By Harold Ayodo
A Gazette Notice has thrown the administration of community land into confusion.
The Gazette Notice Vol CXV-No 96 dated June 28, 2013 shows that the Commissioner of Lands Zablon Mabeya continues to dish out community land despite restraint detailed in the Constitution. Constitutionally, the Commissioner of Lands should have quit office two years ago.
However, the Gazette Notice indicates that the Commissioner of Land set aside approximately 88.3533 hectares of land at Masalani, Tana River under the Trust Land Act.
The land is situated about seven kilometres to the south of Majengo, Masalani Township. The Notice reads: “Notice is given that the land described on the Schedule hereto has been duly set apart in accordance with the provisions of Part IV of the Trust Land Act, for the purposes specified in the said Schedule.”
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Even as the Government continues to publish notices from the Commissioner of Lands, property lawyers are concerned that there seems to be a vacuum in the administration of land even after the recent enactment of a set of new laws — The Land Act, Land Registration Act and the National Land Commission (NLC) Act.
Ironically, the office of the Commissioner of Lands is established under the Government Lands Act, which was repealed under the Registration of Land Act. Legally, therefore, there is no office known as the Commissioner of Lands. So his action of setting aside community land is clearly illegal and open to challenge.
Moreover, the Constitution is clear that community shall not be disposed of unless community land legislation has been enacted. The question now is whether this action, by the commissioner, is an attempt to circumvent the Constitution.
The confusion and ironies in land law and property transactions started after Parliament passed and Gazetted the National Land Commission Act, Land Act and Land Registration Act last year.
The new laws abolished traditional property legislations like the Indian Transfer of Property Act (1882) and the Government Lands Act. Others included the Registered Land Act, Land Titles Act and the Registration of Titles Act.
A circular from the Commissioner of Lands to senior lands officials countrywide obtained by this column exposes this confusion. Mabea admits in the circular (Ref: GEN/F/1/VOL IV) dated June 18, 2012 that players in real estate are perplexed.
The subject was 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. “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 continues in the circular.
He further says that land registers kept by registries remain legal until a corresponding land register is put in place. Mabea says in the circular copied to then Minister for Lands James Orengo and PS Dorothy Angote that registration procedures have not changed. The circular was also copied to the Law Society of Kenya chairman Eric Mutua and the chief land registrar.
According to Section 108 of the LRA, form of 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. The Commissioner of Lands also told senior lands officials countrywide that long-term leases on land shall continue.
He further directed senior lands officials countrywide not to reject documents presented for registration during the transition period.
Instead, he ordered that they refer confusing matters to the Chief Land Registrar for clarification rather than reject them in the pretext of new land laws. “It is of outmost importance that every Lands registrar takes the initiative to read and understand three new laws on land,” Mabea directed.
— The writer is an advocate of the High Court.