ISK Calls for Balanced Approach to Riparian Demarcation and Property Rights
The Institution of Surveyors of Kenya (ISK) has issued a formal position regarding the ongoing reclamation of riparian reserves under the Nairobi Rivers Regeneration Project. While the ISK unequivocally supports government efforts to restore ecosystems and mitigate flooding, it is raising critical concerns over property rights, legal inconsistencies, and the need for fair compensation.
The Challenge: Legal Gaps and Inconsistencies
The ISK notes that effective management of riparian land is currently hampered by a "multiplicity of statutes" and conflicting interpretations of how these reserves should be measured. Key issues identified include:
•Measurement Inconsistencies: There is no standard spatial extent for sea fronts, lakes, or rivers.
•Variable Reference Points: Surveyors often differ on whether to use the centerline, riverbank, or high-water mark as a starting point.
•Lack of Policy: A centralized policy to address the use and management of these reserves is currently missing.
Clarifying Property Rights
A central point of the ISK’s statement is the correction of a common misconception: riparian reserves are not automatically public land.
•Private Ownership: ISK clarifies that while a reserve is defined by the High Water Mark, the area can still be private land subject to development control.
•Constitutional Protection: Under Article 40, the state must conduct a factual inquiry into how land was originally surveyed and registered before taking action.
•The "Misnomer": The Institution has urged the public and government to stop referring to these areas as "riparian land," noting that "riparian reserve" is the technically correct term.
The Issue of Compensation
The ISK is particularly concerned with "retroactivity"—the application of new standards to properties lawfully developed decades ago.
•Sanctity of Title: For owners with valid titles and approved survey plans, the redefinition of a reserve cannot be used to deprive them of land without due process.
•Compulsory Acquisition: Any state action resulting in the permanent loss of such land constitutes compulsory acquisition. In these cases, the government is constitutionally bound to provide prompt, just, and full compensation before demolition.
•Exception for Fraud: ISK distinguishes these cases from land that was illegally or fraudulently acquired; such properties do not attract constitutional protection or compensation.
Proposed Technical Solutions for Flooding
Beyond legal matters, the ISK proposed several technical measures to address the flooding crisis in Kenya:
•Baseline Surveys: Immediate aerial mapping and geospatial surveys are needed to identify flood-affected areas.
•Infrastructure Design: New roads must feature functional drainage, and developers should be required to maintain internal storm water systems.
•Permeable Surfaces: The ISK urges authorities to enforce ratios of "natural space" to concrete, suggesting the use of porous concrete blocks to allow for water percolation.
A Call for Professional Standards
The Institution insists that the mapping and delineation of riparian reserves should be handled strictly by the Director of Surveys or Licensed Surveyors. They noted that agencies like NEMA or WRMA often lack the specific tools and knowledge required for accurate boundary determination.
"Sustainable environmental management... must not come at the expense of constitutional guarantees, professional integrity, or public confidence in land administration," stated ISK President Eric Nyadimo.
The ISK remains ready to collaborate with the government to ensure that environmental protection is balanced with the rule of law and the protection of property rights.
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