By Harold Ayodo

Confusion has gripped property transaction procedures in real estate following enactment of new land laws.

Practising conveyancers (property lawyers) and commercial banks are among stakeholders caught up in the puzzle over transition from old to new property laws.

The conveyancers who form a pivotal part of property transactions are torn in between legal procedures of the old order and the new dawn.

Conveyancing (transfer of property) involves legal procedures that must be followed to the letter.

Confusion embarked after Parliament passed and gazetted the National Land Commission Act (2012), Land Act (2012) and Land Registration Act (2012) on May 2.

?Legally, the new laws abolished traditional property legislations like the Indian Transfer of Property Act (1882) and the Government Lands Act.

Other abolished laws include the Registered Land Act, Land Titles Act and the Registration of Titles Act.

A circular from Commissioner of Lands Zablon Mabea to senior lands officials countrywide exclusively obtained by Home & Away exposes the confusion.

Mabea admits in the circular (Ref: GEN/F/1/VOL.IV) dated June 18 that players in real estate are perplexed.

The subject is ‘Practice Instructions’ and reference National Land Commission Act No. 5 of 2012, Land Registration Act No 3 of 2012 and Land Act No.6 of 2012.

Legal Conundrum

“Advocates, banks and other conveyancing practitioners have raised questions after passing of the new land laws,” Mabea says.

According to the Commissioner of Lands, the format of documents to be presented for registration during the transition period is the major source of concern.

“Many of our officers are uncertain over the new procedures before the Cabinet Secretary makes the regulations in line with the new law,” Mabea says.

However, in the circular to land registries, registrars of title and government land countrywide, Mabea provides guidelines to the senior officials.

“Section 105 of the Land Registration Act (LRA) recognises the existing title deeds until a new form is put into place,” Mabea says.

He further says that land registers kept by registries countrywide remain legal until a corresponding land register is put in place.

There are also concerns that the requirement for geo-referencing would cause practical difficulties to registered transactions and those already submitted for registration.

Clarifications done

“Kindly note that Section 107 of the LRA allows lease instruments to proceed for registration without geo-referencing,” the Commissioner of Lands says.

Mabea says in the circular copied to the Minister for Lands James Orengo and Permanent Secretary Dorothy Angote that registration procedures have not changed.

The circular was also copied to the Law Society of Kenya (LSK) chairman Eric Mutua and the Chief Land Registrar.

According to Section 108 of the LRA, documents presented for registration will not change during the transition period.

The new procedures will only take effect after rules, orders, directives and notices are put in place by the Cabinet Secretary.

“Practitioners can make alterations, adaptations, qualifications and exceptions to bring their documents in conformity with the Act,” says the circular.

Consequently, conveyancers would be required to draw legal documents in line with the Land Act and the Land Registration Act.

The Commissioner of Lands also told senior lands officials countrywide that long term leases on land shall continue.

He directed that registration of the leases continue until the director of durvey puts in place the new system of geo-referencing.

“Registration documents in our registries countrywide shall continue pending the gazettment or new procedures, regulations and forms underway,” Mabea says.

The Commissioner of Lands further directed senior lands officials countrywide not to reject documents presented for registration during the transition period.

Instead, he ordered that they refer confusing maters to the Chief Land Registrar for clarification than reject on the pretext of new land laws.

“It is of outmost importance that every lands registrar takes the initiative to read and understand the three new laws on land,” Mabea directed.

The new legislations are the National Land Commission Act No 5 of 2012, Land Registration Act No 3 of 2012 and Land Act No 6 of 2012.

The writer is an advocate of High Court of Kenya. hayodo@standardmedia.co.ke