Who Owns KICC's Title Deed? The Privatization of the Disputed KICC Land
Before proceeding with the privatization of KICC, the government needs to ensure that it has a valid title to the land.
Caroline Wanjugu
President Ruto’s government seeks to privatize over 100 state-owned firms, having set a target to surpass the number of parastatals sold during the late President Mwai Kibaki regime. Speaking to African Stock Market officials on November 23, 2023, President Ruto said, “We have identified the first 35 companies that we are going to offer to the private sector.”
In October 2023, the Ruto administration assented to the Privatization Act of October 2023, which replaced the 2005 Act. The Privatization Act states that privatization is driven by the need to, among other things, rope in the private sector’s participation in the economy, broaden the base of ownership in the Kenyan economy by promoting the private ownership of state entities, and generate extra revenue from the government following the sale of the state corporations.
Kenya is grappling with the rising inflation rate, reduced government spending, and the devaluation of the Kenyan shilling; hence, the sale of any government entities is a welcome relief.
The duty to identify the entities to be privatized is relayed to the Treasury Cabinet Secretary. As per Section 21(2) of the Privatization Act, the Cabinet Secretary will make the identification while taking into account “the relevant government policies, the strategic nature of the public entity to be privatized, and the strategic priorities and policy goals to be achieved by the privatization.”
Among the state entities that have been identified in the planned state privatization program is the Kenyatta International Conference Centre (KICC). KICC is a government parastatal under the Ministry of Tourism. The 28-storey building was built in 1973 and has, for the longest time, been the go-to spot for international conferences and a tourist attraction. However, the building that is currently valued at Ksh6.25 billion sits on land whose ownership is contested. In the Auditor General’s report for 2018–19, Auditor General Nancy Gathungu opined that the title deed of the land where KICC stands is not registered in the name of KICC. This then begs two questions: who owns KICC? Can the government transfer ownership of land for which it holds no title? A title deed is a crucial document that acts as proof of ownership over property.
The Disputed KICC Ownership
The KICC has been the subject of a two-decade-old dispute between KANU, the former ruling party of President Jomo Kenyatta, and the government of Kenya. In 2013, KANU was thrown out of KICC following what Raphael Tuju, the then Tourism and Information Minister, termed an executive order. Despite this, KANU has continued to list KICC as one of its assets in its filings with the registrar of political parties.
What does the law say?
The Kenyan constitution protects property rights. Article 40(1) of the Constitution says, “Every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya.” The Land Registration Act of 2012 illustrates the role of the certificate of title. Section 26 provides, “The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner... except on the ground of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.”
Before proceeding with the privatization of KICC, the government needs to ensure that it has a valid title to the land. Nemo dat quod non habet is a common law rule that means one cannot give what he does not have. Therefore, the government should not transfer ownership of KICC unless the land ownership dispute is brought to a conclusion.
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