KENYA LAND POLICY SINCE 1900

KENYA LAND POLICY SINCE 1900

Land policy in Kenya and its legal development has a longhistory. This is attested to by the long list of policy papers,reports and commissions set up by the various regimes.

On 15th June, 1895, what is largely known as Kenya was declared aBritish Protectorate. The legal effect of the declaration wasmerely to confer on the British crown Political Jurisdiction overthe area, whilst it remained a foreign jurisdiction. Beyond that,the declaration of Protectorate did not confer any rights overland in the territory. Any rights over the land would have to beon the basis of conquest, agreement, treaty or sale with theindigenous people. In 1897, the Indian Land Act was extended tothe territory, thus enabling the appropriation of lands in themain land beyond Mombasa for public use. This appropriation washowever limited to land within one mile of either side of therailway line.

To overcome the problem of title to land in the territory, in1899 the law officers of the crown advice that the ForeignJurisdiction Act, 1890 empowered the crown to control and disposewaste and unoccupied land in the protectorates with no settledforms of government and where land had been appropriated to thelocal sovereign individuals. The commissioner of the Protectorate(later named Governor) had power to dispose of all public landson such terms and conditions as he might think fit.1

The land, now called crown land was vested in the commissioner intrust for the British crown. This was effectualised in the crownland ordinance, 1901, which defined crown land as all publiclands within the East African Protectorate which for the timebeing are subject to the control of his Majesty by Virtue of anyTreaty, Convention or agreement or by virtue of His Majesty’sProtectorate and all lands which have been or may hereafter beacquired by His Majesty under land acquisition Act, 1894 orotherwise however. The Crown Land Ordinance, 1902 followed suit

1 1901 the East African (Lands) ordinance-in- council1

and empowered the commissioner to sell free holds in crown landup 1,000 acres to any person or grant leases of 99 years.

The Swynnerton Plan of 1954, the Kenya Land Commission of 1932-4to the East African Royal Commission of 1953-55, are some of thecommissions set up to look into land cases. Along the road,little was done to eradicate some of the anomalies introduced bythe colonial authorities in the early legislations. Before theestablishment of British rule in 1895, Kenyan communitiesoccupied certain portions of land where they lived either aspastoralists, cultivators or as hunters and gatherers, while somecommunities cultivated and fished. Their land laws were thecustomary laws. After the British rule was established in 1895,the Crown asserted it was the sole owner of all the land anddefined the rights that were to be recognized.2

Initially, the Crown Lands Ordinance respected the customary landrights to some extent, and this made the colonialists unhappy.The 1915 amendment of the Crown Lands Ordinance facilitated thedispossession of the Africans of their land. It was during thistime that some parts of Mau Forest were recognized as CrownLands. In most cases, the indigenous owners of the confiscatedland became laborers of the British farmers. The 19O2 Crown LandsOrdinance, the first version of today’s Government Lands Act,Chapter 280 of the Laws of Kenya, recognized a situation wherethe indigenous people would be allowed to continue occupyingland, which had been taken away by colonialists. This causedgreat anxiety. Consequently, some of the Crown Land NativeReserves were to be designated from which the colonialists wereexcluded. Between 1919 and 1939, many Native Reserves werereclaimed.

The history of Kenya between 1918 and 1939 is one of trying toincrease the indigenous people’s security of tenure, and sincethe economy was agricultural, the land question was aconstitutional issue, as it is today. The British government

2 Crown Lands Ordinance of 1902.

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appointed the Kenya Land Commission, which inquired into the landissue and made its recommendations. All land formerly belongingto the British Crown (Crown Lands) was transferred to thePresident of Kenya on behalf of the Government of Kenya. By theCrown Land Ordinances of 1902 and 1915, such lands included:

Former white settlers’ land which had been alienated by thegovernment from the indigenous tribes and accorded leases of99 years and later of 999 years.

Unoccupied and under-utilized regions mainly left to naturalfauna and wild game and subsequently ear-marked for specialpurposes such as shooting blocks, water catchment areas,excavation, mining, etc.

Game parks and game reserves, alienated mainly for game. Forestland, reclamation areas and land appropriated for

special development programmes such as state farms and towndevelopment.3

Individuals enjoyed subsidiary rights of use and occupancy ofcommunally owned land. Permanent features such as swamps, glades,rivers, sacred sites and trees served as boundaries. Each clanhad their own parcel of land and others respected this. There wasland for use during the dry season and land for use during therainy season. These land holdings arrangement were meant to solvedisputes arising from disagreements. Trespass to another clan’sparcel of land would mean instant death by poisoned arrows. Thismode of land tenure made them great environmentalists of the pastand the present.

The Trespass Act, Chapter 294

     This Act was enacted in 1963 and revised in 1982. This Actmakes provisions with regard to trespass on land. “Private Land”means:

Land which is owned or occupied by any person by virtue of afreehold title, a certificate of ownership or a lease; or

3 Kenyan Constitution, section 2053

Land in respect of which a claim to an estate in fee, or toa lease, has been made under the Land Title Act, Chapter 282and has not been disallowed or refused; or

Cultivated land or enclosed land; or Any forest land; or Railway land.

    Trespass arises where a person causes physical matter to comeinto contact with another’s land. Trespass, therefore, protectsan occupier’s right to enjoy his or her land without unjustifiedinterference.

The Registered Land Act, Chapter 300

     The Registered Land Act is an act of parliament to makefurther and better provision for the registration of title toland, and for the regulation of dealings in land so registered,and for purposes connected therewith. This Act was enacted in1985 and revised in 1989 applies to the following areas:-

a. Every area to which, immediately before the commencement ofthis Act, the Land Registration (Special Areas) Act applied;

b. Any area to which the land Adjudication Act applies;c. Any area to which the minister may, by orders, apply this

Act; andd. All land which from time to time is set apart under section

117 or section 118 of the constitution.

     The Act contains various statutory forms that need to befilled by parties to the transactions. Their signatures need tobe attested after which the forms are to be forwarded to theRegistrar for registration. Any disposition of land, lease chargemust be in the prescribed form. Every instrument must be signedby both or all parties to the transactions4.

Trust Land Act, Chapter 288

     This Act was enacted in 1939 and enacted in 1962 and cameinto force in 1963. It was revised in 1970.Under this Act, “Trust4      Section 109 of the RLA

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Lands” refer to what were previously known as “Native Reserves”or “Special areas”. Sections 53 of the Trust Lands Act confersdirect powers to the commissioner of lands to administer TrustLands on behalf of the County Councils. The Commissioners mandatemay be terminated by the Minister where the ministers aresatisfied that the council has made satisfactory arrangements toadminister its trust land by itself.

     In administering the trust lands, the commissioner of landsmay:

Exercise on behalf of the council, personally or by a publicofficer, any of the powers conferred by this Act on thecouncil, other than that conferred by section 13(2)(d) ofthis Act; and

Execute on behalf of the council such grants, leases,licenses and other documents relating to its Trust Land asmay be necessary or expedient.

The Forest Act, Chapter 385

     This is an act of parliament to provide for theestablishment, control and regulations of central forests,forests and forest and on unalienated government land. Section4(1) empowers the Minister from time to time, by notice in theGazette:-

a. Declare any unalienated Government land to be a forestarea:-

b. Declare the boundaries of a forest and from time to timeafter those boundaries;

c. Declare that a forest area shall cease to be a forest area;

     The Forest Act was enacted and became operational on 1stMarch 1942. It was amended in 1962, 1957 and revised in 1964.

The Wildlife (Conservation and Management) Act, Chapter 376

     This is an act of parliament to consolidate and amend thelaws relating to the protection, conservation and management of

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wildlife in Kenya; and for the purposes connected therewith andincidental thereto. Its objective is to make sure that wildlifeis managed and conserved so as to yield to the Nation in generaland to individual areas in particular, optimum returns in termsof cultural, Aesthetic and scientific gains as well as areincidental to proper wildlife management and conservation andwhich may be secured without prejudice to such proper managementand conservation. It is to ensure that full account is taken ofthe varied forms of land use and the inter-relationship betweenwildlife conservation and other forms of land use. This Act wasenacted in 1976 and 1989 and amended again in 1997. It wasrevised in 1969.

The Agriculture Act, Chapter 318

     This is an act of parliament that came into operations in1980, revised in 1986. Its purpose is to promote and maintain astable agriculture to provide for the conservation of the soiland, its fertility and to stimulate the development ofagricultural land in accordance with the accepted practices ofgood land management and good husbandry. Agricultural land meansall land which is used for the purposes of agriculture, not beingland which under any law relating to town and country planning,is proposed for use for purposes other than agriculture.

     Also deals with the composition and function of thisinstitution.5 Parts IV, v, xii, xiii deals with the normativeframework for the regulation and development of Agriculture land.Under section 48, the Minister has power to make rules for theconservation of the soil and the prevention of the adverse effectof soil erosion on land. Part (xii) and (xiii) of the Act whichalso deals with preservation, utilization and development ofAgricultural land have for reaching implications for access orownership of agricultural land.

The Water Act, Chapter 372

5 Sec. 22, 25, 29, 32, 35 and 37 of the Agriculture Act6

     This is an act of parliament to make better provision forthe conservation, control, apportionment and use of the waterresources of Kenya, and the purposes incidental thereto andcorrected therewith. Today our rulers behave as if without lawsour water bodies cannot be protected. They tend to forget that inevery society there are rules and regulations.

The Fisheries Act, Chapter 378

     This is an act of parliament to provide for the development,management, exploitations, utilization and conservation offisheries and for connected purposes. This Act came intooperation in 1989.

Government Land Act, Chapter 280

     This Act was enacted in 1915, repeated in 1970 and revisedin 1976. It originated in the Crown Lands Ordinance of 1902. TheGLA deals with government grants prior to 1920 whether leaseholdor freehold. The register under the GLA is modeled under the LandTitle Act, which is its system of registration of documents.Under this system it is necessary to trace title backwards up tothe government grant. Conveyance under the GLA must be by way ofdeed. A deed has three essential requirements. It must be signed,sealed and delivered.

Land Adjudication Act, Chapter 284

     Under this act, claims for Adjudication and award of titleare made. Once an area of land has been declared to be subject toadjudication, any claims made in respect to the land are dealtwith Act. The titles granted under Registered Land Act, Chapter300. The title under RLA is guaranteed by the state and anyonewho suffers loss by reason of mistake is to be indemnified by thestate. The general rule under the RLA is that the proprietor’stitle is unimpeachable except in the case subsequent registrationwhich can be impeached on the grounds of fraud and mistake. Afirst registration cannot be questioned under the Act. This Actcame into operation in 1968 and revised in 1970.

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The Land (Group Representatives) Act, Chapter 287

     This is an act of parliament to provide for theincorporation of representatives of groups who have been recordedas owners of land under the Land Adjudication Act, and forpurposes connected therewith and purposes incidental thereto. Inthis act group representatives means where at a meeting heldunder sections of this Act the members of a group resolve thatgroup representatives shall be incorporated, and elect not morethan ten and not less than three persons to be grouprepresentatives, the persons so elected shall make application tothe registrar in the prescribed names for theirs incorporationunder this Act.

The Antiquities and Monuments Act, Chapter 215

     In this act “antiquity” means any movable object other thana book or document made in or imported into Kenya before the year1895, or any human, fauna or floral remains of similar minimumage which may exist in Kenya.

     In this Act, “monument” means

a. An immovable structure built before the year 1895 other thanan immovable structure which the minister may by notice inthe Gazette either specifically or by reference to allimmovable structures in a specified area declare not to be amonument for the purposes of this Act;

b. A rock –painting, carving or inscription made on animmovable surface before that year;

c. An earthwork or other immovable object attributable to humanactivity constructed before that year;

d. A place or immovable structure of any age which, being ofhistorical, cultural, scientific, architectural,technological or other human interest, has been and remainsdeclared by the minister under section 4(10)(a) to be amonument.

Chief Authority Act, Chapter 128

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     This is an Act of parliament to make provision in regard tothe powers and duties of chiefs and too provided for mattersincidental thereto. Part II of this act deals with duties of thechiefs, his powers, penalty for disobeying his orders andoffences by chiefs. Part III deals with famine relief. This Actwas amended in 1997 during the IPPG (Inter parliamentary Group,thus making the functions of the holder of office peoplefriendly, as it reduced the oppressive powers.

LAND-RELATED CONFLICTS IN KENYA: POLICY AND LEGAL IMPLICATIONS

Across Africa, conflicts over land have been at the heart of centuries-old political struggles. In Kenya, resistance against colonial rule was crystallized through struggles over land. Communities reacted violently to colonial land dispossessions andthe struggle over land continues to this day. The manner in whichindividuals or groups in Kenya hold, use, occupy, possess or haveaccess to land since colonial rule to the present is a history ofhow land lies at the heart of many potential and violent conflicts. It is submitted that land related conflicts in Kenya are a common, everyday occurrence. Indeed, land-related conflictsin Kenya stem from conceptual, legal and sociological confusion in the traditional tenure systems. The colonial regime in Kenya colonialism, which not only imposed alien land tenure relations in Kenya, but also introduced proceeded from a land-related conflict assumption that customary land tenure systems were inimical to modern imperatives of agricultural development or indeed to the then colonial settler economy. Henceforth, colonialism embarked on three events i.e. expropriation of land through a process of alienating large tracts of land and dispossessing indigenous people of their land, imposition of English common property law and transformation of customary land law and tenure. These three processes are the beginning of the land-related conflicts that Kenya has experienced to date.

Precisely, the land-related conflicts became prominent when

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Kenyans of African origin were crammed into native reserves from 1926 and were exacerbated when the process of individualization of tenure in the reserves in the mid-1950s started with a deliberate aim to completely transform African communal tenure relations into individualized land holdings. When the colonial regime realized that individualization alone could not solve the land-related conflicts, there was provided the legal framework for the extinction of claims to individualized land based on African customary land law6. The land-related conflicts in Kenya continue to be pronounced because both the economic and legal frameworks upon which the relegation or intended extinction of customary land rights was based have failed the test of time. Land relations in many parts of the country are still actualized on the basis of customary law, even where such land is registeredunder Registered Land Act. Communal tenure systems are still verymuch part and parcel of the social and economic fabric between and within ethnic societies in Kenya.

Thus, the land-related conflicts are prevalent due to the fact that the instrumentality of English/Common law has failed to socially engineer an irreversible movement from communal tenure to individual tenure. Neither has the jurisprudence developed by the courts of law succeeded in extinguishing customary land rights. The bottom line, therefore, is that land-related conflicts in Kenya are a persistent issue that must be comprehensively addressed by the ongoing National Land Policy Formulation Process. Land being at the centre of Africans' survival and a major force of production to white colonial settler economy, it sparked off sharp social, economic and political inequalities, which in turn led to numerous land-related conflicts, of which the Mau Mau independence struggle wasthe main one.

6 Registered Lands Act10

Underlying alienation of land was a policy of exploitation and oppression against the colonized communities who were 'herded' inreserves to create room for intensification of agriculture by thesettlers using forced native labor. These policies generated land-related conflicts that have an indelible mark on the future of Kenya. The result of 'herding' African communities in the reserves was massive landlessness, especially in those parts of the country that were in settler agricultural and other allied economic activities. Landlessness, quite understandably, led to poverty, discontent and eventually open land-related conflict. That is how organized political dissent by Africans against whites and white rule started to loom. The essence of this dissension was the deterioration of life due to mounting land pressure, overstocking and soil degradation in the reserves, which spurred the whole country into the liberation struggle (theland and freedom struggle).

At independence, the government was faced with the land-related conflict of how to settle the landless and displaced people. Obviously, people wanted the land for which they fought; yet the government was faced with the need to sustain the economic development then, which was a predominantly settler economy. The conflict situation was exacerbated by the fact that the government did not abrogate the colonial legacy but instead retained policies and laws inherited from the colonial regime with regard to land ownership and use. The land settlement schemes further generated land related conflicts in Kenya becausemost communities did not get back their land, given that in granting independence, the British government made sure that the rights and interests of the settlers who opted to stay in Kenya were safeguarded.

Secondly, even the lands that were availed for redistribution to the landless Africans were at the market place under the policy of "willing buyer, willing seller." This arrangement only

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aggravated land-related conflicts because those communities who lost their land under the then communal/customary tenure further witnessed their customary land at independence being individualized to those who could afford it at the market place. This was a further entrenchment of land-related conflicts which forty years after independence still manifest in the form of landclashes of 1990s and the current simmering land-related conflictsin form of historical land claims throughout the country. Resettling the landless through settlement schemes or process hasfurther generated land-related conflicts because since the 1970s the government reverted to a system of Settlement Fund Trustees, which due to corruption and mismanagement has generated further conflicts in settlement schemes where the squatter problem has been used to settle the politically correct individuals leaving squatters conflicting over the very lands that was meant for their settlement. Since the settlement schemes were not sufficiently addressing the landless problem the government encouraged purchase of land through the land-buying companies andfarming cooperatives by the landless pooling resources together. The land-buying companies and farming cooperatives have increasingly contributed to land-related conflicts because they have been badly abused by politicians as a means of swindling land-hungry peasants. This process was supposed to facilitate thesubdivision of the purchased land among the members in accordancewith their respective shares. But more often than not the contributors towards the intended purchase have been cheated out of their money, hence massive land-related conflicts. The government intervention to cause subdivision of land among members and the issuance of title deeds has dragged on, leading to further land conflicts.

The other important link to land-related conflicts is the mortgage institution and how it relates to rights of access to land. In Kenya individualization of land was and is meant to

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enable the registered proprietor to offer his title to a financial institution in return for credit. Thus, lenders stretching from banks, finance houses, and building societies have been forced into land-related conflicts with defaulters in the effort of realizing their security upon default. The rural people are engaged in protracted land related conflicts with financial institutions resisting being disinherited because they argue that the policy of the mortgage institutions was ill-conceived from the very outset in that the peasants whose land was offered as security did not have any entrepreneurial skills or experience in credit management to guarantee the possibility of the mortgage institution realizing their security upon default. So serious is the land-related conflicts out of the landmortgages that the state has been forced to intervene to stem theobvious effects on social order, but up to now the state legislative and administrative actions have failed to resolve theproblem.

The other land-related conflicts in Kenya manifest themselves through what is commonly known as the human-wildlife conflicts. Kenya adopted an ambitious wildlife management and conservation arrangement through gazettement of large tracts of community lands as national parks, national game reserves and conservancy sanctuaries. In the process. Communities are excluded from such lands, which are managed as public trust lands under the Kenya Wildlife Service (KWS). But given that most of these lands have eaten into grazing rangelands of pastoralist communities and agricultural lands of crop agricultural communities, permanent and potential land related conflicts occur between community’s contingent to wildlife areas and the KWS as an agent and directlybetween human beings and wildlife. The use of ecologically sensitive areas such as forests and riparian reserves is emergingas another major cause of land-related conflicts between conservationists and beneficiaries of illegal and irregular allocation of such lands for political patronage.

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There are also numerous land-related conflicts arising from land dispute resolution mechanisms. In Kenya our courts are clogged byland conflict related cases, which have held back development endeavors. Land Dispute Tribunals are also clogged up with land-related conflicts, which are waiting arbitration. The latest land-related conflicts arise from the Presidential Commission of Inquiry into Illegal and Irregular Allocation of Public Land ('Ndung'u Commission'). The commission in question was set up to inquire into corruption surrounding public land dealings from I962 as a cut-off date selected by the Commission up to December 31, 2002 when the appointing NARC government came to power. The Commission, which took nine months to investigate into the scams,inquired into protected lands for environmental, conservancy and security reasons i.e. covering forestlands, national parks, national game reserves, sanctuaries, wetlands, marine parks, protect security lands for police, prison, military and state houses and lodges; public lands for settlement schemes; public lands in townships, municipalities and cities; and public lands held and set aside for use and carrying out the mandates of StateStatutory Bodies (Parastatals) ranging from provision of all manner of infrastructure, research and development public purposes.

The conclusion of land conflicts in Kenya are that: 1. The land tenure regimes inherited from colonial rule are stilla major source of land-related conflicts which need to be revisited in order to address cases of historical injustices thatmanifest themselves in the form of squatters, absentee landlordism, land clashes and all manner of lingering land claims. 2. Building capitalism on the basis of disputed land rights in Kenya is a major drawback because while we have succeeded in integrating 10% of Kenya economic and political elites into western type of ownership of property we have failed to address

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the plight of the majority Kenyans who live below poverty in an assumed pool of labor, both actual and reserve labor. The Kenyan example of going through land conflicts occasioned by individualization of land ownership is a pointer to other Africancountries that individualization of tenure per se does not produce miracles to development and eradication of poverty. So much reflection is required to overcome this quandary of spurringeconomic growth and development. 3. Vesting land rights through the law does not resolve land-related conflicts or historical injustices and obstacles to development simply because the law is in place to protect what was unfairly and illegally taken away from Africans by colonialists and even fellow Africans at independence. 4. Customary land rights cannot be transformed into individual land rights successfully by simple adjudication of land rights asa legal and political process without appraisal of ecological andtraditional land use system in varied areas of the country.5. New land dispute resolution mechanisms need to be thought-out to address too many land disputes to ameliorate future land-related conflicts, without resorting to multiplicity of land law system that is in them an obstacle to development.

THE NEW LAND LAWS IN KENYA

The issue of land, its ownership, use and management is a highlyemotive one in Kenya and was one of the key issues that drove theneed for a new constitution. Following lengthy deliberations anda comprehensive public participation process, a new constitutionwas promulgated on 27 August 2010. The Constitution sets outprinciples governing land and also requires all laws relating toland to be revised, consolidated and rationalized within certaintimelines.

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"….it is a very difficult exercise; a very difficult undertaking"7

The President assented to the bills immediately and the new landlaws became effective on 2nd May 2012. The new land laws are:

The National Land Commission Act, 2012; The Land Registration Act, 2012; and The Land Act, 2012.

The new laws require all existing laws relating to land that havenot been repealed, to be applied with the necessary alterationsand adaptations to give effect to the new laws. However, in theabsence of formal amendments to the existing laws that have notbeen repealed, the altering and adapting of these laws in orderto give effect to the new laws is likely to cause someinconsistency in the practical application of the law.

Key Highlights of the New Land Laws

1. Land Administration

The administrative structures for management of land in Kenyahave been changed. The National Land Commission will have widepowers in the management and administration of public, privateand community land. The chairperson and members of the Commissionwill be identified through a public, transparent and competitiveselection process and ultimately approved by Parliament. Thisprocess was to commence within 14 days of the coming into effectof the new laws, which was 16 May 2012. In order to carry out itsfunctions effectively, the Commission is required to devolve theadministration of land. Consequently the Commission is requiredto establish offices and land management boards at the countylevel. In the interim, employees of the Ministry of Lands indepartments whose functions have been moved to the Commission arerequired to continue performing their services as if they wereemployees of the Commission. In due course, they will be required

7 Hon. James Orengo, Minister for Lands, in Parliament, followingthe passing of a new suite of land legislation to implement the principles governing land set out in the Constitution.

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to re-apply for their jobs and undergo a vetting process toensure their suitability to serve on the Commission.

2. Public Land

The allocation of public land to private individuals has been aconcern for many Kenyans for a long time. Allocation of publicland was within the control of public officers at the Ministry ofLands, who were susceptible to influence by the executive arm ofthe Government. The process of allocation of public land wastherefore shrouded in secrecy and often, members of the publicwould only realize that public land has been expropriated, aftera title deed has been issued to private persons. Allocation ofpublic land to private persons will now be managed and supervisedby the Commission. This creates independence in the allocationprocess as the executive arm of the Government will no longerhave control of the process. In addition, land available forallocation will now be gazetted and notices published in at leasttwo local dailies, prior to commencement of the allocationprocess. This will go a long way in creating transparency andpublic participation in the allocation process.

3. Community Land

The new laws require all land in Kenya, whether private, publicor community land, to be registered. The new laws therefore makeprovision for the registration of community land. However,substantive provisions on the administration and management ofcommunity land will be enacted by 2015 as required by theConstitution.

4. Private Land

The new laws will have a significant impact on the administrationand management of private land in Kenya and the rights of variousinterested parties.

Some of the key changes are as follows:

4.1. Title to land; transfer of land and connected matters

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(a) What happens to existing title deeds?

Under the old land law, title deeds were issued under any one ofthe following statutes, which have now been repealed:

The Registered Land Act (RLA); The Registration of Titles Act (RTA); The Land Titles Act (LTA); and The Government Lands Act (GLA)

Retained titles: Title deeds issued under the RLA and RTAcontinue to be valid notwithstanding the new laws. These are themost common title deeds in Kenya. In due course, the registrarwill issue new title deeds in the new prescribed form.

Titles to be examined and registered a fresh: Title deeds issuedunder the GLA and LTA on the other hand, will have to be examinedand registered afresh under the new laws. There are no specifictimelines prescribed for the examination and fresh registration,save that this has to be done 'as soon as conveniently possible' - asprovided in the new laws. This does not mean that GLA and LTAtitle deeds invalid. However, they will only be recognized underthe new laws after their examination and fresh registration. Thenew laws are silent on whether holders of GLA and LTA title deedswill be allowed to transact with their title deeds, pending theirexamination and fresh registration. This appears not to bepermitted and will almost certainly cause delays in ongoingtransactions related to land held under such title deeds. Some ofthe main characteristics of GLA and LTA title deeds are asfollows:

GLA title deeds - most of them were issued prior toindependence. They contain the words "Indenture", "Conveyance"or “Indenture of Conveyance" as part of their heading. Theywere mostly issued for land that was designated as 'farmland' prior to independence and shortly thereafter. Suchland includes some parts of Central Province, Kericho andNairobi, especially Karen. It is uncommon to find GLA titledeeds for land in other parts of the country. A few existthough.

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LTA title deeds - these were issued for land at the Coastand Lamu Island only.

(b) Pre-emption rights on expired grants

All land held on leasehold titles will revert to the Governmenton expiry of the term. However, where the immediate past owner ofthe land is a Kenyan citizen, the Commission is required to grantthem the right to re-acquire the land, so long as the land is notrequired for public purposes. Following the promulgation of theConstitution, foreigners who held freehold titles or leaseholdtitles that were for a term exceeding 99 years, had their titlesreduced to 99 year leasehold titles. There has been debate onwhen the 99 year period is deemed to commence. One view was thatthe 99 year period commenced on the date the Constitution waspromulgated (27 August 2010) and the other view was that the 99year period commenced on the date the title was first granted.Unfortunately, the new laws do not provide further clarity onwhen the 99 year period commences.

(c) Certificates of lease to be issued over apartments, flats,townhouses, maisonettes and offices

Where a person is registered as the owner of a long term leaseover apartments, flats, maisonettes, townhouses or offices, theregistrar will now be required to issue them with a certificateof lease (title deed). The registrar is required to register suchlong term leases where the property comprised is properly georeferenced and approved by the Government's survey department.However, the processes and timelines for approval by theGovernment's survey department have not been defined.

(d) Transfer of a portion of land - new subdivisions to beregistered first

Transfer of portions of land will only be completed uponundertaking a subdivision and a new register being opened for thenew subdivisions. This means a new title deed for the subdivisionwill have to be obtained prior to completing the transfer of aportion of land. A transfer is defined as, among other things,

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the passing of land from one person to another. Therefore,arguably, the passing of a long term lease from one person toanother may be deemed to be a 'transfer'. It is therefore likelythat the sale of a portion of land by way of a long term leasewill be deemed to be a 'transfer of a portion of land' andtherefore require subdivision. However, the requirement forsubdivision will not apply where such land comprises ofapartments, flats, townhouses, maisonettes and offices (whichonly require geo-referencing and approval by the Government'ssurvey department, as opposed to subdivision).

(e) Spouse deemed ownership and requirement for spousal consent

The new land laws have created statutory rights to land forspouses. These rights affect all land and not just matrimonialproperty. These rights include:

Spouse deemed owner though not on title - where land is held inthe name of one spouse, but the other spouse has contributedto the productivity, upkeep or improvement of the land, thecontributing spouse shall be deemed to have acquired anownership interest in the land. These ownership rights shallbe recognized as if they were registered. Case law willhopefully interpret precisely what constitutes spousecontributions.

Sale or charge void, if spousal consent not obtained - Dispositions(including sale, transfer, lease and charges) of any land ora dwelling house held in the name of one spouse shallrequire the consent of the other spouse.

A lender or purchaser is now under a duty to inquire whether theconsent of the other spouse or spouses has been obtained. If thespouse undertaking the disposition misleads the lender orpurchaser or other transferee as the case may be, the sale,transfer, charge, lease or other disposition shall be void, atthe option of the spouse who did not consent to the transaction.The term 'spouse' has not been specifically defined in the newlaws. However, its definition could be inferred from thedefinition of the term 'marriage', which has been defined as a

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"civil, customary or religious marriage". The lack of a specificdefinition of the term 'spouse' is likely to cause practicaldifficulties in determining whether or not spousal consent wasobtained for a transaction. In addition, Kenyan law recognizesmarriages that are currently not capable of registration (due tolack of a legislative framework), such as marriages undercustomary law. The existence of such marriages creates anopportunity for abuse of the new legal requirements.

(f) Evicting a purchaser in possession not as easy - statutoryprotections apply

It is not unusual in transactions for sale of land, for theseller to allow the purchaser to take possession of land prior toregistration of the transfer, on terms agreed between the sellerand the purchaser. This is especially the case where registrationis delayed due to Government bureaucracy. The terms under whichpossession would be granted would include an agreement oncircumstances when the seller would require the purchaser tovacate the premises, for example, if the transfer is notregistered within a reasonable time. Under the new laws, theterms upon which such a purchaser will take possession, will notonly be regulated by what the parties have agreed, but also theprovisions of the new law. Under the new law, when a purchasertakes possession of land prior to completion of the sale, thevendor can only regain possession peaceably (no resistance frompurchaser) or through a court order. In addition, the purchaseris entitled to relief from court in certain circumstances. Thiswill almost certainly result in sellers refusing to permit anyform of possession prior to completion.

(g) "Land Use Consent" may be required prior to affecting atransfer of land

An additional requirement before effecting a transfer of land isthe consent of the county land management board (a branch of theCommission), as to the use of the land. Whilst it is notexplicitly clear what this consent will contain, we presume it

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will contain a certificate to the effect that the land is beingused in accordance with the designated user.

(h) Prejudicial sales of land by debtors to be set aside

The sale or transfer of land by an owner of land who owes moneyto any person may be restored for the benefit of unsecuredcreditors, where the owner of the land makes the sale or transferin order to prejudice unsecured creditors. This will involve acourt process. Such disposals of land will be deemed prejudicialif the seller will be unable to pay all their debts withoutrecourse to the sold land and the disposal is intended to hinderor delay recourse to the land, by a creditor.

(i) Execution of documents by companies to be in the presence ofan advocate

An additional requirement in terms of execution is that corporatebodies or associations effecting dispositions of land (such asagreements for sale, transfers and charges), will now be requiredto execute these documents in the presence of an advocate of theHigh Court of Kenya, a magistrate, judge or notary. Presumably,this means that for companies, in addition to having the usualtwo directors or a director and a company secretary witness thesealing of a document, an advocate, notary, judge or magistrateshould witness the sealing of the document.

(j) Compulsory Acquisition - process now more just and fair

The process of compulsory acquisition of land is now moretransparent and will be managed by the Commission. In addition,the process is more just and fair to the owner of land as theaward of compensation (determination of amount payable) will bemade prior to the Government taking possession of the land. TheCommission is expected to promulgate rules to regulate theassessment of just compensation. Where there is a dispute in theamount awarded, the Commission is required to place thecompensation awarded in a special account, which will earninterest at prevailing bank interest rates, before taking

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possession of the land. This is a new requirement aimed at makingthe process of compulsory acquisition more just and fair.

(k) Land Sizes - a scientific study to be commissioned within oneyear

A scientific study to determine the economic viability of minimumand maximum land sizes will be commissioned within one year,which is by 01 May 2013. The findings of the study will besubjected to public comments and thereafter debated and if deemedfit, adopted by Parliament. Rules prescribing the minimum andmaximum acreages, based solely on the report adopted byParliament, will then be published by the Cabinet Secretary incharge of matters related to land.

(l) Government Fees - to be a percentage of value

Presently, save for stamp duty and exceptional matters such asannual rent which are based on the value of the land, feespayable to the Government for all matters related to land arenominal. Under the new laws, all fees payable to the Commissionfor any application made under the new laws will be based on aper centum of the value of the subject matter. Furthermore, thenew laws do not permit the Commission to prescribe a cap orcollar for such fees. We would hope that the Commission will bepermitted to prescribe a cap or collar in the rules to be issuedunder the new laws by the Cabinet Secretary in charge of landmatters.

4.2. Leases over private land

(a) Mandatory provisions?

The new laws now prescribe what appear to be mandatory provisionsgoverning all transactions relating to leases. Part VI of theLand Act deals with leases. This part begins by allowing partiesto a lease to vary the application of any of the provisions inPart VI, at their discretion. However, certain provisions withinPart VI are deemed to be mandatory. This appears to have been adrafting error. We think the intention was to allow parties to

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vary the application of the part, save for those provisionsdeemed to be mandatory. The provisions that are deemed to bemandatory include:

Forfeiture of leases - landlords cannot forfeit a lease withoutgiving notice to the tenant (such notice to be for a minimumof 30 days) requiring the tenant to remedy the breach withina reasonable time (if capable of remedy). In addition, uponissuance of the notice, the tenant has a statutory right toseek the court's relief from forfeiture. In considering suchan application, the court shall look into the conduct of theparties and the circumstances of the case.

Retrospective effect - tenants who are presently undergoing aforfeiture process, which begun prior to the enactment ofthe new laws, may go to court and stop the ongoing processand require that the forfeiture process be commenced underthe new laws. The exercise by landlords of their right offorfeiture will now take longer. In addition, tenants willalmost certainly invoke their rights for relief in court, inwhich case the conduct of the parties will be considered bythe court. In effect, this means that before seeking toexercise the right of forfeiture, landlords should considerall other remedies available to them and afford the tenantsufficient time and opportunity to remedy the breach.

Obligation not to withhold consent unreasonably - Where there is anobligation for the tenant to obtain the consent of thelandlord before doing something (or not doing something),there is now a deemed obligation on the part of the landlordnot to unreasonably withhold consent. The landlord is alsorequired to give or refuse consent within a reasonable time.Actions that will be deemed unreasonable include:

o Requesting payment of a fee (other than to coverlandlord's costs in granting consent); and

o Imposing an unreasonable condition

(b) Certificates of title to be issued

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Certificates of title will be issued for leases for a periodexceeding 25 years8. However, under the Land Act, long termleases for 21 years are deemed to confer title and title deedsshould ideally be issued over such leases as well. There appearsto be an inconsistency between the two laws.

4.3. Charges over private land - mandatory provisions and retrospective effect

There are now new provisions on regulating charges over land.These provisions are mandatory and have retrospective effect,which means that they will apply to charges created before thenew laws came into force. Enacting laws with a retrospectiveeffect is unusual, particularly where the retrospective effect islikely to cause detriment. Retrospective legislation that leadsto any form of arbitrary expropriation of a right or interest inland may be challenged for being unconstitutional. Some of thekey provisions regulating charges over land, including chargescreated prior to the commencement of the new laws, are asfollows:

(a) Variation of interest rates - notice required together withsimple explanation to the borrower

Where parties have agreed to a variable interest, any increase ordecrease may only be effected upon giving a 30 days' notice tothe borrower and stating clearly 'in a manner that can be readilyunderstood' the new interest rate to be applied.

(b) Alternative to further charges? - Memorandum of increase ordecrease in amount secured

The amount secured by a charge may be increased or decreased by asigned memorandum endorsed or annexed to the charge instrument.The memorandum may also vary the terms and conditions of thecharge, including the term of the charge.

(c) Spousal consent required for charge of land; charge may bevoid if no consent obtained

8 Land Registration Act25

Spousal consent will be required in order to validly charge anyland held by a person who is married. If spousal consent is notobtained or if the borrower gives misleading information on thelenders inquiries regarding spousal consent, the charge will bedeemed void at the option of the spouse or spouses whose consentwas not obtained. This provision does not have retrospectiveeffect.

(d) Chargee's statutory power of sale - longer process and morenotices required; duty to obtain best price; ongoing sales bychargees over any land may be stopped

Longer process - the process of exercising the chargee'sstatutory power of sale is now more procedural with theaddition of at least 40 days on the notice periodspreviously applicable.

Forced sale valuation required - a forced sale valuation must beundertaken before exercising the statutory power of sale.The valuation shall be undertaken by a registered andlicensed valuer (under the Valuers Act).

Duty of care to obtain best price - secured lenders are now under astatutory duty of care to "obtain the best price reasonably obtainableat the time of sale" in exercising their statutory powers of saleover the charged land. This duty of care is owed to theborrower, guarantors and subsequent lenders secured on thesame land.

More ways in which sale may be concluded - statutory power of salemay be by way of private contract at market value or publicauction at a reserved price. In addition, the sale may be ofthe whole or part of the land, by way of subdivision, forpurchase price to be payable in one sum or by instalments orsuch other conditions as the lender may think fit takinginto account their duty of care to obtain the best pricereasonably possible.

Retrospective effect on ongoing sales by chargees - where a securedlender had initiated "any steps to foreclose a charge" before theenactment of the new laws, the borrower may apply to courtfor an injunction to stop the continuation of any such step.If such an injunction is issued, the lender may commence

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fresh proceedings under the new laws in order to exercisetheir statutory power of sale.

(e) Matrimonial property - charge may be re-opened and termsvaried

The court may re-open a charge of any amount secured onmatrimonial property, "in the interest of doing justice between the parties".The parties referred are the lender, the borrower, the borrower'sspouse and any guarantors. The power to re-open a charge may onlybe exercised by the court, on an application made by theborrower, the lender or the registrar. The court has wide powersin considering an application to reopen a charge on matrimonialproperty. Furthermore, the court is required to consider, amongother things:

the financial standing and resources of the borrower,relative to those of the lender, at the time the charge wascreated;

the interest rates and any variation thereof from time totime; and

The age, gender, health, experience and understanding of thecommercial transaction of the borrower, at the time thecharge was created.

4.4. Corruption and other Offences

(a) Corrupt Transactions - transaction may be deemed void andland forfeited

Where the granting of public land or issuance of certificates ofownership is induced or obtained through corruption on the partof any government official or employee of the Commission, thetransaction shall be void and of no legal effect. Any landacquired through a process tainted with corruption shall beforfeited to the Government. The term "corruption" shall beconstrued as defined in the Anti Corruption and Economic CrimesAct, 2003. This definition is wide and includes 'abuse of office' and'breach of trust'.

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(b) Offences and penalties

The new laws introduce new offences:

There are several offences related to the giving of falseinformation and other fraudulent practices and these arepunishable by a fine of up to KES 10,000,000; imprisonmentfor up to 10 years, or both. Interestingly, the LandRegistration Act has a more lenient punishment for the sameoffences, being a fine of up to KES 5,000,000 andimprisonment of up to 5 years or both. These provisions mayneed to be harmonized.

Unlawful occupation of public land is now an offence whichwill attract fines of up to KES 500,000 and if a continuousoffence, a sum not exceeding KES 10,000 for every day theoffence is continued;

Wrongful obstruction of a public right of way is now anoffence and will attract a fine of up to KES 10,000,000 andif a continuous offence, a sum of up to KES 100,000 forevery day the offence is continued.

In addition to these criminal sanctions, any rights over landthat were obtained by virtue or on account of an offence may becancelled or revoked.

4.5. Other matters: Savings and transitional provisions; rules to be published and landcourt

(a) Rules to be approved by Parliament in certain instances

The Commission and the Cabinet Secretary will have powers tomake regulations to better carry into effect the provisionsof the Land Act and Land Registration Act. The matters to beregulated by the regulations have been outlined and include,with respect to squatters, regulations that "facilitatenegotiations between private owners and squatters" and also those thatdeal with the “transfer of unutilized land and land belonging toabsentee land owners to squatters".

Where the Cabinet Secretary (as opposed to the Commission)makes regulations under the Land Registration Act, these

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have to take into account the advice of the Commission andbe tabled before Parliament for approval. This is meant toallow for public scrutiny and introduce transparency in thecreation of the regulations. More importantly, this is meantto ensure that the regulations are consistent with thegeneral objectives of the Commission.

(b) Savings and Transitional Provisions - unclear

There is a lack of clarity and depth in the transitionalprovisions of the new laws. In addition, there are vacuumscreated by the repeal of most of the previous land laws which arenot addressed in the new laws. We expect these gaps and theresultant uncertainties to cause substantial delays in landtransactions.

(c) Environment and Land Court

Court will have jurisdiction to hear and determine disputesrelated to land.

Conclusion

The task of enacting new land laws is Kenya is by no means aneasy one, not least because land has always been an emotivesubject in Kenya, eliciting views from persons across theeconomic divide. Our law makers have spent a lot of time tryingto balance the views of Kenyans. The new land laws are a start tobringing about change, consistency and consolidation of land lawsin Kenya. A key achievement is the enactment of the National LandCommission Act which provides a framework for the Commission tobecome operational and is one of the very positive highlights ofthe new laws. Ideally, this should bring about positive change inland management and administration. However, the new laws wereundoubtedly passed in haste in an attempt to meet the (extended)deadline set by the Constitution. This is evident in their lackof clarity and substance and is likely to cause much more thanjust 'teething problems' in the implementation of the new land

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regime. As noted by one Member of Parliament immediately afterpassing the new laws9.

9 "There are many areas to be polished as we continue with this long journey towardstrue land reforms".

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