Land law reform geared to greater efficiency

By Pravin Bowry

A little more than a month ago a legal revolution, largely unnoticed and unheralded, took place that will change Kenya forever and for generations to come – all courtesy of the Constitution.

Three different Acts dealing with land came into force on 2nd May, 2012 – The Land Registration Act, 2012 (Act 3 of 2012 ), The National Land Commission Act, 2012 (Act 5 of 2012) and The Land Act , 2012 (Act 6 of 2012). The new laws have made a complete break from the 110-year-old past land law regimes.

All titles in Kenya were registered under either the Governments Lands Act, Registration of Titles Act, Registered Land Act or the Land Titles Act – and all these colonial era Acts have been repealed. Other laws that have been repealed are the Indian Transfer of Property Act of 1882, The Wayleaves Act, and the Land Acquisition Act.

Substituting state ownership with citizens allowed a long lease or usufractary rights is the new concept resulting in redistribution of interests in land, reallocation and converting interests in land from almost four systems into one system of law and registration.  

Land law and practices can historically be divided into three eras  – the pre-colonial period i.e. prior to 12th August, 1897, the colonial period up to 1963, and then the post-independence.

The new laws have attempted to address not only the inequities, injustices, and dictatorial methods of allocation of all three eras but also considered the future.

Greater efficiency in land management through laws is being projected as a reinvigorated driving force for fundamental social and economic change.

Within ten years of enactment of the laws all lands in the country are destined to be registered – an utopian and whimsical idea, going by the 1963 Registration of Lands Act which had envisaged bringing all the registrations under one Act within 18 months – when even now the process was incomplete after almost 50 years.

Millions of citizens do not have registered lands despite having customary and usage rights hitherto protected by the of Trust Lands Act.

Mainstream courts

The Land Registration Act, 2012 gives the objects of the Act as “to revise, consolidate and rationalise the registration of titles to land and give effect to the principles and objects of devolved government in land registration and for connected purposes”.

The process of organisation and administration dispositions affecting land, leases charges transmissions and trusts, restraints on disposition and partitions is all provided for.

National Land Commission Act sets up the National Land Commission Act and effectively abolishes the Ministry of Land and the Land Office and will manage all public land on behalf of national and county government, set up land policies, advise national government on comprehensive programme for registration of title in land throughout the country.

The Commission is mandated to initiate investigations into present and historical land injustices.

The Land Act 2012, deals with the substantive law in one single legislative piece and lays down laws on community land, administrative and management of private land, general provisions on leases and charges, compulsory acquisitions, settlement programmes, easements and analogous rights.

The calendar for implementation is complicated and intricate and whether the deadlines set up will be accomplished will remain the challenge.

The Cabinet Secretary has to promulgate mammoth rules and regulations and forms under the Acts and supervise detailed transitional provisions on rights, liabilities and remedies of parties over land.

All the three Acts preserve and secure the sanctity of old titles and every action or dealing relating to the titles but the long leases, of say 999 years, are set to be reduced to 99 years with freehold titles becoming progressively obsolete.

The mainstream courts will make way in matters of all land disputes to be resolved by the Environment and Land Courts Act which now “is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land”.

The implementation and fine tuning of the new laws is likely to take a very long period and over thirty other pieces of land laws will need microscopic examination to bring various laws in conformity with the new Acts.

The enactment of the laws is undoubtedly a way forward.

The allocation of lands at the whims of the Executive and at the behest of the influential, the taking of public lands and exploitation of land as a means of getting rich overnight — especially during election periods — is likely to stop.

Ruthless efficiency

The massive schemes of corrupt practices at the higher levels, and lower down at the registration desks in land offices will now be under the review of the Commission and redress from the Commission may be sought hopefully more effectively then the Attorney General who in the past was responsible for all litigation on behalf of the Ministry of Lands.

If the National Land Commission works, as it should, with ruthless efficiency and fairness the economic wealth associated in land in the country will greatly and positively impact on the economic life of tomorrow’s Kenya.

Will the National Land Commission resolve hundred of disputes based on double or triple registration of prime lands? Will the 20,000 properties mentioned in the Ndung’u Report as touching public land be finalised? Will cases in court going on for decades brought to a speedy end?

All these are questions which the new laws will have to combat.

The writer is a lawyer. [email protected]