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Surveyors blame multiple laws for riparian land woes

Some buildings being demolished had necessary approvals from government agencies and had secured bank loans

Barry Silah @obel_barry

As the demolition of buildings built on or around areas adjacent to riparian land continues, stakeholders are voicing different opinions, thus spreading confusion.

At the route of contest is billions worth of investment going down in losses despite developers claiming they had legal documents to support their right of ownership. There has been national debate on the protocol and process to be used to acquire documentation despite the laws on riparian lands being clear enough.

The issue of corruption has also stalked key officials of Government departments who allegedly issued what has now been labelled as ‘faulty papers’ since they did not adhere to the concerns of the environment.

However, the Institution of Surveyors of Kenya (ISK) is now reading from a totally different script, choosing instead to lay blame squarely on multiplicity of laws. ISK has taken issue with the land management and administration systems, saying they are badly wanting.

“The enforcement mechanism needs straightening so that most developments in the pipeline around contested public areas do not take place,” said ISK Chairman Abraham Samoei during a media briefing concerning the ongoing demolitions in the country, especially in Nairobi.

He added: “We are aware of certain developments, which have obtained necessary approvals from various agencies including Physical Planning Department, Department of Lands, Department of Surveys, National Environment Management Authority (Nema) and Water Resources Management Authority.Based on these approvals, they secured lending from banks. This issue needs serious addressing especially at these critical times”. 

Surveyors say the problem affecting the conservation of riparian reserves is affected by the legislative regime that determines the use and management of these areas. They say the laws are too many and fragmented since they have prescribed varying measures of the riparian width on the same rivers and so also determine the zoning from different points of reference.

“The Survey Act, (Kenya, 1961), for instance provides a width of at least 30 metres measured from high water mark for tidal rivers only. Physical Planning Act (Legal notice 140 rule 15(c) and (d) (Kenya, 1998) provides for minimum width of 10 metres. Water Resources Management Rules (Kenya, 2007b) provides minimum of six metres and a maximum of 30 metres,” said Samoei.

“The multiplicity of laws has thus caused great confusion and created a loophole that has been exploited by unscrupulous persons,” he added.

Further, Article 67 of the Kenyan Constitution says riparian land is public land hence should not be allocated to anyone.  The laws define riparian land as being a minimum of six metres and up to a maximum of 30m on either side of a riverbank from the highest watermark.

ISK has recommended that the national government develop a policy to address the existing gaps in the management and conservation of the riparian reserves.

For instance, the Survey Act, which is undergoing review, can be a key reference point. ISK has also called for the existing riparian reserves be mapped and geo-referenced even as public land and utilities being surveyed, registered and documented so that the myriad contests are controlled.

According to Land Utility Expert Reuben Kimani, a big chunk of the problem lies with the prospective land users and buyers not doing due diligence. “Land purchase is a legal process that needs to be overseen by a lawyer. Real estate companies that provide legal advice in and around their projects are the best choice when it comes to land investment.

Buying land that has been thoroughly surveyed and demarcated is very important. Riparian land is public land and cannot be sold to anyone. A survey map will help you identify the existence of any rivers next to your potential investment,” he says.

Erastus Chege who is a Land Surveyor believes the entire process for either a developer of property would certainly depend on proper clearance from relevant bodies and also the blessings of the Local Authority where the development is expected to be at.

It is estimated that over 5,000 structures have been erected on riparian reserves within Nairobi County alone. Experts say that the situation has been the cause of pollution of rivers and flooding of the sections of the basin. Indeed a great amount of biodiversity has been lost and replaced with physical structures and human activities.

NCA Acting Director General Maurice Akech said a unified taskforce will continue to pursue the wrongdoers. “All enforcement agencies with express mandate will not hesitate to go all the way to protect the ecosystem,” he said.

  

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