There’s no other region in Kenya with the most distressing grievances of land as the Coast.
Even before the coming of the Arabs, the people have only known loss of their habitats at the hands of ‘wabara’. The British came with their colonial policies that worsened the situation and left a huge problem.
Government institutions with the constitutional powers to fix the problem have failed over the years. Presidential commissions formed with lots of pomp have compiled reports fatter than the Holy books that continue to gather dust in the shelves.
It’s a fine mess that nobody wants to tackle head on even as politicians use it as a campaign tool every five years. For decades, squatters have made it almost impossible for potential investors to own land.
The problem has been attributed to the slow economic growth in the region as potential investors hold their capital for fear of being dragged to corridors of justice by squatters and other shrewd operators.
The situation has been compounded by several cases lodged at the Environment and Land courts in Mombasa and Malindi which, due to lack of enough judges, take time to be resolved.
Kisauni and Likoni in Mombasa are the worst-hit areas. While most squatters claim they live in ancestral land, shrewd land agents usually pop up with titles that end up complicating ownership.
However, a property agent who sought anonymity offers a different perspective. He says there is a special group of squatters who usually identify a vacant plot, erect structures and wait for anyone to lay claim.
Commonly referred to as ‘professional squatters’, they prey on vacant land, move in and then sell it to unsuspecting people.
“They construct semi-permanent houses to lure potential investors to buy. By the time the land owner discovers there are strangers living on his/her land, it’s usually too late. Evictions become expensive and in most cases, end up in violent confrontations,” says the agent.
In 2017, a man was shot on the leg during the eviction of squatters on a controversial parcel in Kisauni that was carried out by hired youth and supported by the police.
The exercise left hundreds of squatters homeless as the youth destroyed all structures. Lawyer William Kenga says land owners should fence off their properties to keep off squatters and grabbers.
He also points an accusing finger at some officials at the ministry, who collude with prominent personalities to defraud people their land. “This can also be attributed to registration officers who collude with prominent people and wealthy businessmen to grab land,” says Mr Kenga.
As for genuine squatters, their best shot is to move to court and claim the land under adverse possession.
The lawyer says some financial institutions no longer accept title deeds as security from Likoni and Diani in South Coast due to disputes. “Investment banks are becoming fearful of giving loans to people whose security is land,” says Mr Kenga.
In January this year, the High Court dismissed a petition filed by Bandari Investment Company Ltd, which had claimed that its land in Nguu Tatu area in Kisauni had been invaded by squatters.
The company claimed that the police and the county government breached its fundamental rights by failing to evict the squatters and failing to enforce building regulations against them. It also sought orders to have the squatters evicted.
Interestingly, the court declined to issue a permanent injunction restraining them from occupying the plot or interfering with the company’s use of the land.
Justice Sila Munyao directed Bandari Investment Company Ltd to file a civil suit for determination and not a constitutional petition.
Bandari Sacco director Ken Tobias Odero Sungu had stated in an affidavit that the company purchased the land in 2012.
“I’ve been here for many years and I know the tactics these professional squatters use. Usually, a first group moves in with violence and takes possession of the target property. Once in possession, they bring in a second group of invaders that puts up temporary structures,” says Mr Sungu.
It goes on and unless evicted, permanent houses set in. Law Society of Kenya Mombasa chapter chairman Mathew Nyabena says plots should be clearly adjudicated for identification of public and private land.
He urges local leaders to push the land adjudication agenda and engage the national government to fix the problem.
“The issue has affected the local economy as anybody dealing with land has to conduct due diligence before committing resources to any investment,” said Mr Nyabena.
Mr Philip Mbaji, a scholar, says the issue will only be resolved if there is political will from the President to local leaders. “The government must address poverty, which fuels the land problem in the region,” he offers.
Another company is also fighting with over 3000 alleged squatters who have reportedly invaded its Sh1 billion parcel in Kiembeni. The squatters have obtained orders halting their eviction.
Zum Zum Investment Ltd wants the alleged illegal occupants out of the property as it seeks to partner with the State Department for Housing and Urban Development (SDHUD) to construct affordable houses.
In April, dozens of squatters residing on a 40-acre parcel belonging to the Catholic Church in Voi were ordered to pay the church Sh500,000 as general damages for trespass.
The High Court says the registered trustees of the Catholic Archdiocese of Mombasa, which owns the land, were entitled to be compensated for the denial of its use for over a decade.
“I award the plaintiff (church) damages of Sh500,000 on account of nominal general damages for trespass together with interest at court rates from the date of this judgment until payment in full,” ruled Justice Charles Yano.
Justice Yano further ordered the squatters to vacate and deliver vacant possession of the land to the church within 30 from the date of service of the decree.
According to the church, the defendants had cut down trees, utilised water resources and grazed on the land without its consent, leading to environmental degradation.
On their part, the defendants told the court that they had acquired rights to the land through adverse possession as they had enjoyed its continuous and uninterrupted occupation for over 12 years, saying the suit was time barred.
In 2019, former assistant minister Calist Mwatela and his wife Jacinta went to court seeking to have the county government of Mombasa compelled to pay them Sh25 million being agreed purchase price for a 2.5-acre parcel pursuant to a sale agreement.
They said the county government had offered to purchase the parcel situated at Mishomoroni on behalf of squatters.
According to the applicants, several people invaded the land in 2003 and started erecting temporary structures without their authority.
They had filed a case at the High Court seeking possession of their land and damages for trespass before the county government intervened and offered to purchase it on behalf of the squatters.
Last year, about 100 squatters living on a 7.1-acre parcel in Mishomoroni got a reprieve after the court ruled that they were entitled to it and should be registered as owners on account of adverse possession.
The court also ruled that Fort Properties Ltd’s (who were registered owners of the land) interest in the parcel of land had been extinguished.
“I am satisfied that the plaintiffs (squatters) have proved their case on a balance of probabilities and have brought themselves within the limits of the doctrine of adverse possession,” said Justice Yano.
He added that Fort Properties Ltd’s counter-claim, which sought to have the residents evicted, was statute barred. The court said the squatters produced photographs showing extensive developments they had undertaken, including permanent buildings.
He added that Fort Properties Ltd had not denied the existence of the developments, thus there was no doubt they (developments) must have been undertaken over time and openly.
