Beruflich Dokumente
Kultur Dokumente
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 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
From the foregoing provisions it is clear that the constitution of Kenya 2010 constitutionalizes land administration
and Management in Kenya.
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;
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]
The Act provides for the establishment of a land registry and for the appointment of a chief registrar of land.
The Act provides for the effect of registration an interest in land just as it was provided under RLA.[8]
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]
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.
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].
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]
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]
The Act repeals the following laws;
It should be noted that the repeal of the above laws notwithstanding, the existing transactions and titles are
preserved by the Act[15].
The Act provides for the methods of land acquisition which include [18];
allocation;
compulsory acquisition;
prescription;
settlement programs;
transmissions;
transfers;
long term leases exceeding twenty one years created out of private land; or
Under Part V the Act provides for the administration and management of private land in Kenya.
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.
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.
The Act provides for compulsory land acquisition and establishes a land settlement fund.
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.
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.