NEW LAND LAWS IN KENYA, 2012 – WHAT YOU …

1 IKM CONVEYANCING ALERT. NEW land laws IN kenya , 2012 WHAT YOU NEED TO KNOW. 28th May 2012 . in land management and administration, INTRODUCTION and for connected purposes. The constitution of kenya promulgated on the 27th of August, 2010 has been one of the 2. The land Registration Act, 2012 . most significant pieces of legislation since (LRA): An Act of Parliament to revise, independence. consolidate and rationalize the registration of titles to land , to give One of its primary aims is to ensure that effect to the principles and objects of land in kenya is held, used and managed in devolved government in land an equitable, efficient, productive and registration, and for connected purposes.

2 Sustainable manner. The new land laws give effect to the provisions of Chapter 5 of the This Act has repealed:- constitution which aimed to revise, a) The Indian Transfer of Property Act, consolidate and rationalize existing land 1882. laws . b) The Government Lands Act (Cap. 280) ( GLA ). These new statutes consolidate the existing c) The Registration of Titles Act (Cap. legislation on land in kenya and apply to all 281) ( RTA ). categories of land , whether declared by the d) The land Titles Act (Cap. 282). constitution as public, private or community ( LTA ). land . e) The Registered land Act (Cap. 300). ( RLA ). The new laws (the Acts ) with the commencement date of 2nd May 2012 are: 3.

3 The land Act, 2012 (LA): An Act of Parliament to give effect to Article 68 of 1. The National land Commission Act, the constitution , to revise, consolidate 2012 : An Act of Parliament to make and rationalize land laws ; to provide for further provision as to the functions and the sustainable administration and powers of the National land management of land and land based Commission, qualifications and resources, and for connected purposes . procedures for appointments to the Commission; to give effect to the objects This Act has repealed:- and principles of devolved government a) The Wayleaves Act (Cap. 292). 1. b) The land Acquisition Act, (Cap. registration unit is to be divided into 295) registration sections identified by distinctive names, and may be further divided into Some of the land statutes that have not been blocks with distinctive numbers or letters or repealed are as follows:- combinations of numbers and letters.

4 A) land Control Act b) The Sectional Properties Act Pursuant to section 6(6) of the LRA, the c) The Landlord and Tenant (Shops, Hotels land registration units shall be established at and Catering Establishments) Act county level and at such other levels to d) The Rent Restriction Act ensure reasonable access to land e) The Distress for Rent Act administration and registration services. f) The Physical Planning Act g) The land Disputes Tribunals Act. Section 104 of the LRA provides that registers maintained under the repealed Acts are deemed to be the land registers for the NATIONAL land COMMISSION. corresponding registration unit established ACT under the Act. This Act establishes a land Commission Comment 1.

5 Pursuant to Article 67 of the constitution . It Under the saving and transitional provisions contains details of the functions, powers, of the LRA (section 105) the titles issued composition and administration of the under the repealed RLA and RTA shall be Commission. deemed to be titles issued under the new Acts. Over time the registrar will issue new Some of the key areas over which the titles in the prescribed form. This appears Commission can exercise powers include: not to be the case for GLA and LTA titles a) management of public land ;. which as soon as conveniently possible . b) recommendations on national land will be examined and registered. No policy;. timelines are indicated for this exercise.

6 The c) monitoring land use planning and natural implication appears to be that the GLA and resources;. LTA titles will remain valid but will only d) alienation of public land with the operate under the new Acts once examined consent of the national and county and registered. No guidance is given as to governments; and whether holders of GLA and LTA can e) developing and encouraging alternative transact with the title documents they hold land dispute resolution mechanisms. pending examination and registration. land REGISTRATION ACT AND Given the lack of express and clear guidelines, we anticipate delays on GLA and land ACT, 2012 - HIGHLIGHTS. LTA transactions pending clarification and 1.

7 The Registers and Registries we advise that caution be exercised when dealing with these titles. The National land Commission is empowered, in consultation with national 2. Registrars and county governments, to constitute an area or areas of land to be a land registration The LRA provides for the requisite unit under section 6 of the LRA. Every qualifications and the manner of 2. appointment to the office of the registrar. Indefeasibility of title is emphasized under Registrars under the new regime are: section 24 of the LRA which is couched in a) Chief land Registrar similar terms as section 27 of the RLA and b) County land Registrars section 23 of the RTA and provides that the c) land Registrars appointed under registration of a person as the proprietor of sections 12 and 13 of the LRA land shall vest in that person the absolute ownership of that land together with all General Powers of Registrars rights and privileges belonging or appurtenant thereto.

8 Equally, the The respective Registrars may: registration of a person as the proprietor of a lease vests in that person the leasehold a) require any person to produce any interest described in the lease, together with instrument, certificate or other document all implied and expressed rights and or plan relating to the land , lease or privileges and subject to all implied or charge in question; expressed agreements, liabilities or incidents b) summon any person to appear and give of the lease. any information or explanation in respect to land , a lease, charge, The rights of a proprietor can only be instrument, certificate, document or plan subject to any registered leases, charges, relating to the land , lease or charge in encumbrances, conditions and restrictions, if question, and that person shall appear any, shown in the register; and to overriding and give the information or explanation; interests envisaged in section 28 of the LRA.

9 C) refuse to proceed with any registration if any instrument, certificate or other The certificate of title issued by the document, plan, information or Registrar upon registration, or to a purchaser explanation required to be produced or of land upon a transfer or transmission by given is withheld or any act required to the proprietor shall be taken by all courts as be performed under the LRA is not prima facie evidence that the person named performed; as proprietor of the land is the absolute and d) cause oaths to be administered or indefeasible owner. declarations taken and may require that any proceedings, information or The title of that proprietor shall not be explanation affecting registration shall subject to challenge, except:- be verified on oath or by statutory a) on the ground of fraud or declaration; and misrepresentation to which the person is e) order that the costs, charges and proved to be a party; or expenses as prescribed under the Act, incurred by the office or by any person b) where the certificate of title has been in connection with any investigation or acquired illegally, unprocedurally or hearing held by the Registrar for the through a corrupt scheme.

10 Purposes of the Act shall be borne and paid by such persons and in such Certified copies of any registered proportions as the Registrar may think fit instrument, signed by the Registrar and (section 14, LRA). sealed with the seal of the Registrar shall be received in evidence in the same manner as 3. Effect of Registration the original. 3. 4. Overriding Interests connected purposes. The Bill provides for the definitions of Matrimonial Property . All registered land shall be subject to the and Spouse . Once enacted, it will make following overriding interests which may the provisions under the LRA and LA. subsist without their being noted on the clearer. For the moment, the LA sheds some register: light and defines marriage as a civil, a) spousal rights over matrimonial customary or religious marriage and defines property; matrimonial home as any property that is b) trusts including customary trusts; owned or leased by one or both spouses and c) rights of way, rights of water and profits occupied by the spouses as their family subsisting at the time of first registration home.