Acquiring rights to land in Kenya
The legal basis for rights to land in Kenya is found in The Constitution of Kenya (Revised Edition 2010), Chapter Five – Land and Environment, Part 1 – Land, Sections 60 – 68.
The constitutional provisions are effected through acts of parliament. In the case of land, the ways through which one can acquire rights to a piece of land are mainly stipulated in the Land Act, 2012.
The Land Act, 2012 is an Act of Parliament to give effect to Article 68 of the Constitution, to revise, consolidate and rationalize land laws; to provide for the sustainable administration and management of land and land based resources, and for connected purposes
The alternative ways of land acquisition are:
a) Transfer: This is the transfer of rights to land – in most casesfrom a vendor to a purchaser – through sale. A transfer is done after acquiring consent from the relevant County Land Management Boards in (present in each of the 47 counties of Kenya). Stamp duty of two per cent of the value of the land is payable to the government in townships and rural areas while a stamp duty of four per cent is charged on land in municipalities and cities. Thereafter, the transfer document alongside the original title are booked for registration in favour of the buyer. Legal provisions in Part V sections 43 – 48 of the Land Act, 2012; further provisions in Section 37 of the Land Registration Act, 2012).
The section on Transfers (Section 37) of The Land Registration Act, 2012 provides thus:
(1) A proprietor may transfer land, a lease or a charge to any person with or without consideration, by an instrument in the prescribed form or in such other form as the Registrar may in any particular case approve.
(2) A transfer shall be completed by—
(a) filing the instrument; and
(b) registration of the transferee as proprietor of the land, lease or charge.
Most of the land especially in rural (agricultural/farming) areas of Kenya, has been handed down from generation to generation along the male lineages. The Kenyan constitution (2010) accords equal rights to female and male children as far land ownership is concerned but the traditions still cultivate a bias in favour of male children when it comes to land/real estate inheritance.
It is still very common to find that the inherited land is held by two or more related persons with the block of land in question bearing the name of an ancestor (great, great grandparent or parents) who died a number of years ago in the lands registry. The first step in purchasing part or whole of such a parcel of land would be succession (getting the land transferred from the name of the ancestor to the name of one of the descendants as shall have been agreed by the interested parties). For further information on succession, see the related section.
We at InterCurrency have established reliable business relationships with selected professionals enabling us to offer our clients efficient services in acquiring or disposing land (real estate). We employ the tried, tested and approved Solid Rock Conveyance Procedures.
b) Settlement programmes: This is when the government provides access to land for persons displaced by natural forces such as floods, development projects (like roads, ports, railway lines), conservation projects or internal conflicts (such as ethnic clashes & the 2007 post election violence) or for landless persons (squatters) in general. The government uses the Land Settlement Fund which is administered by the National Land Commission (formerly the Settlement Fund Trustees). Part IX of the Land Act, 2012 makes the applicable legal provisions.
c) Allocation: This is the case when the government transfers public land to individuals usually for a specific period of time and for a specific use under stipulated conditions. Land planning, survey and servicing precedes allocation. The government may do the allocation through a public auction, tender, drawing of lots/balloting or by restricting allocation to a specific disadvantaged group. Legal provisions are to be found in Part II of the Land Act 2012.
d) Land adjudication: This is when rights and interests to land are ascertained and recorded in areas of community land (previously known as the trust land areas). Legal provisions are to be found in Part IV, Section 37 of the Land Act 2012. The Ogiek community land is an example.
e) Prescription: This is also known as adverse possession and occurs when one gains title to real property through occupation and development of land without opposition for 12 years. It involves a court process and the adverse possessor (squatter) must prove that he or she actually occupied the land continuously without interruption for the above specified time.
f) Compulsory acquisition: This is the acquisition of land by the government for a public purpose but subject to fair and prompt compensation (as per the provisions of Part VIII of the Land Act 2012). Publication of the intention to acquire is done through the Kenya Gazette and County Gazette.
g) Transmissions: This is when ownership passes to another party whose powers over the land are restricted as in cases of death, bankruptcy and on liquidation of a company (as provided in Part V, Sections 49 – 54 of the Land Act 2012). In case of death, a personal representative will be registered as the proprietor of the land, for bankruptcy a trustee becomes the registered proprietor while a liquidator shall be registered as the proprietor in cases of liquidation of companies, all by order of the court.
– Note: The National Land Commission has power to create public rights of way and the Lnad Act 2012 provides for compensation in respect of public right of way.
Certificate of Title
The Land Registrations Act, 2012 is an Act of Parliament to revise, consolidate and rationalize the registration of titles to land, to give effect to the principles and objects of devolved government in land registration, and for connected purposes
Among other things, it states:
Certificate of title to be held as conclusive evidence of proprietorship: Section 26
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
The above stated section 26 of the Land Registration Act, 2012 consolidates various kinds of titles into the Certificate of Title. The various kinds of titles previously emanated from diverse acts most of which have been repealed. Examples include:
i) Absolute Title: Issued under the Registered Lands Act (Cap 300 – repealed) for freehold land. Freehold is a form of ownership in which the landlord (land owner) has the maximum rights with regards to the period of ownership as well as the use of the land. Owners of many pieces of land in rural farming areas of Kenya would often go for this kind of title.
ii) Certificate of Title: Issued under the Registration of Titles Act (Cap 281 – repealed) due to subdivision without change of user. Towards the end of the 20th Century and at the beginning of the 21st Century, speculative investors acquired large pieces of agricultural/farming land in areas such as Ongata Rongai, Kiserian and Kitengela (Kajiado County) and subdivided the same without necessarily changing the nature of use. A change of user would occur if, for example, land use is changed from agriculture to residential or commercial as has been happening in many suburban areas i.e. Kiambu, Kajiado, Narok and Nakuru.
iii) Sectional Title: Refers to a title for a unit within a building, for instance a single flat. It has its origins in the Sectional Properties Act of 1987. The title is deemed to have been registered under the Registered Lands Act (Cap 300 – repealed). The purchase of an apartment within multi-storeyed apartment blocks in Kileleshwa, Athi River or Mlolongo would fall under this category as would the acquisition of an hotel room in multi-floored hotel complex located along the Thika super highway in Kiambu or one located along Mombasa Road in Nairobi.
iv) Certificate of Lease: Issued under the Registered Lands Act (Cap 300 – repealed) for leasehold land. Leasehold is a form of land tenure whereby a lessee (the occupant) holds rights to the piece of land in question for a specific period and subject to conditions imposed on land rights by the lessor (landlord or landowner). For urban pieces of land (plots) the period may be 33, 50, 66 or even 99 years (maximum). Some leases are renewable.
– Note: Previous legal provisions for indenture & grant titles have been repealed.
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Sources & References:
Kenya National Land Commission, Directorate of Research and Advocacy, info@nlc.or.ke
The Kenya Land Act, 2012. Published by the National Council for Law Reporting with the Authority of the Attorney-General (www.kenyalaw.org)
The Kenya Land Registrations Act, 2012. Revised Edition 2012, Published by the National Council for Law Reporting with the Authority of the Attorney-General (www.kenyalaw.org)