ANALYSIS OF THE LAND REGISTRATION ACT,2012
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 revolutionize 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
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the land sector, it is important to trace the genesis of the land reform agenda and the
reasoned why change was desired.
The Land Registration Act, 2012 will be the singular law to guide the registration of
title to land in Kenya, earlier done under various statutes like the Land Titles Act Cap
282 earlier applicable to properties within the ten mile Coastal strip and the Registration
of Titles Act Cap 281 earlier operated under a Centralized Land Registry at Nairobi for
properties surveyed under precise boundaries. It also repealed the Registered Land Act
Cap 300 which applied to most rural properties surveyed under general boundaries and
some few urban properties surveyed under the “fixed boundary” provisions of the Act.
This Land Registration Act also repealed the Indian Transfer of Property Act 1882 and
the Government Lands Act Cap 280. The application of this law will result in a uniform
land registration system and uniform registries countrywide. This will ease land
transactions and land development in the country. This Act received presidential assent
on 27th April 2012 with a commencement date of 2nd May 2012.
Salient Features of the Land Registration Act, 2012
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
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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.
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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.
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(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.
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
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.
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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 creditor’s right of
recourse against property belonging to a debtor. Essentially the Act seeks to protect the
creditor’s security.
The new law provides that the registrar may refuse to list any such prejudicial dealings
and what’s 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
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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.
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(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 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
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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.
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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 Lender’s 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,
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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 ongoing 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
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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
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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
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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.
Conclusion
Having been established under the Article 68 of the Constitution of Kenya, 2010, the
Act, is a mastermind in enabling transparency and accountability in matters of
registration in all land transactions. Its implementation is yet to fully come into force
but optimism is high that the Act will indeed bring out the required reforms.
Bibliography
Constitution of Kenya, 2010.
Land Registration Act, 2012.
By Dennis Deus
LLB @ UON; B. Built Envt in Real Estate and Property Management @ TUK
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