For the past few weeks, Rachel Lubasi hasnâ€™t slept very well. You see, she might just lose the home she had thought sheâ€™d live in for the rest of her life.
Rachel is among the 296 families in Nairobiâ€™s upmarket Runda estate that could be left homeless after the High Court recently ordered partial demolition of Runda Mimosa Ridge and The Cycads estates.
Rachel and her husband bought their dream home in 2007 for Sh25 million. When they did a valuation three years ago, their home was worth Sh50 million. They had called this five bedroom house, home, since 1994, before finally buying it.
â€œIt was a big investment, so naturally, through our lawyers, we conducted all the necessary searches at the Department of Surveys and the Ministry of Lands before making payment,â€ says the mother of two.
When their lawyers confirmed that the title deed was valid, they were excited, happy that they finally owned a house, a dream they had worked hard to achieve.
â€œOne of my goals was to own a home by the time I turned 40 â€“ it felt really good to have achieved this long-held dream. Like any other homeowner, I felt secure, and at the time, wouldnâ€™t have imagined that just a few years later, I might just lose it,â€ she says.
Rachel says that she and her husband only found out that the government owned a piece of their 1/2-acre land in 2010.
â€œWeâ€™d heard rumours that the government was planning to build a bypass near our estate, but we assumed that it would go through the idle land that bordered our property, so we thought nothing about it,â€ she says.
And then came the shocking news. They got a letter from the Runda Association in 2010, copied to other home owners in the area, informing them that the government was claiming a portion of each of their land â€“ 20 metres in their case.
This meant that buildings standing on the identified portions would have to be demolished. Rachel and her husband were taken aback, and thought there was a mistake.
Unfortunately, it wasnâ€™t, for soon afterwards, government officials came calling, and put markers indicating where the stateâ€™s land began and ended â€“ the markers cut across Rachelâ€™s living room, her bedroom, and ate away the servantâ€™s quarters, backyard, as well as the fence bordering the backyard.
That same year, the construction of the Northern bypass began, prompting Rachel and about 59 of her neighbours to go to court to block the government from making good its threat.
â€œOur argument was that we have valid title deeds, issued by the same government that was claiming part of our land. Thereâ€™s also the fact that all along, weâ€™ve been paying land rates, equivalent to our land,â€ Rachel says.
Nevertheless, the construction of the Northern bypass continued, but within an undisputed 60-metre road reserve. The road was completed last year, with the case still ongoing.
When the ruling, in favour of the government, was made in April, this year, Rachel and her husband had travelled out of the country and only got to learn about it much later when they returned.
The ruling informed them that there would neither be compensation for the portions being claimed, nor for the homes and buildings to be demolished.
â€œWe learnt about the ruling from a newspaper articleâ€¦ I had actually believed that we had a very good chance of winning the case given the evidence we had,â€ she says.
The evidence sheâ€™s talking about is the fact that documents at the ministry of Lands and Department of Surveys indicate a 60-metre reserve, and not 80 metres, and any searches on the title deeds will confirm the same.
Rachel and her neighbours plan to appeal.
Another home owner who talked to theÂ Lifestyle, says he bought his 1/2-acre piece of land 15 years ago. He was the fifth buyer.
He, too, conducted all the necessary searches at the ministry of Lands, and Department of Survey, and all showed the plot as demarcated on the title deed â€“ bordered a 60-metre road reserve.
â€œI constructed my house in 1997 and for the next 13 years enjoyed the peace and quiet I had worked hard for,â€ he says.
In 2010, clearing of the road reserve, where the Northern bypass would be constructed began. A month later, this man and his neighbours were shockedÂ to arrive home only to find that officials from the ministry of Roads had marked â€œXâ€ and the word DEMOLISH on their properties. In some cases, the ministry was claiming up to 36 metres of the 50-metre long property.
â€œWe had lived here for years, and could not understand what motivated the claim,â€ he says.
Not even his title deed could appease them. When he confidently showed it to them, the officials insisted that the ministry had purchased part of his property in 1970.
â€œThey claimed to have purchased 80 metres for a road reserve, but due to a mistake in the ministry, what was indicated on the titles at the time was only 60 metres.â€
The man says that upon investigation, they learnt that the ministry of Roads purchased land in 1970, but did not inform the ministry of Lands, hence the area purchased was never reflected on the master titles at the Department of Surveys.
â€œFrom what I know, any government acquisition of a road reserve must be noted on the master titles so that government surveyors serving in office, decades later, are fully aware of what can be subdivided and what must remain untouched,â€ he argues.
In 1974, when subdividing the said land, surveyors set aside a 60-metre road reserve, unaware that 80 metres had been purchased by the ministry of Roads. As a result, the same government that bought the land for a road reserve in 1970 then went on to issue titles for portions of their own land.
â€œIf the government fails to register its land on the master title, how then will buyers know the actual extent of their property? Is my title deed a mere piece of paper, that someone somewhere can wake up one day and rubbish? Why should I pay for the governmentâ€™s inefficiency? The same government that I should rely on to safeguard my property?â€
While delivering the judgment, Lady Justice Mumbi Ngugi stated that the homeowners did not exercise due diligence, to establish the corridor for the Northern bypass was actually 80 metres wide, and not the 60 metres that they claimed. Referring to this judgment, this homeowner wonders where else, apart from the Department of Surveys or the ministry of Lands, a land buyer can conduct a search.
â€œAre we also expected to conduct searches at the ministry of Roads, Water and Natural Resources?â€
Furthermore, he points out that he has been paying land rent and rates for the full extent of land on his title.
â€œThe government, through the City Council of Nairobi, has been gladly accepting my money, as their records will show,â€ he says.
He reckons that with the undisputed 60 metres, a highway with four lanes can be added onto the two lane highway already in use.
â€œWhy does the government want another 20 metres more and in so doing destroy the homes of innocent Kenyans?â€
Should the judgment be upheld, this gentlemanâ€™s next door neighbour will lose 36 metres of his land, including his entire house. Ironically, the neighbour who owns land across the bypass is gaining 16 meters of extra land.
If you paid a visit to the two ministries today, all survey maps still indicate a 60-metre road reserve.
Since no records exist of what was actually purchased in 1970, this homeowner feels that current ministry officials are randomly claiming a strip that will provide the cheapest option on construction costs.
Another affected person, who also requested anonymity, says he acquired land at the Mimosa Ridge Estate in 1991. In 2009, he took a Sh10 million loan from the Kenya Commercial Bank and built his dream home.
â€œThereâ€™s no way any bank would have lent me that kind of money if the details on my title deed and those on the documents at the relevant government institutions didnâ€™t tally,â€ he says.
Furthermore, this gentleman points out that when he presented his building plans to the City Council for approval, as required by law, he got the go ahead to put up his seven bedroom house.
â€œThis was supposed to be my retirement home, so I invested a lot of money and hard work in it â€” my family and I built it from scratch, so thereâ€™s a lot of emotional investment as well,â€ he says.
Since the ruling was made, he too has not been sleeping easy.
â€œI was in court that day, (when judgment was delivered) and was surprised at the ruling â€” I feel that the judge did not take our evidence into consideration,â€ he says, pointing out that for the past 21 years, heâ€™s been faithfully paying land rates for the full extent of his property, a confirmation that he holds a valid title.
Another homeowner, Mrs Shah, also stands to lose the home she bought about 11 months ago from a bank. At the time, she had no idea that there was an ongoing court case. She too conducted all the necessary searches at the Lands and Surveys departments, where maps showed that her property was outside the mandatory 60-metre road reserve.
It was only when she moved in some six weeks ago that she learnt of the court case. A few weeks later, a ruling was made, expanding the bypass by 20 metres. She could now lose her home.
In an earlier interview, she said, â€œThe map did not indicate anything about a 80-metre reserve. I will lose my home because of the governmentâ€™s inefficiency.â€
But maybe not: When contacted, the Chairman of the Lands Commission, Mr Mohammed Swazuri, said that besides, the Ministry of Lands and Department of Surveys, thereâ€™s nowhere else a land buyer can conduct searches.
He, therefore is inviting homeowners to file a formal complaint with the commission, saying that he only learnt about the matter through the media.
â€œI read about this matter in the papers â€“ they should forward their grievances to us, weâ€™ll gladly listen to them. If youâ€™re sick, donâ€™t be satisfied with what the first doctor you see tells you, itâ€™s always advisable to seek a second opinion,â€ Mr Swazuri said.