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Land And Property Rights

Land And Property Rights

Land Act No 6 of 2012, sec 5 (1) There shall be the following forms of land tenure:

Freehold;- At sec 5 (1) (c) of the Land Act, “freehold” means the unlimited right to use and dispose of land (sec 2, Land Act No 6 of 2012).

Leasehold;- At sec 5 (1) (c) of the Land Act, “lease” means the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of his or her land (sec 2, Land Act No 6 of 2012).

Sec 7 of Land Act No 6 of 2012 - Title to land may be acquired through—

(a) Allocation; (sec 2 of LA) as the legal process of granting rights to land.

(b) Land adjudication process; (defined in www.ardhi.go.ke as ascertaining rights and interests on land in trust land areas and transformation of ownership from customary tenure to individual/group ownership through demarcation, survey and registration).

(c) Compulsory acquisition; defined in sec 2 of Land Act No 6 of 2012 as the power of the State to deprive or acquire any title or other interest in land for a public purpose subject to prompt payment of compensation.

(d) Prescription; also known as Adverse Possession - the occupation of land to which another person has title with the intention of possessing it as one's own.

(e) Settlement Programs; defined in www.ardhi.go.ke as 

  • acquisition,
  • planning,
  • demarcation,
  • survey and
  • allocation

of economically viable agricultural settlement land to landless, poor and unemployed Kenyans on loan basis.

(f) Transmissions; defined in sec 2 of Land Registration Act No 3 of 2012 as a means the passing of land, a lease or a charge from one person to another by operation of law on death, insolvency or otherwise.

(g) Transfers; defined in sec 2 of Land Registration Act No 3 of 2012 as the passing of land, a lease or a charge from one party to another usually for consideration, exchange or a gift by an act of the parties voluntarily.

(h) Long term leases exceeding twenty-one years created out of private land; a lease is defined in sec 2 of Land Act No 2 of 2012 as means the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of his or her land).

(i) Any other manner prescribed in an Act of Parliament.

Sec 5 of the National Land Commission Act No 5 of 2012 outlines the functions of the Commission pursuant to Article 62 (2) of the Constitution of Kenya 2010 as:

(a) To manage public land on behalf of the national and county governments;

(b) To recommend a national land policy to the national government;

(c) To advise the national government on a comprehensive program for the registration of title in land throughout Kenya;

(d) To conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;

(e) To initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;

(f) To encourage the application of traditional dispute resolution mechanisms in land conflicts;

(g) To assess tax on land and premiums on immovable property in any area designated by law; and

(h) To monitor and have oversight responsibilities over land use planning throughout the country.

Functions of the Ministry of Land, Housing and Urban Planning are outlined in www.ardhi.go.ke as:

(i) Formulating and implementing land policies,

(ii) Undertake physical planning,

(iii) Register land transactions,

(iv) Undertake land surveys and mapping,

(v) Land Adjudication and Settlement,

(vi) Land Valuation and Administration of Public and Community Land.

RIGHTS OF LESSOR (LANDLORD) AND LESSEE (TENANT)

-Sec 2 of Land Act No 6 of 2012 defines:

Lessor” (Landlord) means a person by whom a lease is granted and includes a person who has accepted the transfer or assignment of the reversion of a lease.

Lessee”( Tenant) means a person to whom a lease is granted and includes a person who has accepted a transfer or assignment of a lease.

 

Rights Of A Lessor/Landlord

Implied rights( apply whether outlined in lease or not) of a Lessor/landlord are outlined in sec 66 of Land Act No 6 of 2012 as:

(i) To be paid rent,

(ii) Premises be repaired by Lessee/Tenant where necessary,

(iii) Furniture be kept in good condition, and lost articles of the property be replaced,

(iv) Be permitted into premises,

(v) Lessee/Tenant not to transfer, charge, sub-let or otherwise part with possession of the leased premises without the landlord’s written consent.

Other rights can be included in the Lease as agreed by the Landlord and Tenant.

 

Rights Of A Lessee/Tenant

Implied( apply whether outlines in the lease or not.) rights of a lessee/Tenant are outlined in sec 65 of Land Act No 6 of 2012 as:

(i) Lessor/Landlord has capacity at time of granting the lease,

(ii) Quiet enjoyment of premises,

(iii) Lessor/Landlord not to derogate from grant,

(iv) Premises is/are fit for habitation,

(v) Lessor/Landlord responsible for external repairs,

(vi) Lessor/Landlord to disclose material defects,

(vii) Quiet and peaceful possession of property.

RIGHTS OF A CHARGOR (BORROWER) AND CHARGEE (LENDER)

Chargor is the borrower who provides his property as security and

Chargee is the lender in a charge usually the Bank.

A charge is defined in sec 2 of the Land Registration Act No 3 of 2012 as an interest in land or a lease securing the payment of money or money's worth or the fulfillment of a condition.

Rights Of A Chargee (Lender)

Sec 88 of the Land Act No 6 of 2012

    1. Be paid charged debt as agreed
    2. Be paid rent, rates or taxes in respect of charged property
    3. Charged property be kept in good repair and condition
    4. Be allowed to enter premises at reasonable times to inspect
    5. Chargor( Borrower) not to effect any alterations to the charged property without Chargee’s( Lender’s) consent
    6. Chargor (Borrower) not to do anything that decreases value of the charged property( property used as security)
    7. Charged property not to be transferred, leased, let, sub-let or in any way part possession with the Chargor( Borrower)
    8. Charged property to be insured or keep insured
    9. Chargor (Borrower) not to apply or obtain loan which would rank in priority to the charged debt.

When The Borrower Defaults...

The Chargee (Lender) can issue a notice before exercising its rights to redeem the outstanding amount, the Statutory Notice.

If Chargor (Borrower) does not comply with statutory notice and Pay the outstanding loan of Chargee within 2 months the Chargee ( Lender ) has a right to,

  1. Sue Chargor( Borrower) for any money due and owing under the charge. (Sec 91 of the Land Act No 6 of 2012).
  2. To appoint a Receiver of income of the charged land. (Sec 92 of the Land Act No 6 of 2012)
  3. Lease the charged land (Sec 93 of the Land Act No 6 of 2012).
  4. To enter into possession of the charged land. (Sec 94 of the Land Act No 6 of 2012)
  5. To can sell the charged land by public auction or Private treaty ( sale). (Sec 96 of the Land Act No 6 of 2012)

 

Rights Of A Chargor/Borrower when Statutory Notice is issued:

  1. Has a right to redeem his property. This is referred to as equity of redemption. This right must not be fettered. (Sec 89 of the Land Act No 6 of 2012).
  2. Sue the Chargee
  3. To discharge charge on payment of any sum due any time before sale. (Sec 102 of the Land Act No 6 of 2012)
  4. To apply for relief in court against any of the Chargee’s/Lender’s remedies as stated above.

Matrimonial Home

Sec 93 of the Land Registration Act No 3 of 2012 states that

“ a spouse will acquire an interest in his/her spouse’s land if the spouse contributes by labour or other means to the productivity, upkeep and improvement of the land. The spouse’s interest shall be recognised as if it is registered against the title to the land.”

Where a spouse who holds land or dwelling house in his/her name individually and undertakes a sale of that land or dwelling house, the purchaser shall be under duty to inquire whether the spouse has consented to the sale.

If consent has not been obtained and the non consenting spouse challenges the sale, then the transfer to the purchaser is void.

This court shall have and exercise its jurisdiction throughout Kenya and shall the court shall have original and appellate jurisdiction to hear and determine all disputes. (sec 4 (3) of the ELC Act (Cap 12A) and Sec 13 of ELC Act (Cap 12A)

Article 162 (2) (b) of the Constitution of Kenya 2010provides that the Environment and Land Court shall

“ hear and determine disputes relating to the environment and the use and occupation of, and title to land.”

Which Disputes Does The ELC Deal With

(a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rent, valuations, mining, minerals and other natural resources,

(b) Relating to compulsory acquisition of land,

(c) Relating to land administration and planning,

(d) Relating to public, private and community land and contracts, chose in action or other instruments granting any enforceable interests in land,

(e) Any other dispute relating to environment and land.

(f) Exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters as above.

(g) Supervisory jurisdiction over subordinate courts, local tribunals, persons or authorities in accordance with Article 165 (6) of the Constitution.

 

Sec 18 of the National Land Commission Act No 5 of 2012 establishes the County Management Boards for purposes of managing public land.

 

Role of County Management Boards

(a) Subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and

(b) Perform any other functions assigned by the Commission or by any other written law.

 

Composition of County Management Board

(a) Not less than three and not more than seven members appointed by the Commission; and

(b) A physical planner or a surveyor who shall be nominated by the County Executive member and appointed by the Governor.

 

Sec 16 of the National Land Commission Act No 5 of 2012 establishes committees and county offices for the better carrying out of its functions.

There are transactions which require certain consents before the documents can be registered.

A.Agricultural Land

Sec 2 of the Land Control Act Cap     defines Agricultural land as :

  1. Land not within:-
    1. A municipality or township( as per former regime before 2010. Current regime yet to define the areas. Old municipalities and townships still apply)
    2. Area that was township under Township Ordinance (repealed)
    3. Area that was trading centre under Trading Centre Ordinance (repealed)
    4. A market
  2. Land declared by the Cabinet Secretary for Land by notice of Gazette, to be agricultural Land.

The Land Control Board is set up for purposes of controlling transactions in agricultural land. Sec 5 (1) of Land Control Act

Transactions that require LCB consent (Sec 6 (1) of Land Control Act):

  1. Sale, transfer, lease, mortgage, exchange, partition or other disposal dealing in agricultural land,
  2. Division of agricultural land into two or more parcels to be held under separate titles,
  3. Issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or cooperative society which owns agricultural land.
  4. declaration of trust in agricultural land also requires consent. (Sec 6 (2)).

Procedure For Obtaining LCB Consent

  • Apply to LCB through land registry office using a prescribed form(Sec 8 (1) ).
  • Make payment Kshs 1,500/=
  • Application must be made within six months of making of agreement for a controlled transaction.
  • Parties in the transaction to appear before the Board on scheduled meeting
  • Board to approve Consent
  • Chairperson , Assistant County Commissioner, to issue the Consent Cetificate.

The Land Control Board may refuse consent where person to whom the land is to be disposed off(Sec 9 (1) (b)),

  1. Is unlikely to farm the land well or develop it adequately.
  2. Is unlikely to be able to use the land profitably.
  3. Already has sufficient agricultural land.

 

B.Construction/Development

Two main areas of involvement in approvals while building in Kenya is in seeking approvals from the County Government, physical Planning and from the National Environmental Management Authority (NEMA).

Documents to be presented by Developer for approval by County Management Board:

  1. Certificates of registration from the registered professionals who are going to be charged with supervising the construction of the building project. Professionals include Architect and Structural engineer, who ultimately are charged with enforcing quality control and ensuring structural stability of the building as it is being constructed.
  2. The professionals also complete an Indemnity Declaration that indemnifies the county authorities of any claims in the case of faulty construction or mishap that can occur in the process of building in Kenya, thus taking upon themselves full responsibility for ensuring that buildings are constructed according to the building codes and relevant design standards.
  3. Ownership documents for the propertyusually Title Deed or Certificate of Lease or L Lease or Grant,
  4. Latest annual land rates receipts;
  5. Completed application for approval for building permit.( these are standard Forms provided by the Counties)
  6. Approvals by the National Environmental Management Authority in accordance with the Environmental Management and Coordination Act. (PART VI of the Environment Management and Coordination Act 1999).the Developer must provide;
  7. requires an environmental impact assessment preliminary report to be undertaken on a project prior to its construction. Sec 58 of EMCA 1999 – NEMA. Only consultants registered by NEMA are allowed to provide environmental impact assessment submissions, i.e. EIA project report or a full EIA study.
  8. The environmental consultant requires to provide a complete set of architectural drawings to accompany the compiled EIA project report. Sec 59 of EMCA 1999 -
  9. Very importantly, a payment must be made with the submission of the EIA reports.
  10. On the basis of this submitted report, the authority undertakes to prepare a summary public consultation supplement, Sec 59 of EMCA 1999 .
  11. Supplement of proposed development is printed on public newspapers for input from the public, especially regarding Environmental Impact Assessment Studies.
  12. After the stipulated period, the Authority evaluates the project, and issues conditions for approval of the project. It may reject an application for approval with valid reasons, or call for the project to carry out a full detailed environmental study if it deems it fit, especially for sensitive projects. Sec 60 – 61 of EMCA 1999 –
  13. If approved, the developer accepts the conditions for approval in writing
  14. The Environmental Impact Assessment License is issued, sec 65 of EMCA 1999
  15. It is the responsibility of the Developer in consultation with the environmentalist and other consultants to ensure that these conditions are fulfilled in the course of developing the project.

 

Approval by National Construction Authority

The mandate of the Authority is to streamline, overhaul and regulate the construction industry. A project’s registration procedure/process is provided for in www.nca.go.ke as follows:

i. Fill in a project registration form.

ii. Submit the form with, Signed Contract Document or Letter of Award or Signed Agreement Form.

iii. Attach Copy of approved drawings, approved by the County in which the project is located.

iv. Copy of NEMA approval.

v. NCA process the application within one day.

vi. Levy payment notification letter and invoice issued.

vii. Compliance Certificate issued upon receipt of payment.

viii. Commence project.

The National Land Policy in Kenya of 2004 defines Historical Injustice as;

“ a land grievance which stretches back to the colonial land policies and laws that resulted in the disinheritance of communities from their land. Such grievances were not resolved upon the attainment of independence.”

They have persisted throughout the Kenyatta and Moi regimes. They remain sticking points in the efforts to development and nation building.

These are Provided for under Part XI of the Lands Act No 6 of 2012.

The National Land Commission, on behalf of the national and county governments, implement settlement programs to provide access to land for shelter and livelihood.( Sec 134 ) This include, but not limited to,

  • provision of access to land to squatters,
  • persons displaced by natural causes,
  • development projects,
  • conservation,
  • internal conflicts 

The NLC shall reserve public land for the establishment of approved settlement programs from,

  1. public land
  2. community land
  3. private land subject to the Public Procurement and Disposal Act, 2005 (No. 3 of 2005).

 

How Beneficiaries of Settlement Schemes are Identified

The identification of beneficiaries shall be carried out and verified by a Sub-County Selection Committee as per Sec 134 (4) comprising of:

(a) Sub-county administrator who shall be the chairperson;

(b) A representative of the county government, approved by the county assembly;

(c) A representative of the Commission;

(d) A national government representative;

(e) A representative of persons with special needs;

(f) A women’s representative nominated by a local women’s organization prescribed by the county government; and

(g) A youth representative prescribed by the county government.

Basis for Allocation of Land in Settlement Scheme ,Sec 134 (6)

  1. subject to planning and survey,
  2. in accordance with national values and principles of governance provided in Article 10 and
  3. the principles of land policy provided in Article 60(1) of the Constitution and
  4. any other requirements of natural justice.
  5. Beneficiaries of land in settlement schemes shall pay a sum of money as may be determined from time to time by the Commission and the body of trustees responsible for settlement matters. (Sec 134 (8)).

Restriction/Limitation on Sale or Transfer of Settlement Scheme Land (Sec 134 (7))

Any land acquired in a settlement scheme shall not be transferable except through a process of succession.

Land Settlement Fund

Sec 135 establishes a Land Settlement fund. The Fund shall be applied to the following purposes:

(a) Provision of access to land—

(i) To squatters;

(ii) To displaced persons;

(iii) For development projects;

(iv) For conservation; or

(v) Such other causes that may lead to movement and displacement of persons;

(b) Purchase of private land for settlement programs;

(c) Establishment and management of refugee camps;

(d) Provision of shelter and a livelihood to persons in need of settlement programs;

(e) Research, documentation and dissemination of information on settlement programs; and

(f) Any other purpose that would enhance the development and promotion of settlement programs that may be approved by the NLC.

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