In 2010, the new Constitution of Kenya was promulgated which brought about it law reforms relating to land.
Firstly, it is important to define land.
The Constitution of Kenya, at Article 260, defines land as:
a) The surface of the earth and the subsurface rock;
b) Any body of water on or under the surface;
c) Marine waters in the territorial sea and exclusive economic zone;
d) Natural resources completely contained on or under the surface; and
e) The airspace above the surface;
It is also important to look at the different classifications of land, which include:
1 Freehold and Leasehold Land
a) Freehold land is the greatest interest a person can have on land as it gives the holder absolute ownership of the land for life. This means descendants can succeed the owner for as long as the family lineage exists. A freehold title deed generally has no restrictions as to the use or occupation.
b) A Leasehold interest in land is for a specific period subject to payment of a fee or rent to the grantor and does not give the holder absolute ownership.
2. Real Property and Personal Property
a)Real Property is fixed permanently to one location. This includes land and anything that is built on the land. It also includes anything that’s growing on the land or that exists under the face of the land.
b)Personal property is movable property. It’s anything that can be subject to ownership, except land.
The New Land Laws of Kenya
Chapter 5 of the Constitution introduced 3 categories of land which are:
1 Public Land – Article 62 of the Constitution – Public land has a vast definition but it includes land occupied by a State organ, land transferred to the State, land to which no heir can be identified, minerals, forests, reserves, national parks, water catchment areas, sea, lakes, rivers, land between high water mark and low water mark, any land not classified as private land or community land. Public land is held by the Government in trust for the people of Kenya.
2 Community Land – Article 63 of the Constitution. It is land lawfully registered in the name of group representatives, land lawfully transferred to a specific community and any land declared to be community land by an Act of Parliament.
3 Private Land – Article 64 of the Constitution – This is registered land held by any person under freehold tenure, land held by any person under leasehold tenure and any other land declared private land under any Act of Parliament.
Highlight of the Key changes of Land Laws
1 OWNERSHIP OF LAND BY NON-KENYAN CITIZENS –Under Article 65 of the Constitution, non-citizens can only hold land for a period of 99 years under a leasehold tenure. This essentially means that a non-citizen cannot hold freehold property.
2 REPEALING OF EARLIER STATUTES– Previously, there were 7statutes relating to land which were repealed and consolidated into three main statutes being:
a) Land Act, 2012 – The Act consolidates various laws on land into one substantive law governing land in Kenya.
b) Land Registration Act, 2012 – It provides for the revision, consolidation, and rationalization of the law governing the registration of title to land, regulation of dealings in registered land and to give effect to the principles and objects of devolved government in land registration.
c) National Land Commission Act, 2012 – The ambit of the Act is to provide for the functions of the Commission, qualifications, and procedures for the appointment of members of the commission, including the Chairperson. It is essential to note the provisions of clause, as the National Land Commission is designated to play a pivotal role in land management and administration and take over most of the functions that were hitherto the preserve of the President and the Commissioner of Lands.
3. SPOUSAL RIGHTS:- Section 93 of The Land Registration Act provides for spousal rights and also provides 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 recognized as if it is registered against the title to the land.
4. CONSENT OF SPOUSE REQUIRED FOR DISPOSITION OF LAND:-Section 93 of the Land Registration Act also provides that where a spouse who holds land or a 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. This would also be applicable when a person wishes to lease his/her land. The requirement for spouse’s consent extends to all land and is not limited to matrimonial property.
5. PROTECTION OF TENANTS UNLAWFULLY EVICTED: A tenant who is evicted contrary to the terms of his lease is immediately relieved of the obligation to pay rent or other monies due under the lease or from performance of any covenants of the lease.
6. DIFFERENT SYSTEMS OF REGISTRATION OF TITLES: Under the old land law, title deeds were issued under one of the following statutes, which have now been repealed:
• The Registered Land Act (RLA);
• The Registration of Titles Act (RTA);
• The Land Titles Act (LTA); and
• The Government Lands Act (GLA)
However, Title deeds issued under the RLA and RTA continue to be valid notwithstanding the new laws.
7. NON-EVICTION OF A PURCHASER IN POSSESSION– Under the new law, when a purchaser takes possession of land prior to completion of the sale, the vendor can only regain possession peaceably (no resistance from purchaser) or through a court order. In addition, the purchaser is entitled to relief from court in certain circumstances.
8. FORMATION OF AN ENVIRONMENT AND LAND COURT: The Environment and Land Court will have jurisdiction to hear and determine disputes related to land.