Key changes introduced by the Land Laws (Amendment) Act, 2016 (No. 28 of 2016) to the Land Act, No. 6 of 2012
A brief outline of the key changes introduced by The Land Laws (Amendment) Act to the Land Act, No.6.
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 (No. 28 of 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 on the key changes introduced by Land Laws (Amendment) Act to the Land Act, No. 6 of 2012.
Lessee’s pre-emptive rights of allocation
Timelines have now been set in respect of the renewal of an expired leasehold tenure. The Commission is required to notify the lessee of the pre-emption rights of allocation within five years before the expiry of a leasehold tenure. Thereafter, the lessee has a period of one year from the notification to respond to it.
Pre-emptive allocation rights are still reserved only for the Kenyan citizens and only where the land is not required by the national or county government for public purposes. The amendment however does not provide for a mechanism to challenge the refusal to renew the lease.
Clarification of the roles of the National and County Government and the National Land Commission
Cabinet Secretary
The Cabinet Secretary has been granted the following additional powers:
- the power to provide policy direction regarding all classes of land in consultation with the National Land Commission (the Commission) where appropriate
- the power to provide to coordinate the development and implementation of a National Land Information System in collaboration with the Commission, and
- the power to administer and undertake all dealings including registration of private land interests subject to the provisions on compulsory acquisition.
National Government
The implementation of settlement programmes to provide access to land for shelter and livelihood shall now be carried out by the National Government as opposed to the Commission.
The National Land Commission
Reservation of public land for a purpose in the public interest is still being carried out by the Commission. The Commission is however now required to do any such reservation upon the request by the National or County Government. The Land Act now also provides that such an allocation does not prevent the reserved land from being allocated or developed.
The Commission is now required to maintain a register containing:
- the particulars of all public land converted to private land by allocation
- the names and addresses of all persons whose land has been converted to public land through compulsory acquisition or reversion of leasehold
- particulars of community land converted into public land, and
- such other details as the Commission may consider necessary.
The Land Act also now expressly provides that a lease or licence for public land shall be issued by the Commission and shall be registered by the Chief Lands Registrar.
Limitation on dealing with controlled land without the consent of the Cabinet Secretary
No transaction in controlled land, including a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary.
The term “controlled land” has been defined to mean land which is:
- within a zone of twenty-five kilometres from the inland national boundary of Kenya
- within the first and second row from high water mark of the Indian Ocean, or
- any other land as may be declared controlled land under any law or statute.
An “ineligible person” means:
- an individual who is not a Kenyan citizen
- the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such government or political subdivision, or
- a body corporate which has non-citizens as shareholders shall be deemed to be a noncitizen.
Contracts in respect of land
Section 38(1) of the Land Act is amended to provide that.
Other than as provided by this Act or by any other written law no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing, is signed by all the parties thereto and the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.
The deletion of the word “unless” alters the entire meaning of the section 38(1) of the Land Act. This must have been an oversight as a literal interpretation of this section would create absurd consequences. We expect this position to be corrected by courts and eventually the legislature.
The following contracts are however excluded from this requirement:
- a contract made in the course of a public action
- the creation or operation of a resulting, implied or a constructive trust, or
- any agreement or contract made or entered into before 21 September, 2016, provided that the verbal contracts shall be reduced to writing within two years from this date.
Non-Retrospective application
Section 78 of the Land Act is amended to eliminate the retrospective application of the Land Act in respect of charges save for the requirement to serve notice to spouses and other persons who were not required to be served under the repealed Acts of Parliament in the realization of any charge or mortgage.
Sale of land whose title has been deposited under an informal charge
A chargor is now prohibited from possessing or selling land whose title documents have been deposited by a chargee under an informal charge without an order of the court.
Priority of charges
Parties to a charge can now provide for the ranking of the charge within the provisions of the respective charge.
Taking possession of charged land
In taking possession of charged land after default by the chargor, the power of entry either peaceful or by use of reasonable force shall only be exercised after obtaining a court order.
Exercise of the Power of Sale
In a sale by a private contract, the chargee shall be entitled to rely on a valuation carried out by a valuer who is registered with the Institute of Surveyors of Kenya and the report shall in the absence of a manifest error, be conclusive in relation to the market price, provided that the valuation report shall at the time of sale be not more than six months old.
Calculation of interest on unpaid compensation
The rate of interest on unpaid compensation in respect of a compulsory acquisition shall be the base lending rate set by the Central Bank of Kenya prevailing at that time. Previously interest would have been based on the prevailing bank rates.
Land Settlement Fund Board of Trustees
The Land Act has been amended to include express provisions prohibiting unlawful occupation of private, community or public land. The amendments also sets out the procedure for eviction for any such unlawful occupants.
Easements and analogous rights
There no longer exists a power by the proprietor of a dominant land to cancel and extinguish of easements and analogous rights.
Prohibition of unlawful occupation of land and procedure for eviction
Unlawful occupation of private, community or public land is now expressly prohibited. The Act also now sets out a procedure for eviction for any such unlawful occupants.
Land Compensation Fund
The Land Compensation Fund has been abolished. The object and purpose of the abolished fund was to provide compensation to any person who, as a result of the implementation of any of the provisions of the Land Act by the National Government or County Government suffered any loss or deprivation or diminution of any rights or interests in land or any injurious affection in respect of any ownership of land.
Minimum and Maximum Land Holding Acreages
The Cabinet Secretary is now empowered to publish guidelines on the penalties for noncompliance with the provisions of Constitution and the respective legislation.
Conclusion
The Land Laws (Amendment) Act has also clarified a number of definitions, corrected minor typographical errors and attempted to ensure consistency in the various legislations governing land matters in Kenya.
