analyis of the land acts may 2012 - muriithi & ndonye advocates

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ANALYSIS OF THE NEW LAND LAWS

2012 This paper is a brief summary of the key provisions in the Land Act, National Land Commission

Act and the Land Registration Act. These Acts were passed by Parliament into law on 26th April

2012 and assented to by the President a day thereafter. This paper will give you an insight of the

background to the land reform agenda while looking into the changes that will affect the

various stakeholders in land matters and the changes that these laws will bring to the land

sector in Kenya in the quest for reforms.

5/15/2012

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TABLE OF CONTENTS 1.0 Introduction ............................................................................................................................. 1 2.0 The need for reforms .............................................................................................................. 1

2.1 The National Land Policy ..................................................................................................2 2.2 The Constitution of Kenya Chapter 5 (articles 60-68) ................................................ 3 2.3 The Land Reform Agenda ............................................................................................... 4

3.0 Salient Features of the National Land Commission Act No 5 of 2012............................... 6 4.0 Salient Features Of The Land Act No 6 of 2012 .................................................................. 9

(a) Management and Administration of Public Land ......................................................... 9 (b) Land Tenure ..................................................................................................................... 9 (c) Any c0nversion of land from Public to private land shall require parliamentary consent; ..................................................................................................................................... 10 (d) A charge over matrimonial home only valid if spouse has given consent .................. 10 (e) A charge shall only take effect only if it is registered. ................................................. 10 (f) Variation of interest rates and Principal amounts in the charge .................................. 11 (g) Right to discharge ........................................................................................................... 11 (h) Foreclosure Abolished .................................................................................................... 11 (i) Remedies of the Lender.................................................................................................. 11 (j) Lenders Power of Leasing ............................................................................................. 12 (k) Power of lender to take possession over property ..................................................... 12 (l) Power of Sale .................................................................................................................. 13 (m) Duty of the Chargee under the power of sale .............................................................. 13 (n) Power of court to re-open certain charges and revise terms ..................................... 13 (o) Transfer of charge .......................................................................................................... 14 (p) Other important Developments to note ...................................................................... 14

4.1 Transitional provisions ............................................................................................... 15 5.0 The Salient Features of the Land Registration Act ............................................................ 20

(a) powers of the registrar ................................................................................................. 20 (b) organisation of land ....................................................................................................... 21 (c) Registration Units .......................................................................................................... 21 (d) Registries ........................................................................................................................ 21 (e) overriding interests ........................................................................................................ 22 (f) prejudicial dispositions .................................................................................................. 22 (g) Ownership of land by minors ........................................................................................ 22 (h) Co- Tenancy .................................................................................................................... 23 (i) Leases ............................................................................................................................. 23 (j) Sectional Properties ....................................................................................................... 23 (k) Long-term Leases ........................................................................................................... 23 (l) Charges .......................................................................................................................... 24 (m) Charges on Matrimonial property ................................................................................ 24 (n) Transitional Provisions and Savings touching on Charges and Mortgages ............... 24

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(o) Savings and Transitional Clauses ................................................................................... 25 (p) Court Jurisdiction on land issues .................................................................................. 26

6.0 Key Recommendations .......................................................... Error! Bookmark not defined. 7.0 Conclusion ............................................................................................................................. 27

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Acronyms

CIPEV Commission of Inquiry into the Post Election Violence

CLR Chief Land Registrar

CoL Commissioner of Lands

GLA Government Lands Act (Cap 280)

ICT Information and Communications Technology

ILRIS Integrated Land Rent Information System

ISK Institute of Surveyors of Kenya

KISM Kenya Institute of Surveying and Mapping

LR Land Registrar

LSK Law Society of Kenya

LTA Land Titles Act (Cap 282)

MoL Ministry of Lands

NLC National Land Commission

NLP National Land Policy

ODM Orange Democratic Party

PNU Party of National Unity

RDA Registration of Documents Act (Cap 285)

RLA Registered Lands Act (Cap 300)

RT Registrar of Titles

RTA Registration of Titles Act (Cap 281)

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1.0 INTRODUCTION

Land has remained an emotive issue for a long time in Kenya. Security of land rights has over a long time not been guaranteed in the country. This in turn has affected investments in the land sector and exploitation of land based resources as well as observed trend in the continued existence of Internally Displaced Persons (IDP) in the country. Quite importantly, a large proportion of Kenyans are not satisfied with the current status of the principle of secure land rights hence the urgent need for reforms.

The promulgation of the Constitution of Kenya set the ball rolling the process of its implementation through the enactment of different legislations and setting up of new institutional frameworks as envisaged in the new Constitutional dispensation. One of the major sectors that the Constitution set out to revolutionise was the all too important land sector. Chapter Five, Part I of the Constitution is dedicated to provisions on Land matters. This particular Chapter also lays out broad principles through which land and the environment shall be managed. These broad principles are expounded in the National Land Policy (NLP) which informed the Constitutional provisions to a large extent.

The Constitution has therefore caused a major shift in the land sector by requiring the Parliament to pass various pieces of legislation and generally providing for land matters in a dedicated chapter. However, to understand the current developments in the land sector, it is important to trace the genesis of the land reform agenda and the reasoned why change was desired.

2.0 THE NEED FOR REFORMS

The need for land reforms in Kenya arose from a long history of inefficient and ineffective land administration and governance system. There was rampant Land grabbing,1 irregular or illegal allocations of Land2 and Tribal Clashes related to Land.3 The periodical tribal clashes in 1992 and 1997 and the post-election violence in 2007-2008 that saw communities being evicted from Land that was perceived not to be theirs was a clear indication that Kenya had deep seated issues relating to land that needed a long term solution.4

1the Njonjo Report 2the Ndungu Land report 3 The Akiwumi Commission 4Commission of Inquiry on the Post-Election Violence (CIPEV) or the Waki Report 5The Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy framework

2the Ndungu Land report 3 The Akiwumi Commission 4Commission of Inquiry on the Post-Election Violence (CIPEV) or the Waki Report


Various attempts have been made by the government to resolve the issues of land especially targeting the Ministry of Lands, such as creating the first Commission of Inquiry5on land matters (commonly referred to as the Njonjo Commission) and the Commission of Inquiry into the illegal and irregular allocation of land in Kenya (commonly referred to as the Ndungu Commission).6

The negotiations between the warring PNU and ODM parties after the Post Election

Violence of 2007 where the outcome of the election was in dispute also played a key role

into contribution of what went into the reform agenda. The negotiations that were

brokered by Koffi Annan had five agendas and key on the agendas was Agenda 4. This

agenda agreed upon on 23rd May 2008 as part of the ODM and PNU agreement included a

way-forward on legislative and institutional reforms that would ensure transformation of

the Land sector among other institutions. Agenda-4 particularly focused on the long term

issues like Land reform; Poverty, inequity and regional imbalances; Unemployment and

particularly among the youth; Consolidation of national cohesion and unity; and

Transparency and accountability and impunity.7

Most of the recommendations that were made by thes Commissions mentioned above went into the formulation of the National Land Policy (Sessional Paper No.3 of 2009) and the Chapter 5, Part I in the Constitution of Kenya.

2.1 THE NATIONAL LAND POLICY

The Government had already undertaken the formulation of a Draft National Land Policy (DNLP) prior to Agenda 4. However the PEV fueled the need for the implementation of a National Land Policy. The DNLP was adopted by Parliament in 2009 as Sessional Paper no.9 of 2009. It delineated the following issues that required reform:

i) Constitutional issues; For Example; power of allocation, compulsory acquisition, ownership of land by non-citizens and devolution.

5The Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy framework Constitutional Position of Land and New Institutional Framework for Land Administration submitted its report in November, 2002, herein referred to as the Njonjo Commission. 6 The Commission of Inquiry into Illegal/irregular Allocation of Public Land submitted its report in June 2004, hereinafter referred to as the Ndungu Land Commission. 7 Agenda 4 with regard to Land reform stated,

We recognize that the issue of land has been a source of economic, social, political and environmental problems in Kenya for many years. We agree that land reform is a fundamental need in Kenya and that the issue must be addressed with the seriousness it deserves. Towards this end, we agree to fully support efforts to establish the factors responsible for conflicts over land and to formulate and implement actionable short, medium and long-term recommendations on the issue


ii) Land tenure issues; For Example; 999 year leases, freehold and leasehold interests & tenure of public, private and community land.

iii) Land use management issues; For Example; Land use planning. iv) Land administration issues; For Example; double titling, delays in registration,

corruption in lands offices and records. v) Land issues requiring special intervention; For Example; Coast province, squatters,

IDPs, refugees and land based disasters. vi) Institutional framework; For Example: Office of the Commissioner of Lands, the

office of the President and Land Registries. vii) Implementation framework the Land reforms.

Nonetheless, most of the provisions of the NLP were not adopted into the Constitution especially the provisions with regard to the powers and mandate of the NLC. The Constitution watered down the proposals that were made by the NLP hence limiting the drafters to what is provided for under Article 67 of the Constitution.

2.2 THE CONSTITUTION OF KENYA CHAPTER 5 (ARTICLES 60-68)

The Constitution classifies land into three categories namely Public, Private and Community Land under Article 61. The Constitution has created numerous rights which had to be factored into the new legislation. For example Matrimonial Rights, Rights of Marginalized groups, Community rights, to name but a few. It also provided the blue print for the new legislation on Land.

The three major legislations on Land spawned by the Constitution are as follows;

a) National Land Commission Act: - It gives effect to Article 67 of the Constitution and establishes the National Land Commission (NLC). The Act provides for the functions of the Commission, qualifications and procedures for the appointment of members of the commission, including the Chairperson. It is essential to note the provisions of clause, as the NLC is designated to play a pivotal role in land management and administration and take over most of the functions that were hitherto the preserve of the President and the Commissioner of Lands.

b) The Land Act: It gives effect to Article 68 of the Constitution which generally requires Parliament to revise, consolidate and rationalize the land laws in Kenya. The Act consolidates various laws on land into one substantive law governing land in Kenya. The Act vests public land in the national government to be administered in trust for the people of Kenya by the National Land Commission as required by the Constitution.


c) The Land Registration Act: This Act gives effect to Article 68 of the Constitution. It provides for the revision, consolidation and rationalization of the law governing the registration of title to land, regulation of dealings in registered land and to give effect to the principles and objects of devolved government in land registration. In light of this the Indian Transfer of Property Act of 1882, The Registered Land Act Cap 300, The Registration of Titles Act Cap 281, the Government Land Act Cap 280 and the Land Titles Act Cap 282 are repealed. However, for the sake of smooth transition, parts of the repealed legislation are saved in the savings and transitional provisions.

It is important to note that legislation on Community Land (Community Land Act) as provided for by Article 63 of the Constitution is still in the formulation stage as the stakeholders consult further. Community land is a sensitive issue in Kenya and coming up with this legislation requires wide consultations which will most likely take a longer time.

Additionally the Constitution in its Article 262 (Sixth Schedule) provides for transitional and consequential provisions relating to land. In particular the provisions of Section 8(1) and (2) on existing land holdings require that Freehold interest vested in non-citizens to revert to the Republic of Kenya which is then to be held by the Republic on behalf of the people of Kenya and the State shall grant to the person a ninety-nine year lease at a peppercorn rent. It also provides that any other interest in land in Kenya greater than a ninety-nine year lease held by a person who is not a citizen shall be converted to a ninety-nine year lease on the passing of the Constitution.

2.3 THE LAND REFORM AGENDA

The Land reform agenda in Kenya in as far as the Constitution is concerned is based on the following three pillars; National Values and Governance Policy, Principles of Devolution, Leadership and Integrity.

The reform agenda was mostly about correcting the ills that had led the country down the drain in as far as land administration and management is concerned. For example, It is important to note that issues of integrity at Ministry of Lands that have previously been a thorn in the flesh have been dealt with by transferring the functions of the President and the Commissioner of Lands to the NLC. It is envisaged that this would result into sound management of land and land based resources away from corrupt practices that have be-deviled the Ministry of Lands.

In connection to this, please refer to the appendix 1 of this opinion for a detailed analysis of the mischief that was hitherto a concern and needed to be addressed pronto. The table shows the mischief the reform process sought to address and the attendant implications to administration and management of land. The last column indicates the remedies that the


new legislation has sought to address in the long term. We shall then proceed to look at the salient features of each of the Acts mentioned above.


3.0 SALIENT FEATURES OF THE NATIONAL LAND COMMISSION ACT NO 5 OF 2012

The Act commenced on 2nd May 2012 gives effect to Article 67 of the Constitution and establishes the National Land Commission (NLC). The Act provides for the functions of the Commission, qualifications and procedures for the appointment of members of the commission, including the Chairperson. It is essential to note the provisions of Act, as the NLC shall play a pivotal role in land administration.

The Act further gives effect to the objects and principles of devolved government in land management and administration. Functions of the Commission include alienation of public land on behalf of the national and county government, monitoring registration of all rights and interests in land and developing and maintaining an effective land information management at both the national and county levels. Other functions of the Commission are also outlined in both the Land Act and Land Registration Act of 2012.

The Commission will have the mandate to review all grants or dispositions of public land to establish propriety or legality within five years of its establishment.8It is important to note that the Ndungu Report shall feature heavily in this, and it is imperative for all financial institutions/ purchasers to acquaint themselves of the contents therein. The report should in fact provide a due diligence check that service providers such as lawyers can undertake while dealing with any properties to avoid any future embarrassment and loss.

Every person who has an interest in the grant or disposition that is under review by the Commission shall be given notice of such a review and an opportunity to appear before the Commission with any such documents that may be needed for inspection. It is vital to make sure that any securities or land that one may hold are not the subject of investigation. After such a hearing, the Commission shall make a determination. If the Commission finds that a Title was acquired in an unlawful manner, it shall recommend;

a) To the Registrar, the revocation of the Title; and b) To the National or County government, the payment of compensation to the

aggrieved party.

Further, the NLC shall take appropriate steps to correct the irregularity and may also make consequential orders. Section 14(7) sets out an interesting provision in terms that no

8 But this period can be extended by the Commission on petitioning Parliament for an extension if it deems it fit. This ensures that the Commission shall have redress if the task of review proves too rigorous and may require more time than ascribed


revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title.

The NLC shall consist of a Chairman and members who will serve for a non-renewable term of 6 years. The same shall be recruited in accordance to the Act under Schedule One of the Act. The process of recruitment as outlined is indeed fair and transparent, but there has been an outcry in many quarters in terms of the composition of the Interviewing Panel set out in the First Schedule of the Act, with many insisting that the particular persons designated to shortlist the Commissioners under Section 8 of the Act (this include nominees from the Public Service Commission; Office of the Prime Minister; NGO Council; Kenya Private Sector Alliance; KNHCR and the Gender Equality Commission) are not representative of persons /organizations that possess particular competences and capacity to vet potential members of the Commission. Proposals had been made to alter the panel to include specialized Professional bodies such as the Law Society of Kenya, Kenya Institute of Planners, and Architectural Society of Kenya but this was not heeded to.

The NLC is required to make an annual report to be made to parliament and to be made public. The report has to evaluate the allocation of public land, Grant of use agreements by the NLC in the preceding year including a summary of revenues generated through the allocation and use of public land.

The Act also establishes the County Land Management Boards. Each of the boards shall consist of at least three members but not more than nine. Two of the members who shall be ex-officio shall be nominated by the governor, one of whom shall be a physical planner, the other a Surveyor. The members of the Council shall be approved by the County Assembly. However, there is no proviso on the criteria to be used to identify the non-ex-officio members; this is a potential grey area that can be exploited to defeat a fair and accountable process of the selection of the Members of the County Land Management Boards.

The Act does not seek out to answer the all too important question as to whether the NLC shall have oversight or executive powers. Undeniably, the drafters of the Legislation could not go beyond what was provided for in the Constitution with regard to the Commissions function. The general consensus is that the powers of the NLC have been watered down by the Constitution as it is required to play more of an oversight role as compared to the executive functions proposed in the NLP of 2009 (it was essentially supposed to take over a lot of responsibilities from the President and Commissioner of Lands as ascribed in different Statutes.)

Also note that on historical land injustices, Article 67 (2) (e) of the Constitution states that the NLC must recommend to Parliament appropriate legislation to provide for investigation


and adjudication of claims arising out of historical land injustices (Clause 5 (1) (e) and 15 of the National Land Commission Act.


4.0 SALIENT FEATURES OF THE LAND ACT NO 6 OF 2012

This is an Act of Parliament to give effect to Article 68 of the Constitution which generally revises, consolidates and rationalizes the land laws in Kenya. The Act, which commenced on 2nd May 2012, shall apply to; the public land under Article 62 of the Constitution; Private land under Article 64 Constitution; Parts of Community Land as Cabinet Secretary may specify. The following are important snippets from the Act.

(a) MANAGEMENT AND ADMINISTRATION OF PUBLIC LAND

The functions of management and administration of public land is divided between the Cabinet secretary and the National Land Commission. Most of their functions will intertwine and they are in most instances required to consult in carrying out the functions as outlined in the Act.

The diagram below shows the new structure of institutional framework in the management and administration land.

(b) LAND TENURE


The Act provides for different types of land tenure under S7. Title to land may be acquired through allocation; land adjudication process; compulsory acquisition; prescription; settlement programs; transmissions; transfers; long term leases exceeding 21 years and any other method that may be prescribed by an Act of Parliament.

(c) ANY C0NVERSION OF LAND FROM PUBLIC TO PRIVATE LAND SHALL REQUIRE PARLIAMENTARY CONSENT;

The Act under S9 also provides for conversion of land from one category to another. Public land may be converted to private land and vice versa. However, any substantial transaction to convert public land to private land will require parliamentary and county approval as the case may be this is as per S9 (3) of the Land Act.

The Act introduces this major change to prevent irregular and illegal conversion of public utility land for the benefit of a few individuals to the detriment of the public. The system that was there before was prone to abuse and led to illegal and irregular allocation of public land.

(d) A CHARGE OVER MATRIMONIAL HOME ONLY VALID IF SPOUSE HAS GIVEN CONSENT

This is a provision of S.79(3) of the Land Act. The provision of that section actually requires the document or instrument use in applying for such a charge or used to grant the charge be executed by the Chargor and any spouse of the Chargor living in that home. It is not clear how this requirement would apply in polygamous marriages although the Act contemplates polygamous marriages under the definition of marriages in s.2 of the Act (marriage means a civil, customary or religious marriage). The question is, should all the consents be obtained from all the spouses or shall the consent of one spouse in a polygamous set-up suffice?

It is our opinion that, the provisions as regards such consents should clearly elaborate on such marital arrangements. Further, please note that under the form of the Charge, the Act makes it mandatory for both the Chargor and his or her spouse to sign on the said document/form of a Charge over a matrimonial property in order for it to be binding.

(e) A CHARGE SHALL ONLY TAKE EFFECT IF IT IS REGISTERED.

S.79(5) provides However, the Act imputes that nothing shall operate to prevent a Chargor from offering or accepting security to obtaining monies from a lender in the ways outlined below;

A written and witnessed undertaking to charge land (also referred to as informal charge) S79(6)


A deposit of Certificate of Title to private land, Certificate of customary land, Lease document or any other document which maybe agreed upon to evidence a right to an interest in land or to secure any payments. (This shall be referred to as Lien by deposit of documents).

(f) VARIATION OF INTEREST RATES AND PRINCIPAL AMOUNTS IN THE CHARGE

S.84 of the Act provides for variation of the interest rate, the Act makes it mandatory for the Chargee to give the Chargor a thirty (30) days notice, stating the new rate in simple understandable terms. Additionally, the amount secured may be increased or decreased; term of charge may be reduced, extended or renewed; variation of the covenants, conditions and powers expressed or implied in the Charge may all be done by an instrument referred to as a Memorandum. Such a Memorandum must be signed by both the Chargee and Chargor, after which, the same shall be endorsed on or annexed to the charge instrument. Upon endorsements, the memorandum shall serve to vary the Charge in accordance to the terms contained therein. The Memorandum section in this section refers to the current practice of Variation of Charges.

(g) RIGHT TO DISCHARGE

S.85(1) requires a Borrower who intends to discharge a property, to give a One (1) month notice of intent to discharge and to pay not more than One (1) months interest at the rate which interest is payable as well as paying all other monies secured by the charge Note that a discharge includes re-conveyance, and re-assignment of mortgage, and any other instrument used to extinguish the interest in land conferred by charge or mortgage.

(h) FORECLOSURE ABOLISHED

S 89 of the Act provides that Any rule of law written or unwritten that entitles a charge to foreclose is abolished under the new Land Act. Kindly note to foreclose is to take possession of a mortgaged property as a result of the mortgagor's failure to keep up their mortgage payments or to take away someone's power of redeeming (a mortgage) and take possession of the mortgaged property.

(i) REMEDIES OF THE LENDER

Where a borrower has defaulted for a month, the Lender can issue a Notice. The Notice shall be detailed as to the default, and the rights of the Lender.


The procedure provided under S.90 of the Act is as follows:

S90 (3) provides the remedies of the Lender where the borrower does not respond within two (2) months the lender may exercise the following powers;

To sue for the monies owing;

appoint receivers over the property;

lease the land;

re-enter the property;

sell the land.

Note: Where it is a charge of land held under customary land the lessor may lease the charged land to recover or sell the land to any persons or group referred to in the Community Land Act.

(j) LENDERS POWER OF LEASING

A Lender who has appointed receiver may lease the charged land not to exceed 15 years or length of term of charge, whichever is shorter. The conditions in S93 must be followed. Where it is a charge over community land, the lease shall not be for more than two (2) years. In agricultural land the borrower shall be left with adequate land for sustenance. In cases to do with a dwelling house, the lender shall provide space within compound or give alternative accommodation.

(k) POWER OF LENDER TO TAKE POSSESSION OVER PROPERTY


After notice the lender can enter land after One (1) months notice - peaceably without forcible entry. The two ways of exercising this right is by taking actual physical control or by asserting management control over the property.

(l) POWER OF SALE

When notice under s90 (2) has expired, the Chargee may exercise power of sale. The Chargee shall serve a notice to sell and shall wait up to forty (40) days before completing any contract of sale the property:

Note that such a notice is to be served to;

the Commission if public land;

relevant community land committer if customary;

holder of land under lease where land is a lease;

any spouse of the borrower;

any lessee or sub-lessee;

any co-owner;

guarantor of any money in the charge;

any lender of money secured by the charge;

any person with a right to enter the land and use the land ;

(m) DUTY OF THE CHARGEE UNDER THE POWER OF SALE

According to section 97 of the Act, the Chargee shall obtain the best reasonable price for the property and before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer. Anything below 25% of the average price raises a rebuttable presumption that the Chargee is in breach of above duty and the Chargor may apply to court to declare the sale void. Note that the purchaser of land under power of sale is protected and is thereby not liable for how the purchase money is applied. A Person prejudiced by the unauthorized sale of land under power of sale can sue the person exercising that power. A Chargee may sell property to itself, but only by the leave of court. The leave of court serves to show that the sale to itself is in the best interest of the Borrower. If the sale is by public auction, then the lender may bid at that public auction as long as it presents the highest bid, or the price is equal to or higher than the reserve price - whichever is higher.

(n) POWER OF COURT TO RE-OPEN CERTAIN CHARGES AND REVISE TERMS

S.105 of the Act gives the Court the power to re-open a charge of whatever amount on a charge over a matrimonial home in order to do justice between the parties. This provision shall have a raft of implications on lending institutions, as this equitable remedy can serve to


defeat its interests in the land charged therein. This is a risk area that needs to be addressed by the banks.

(o) TRANSFER OF CHARGE

A borrower may make a request to the lender to transfer the charge to a person mentioned in the request. The consent to the request shall not be denied unreasonably. The transfer shall be made upon payment of all monies due in respect to the charge. The persons who can make such request include;

person who has an interest over land, lease or charge

any surety for payment of the amount secured

any creditor of the borrower who has obtained a decree for sale of charges land.

This clause is instructive in terms of a loan take over process.

(p) OTHER IMPORTANT DEVELOPMENTS TO NOTE

i. The Act proposes to establish a Land Settlement Fund. The fund shall be applied to provision of access to land for squatters, displaced persons, purchase of land for settlement programs and attendant issues thereof. This is by section 135 of the Land Act.

ii. Section 153 of the Act on the other hand established the Land Compensation Fund The objects of the fund is to provide compensation to any persons who suffers loss to as a result of implementation of any provisions of the Land Act by the County or National Governments, urban areas or city or any public

iii. S154 provides that Fees to do with land transaction shall be prescribed by the Cabinet Secretary. The fees shall be at a per centum rate of the value of the land, the subject of the application, and other matters where fees must to be paid. This also applies in land registration as per the Land Registration Act.

iv. Where a person is in unlawful occupation of land, s 155 of the Act provides a clear guideline to be followed in evicting such persons. There awful evictions that we witnessed in the Syokimau in 2011 will be averted through the procedures mentioned in the particular section.

v. Land Sizes; The Cabinet secretary has power to commission scientific study on land sizes and acreages (section 159). There shall be Public consultations on the study which shall assess the economic viability for various land zones. Out of the report, the Cabinet Secretary shall prescribe the rules and regulations for determining the minimum and maximum acreages in respect of private land. The net effect of these rules and regulations shall be found on Section 162 of the Act which gives the


Registrar the powers to reject registration of any instrument of deposition that confers interest in land that has the effect of breaching the prescribed guidelines on acreages. So it essential for lenders to make sure that any land offered as security for advancing monies, should be within the stipulated land sizes, or any instrument of disposition of that land shall be rejected upon presentation due to breach of guidelines touching on land sizes.

4.1 TRANSITIONAL PROVISIONS

Unless the contrary is specifically provided for in the new Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of the new Act shall continue to be governed by the law applicable to it immediately prior to the commencement of the Land Act. The Act has also new the repeal of the following Acts;

a) The Way leaves Act - Cap 292, b) the Land Acquisition Act Cap 295,

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The table below is a summary of the changes that are evident in the Land Acts:

Section Area Provision Effect

Definitions Land the surface of the earth and the subsurface rock; any body of water on or under the surface; marine waters in the territorial sea and exclusive economic zone; natural resources completely contained on or under the surface; and the air space above the surface; legislation includes(a) an Act of Parliament, or a law made under authority conferred by an Act of Parliament; or (b) a law made by an assembly of a county government, or under authority conferred by such a law;

The definition of land is expounded to have an all encompassing meaning as provided for by the Constitution. Previously the repealed land acts had differing definitions of land and this was inadequate and brought about confusion.

Disposition means any sale, charge, transfer, grant, partition, exchange, lease, assignment, surrender, or disclaimer and includes the disclaimer or the creation of an easement, a usufructuary right, or other servitude or any other interest in a land or a lease and any other act by the owner of land or under a lease where the owners rights over that land or lease are affected or an agreement to undertake any of the dispositions

The meaning of the word disposition has been increased and now even an agreement for the sale of land can be construed as a disposition.

S9(3) Conversion of Land from any substantial transaction This ensures that there isnt any arbitrary conversion


Public to Private involving the conversion of public land to private land shall require approval by the National Land assembly or county assembly as the case may be

of public land from one category to another. It will be important to study the process of conversion for such lands to ensure that it was done properly.

S.79(3) Charge over matrimonial property shall only be valid if the both spouse have signed and consented to the necessary documents

A charge of a matrimonial home, shall be valid onlyif any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home,or there is evidence from the document that it has been assented to by all such persons.

The lender has to formulate a form of carrying out due diligence to ensure that the proper consents are obtained to avoid invalidation and consequent opening of charges.

79(5) Charge by Lien of Deposit As per the Act The Charge by lien of deposit that was previously not clearly legislated upon is now clearly provided for.

84(1) Variation of Interest Rate As per the act No arbitrary increase of interest rate applied there must be at least a months notice.

S.85(1) Right to Discharge requires a Borrower who intends to discharge a property, to give a One (1) month notice of intent to discharge and to pay not more than One (1) months interest at the rate which interest is payable as well as paying all other monies secured by the charge Note that a discharge includes re-conveyance, and re-assignment of mortgage, and any other instrument used to extinguish the interest in land conferred by charge or mortgage.

Power of Sale As per the Act When notice under s90 (2) has expired, the Chargee


may exercise power of sale. The Chargee shall serve a notice to sell and shall wait up to forty (40) days before completing any contract of sale the property:

S 89 Foreclosure abolished of the Act provides that Any rule of law written or unwritten that entitles a charge to foreclose is abolished under the new Land Act. Kindly note to foreclose is to take possession of a mortgaged property as a result of the mortgagor's failure to keep up their mortgage payments or to take away someone's power of redeeming (a mortgage) and take possession of the mortgaged property.

S90 Statutory Notice As expoused above Any Notice Issued Henceforth Shall Have To Comply With The Provisions Of S90 Of The Land Act.

S135 Establishment of the Land Settlement Fund

As per the Act The fund shall be applied to provision of access to land for squatters, displaced persons, purchase of land for settlement programs and attendant issues thereof.

S153 Establishment of the Land Compensation Fund

As per the Act The objects of the fund is to provide compensation to any persons who suffers loss to as a result of implementation of any provisions of the Land Act by the County or National Governments, urban areas or city or any public

154 Fees As per the Act Previously, fees was charged at a flat rate. The fees shall be at a per centum rate of the value of the land, the subject of the application, and other matters where fees must to be paid. This also applies in land


registration as per the Land Registration Act.

155 Dealing with Illegal Occupation of Land (Evictions)

As per the act Act provides a clear guideline to be followed in evicting such persons. There awful evictions that we witnessed in the Syokimau in 2011 will be averted through the procedures mentioned in the particular section.

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5.0 THE SALIENT FEATURES OF THE LAND REGISTRATION ACT

The Act gives effect to Article 68 of the Constitution. It provides for the revision, consolidation and rationalization of the law governing the registration of title to land, regulation of dealings in registered land and to give effect to the principles and objects of devolved government in land registration. In light of this, the repeal of the Indian Transfer of Property Act of 1882, The Registered Land Act Cap 300, The Registration of Titles Act Cap 281, the Government Land Act Cap 280 and the Land Titles Act Cap 282 is recommended.

The Land Registration Act 2012 is procedural in nature and serves to deal with land registration in Kenya. The Act has striking similarities to the Registered Land Act Cap 300 with only a few deviations on some provisos. Perhaps this is due to the fact that it was the intention of the Government not only to try and bring all land under the RLA registration system, but also to simplify conveyancing to the extent that the ordinary man could convey and deal with his land. Unfortunately this did not happen due to myriad of reasons key among them corruption of the land officers and lack of complete and up to date records in the district registries.

The framework of Organization and Administration of Land in Kenya has been changed. The officials that shall be dealing with Land registration shall be as follows;

i. The Chief Land Registrar duly appointed by the Executive through the Public Service Commission. The credentials of the aforesaid officer are outlined and include being an advocate of the High Court of Kenya of not less than 10 years standing. The Officer should also meet the Chapter Six requirements of the Constitution.

ii. Any other official appointed by the Public Service Commission for the discharge of functions under the Act.

The Officers shall be competitively recruited and vetted by the Public Service Commission, which lies within the Executive arm of government. The said Officers shall also be deployed to various Counties.

(a) POWERS OF THE REGISTRAR

The Powers of a Registrar are outlined in Section 14 as;

i. To request for the production of documents for dispositions and dealings with land. ii. Issuance of summons to parties involved with any land transaction to give

information with respect to the disposition and dealings with land. iii. Reject registration if certain aspects of the dealings of the land are not satisfied. iv. To administer oaths or take declarations and may require that any proceedings,

information or explanation affecting registration shall be verified on oath or by means of a statutory declaration.


v. Order for reimbursement of costs spent by his office on behalf of persons in connection with investigations and hearings held by the Registrar.

(b) ORGANISATION OF LAND

For registration purposes, there shall be the creation of both Registration Units and Registries.

(c) REGISTRATION UNITS

The National Land Commission (NLC) in consultation with the County Governments by Order may constitute area(s) of Land to be known as Registration Units. Units are then divided into Sections and Sections divided into blocks all with distinctive names, letters and Numbers. The same shall be gazetted and published in two newspapers of wide circulation. It is important to note, that the creation of such districts should take the principles of devolution into consideration. The Act also emphasizes that easy public access to these registration unit is crucial. Devolution principles have to be considered.

(d) REGISTRIES

There shall be maintained in each registration unit a land registry.Under Section 7 the land registry shall contain a land register in the form to be determined by the Commission. The Register shall contain;

the cadastral map;

parcel files containing the instruments that support subsisting entries in the land register and any filed plans and documents, which must be geo-referenced;

a book, to be known as the presentation book, in which shall be kept a record of all applications numbered consecutively in the order in which they are presented to the registry;

an index, in alphabetical order, of the names of the proprietors.

a register and a file of powers of attorney

any plans which shall after the date appointed by the Commission be geo referenced

Such registers shall be accessible to the Public at Large and shall take into consideration the Freedom of Information and access to Information Legislation. The newest addition to the section pertaining Registers is the provisions touching on the Community Land Registers in section 8. The Act proposes that subject to the Community Land Act, there shall be the maintenance of a community land Register, which shall contain;


A cadastral map showing the extent of the community Land

Name of the community

Register of members of the Community

The user of the community land

Identity of any Group Representatives

Names and members of the Group

Any other requirement from an Act of Parliament.

Other Key changes that should be noted and may affect the operations of your business processes are as follows;

(e) OVERRIDING INTERESTS

Please note that under Section 28 there has been the inclusion of spousal rights over matrimonial property; and trusts including customary trusts as overriding interests. This is in addition to the other more traditional forms, such as the right of way, compulsory acquisition, installation of fundamental infrastructure such as roads, electricity poles etc. The introduction of matrimonial property as an overriding interest is a plus as it essentially ousts the Matrimonial Properties Act of 1882, which is an archaic piece of legislation. This however may cause confusion given that they are not noted in the register, leading to the question on how one can go about identifying such interests. It would be in the best interest of lenders to have this particular interest noted in the Register, to make it easier to ascertain the state of the land offered as security.

(f) PREJUDICIAL DISPOSITIONS

Sections 52- 54 are quite elaborate on the same. They stipulate that the Court can issue such orders as it deems fit to set aside transactions undertaken to defraud creditors. A disposition prejudices a creditor if it hinders delays or defeats the creditors right of recourse against property belonging to a debtor. Essentially the Act seeks to protect the creditors security.

The new law provides that the registrar may refuse to list any such prejudicial dealings and whats more, the creditor can apply to court to have such a transaction set aside. However, the Act also takes into consideration the innocent parties that buy such land. It outlines the court can make an order for restoration or reasonable compensation so long as such a person did not have any knowledge (actual, implied, constructive ) of the character of the disposition and bought the land in good faith. Such a provision is welcome for banks and other lending institutions since their security is amply protected.

(g) OWNERSHIP OF LAND BY MINORS


The Act has also clarified on the issue of minors owning land. The Act under section 47 makes it clear that it is possible for a minor to have a title deed issued in his/her name but the registrar shall restrict such a child from dealing with the land. So, do note that even where a minor can own land, he or she is restricted from dealing with it given that he or she does not have the capacity to enter into various agreements/contracts with regard to land transactions.

(h) CO- TENANCY

Part of the Act deals with Co-tenancy (Initially referred to as Co-proprietorship) and Partition. Under this part, S.91 stipulates that any instrument made in favour of two or more persons and the registration giving effect shall show that they are either joint tenants or tenants in common. Each share that tenants in common own should also be indicated in the register. However, it is necessary to note that under S.91 (8) a joint tenancy can only be created by spouses, unless one has the leave of court to create such a tenancy. This clause is to be too restrictive. A spouse shall now have an interest in Land acquired by the other spouse, if he/she contributed to the productivity of that Land.9

(i) LEASES

Part IV of the Act involves Leases, however the more substantive provisions are contained in the Land Act 2012 as analysed in this study. Some provisions that are worth noting include;

(j) SECTIONAL PROPERTIES

Sectional properties registration shall be carried out in the manner prescribed in the Land Registration Act. Therefore the Sectional Properties Act (SPA) still remains the reference point for the procedural law in terms of sectional properties. However the repeal of the RLA, on which the SPA is hinged, shall make the implementation of the SPA impossible as the provisions on the same are not included on the Land Registration Act.

(k) LONG-TERM LEASES

Section 54(5) provides that the Registrar shall not register long-term leases over apartments, flats, maisonettes, townhouses or offices having the effect of conferring ownership, unless the property comprised therein is properly geo-referenced and approved by the statutory body responsible for survey of land. The additional requirement for survey of the long term leases therefore means that such transactions shall take a longer time and

9 This notion is essentially Judge made law finding its way into Statute, as this concept has been upheld in many cases regarding Matrimonial Property.


might essentially translate into more transactional costs for developers and purchasers alike. The effect on the lender is mainly where the purchaser has taken up a loan facility to purchase a property registered under this regime. The new proviso effectively means that the perfection of such a security might take a longer time and might discourage the lenders from accepting such leases as forms of security during the initial purchasing period, to the detriment of the borrower. There shall be some advantages however, given that these properties shall now be on record and one shall be able to carry out relevant due diligence searches on individual units.

(l) CHARGES

Part V of the Act outlines the provisions on charges. As stated earlier, there has been a change of terminologies with regard to instruments used to create an interest in land or a lease securing the payment of money to a lender. The settled terminology is now charge

Every instrument shall be in prescribed form. However, the Act does not provide for variation of these prescribed forms with the approval of the Registrar, as found in section 108 of the RLA Cap 300. This essentially has the effect of curtailing novel approaches in land transactions in the creation of charges in different scenarios.

The Charge shall be completed by its registration and shall be noted as an encumbrance on the register. If registration is not done, such will fall within the realms of a contract which deprives parties of the powers and remedies of a Chargee or Chargor as outlined in the Land Act. A Charge shall not be registered unless proper rent and rates clearances and consents are sought and produced to the Registrar before registration.

(m) CHARGES ON MATRIMONIAL PROPERTY

Section 93(3), states that if a spouse(s) who holds land or a dwelling house in his or her name alone, and wants to undertake a disposition of that land or dwelling house, by offering for instances the land or dwelling house as security to secure a loan. Such a lender must make inquiries as to whether the other spouse has consented to the disposition. The land Act is emphatic on the form of this Consent. If such consent is not ascertained, then the transactions so stipulated shall be void, unless the other spouse consents to the same. Such a situation fundamentally leaves the lender without any form of recourse if such consent was not obtained as required. This provision shall have various implications on a Lenders

processes. The Processing of the loans in particular might take a longer time as it adds an additional burden of inquiring on the consent of the other spouse during the credit assessment period.

(n) TRANSITIONAL PROVISIONS AND SAVINGS TOUCHING ON CHARGES AND MORTGAGES


Section 106 indicates that the right and liabilities and remedies of parties under a mortgage, charge and memorandum of equitable mortgage under the repealed Acts shall not be affected when the Act on the commencement of the Act. If there any discharges, re-conveyance inter alia, to such instruments, shall be done in the manner provided in the Repealed Acts. Therefore, any forms of securities that the lender holds, shall not be affected by the passage of the Act into the Act, and shall continue as prescribed by the various repealed Acts namely (GLA. RLA, RTA, LTA)

Section 107 (2) further stipulates that any steps that were taken to create , acquire or assign interests in a certain property before the passage of the Act, such transactions shall be done in accordance to the laws applicable - as long as the same is specifically provided for in the Land Registration Act. One can therefore rest easy, in that, any on-going process of securitization if and when the Act passes to Law shall not be affected, and shall go on as before.

Further, any instrument executed before the commencement of the Land Registration Act, where-by the disposition is permitted under the Act, maybe presented for registration in the prescribed register. However, the Registrar has the discretion to determine whether to register the same with reference to the law in force at the time of execution, or to register the document as if it had been executed after the commencement of the Land Registration Act. We opine that the Registrar should not have discretion to decide, but should be guided by a provision that is specific, to maintain consistency in the application of the rule.

Section 108 states that any administrative action given prior to the coming into force of the Act shall have the same force and effect even though it was made under any repealed laws. This is so long as such orders are recognized by the LRA.

(o) Savings and Transitional Clauses

The savings on land register are outlined under section 104. The section states that

a register maintained under any of the Repealed Acts shall on the commencement of this Act be deemed to be the land registers for the corresponding registration district established under this Act.

Transition requirements as regards titles are outlined in section 105. The section stipulates that any Grant or certificate of title registered under the repealed RLA Cap 300 and RTA Cap 281 Act shall be assumed to be registered under the Land Registration Act. All folios of the registers under the said Acts shall also be deemed to be under the Land Registration Act. Both the RLA and the RTA titles shall therefore undergo automatic conversion by operation of law.


However, land owners with GLA or LTA title will have to wait until the Registrar causes the Titles to be examined. The Registrar shall thus prepare a register in prescribed form showing all the subsisting particulars affecting the parcel which shall be capable of registration under the Act. A notice shall be sent out to the proprietor(s) of the Land, of the intention to register the Land under this particular Act. The Proprietor shall thereafter, upon request, be issued with a certificate of Title or certificate of Lease in the prescribed form.

The National Land Commission is supposed to further come up with regulations on the conversion of titles but no time frame is set. If that is not done, the land affected by the Act shall not undergo transfer and shall retain the old profile and hence defeat the purpose of the consolidation and harmonization of the laws under the new land Acts. The Act has also not indicated as to who shall bear the costs of the transaction of this transition. Should it be the Government or the Proprietor of the Land?

(p) COURT JURISDICTION ON LAND ISSUES

Parliament passed the Environmental Court Act in 2010 to establish the Environmental and Land Court (ELC). The Court has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution, the provisions of the Act or any other written law relating to the environment and land. Additionally, the Court can adopt and implement, on its own motion, with the agreement of or at the request of the parties; any other appropriate means of alternative dispute resolution including conciliation, mediation and traditional dispute resolution mechanisms in accordance with Article 159(2)(c) of the Constitution.

S.31 of the Act has repealed the Land Disputes Tribunal Act, No.18 of 1990 which established the Lands Disputes Tribunals. In light of the above, the Chief Justice of Kenya published practice directions in relation to all land matters that are pending before the courts and the Land Tribunals. This is in a bid to streamline operations of the Courts in relation to environment and land matters vis a vis the provisions of the ELC Act. Please note that the ELC is still in its formative stages (the Judiciary Service Commission is currently in the process of recruiting the Judges of the said court) and until it has been fully operationalized, the practice notes shall serve as a guide to aid in smooth transition.

In relation to this, Section 101 stipulates the Environmental and Land Court, established under the Environment and Land Court Act of 2011, as having the jurisdiction of all matters regarding land issues. This is a court of Original Jurisdiction. Therefore any disputes, actions and proceedings so instituted in terms of land issues shall lie within the exclusive jurisdiction of the aforementioned court. Matters that are presently in court touching on land issues, including debt collection proceedings, shall therefore be transferred to this particular court.


The Judiciary has to seek ways to enable the court to operate at the various counties for easier service delivery of service to the public.

6.0 CONCLUSION

The Acts are a welcome development towards the reforms of land in this country, especially due to the fact that the public, and rightly so, has been seeking for a more expeditious and a less stressful system of dealing with Land. The Acts have clarified grey areas that in the past have made the process of dealing with land laborious. It is our hope that the law shall be implemented and interpreted in a versatile manner which would promote novel approaches in land transactions. Acts have left out some loopholes, of which we have pointed out.

The table below presents the major changes that have been reflected in the Land Registration Act

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Section Area Provision Effect

definition Caution A caution means (b) a caveat Cautions and caveats will no longer have distinctions in applicability as was the case before enactment of the Act

Definitions Dealing , disposition and transmission

dealing means disposition and

transmission

disposition means

Sale, charge transfer, grant, partition, exchange, lease, assignment, surrender, disclaimer

an agreement to undertake any such disposition

The definition previously excluded an agreement to transfer, lease or charge and with this new definition, then it can be interpreted that agreements of sale, lease or charge may confer rights in land.

28 Overriding interests .....all registered land shall be subject to the following overriding interests

(a) Spousal rights over matrimonial property

This necessitates a search on all overriding interests as at the time of perfecting security and also acknowledgement that the security is undertaken subject to such interests

38 Rates clearance certificates-Certificate of payment of rates

(2) no statement shall be required under subsection (10 if the instrument relates to (a) land which is subject to a lease, and the leasehold interest is, by virtue of any written law, the rateable property; or

(b) a lease , and the land or another leasehold interest is, by virtue of any written law, the rateable property

It is not clear whether transactions dealing with leases will be exempt from payment of rates even if they fall within rateable regions

39(1) Rent clearance certificate The registrar shall not register an instrument purporting to transfer or create an interest in land unless a certificate is produced with the instrument, certifying that no rent is

This seems to imply that rent clearance certificates shall be requires for all lands and that for the lands for which rents are not due, a clearance certificate indicating that the same is not payable will be required in the process of registration


owing to the national or county governments in respect of the land

(2) Consents The registrar shall not register an instrument effecting a transaction unless satisfied that any consent required to be obtained in respect of the transaction has been given by the Relevant County Land Management Board on the use of the land, or that no consent is required

The forms of consents must then be in compliance with this section and the County Land Management Board must also indicate that the said land does not require consent to transfer if that be the case. Section 56 requires a certificate certifying that a land is freehold where the need arises.

44 and 93 Completion documents 44(5) the transferee shall in addition to executing the instrument, attach the following:-

(d) where applicable, a marriage certificate

93(3)where a spouse who holds land or a dwelling house in his or her name individually undertakes a disposition of that land or the dwelling house:-

(a) The lender shall, if that disposition is a charge , be under the duty to inquire of the borrower on whether the spouse has or spouses have, as the case may be, have consented to that charge or;

There is a notable inclusion of a marriage certificate as part of the completion documents in a transaction on the part of the transferee.

It is also notable that there Act is silent on the completion documents to be availed by the transferor.

The lender also has to restructure its due diligence procedure to accommodate the couples and consents obtained.

It must also incorporate the polygamous families

104 Saving registers under the repealed laws

(1) A register maintained under any of the repealed Acts shall, on the commencement of this Act, be deemed to be the land register for the corresponding

This will ensure smooth transition from the repealed laws format to the new prescribed form of registration after adjudication


land unit established under the Act

105 Transiting title documents (a) RLA-the grant or deed shall be deemed to be a certificate of Title or a certificate of lease as the case may be issued under this Act

(b) RTA- the grant or deed shall be deemed to be a certificate of Title or a certificate of lease as the case may be issued under this Act

(c) GLA and LTA- The Registrar shall as soon as conveniently possible cause the title to be examined, prepare a register, in the prescribed form, showing all subsisting particulars affecting the parcel which are capable of registration under this Act. The Registrar shall then serve on the proprietor of any lease or charge , a notice of intention to register and; issue to the proprietor, upon request, a certificate of title or certificate of lease in the prescribed form

RLA, RTA- this provision ensures that there is continuity in conveyances until such a time as when the forms will be amended and the existing title documents substituted.

GLA and LTA- There will be a time lapse between the time of commencement of the Acts and issuance of the compliant Certificates which may impact negatively on the business sense of the practice of conveyancing.

106 Transition provisions on rights, liabilities, remedies of parties over land

On the effective date, the repealed Acts shall cease to apply to a parcel of land to which this Act applies

This provision does not affect the rights, liabilities and remedies of parties under any charges and mortgages, immediately before the registration under this Act of the land affected, was registered under any of the repealed


Acts.

107 Savings and transitional provisions with respect to rights, actions, dispositions

Concluded, ongoing and new transactions

Concluded transactions will continue to be governed by the law existing at the time of conclusion being the repealed Acts

Commenced but not concluded transactions will continue under the law prevailing immediately prior to the commencement of this Act

Instruments executed before commencement of the Act may be presented for registration and the registration shall be guided by the law in force at the time of execution.


Appendix 1

Mischief

Implications to Administration and Management of Land

Remedy provided by the Land Acts 2012 to Address the Mischief

1. Land Allocation Land could only be allocated by the President and the Commissioner of Lands. This power was abused and used as a political bargaining chip by the regime of the day.

a) Divesting of power initially held by single individuals by Establishment of the NLC to manage Land on behalf of the Public and vesting land in either the National or County government.

b) Providing the guiding values and Principles of Land Management (Land Act 2012, Section 4 (2)(d) transparent and cost effective administration of land )

c) Providing clear guidelines on how the 3 categories of Land ought to be managed. (see Land Act 2012, Part II-Part V)

2. Compulsory Acquisition of Land a) Abuse of Discretion to Compulsorily Acquire Land eg the Mlolongo case where Land was acquired by the Govt for road expansion and later issued to private developers.

b) Flimsy grounds for acquiring land compulsorily

c)Inadequate compensation

a) The power of compulsory acquisition has remained vested in the State [Article 40].

b) The Land Act has introduced clear criteria and procedures for compulsory acquisition of land. For example, notices and compensation vide Part VIII of the Land Act.

3. Land Hoarding, Absentee Landlords & Subdivision into un-economic Units

a) Holding of large tracks of unutilized land;huge tracts of land are in the hands of a few individuals who do not use the lands effectively

a) Constitutional requirement to provide for maximum and minimum acreages [Article 68].

b) The Land Act [s159 & 160] gives the Cabinet


b) Speculation;

c) Subdivision into uneconomic units of land.

Secretary or the Commission powers to prescribe rules governing both hoarding of large tracks of

land and the minimum units of subdivision.

c) The NLC will also have power to review grants that were issued previously (s.14) this is in accordance with Article 68(c)(v) of the Constitution.

4. Numerous legislations over land a) The existence of too many Statutes on land administration. This made it complex to understand and prone to abuse by unscrupulous characters. There were numerous instances of land fraud in the 90s as a result.

b) The existence of a dual land regime system that makes land administration complex and ineffective.

Enactment of the following legislation to consolidate, harmonize and rationalize legislation over land.

a) The National Land Commission Act;

b) The Land Act;

c) The Land Registration Act; and

d) The Community Land Act, which seeks to consolidate, harmonize and rationalize legislation over land. (still at the formulation stage)

5. Squatters, informal settlements, IDPS, refugees & land related disasters

a) These pose challenges planning and land use.

b) They provide conflict ripe grounds for conflict [for example, Mau, Sinai, Kibera, Mathare, Ogieks].

The Land Act gives powers to the Cabinet Secretary to make rules and regulations to deal with the peculiar aspects of these phenomena [s.160]

6. Delays In Service Delivery In The Ministry of Lands

a) Lost files.

b) Few registries.

a) Devolution of registries (Land Registration Act Section 7)


c) Outdated registry system.

-There have been numerous complaints of rampant corruption, soliciting for bribery, disappearance of files, extraction of crucial documents from files, collusion between clerks and fraudsters to alter registers these are enumerated in the Law society Audit of the Land Registries in Kenya 2011

b) Electronic system (LR Act Section 9)

c) Supervision (NLC Act Section 5 (2) (b)

d) Provision of clear time frames for delivery.

7. Indefeasibility of Title & Revocation of Allocation

Illegal and irregular allocations; - Indefeasibility of title encouraged many to acquire title behind the back of individuals with overriding interests in land. Once they had the titles they knew that they would not be challenged.

a) Review of grants [Section 14(1) National Land Commission Act].

b) Power to revoke illegally acquired titles to land Section 14(5) of the NLC Act].

c) Registration of land shall be subject to overriding interests [Section 28 of the LRA]

8. Historical Injustices From 1895 when the Kenya was declared a protectorate to date experienced a number of injustices in the allocation and administration of land. The white settlers who left after independence left their lands to the government(or property escheated to the President) who in turn transferred the lands to a few individuals thus the outcry of the landless especially in Central and the coast regions.

A framework has been put in place in the National Land Commission Act to provide for the adjudication of historical land injustices. [Section 14 and 15]. This is in line with 67(2)(e) of the Constitution.

9. Community Land a) Unequal rights.

b) Lack of registration.

c) Deprivation of community land rights.

d) Conflicts over land based resources

Article 63 of the Constitution requires Parliament to pass Community Land Legislation to Address the issues in Community Land. The details of the Bill are in the process of being discussed with the stakeholders.


Prepared by:

The Legal Research and Consultancy Department

Corporate Place, Kiambere Road, Upper-Hill P. O. Box 40132-00100 Nairobi, Kenya

Tel: 2714320/1, 2715597/9 Mobile: 0720810770, 0733706791, 0717432009

Email: [email protected] Website: [email protected]

The Community lands previously known as Trust Lands were abused by County Councils who held them in trust for the communities. They were transferred to individuals without benefiting any of the community members.

analyis of the land acts may 2012 - muriithi & ndonye advocates

Documents

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private land

land matters

c0nversion of land

land sector

land registration act

national land policy

land reform agenda