ANALYSIS OF THE LAND LAW REFORMS IN KENYA
By Chege Daniel LLB (Hons)
INTRODUCTION
During the clamor for change and reforms in Kenya,
one of the most prominent issues that Kenyans
agitated for was reforms in land administration and management.[1] It
is in this regard that the Constitution of Kenya 2010 endeavored to satisfy
this clamor, by providing amongst other things a reformed legal framework for
the administration, use and management of land in Kenya.
The constitution of Kenya 2010, establishes a legal
framework on land by providing inter alia; Definitions of land and land systems
in Kenya
as well as setting out a land legislative obligation on Parliament.
It is in response to this legislative obligation, that
parliament enacted new land regime in 2012, namely; The Land Act 2012, The Land
Registration Act 2012 and The National Land Commission Act 2012.These Legal
regime replaced the past regimes which included amongst other laws; The Land
Titles Act,The Registration of Titles Act, The Registration of Land Act, The
Government Land Act and The Indian Transfer of Property Act.
THE CURRENT LAND
REGIME IN KENYA
The current land
regime in Kenya
comprises of The Constitution of Kenya 2010, The Land Act 2012, The Land
Registration Act 2012 , The National Land Commission Act 2012 and the
Environment and Land Court Act
THE CONSTITUTION
OF KENYA 2010
The constitution of Kenya 2010 gives an elaborate definition
of land[2]
and also provides that parliament shall enact laws relating to the management
and administration of land in Kenya.[3]The
constitution of Kenya 2010 also categories land into three broad categories
namely; Public. Private and community land[4].
From the foregoing provisions it is clear that the
constitution of Kenya 2010 constitutionalizes land administration and
Management in Kenya.
THE LAND
REGISTRATION ACT 2012.
The purpose of this statute is amongst other things to revise,
consolidate and rationalize the registration of title to land as well as too
give effect to the principles of devolved government in Kenya.[5]
This statute has introduced a number of changes in the
registration of land interests in Kenya and where it has not introduced new
provisions, it has consolidated the existing provisions into one Law.The
important highlights of this statute include the following;
ü
The Act defines a charge as including a Mortgage[6],
this presupposes that mortgages in Kenya will acquire the character of
charges.The statute emphasizes that a charge shall always operate as a security
only and no a transfer.[7]
ü
The Act provides for the establishment of a land registry and for the appointment of a chief registrar of
land.
ü
The
Act provides for the
effect of registration an interest in land just as it was provided under RLA.[8]
ü
The Act Provides for the doctrine of indefeasibility
of Title as well as elaborate exceptions to the doctrine namely misrepresentation,
Fraud and unprocedural acquisition of land.[9]
ü
The Act Provides for additional overriding
interests[10], which
include inter alia;
·
Spousal rights over matrimonial property.
·
Trusts including customary trusts.
·
Rights of way.
·
National rights of light.
·
Leases.
·
Charges.
·
Rights obtained through prescription.
It should be noted
that the most notable overriding interest is the Spousal rights over matrimonial
property.
ü
The Act provides for elaborate transfer and
registration procedures of interests in land[11],
these procedures include inter alia;
·
The transfers’ documents to be presented at
registration which include; copy of id,pin certificate,passportphotos and where
applicable a marriage certificate.
·
The process of execution of transfer documents
has an interesting change in that the documents must be executed and witnessed
and the person executing the documents must be examined by the chief registrar of
land unless where the chief registrar dispenses with such examination[12].
ü
The Act provides for elaborate provisions
relating to Co-tenancy and Partition, which enacts the common userlaw principles on Co-tenancies in
Statutory provisions.Of particular interest is the Protection of spouses in
co-tenancies.[13]
ü
The Act recognizes the Jurisdiction of the Environment and Land Court established by the Environment
and Land Court Act, 2011 No. 19 of 2011,on matters emanating from the Act.[14]
ü
The Act
repeals the following laws;
- The Land Titles Act,
- The Registration of Titles Act,
- The Registration of Land Act,
- The Government Land Act and
- The Indian Transfer of Property Act.
It should be noted
that the repeal of the above laws notwithstanding, the existing transactions
and titles are preserved by the Act[15].
THE LAND ACT 2012
The purpose of this statute is to give effect to Article 68
of the constitution of Kenya 2010, to revise, consolidate and rationalize land
laws in Kenya and to provide
for the sustainable administration and management of land in Kenya. [16]
The important highlights of this statute include the
following;
ü
The Act provides for the land systems in Kenya namely[17];
- Freehold
- Leasehold
- Customary land holding
ü
The Act provides for the methods of land
acquisition which include[18];
·
allocation;
·
land adjudication process;
·
compulsory acquisition;
·
prescription;
·
settlement programs;
·
transmissions;
·
transfers;
·
long term leases exceeding twenty one years
created out of private land; or
·
any other manner prescribed in an Act of
Parliament
ü
Under Part III and IV the Act provides for the administration and management of public Land in Kenya, previously this was
regulated by the Government Land Act.
ü
Under Part V the Act provides for the administration and management of private
land in Kenya.
ü
The Act provides for the Creation of and
administration of secondary/ derivative interests in land these include
leases,charges,and easements. Particularly on charges,the Act provides for elaborate procedures on creation
of Charges which include;
- The Act provides for new forms of charges namely formal, Informal and customary charges.[19]
- The Act provides elaborate remedies and rights of the parties in a charge instrument[20], in particular the Act affords a chargor more protection namely; Chargor right of redemption, the chargor right to be informed of a variation in the interests rates[21], the right of consolidation and foreclosure prohibited are prohibited and the chargor right to have his interest being safeguarded during the chargee exercise of the statutory powers of sale[22]. These provisions on charges have the net effect of the law envisaging that security contracts relating to land should be charges and not mortgages.
ü
The Act provides for minimum and maximum land holding
in Kenya,
this provision however remains postponed until the cabinet secretary in charge of
land has been appointed.
ü
The Act provides for compulsory land acquisition
and establishes a land settlement fund.
THE NATIONAL LAND COMMISSION ACT 2012
The purpose of the Act is to make further provision as to
the functions and powers of the National Land Commission, qualifications and
procedures for appointments to the Commission; to give effect to the objects
and principles of devolved government in land management and administration.
THE ENVIRONMENT
AND LAND COURT
ACT, 2011
This Act establishes a judicial forum for adjudicating
matters relating to land and environment, it is of the same status as the High
court.[23]
CONCLUSION
From the foregoing discussion, it is clear that the clamor
for land reforms in Kenya
has at last yielded excellent legislative provisions, but these remains mere
provisions which benefits can only be enjoyed through effective implementation.
[1] The
Constitution of Kenya
Review Commission (CKRC) Report 2005
[2] Article
260 of the Constitution of Kenya 2010
[3] Article
68 of the Constitution of Kenya 2010
[4] Article
61 of the Constitution of Kenya 2010
[5] Preamble
to the Land registration Act
[6] Sec 2 of
Land Registration Act
[7] Sec
56(5) of Land Registration Act
[8] Sec 24
of Land Registration Act
[9] Sec 25
& 26 of Land Registration Act
[10] Sec 28
of Land Registration Act
[11] Sec 44
of Land Registration Act
[12] Sec 45
of Land Registration Act
[13] Sec 93
of Land Registration Act
[14] Sec 101
of Land Registration Act
[15] Sec 105
& sec 106 of Land Registration Act
[16]
Preamble to the Land Act 2012
[17] Sec 5
of the Land Act 2012
[18] Sec 7
of the Land Act 2012
[19]Sec 2 of
the Land Act 2012
[20] Sec 90
of the Land Act 2012
[21] Sec 84
of the Land Act 2012
[22]Sec 97
of the Land Act 2012
[23] Sec 4 of the
Environment and Land Court Act, 2011
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