By Mumbi Mionki- Swao
The new land laws have ushered in a new era in land and property ownership in Kenya, which is a great leap forward for us as a country. However, confusion and debate abound, due to lack of clarity in the new laws.
In consolidating the Kenyan land laws, a number of Acts that previously governed land and property ownership were repealed and in their place we have the new land laws namely: The National Land Commission Act (NLCA), the Lands Act (LA) and the Land Registration Act (LRA).
The Acts repealed include: The Registration of Titles Act (RTA), the Registered Lands Act (RLA), the Government Land Act (GLA), the Land Titles Act (LTA), the Indian Transfer of Property Act (ITPA), the Wayleaves Act (WA) and the Land Acquisition Act (LAA).
Some of the questions developers (as indeed many land owners) are posing include:
What happens to my RLA/ RTA/ GLA/ LTA title?
The LRA provides that a grant or certificate of title under the RLA or RTA shall be considered to be a certificate of title or certificate of lease under the LRA from the effective date.
The process is more difficult if the title one holds is a GLA or LTA title, as the LRA provides that the Registrar shall as soon as conveniently possible cause the title “to be examined” and prepare a register in which shall be registered all registrable particulars affecting the particular title, serve upon the proprietors of any leases or charges there under a notice of intention to register then issue to the proprietor upon request, a certificate of title or certificate of lease in the prescribed form.
What happens to the incomplete transactions already entered in to under the previous land regime?
As regards transactions commenced before the new laws came into effect, the LRA provides that: an instrument executed before the commencement of the LRA for a disposition permitted under the LRA may be presented for registration in the laid down register and the registrar shall determine by reference to the laws in force at the time of execution whether or not that instrument shall be registered and subject to the provision just stated, the provisions of the LRA shall apply to that instrument as if it had been executed after the commencement of the LRA.
Another clause states that unless the contrary is specifically provided for in the LRA, where any step has been taken to create, acquire, assign, transfer or otherwise execute a disposition, any such transaction shall be continued in accordance with the law applicable to it immediately prior to the commencement of the LRA. It is not clear for these purposes what constitutes “any step”.
There are clauses that are contradictory in this regard. For example one states that on the effective date, the repealed Acts shall cease to apply to a parcel of land to which the LRA applies, whereas another states that any right, interest, title, power or obligation acquired, accrued, established, coming into force or exercisable before the LRA shall continue to be governed by the law applicable to it immediately prior to the commencement of the LRA. It therefore seems like a lot at this point has been left to the registrar’s discretion and is subject to interpretation.