Wazee’s word is law in land boards stained by incompetence, corruption

It is 7.30 am on a sunny Tuesday. The subcounty government offices are yet to open but citizens have begun trickling in for services. Today, the local Land Control Board is meeting. Land sellers accompanied by buyers will appear before the panel seeking consent for their transactions.

Peter and Joseph (not real names) have arrived early so they can complete the process and proceed to work. Peter sold a plot to Joseph and the lawyer overseeing the transaction sent their application to the board. It sits once a month but a special meeting can be arranged any time at a higher fee.

Peter registers his name in the lands office. But he notices the official listing the applicants has left the first 10 places blank. On inquiring, he is told the places are reserved for elderly or ailing applicants.

It is not clear why places are reserved instead of serving the sick and elderly on priority basis when they arrive. It later turns out the reserved places are sold to applicants who don’t want to wait. They negotiate secretly with the staffer in charge of the list.

Peter and Joseph wait outside the office. It is about 10am but only four members of the board are seated in the boardroom. Applicants have now grown into a crowd. Half-an-hour later, the official in charge of the list emerges and calls out five names. The board hearings have begun.

As time goes by, Peter and Joseph become uneasy, suspecting the list of applicants is not being followed. Applicants who came later are served ahead of them, yet they don’t necessarily look sickly or elderly. “Don’t worry. You will be called. Just wait outside,” Peter is told when he inquires what is going on.

At midday, Peter is informed that his application cannot be found. He calls their lawyer, who confirms sending the documents to the subcounty lands office. But they cannot be located.

The queue is thinning out. There are two other applicants whose papers cannot be traced. The official handling the list promises to help. He asks the three to fill new forms, attach the required documents and he would request the board to clear them.

At around 1.20 pm, the board winds up its work for the day. Peter and the other two applicants have not been served.

The lands official assures them. “Don’t worry. The deputy county commissioner is back in his office. I will request him to approve your applications. It will be hard for him to do so without the rest of the board, but I am really sorry about your case. You have spent several hours here.”

The three applicants heave a sigh of relief. Eventually, the official goes see the deputy county commissioner. He returns to his office and informs the three that the big man has “kindly” agreed to sign their applications. “That will be Sh12,000 each,” he whispers. “Sh2,000 is the usual fee ya wazee. The other is for the DCC.” Peter and Joseph step out to consult over the bribe.

Many Kenyans know about the need for due diligence when buying land, basically conducting a search at the county lands office to establish that the title is valid. But many others may not know that land transactions in agricultural areas include obtaining consent from the local Land Control Board. The government charges Sh3,000 for the process or Sh10,000 for special consent.

The Land Control Board consent is mandatory under the Land Control Act for certain transactions, particularly involving agricultural land, such as a sale, lease, transfer, or sub-division. Application for consent must be done within six months of the transaction. A land transaction in controlled areas is null and void without the board’s consent.

The Department of Lands says board consent ensures a transaction complies with land use policies and that the land remains productive and within the intended purpose. Applicants must submit a duly completed application form along with an official search of the land and the fee receipt.

“The board evaluates the request and, if approved, issues formal consent that must be registered alongside the transaction documents. This process safeguards land rights and promotes sustainable land management.”

The board is powerful as its decisions, while subject to appeal to the provincial or national board, “shall be final and conclusive and shall not be questioned in any court”, the law says.

The board can refuse consent if the buyer “is unlikely to farm the land or to develop it adequately”. But it is not stated how the board can determine this. Consent can be declined if the buyer is “unlikely to be able to use the land profitably for the intended purpose owing to its nature; or already has sufficient agricultural land.” The board can also refuse approval if the price is considered unfair to one of the parties or division of the land is likely to reduce its productivity.

Lawyer Oruko Were traces the origins of the law to the colonial era when there was massive alienation of African land by British settlers and speculators, which continued into post-independence in Kenya.

The acquisitions led to unequal land ownership, over-fragmentation and loss of agricultural productivity. “This resulted in the need for consent as a tool for participation by the natives who suffered the primary effects of land loss and fragmentation,” Oruko said.

The Land Control Boards were formally introduced under Section 5 of the Land Control Act Chapter 302, coming into effect on December 12, 1967, to control transactions affecting agricultural land, with accompanying regulations establishing procedures published in January 1968.

“Absolute title gives unfettered ownership of rights on a parcel of land. However, in controlled areas, this freedom is curtailed by the need to obtain a board consent to prevent and mitigate against uneconomic subdivision, speculative fragmentation and to protect agricultural productivity by ensuring that land is utilised in a sustainable manner,” Oruko said.

Land boards operate at the subcounty level, whose membership consist of the DCC, two public officers, two persons nominated by the county authorities and three to seven residents of the area who must be owners or occupiers of agricultural land.

But there are questions about the competency of the members to discharge the important functions contemplated in the Act.

“It is evident that the majority of the board members are local and mostly ‘wazee’ with minimal legal, formal or technical expertise in land matters, thus raising concern about their ability to comprehend and the capacity required of the functions and decisions they make,” Oruko said.

This concern has led to proposals by stakeholders to expand qualifications to include technical competence and land use knowledge.

Another issue is that although the board members represent, at least on paper, various stakeholders, they are appointed by the Cabinet Secretary for Lands. Oruko said this has over the time led to politicisation of the process, as the national interests represented by the CS may differ from those of local land users.

But perhaps more concerning is the fact that the boards are hardly funded to undertake their mandate. They rarely visit the land proposed for sale or lease to conduct any evaluations.

With an allowance of Sh500 for lunch, what would stop the boards from seeking or accepting bribes from applicants to give or deny consent? Oruko says the allowance has been increased to Sh2,500 but “there is no properly laid-down structure for compensation.”

The question of competence and integrity of the boards becomes critical considering they wield immense powers. A dissatisfied applicant for consent can approach the Provincial Land Control Appeals Board and later proceed to the Central Land Control Appeals Board. 

“The land control bodies are clothed with absolute discretion and decisions made at these forums become final and conclusive, not questioned in any court,” Oruko said.

“However, like any other administrative arm of government, the administrative actions taken by these bodies are subject to Article 47 of the Constitution, and thus failure to follow statutory procedures, abuse of discretion, violation of constitutional standards and unjust administrative action can lead to judicial review before the High Court.”

The lawyer cites a case in Murang’a in which the court quashed a verbal refusal of consent by a board. While the case highlights the remedies available, it also shows how open to abuse the process is, as not everyone may be willing or able to seek redress in court.

Section 6 of the Act requires the board to primarily consider economic use, productive capacity and agricultural standards. “This may be achieved through land inspection, ordering the interested parties’ attendance and site visits as provided for under Section 17 to assess suitability of such buyers,” Oruko said.

“Board members further evaluate the bias in existing land holding, farming experience, financial capacity and the impact such a decision will have on the agricultural productivity if the transaction was to be allowed.”

But concerns remain on how the board can carry out a rigorous evaluation without adequate facilitation and expertise.

Oruko said the process is often subjective, sometimes leading to procedural unfairness. Yet board consent is mandatory. Failure to comply would void a transaction, as shown in several recent High Court decisions.

So, what is to be done? Should the law be repealed?

“Repealing this Act without having an alternative presents the risk of reverting to pre-independence land transactions, which led to unregulated fragmentation and speculative acquisition of productive land,” the lawyer said.

However, critics argue that existence of the Land Control Board creates unnecessary bottlenecks causing distortions in the land market and further leading to avoidable uncertainties. Proponents contend that the boards protect rural land and local agricultural interests and prevent speculative harm on agricultural lands.”

Instead of repealing the Act, Oruko proposed, it would be better to modernise it through targeted amendments to align the board with constitutional principles, improve the quality of members, create efficient timelines, set out minimum requirements, improve on integrity, and insist on clearly defined decision-making criteria.

The board or its members have powers to inspect land before giving or refusing consent. The powers of the board imply it should inspect land before giving or refusing consent to any transaction. But boards rarely do this. They often have neither the expertise and money nor the time needed for such work.

The matter appears to be straight forward, but it hardly is, as Peter and Joseph discovered.

It is not written anywhere that the applicant pay a mandatory Sh2,000 “ya kuamsha wasee” (for waking up the elders).

The cash is not receipted. If a board reviews 500 applications – which quite likely in some counties where land sales are frequent – the wazee rake in a cool Sh1 million in a matter of hours.