealing with land matters.

The three-judge bench had in May 2019 declared Leisure Lodge Ltd as the registered owner of the 187 acres.

The decision was the culmination of a decade-long struggle by Leisure Lodge Resort in its fight for 10 parcels of land that had been illegally allocated to hundreds of individuals.

Creating false maps

Government officials were accused of creating false maps for the parcels of land, subdividing it into small plots and allocating titles in collusion with district commissioners, senior civil servants, police and local politicians.

In their decision, Justices Eric Ogola, Mugure Thande and Dora Chepkwony said their finding was mainly against the Commissioner of Lands, Chief Land Registrar, District Registrar-Kwale, Director of Survey, Director of Physical Planning, the Administration Police Commandant and the Attorney General.

“The state officers have displayed wanton abuse of office and impunity with regard to court orders and it is upon the Attorney General to mete out appropriate sanctions against them,” ruled the judges.

The land officials were found to have illegally revoked titles belonging to Leisure Lodge with the aim of depriving it of its property.

The land officials were found to have created an adjudication area and survey map over the parcels of land and named it Diani Complex Settlement Scheme Sheet No 4.

Records, however, show there is a genuine Diani Complex Settlement Scheme, which is not within the resort’s property.

The land officials said the title for the land belonging to the resort was revoked after it failed to surrender a part of it for resettlement of squatters.

Currently, on the piece of land stand several high-end homes, apartments and business premises worth millions of shillings belonging to former government officials, politicians and local leaders.

The Court of Appeal has since suspended the execution of the judgment by the High Court, pending hearing and determination of an appeal by the Attorney General.

Powerful land cartels

The hundreds of households will now await the final verdict of the Court of Appeal to know their fate.

The Saggaf family that owns 289 acres of the prime Wasini Island worth Sh1.4 billion is still waiting to repossess the property, more than 17 years after winning a court case.

The family is wondering why land officials in Kwale County have not implement a court order that was issued in 1995 in its favour.

Mr Mohamed Maula has been following up the matter with the authorities concerned, but he is yet to succeed.

The question the family is asking is why a land registrar cannot implement an order issued by the court, and reinforced by the National Land Commission (NLC), when there is no other order stopping its execution.

The court ordered that the land, which was being claimed by some locals, be returned to the family.

The NLC conducted a public inquiry in Mombasa in 2019 and directed that a survey be conducted so that the Saggaf family can be given what legally belongs to it, after finding that the family suffered historical injustices.

However, three years later, land officials in Kwale are yet to implement the directive. Three attempts to have the property adjudicated have proved futile.

Failure to conduct a survey is dealing a blow to the family, which has been waiting to repossess the land and carry out development.

According to the family, powerful land cartels, made up of government officials, have blocked the survey.

Eviction fears

Part of the property is home to squatters who have opposed its planned survey by the government.

The squatters have built tourist hotels on the property. The hostile local community has opposed its adjudication, fearing it would lead to their eviction. But the family has allayed eviction fears, noting that it only owns a portion of the larger island.

“We have repeatedly declared that there is no intention of evicting any squatter, and the family will only decide on how to best deal with the squatters occupying the 6 per cent land at the conclusion of the adjudication,” said Mr Maula, the family’s spokesman.

The acreage of Wasini Island is between 5,000 and 6,000 acres, said Mr Maula, and the Saggaf land is 289 acres, which is about 5 per cent of the total land.

The family has said that its land does not extend into the settled areas of the island. 

For now, the family is among thousands of squatters living in tiny houses in Mombasa, as powerful cartels frustrate the adjudication that should end the tussle.

It is not just squatters who are in court over grabbed land, the government too is a complainant in several cases filed in the Environment and Land Court in Mombasa.

Through the Ethics and Anti-Corruption Commission (EACC), the state is in court fighting for the ownership of the scenic Chale Island in South Coast, which it claims cartels hived off and allocated themselves.

The anti-corruption agency has filed more than 20 separate suits at the Environment and Land Court in Mombasa, where it wants ownership documents issued to individuals for parcels of land on the island declared null and void.

The EACC argues that the parcels of land were fraudulently hived off land reserved as the Chale Island Sacred Grove and Diani Chale Marine National Park.

Defective titles

The anti-graft agency wants an order directing the land registrar in charge of Kwale to rectify the land register by cancelling all entries related to the issuance of the titles over the parcels of land on the island.

The EACC, which has named the National Museums of Kenya and the Kenya Wildlife Service as interested parties in the suit, says Chale Island is a culturally and ecologically sensitive habitat that enjoys protection.

“The island was preserved as a monument of historical and cultural interest and an area of land requiring maintenance, thus a protected area,” it says in the court documents.

It further says that the island, together with the surrounding waters of the Indian Ocean, having been gazetted and reserved as a monument and a marine national reserve, were not available for allocation.

The EACC says that in disregard of the gazette notices, the island was subdivided, registered and the parcels transferred to individuals as registered owners, as an extension of the Kinondo Chale Settlement Scheme.

The government agency claims that the defendants, who are the individuals who allegedly own the parcels of land, had knowledge of its alienation and actively participated in the acquisition of defective titles.

According to the EACC, the defendants acquired portions of the island for private use without following any lawful or statutory process to change use from the gazetted protected areas.

EACC says former land registrars in Kwale engaged in a systematic perversion of procedures intended to protect public interest to divert a public resource for unjust enrichment of individuals.

The anti-corruption agency also says that the registrars took advantage of the legitimate intention to settle squatters in the Kinondo Chale Settlement Scheme to hive off portions of land reserved for use as public utility.

The EACC is now seeking a permanent injunction against the defendants, restraining them from taking possession or dealing with the parcels of land in addition to surrendering them to the government.

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