The Land Laws (Amendment) Act, 2016 (No. 28 of 2016) to the Land Registration Act, No. 3 OF 2012

This briefing has been published by Lorna Mainnah and Carol Thuo-Mwaniki of Hamilton, Harrison & Matthews, Kenya, who have agreed to Simmons & Simmons making it available to elexica subscribers.

Introduction

The Land Laws (Amendment) Act, 2016 was assented to by the President on 31 August, 2016 and came into effect on 21 September, 2016. The following is a brief outline of the key changes introduced by The Land Laws (Amendment) Act, 2016 (No. 28 of 2016) to the Land Registration Act, No. 3 of 2012 (the Act).

Clarification of the roles to be played by various bodies

The responsibility to come up with land registration units has now been vested with the Cabinet Secretary and not the National Land Commission (the Commission). The Cabinet Secretary is however required to consult with the Commission and the respective County Government in performing this task.

The function of issuing an order in the Gazette for the notification of the creation of a land registration unit has also been vested with the Cabinet Secretary instead of the Commission

The Cabinet Secretary has taken up the function of determining the form of the register under the Act from the Commission.

The Chief Land Registrar has now been given the following additional functions:

• formulating practice instructions and guidelines for implementation of the land registration policies
• setting standards for the registries
• supervising the registries
• preparing and submitting an annual report on the state of land registration to the Commission and the Cabinet Secretary
• hearing and determining appeals from the registries
• approving the formatting of any instrument which is not in accordance with the prescribed form, and
• performing such other functions or duties as may be provided under any written law.

Particulars of the register

The Act now provides the land register shall include the following features:

• the property section
• the proprietorship section
• the encumbrance section
• the user of the land, and
• any other feature required under any law or otherwise considered necessary by the Cabinet Secretary.

Embracing of new technology

There is a step towards embracing new technology as details such as passport numbers, telephone numbers and email addresses where applicable, should be included in the registers maintained under the Act.

Introduction of new offices and clarification of roles played by various office holders

The Act introduces the offices of the Deputy Chief Land Registrar, County Land Registrars, and Land Registrars and their various qualifications.

The Deputy Chief Land Registrar shall be the principal assistant of the Chief Land Registrar in the execution of the functions of the Chief Land Registrar.

The County Land Registrar is in charge of administering the registries within his or her respective county.

Power to alter boundary lines and preparation of new editions

Previously, the process of alteration of boundaries could only be effected on the written instructions of the Registrar. The position now is that an amendment can be made based on an approved subdivision plan, approved combination plan or any other approved plan necessitating the alteration of the boundary.

The notification to the registrar will now be done by the submission of the rectified cadastral map and all the approvals that necessitated the amendments.

Spousal consent, done away with?

It is worth noting that spousal rights over matrimonial property are no longer categorised as overriding interests. An overriding interest is an interest to which a registered title is subject, even though they do not appear in the register. Overriding interests are binding on both the registered proprietor and on a person who acquires an interest in the property.

Section 93 of the Land Act, “Subject to any written law to the contrary, if a spouse obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses or all spouses, such property shall be deemed to be matrimonial property and shall be dealt with under the Matrimonial Property Act.”

Accordingly, as much as spousal interests have been removed as overriding interests and section 93 amended, spousal interest is protected to the extent that the disposition of matrimonial property will require spousal consent under the Matrimonial Property Act. It is likely that any person who claims that spousal consent does not apply by virtue that the property was obtained prior to his/her marriage will have to prove this.

Certificate of Lease

The minimum lease term for the issuance of a Certificate of Lease has been reduced from 25 years to 21 years.

Dispositions and dealings affecting land

Limit within which application for registration can be made without a penalty

The Act now limits the time within which documents should be presented for registration without a penalty to three months from the date of the instrument.

Any registration to be made after the three months will incur a penalty of an amount equal to the registration fees for each of the three months which have elapsed since the date of the instrument. The penalty shall not however exceed two times the original registration fees payable.

Priority of instruments on registration

Interests appearing in the register shall have the following priority:

• priority according to the order in which the instruments were presented to the registry irrespective of any delay in making the actual entry
• an instrument prepared in the registry shall be deemed to be presented on the date on which the application was made to the registrar
• instruments sent by post or under cover and received during the hours of business shall be deemed to be presented simultaneously immediately before the closing of office that day
• instruments sent by post or under cover and received between the time of closing and the next opening of the office for business shall be deemed to be presented simultaneously immediately after such opening, and
• where more than one instrument or application are presented on the same day such that in the opinion of the Registrar there is doubt as to their order of priority, the Registrar shall reject the registration and shall inform the applicants of such rejection.

Suspension period

A period known as a suspension period has been introduced under section 14(8) of the Land Registration Act.

The suspension period is a period of fourteen days from the time when any person proposing to deal with registered land has, with the consent in writing of the proprietor, applied for an official search and has stated in his application the particulars of the proposed dealing. The registration of any instrument affecting the land to be comprised in or affected by the proposed dealing shall be stayed for this period. A note shall be made in the register accordingly.

If a properly executed instrument affecting the proposed dealing is presented for registration, within the suspension period, the instrument shall have priority over any other instrument which may be presented for registration during the suspension period.

Merger of interests

Where on the registration of an instrument relating to a disposition under the Land Registration Act, the interests of:

• a lessor and lessee
• chargor and chargee, or
• the proprietor of a parcel which is burdened with an easement, a profit or restrictive agreement and the proprietor of a parcel which benefits from the easement, profit and agreement, vests in the same proprietor,

the interests shall not merge unless a surrender or discharge is registered or the parcels are combined or there is a declaration of merger, which may be contained in the instrument evidencing the disposition.

Execution of documents

The Act now provides for the execution of instruments by a corporate body, association cooperative society or other organisation in accordance with the applicable law, that is, the Companies Act, the Co-operative Society Act or any other Act in place.

Further, an instrument executed outside Kenya shall not be registered unless it has been endorsed or is accompanied by a certificate in the prescribed form completed by a notary public or such other person as the Cabinet Secretary may prescribe.

Previously, the Act allowed a judge, magistrate, notary public, or commissioner for oaths to complete such a certificate for instruments executed in the commonwealth and the Cabinet Secretary was to prescribe the class of persons for other countries outside the commonwealth.

In addition to a copy of an identity card or passport, a copy of a Personal Identification Number certificate, passport size photographs, a marriage certificate (where applicable), the Act now requires a transferee to also attach a copy of the certificate of incorporation, in the case of a corporate entity.

Presumption of tenancy in common

Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares.

Conclusion

There have been other amendments aimed at eliminating discrepancies between the various Acts dealing with land and correction of minor typographical errors. The amendments have also clarified the role of the Cabinet Secretary on certain matters.