CONVEYANCING LAW

ATP 107

ASSIGNMENT 1

FIRM 7

LIST OF MEMBERS

NAME STUDENT NUMBER

1. Sharon Manyarkir Jerotich 20191357
2. Karen Njeri Wanjiku 20190106
3. Benson Nyaga Kinyua 20190261
4. Sammy Kamau Mwangi 20190623
5. Ivy Natalie Shiechelo Omondi 20190658
6. Rosalia Mumo Musyoka 20190772
7. Christine Waruguru Mithi 20191300
8. Dennis Muindi Matheka 20191454
9. Elizabeth Nyakinyua Mwangi 20191532
10. Ivy Mutiso Kalekye 20191649
11. Hakim Suleiman
12. Kevin
ACQUISITION OF LAND TITLE UNDER SECTION 7 OF THE LAND ACT 2012

Under Section 7 of the Land Act, the following are the methods of acquiring land title;

1. Allocation
2. Land adjudication process
3. Compulsory acquisition
4. Prescription
5. Settlement programs
6. Transmissions
7. Transfers
8. Long term leases of over 21 Years created out of public land

1. ALLOCATION

Definition

Section 2 of the Land Act defines allocation as ‘the transfer of public land by the government to
individuals usually on lease hold basis for a specified period of time and subject to specific
conditions’.

Ways of Acquisition by Allocation

Section 12(1) of the Land Act provides for ways in which land allocation can be carried out.
They are as follows;

a) Public auction.
b) Application by a target group aimed at lifting their lot.
c) Tendering for the allocation.
d) Drawing of lots.
e) Public Request for Proposals.
f) Public exchanges of equal value private land for public land.
Section 12(1) also provides for land that cannot be allocated. They are;

a) Public land prone to erosion, floods, earth slips or water logging

b) Forests, nature reserves, mangroves, wetlands, and other environmentally sensitive areas
c) Watersheds, catchment areas, public water reservoirs, lakes, beaches, fish landing areas
and the sea
d) Land reserved for security, education, research and other strategic public use
e) Natural, cultural and historical land with exceptional national value
f) Land reserves
g) Other Gazetted Public land

Procedure of Acquiring land by way of Allocation

The procedure for allocation is provided in the Land (Allocation Of public Land) Regulations
(Legal Notice No. 284)

1. Notice

The Commission will issue a 30 day notice stating the conditions, reservations, covenants etc
relating to the allocation. It will advertise the plots for allocation or vets targeted allottees in the
event it is required. This notice shall have a 15 day window to accommodate public comments
and debate. As stated in Section 12(1) of the Land Act 2012, there are various methods used by
the Commission. They are;1

 Public auction
 Direct allocation to specially targeted group of persons
 Public notice of tenders
 Public drawing of lots
 Public request of proposals
 Public exchanges of equal value
The commission shall at least 30 days before the allocation of public land notify the Governor of
a County where land is set to be allocated of its intention to allocate the land. The 30 day Notice

1
Land Act 2012. Section 12(1)
shall be gazetted at least once a week over a 21 day period and shall be published in a national
newspaper of wide circulation. The notice shall capture the following aspects:-

- The Place, date and time of allocation

- The appraised value of the land

- A clear and particularised description of the land

- Terms of the allocation

After the said process, the persons allocated with the land are obliged to accept the offer of
allocation from the National Land Commission. This was seen in the case of Ahmed Obo v
Kenya Airport Authority2

Thereafter, the certificate of lease is issued to the allottee.

2. LAND ADJUDICATION PROCESS

Definition

Adjudication is defined as the process of ascertaining rights as well as interests on land within
the trust land areas, ownership transformation from the previous customary tenure to ownership
by either an individual or a group through the processes of demarcation, survey and registration.3

Statutes

(i) Land Act 2012

(ii) Land Adjudication Act Cap 284 of 2012- Primary legislation that provides for the process
of land adjudication in Kenya. It repealed the Land Consolidation Act.
(iii)Legal Notice 278 of 2017- Section 24 outlines the process of first registration of land
after adjudication.

2
Ahmed Obo v Kenya Airport Authority (2013)eKLR
3
Ministry of Land and Physical Planning ‘Department of Land Adjudication
Settlement’<http://lands.go.ke/department-of-land-adjudication-settlement/> on 25/02/2019.
Procedure of acquiring title through land adjudication

a) Appointment of an adjudication officer (Section 4)

Appointment is made by the Cabinet minister (Ms. Farida Karoney) for lands. Appointment of
the adjudication officer/public officer is by way of notice in the Kenya Gazette. The public
officer is responsible for a particular adjudication area.

The public officer in turn appoints through writing, demarcation officers, survey officers, and
recording officers whose duties includes; demarcation, survey and recording of interests in land
within a specific adjudication area.

b) Adjudication sections establishment (Section 5)

Adjudication is established either as an;

 Adjudication section within a specified adjudication area or;

 A whole adjudication area as an adjudication section.

A notice of the adjudication area or section is published separately with precision to include;

 The possible area of adjudication.

 Ascertained and recorded interests in land within the adjudicated area or section.
 A period within which interests in land within the specified area/section shall be made in
person/ an agent (duly authorized in law including the customary law.

c) Appointment of adjudication committee

The committee (appointed by the District Commissioner) is comprised of not less than ten
members (residents within the adjudication section).

The Adjudication officer then appoints within each committee, an executive officer who keeps
records as well as informing the recording officer of any decisions that are made by the
committee.
Appeals from the committee of decisions made by the adjudication officer are made to the
Cabinet Secretary then to the Environmental and Land Court.

d) Appointment of arbitration board

The board is appointed by the Provincial Commissioner by requesting the adjudication officer.
The panel consists of not less than six and not more than 25 members. All members must be
residents of the particular adjudication area.

From the panel, the adjudication officer may appoint through writing, not less than five persons
who will oversee a particular issues arising from the adjudication section within the adjudication
area.

An executive officer is also appointed by the adjudication officer to record and inform the
recording officer of all the decisions made by the board. The Executive officer is allowed to
speak in particular meetings of the board but cannot vote.

e) Formulation of the adjudication register

The adjudication register is made up of; demarcation map and the adjudication record.4 The
register contains a record of interests in land as well as rights within the adjudication section.

f) Demarcation (Section 13)

Claims of interests in land within the adjudication section are made to the recording officer. The
person should point out their boundaries to the demarcation officer.

g) Completion of adjudication record (s.25)

Once the adjudication register has been completed, a certification on both the demarcation map
and record are made by the adjudication officer. The officer delivers a duplicate of the
adjudication record to the Director of Land Adjudication.

Objections to the dully completed adjudication record are made under two premises; incorrect
and incomplete register. The objection should be made within sixty days.

4
Land Act 2012, section 24
If there is no objection, a No Objection Register shall be prepared and delivered to the Director
of Land Adjudication. The Director certifies the adjudication register and forwards it,
accompanied with the ‘No Objection Register’ to the Chief Land Registrar for registration

h) Registration

After receiving the adjudication register, the Chief Land Registrar shall cause registration

3. COMPULSORY ACQUISITION

Definition

Compulsory acquisition, also referred to as the doctrine of eminent domain is the power that the
state derives from the Constitution, which gives the state or assigns compulsory acquisition also
referred to as the doctrine of eminent domain is the power that the state derives from the
constitution, which gives the state or assigns the right to compulsory acquire land for public
purposes from the private rightful owners of the land.5 The property may be taken either for
government use or by delegation to third parties, who will offer it to public use or in other cases
to economic development. The Eminent Domain Doctrine provides that a state is the ultimate
owner of all land within its jurisdiction and that the individual only has a special title while the
state holds radical title to the land; therefore the state can compulsory acquire land in private
hands for public purpose and in public interest.

There are three main considerations that have to be met for compulsory acquisition to be justified
by a state:

1. The expropriation has to be for a public purpose. It therefore prevents abuse of the State’s
powers. As illustrated in the case of Joseph K Nderitu and 23 others v Attorney General
and 2 others Constitutional Petition. No. 29 of 2012. , the court held that all persons
have the right to property and property can only be compulsorily acquired for a public
purpose or in the public interest. The case of Patrick Musimba v National Land
Commission & 4 others outlined that public purpose must be direct and not remote or

5
Land Act 2012, section 2.
 fanciful.6 Section 2 of the Land Act (Act No. 6 of 2012) goes ahead to define public
purpose to include: infrastructure such as roads, public buildings, religious institutions,
public utilities, and any other analogous public purpose. Hence, public purpose fails and
the land acquired is no longer needed for this purpose. Section 110(2) of the Land Act
provides that the original owner of the land has pre-emptive rights to the land; the NLC
must offer him/her the land for sale first, before anyone else and such owner shall use the
money which was given to him as compensation to re-acquire the land.
2. The government has to pay just compensation.
The role of compensation is to repay losses suffered by the original owners of the land. This
aspect is based on the principle of equivalence, which provides that affected landowners should
neither be enriched nor impoverished as a result of compulsory acquisition. However
compensation will not be equivalent to the compulsory sacrifice as it was held in the case of
Horn v Sunderland Corporation [1941]. In Kanini Farm Ltd v Commissioner of Lands (1986)
eKLR , just compensation was equated to be the market value of the land. Market value meaning
the price which a willing seller might be expected to obtain from a willing reasonable purchaser.
The government should pay the compensation to those with an interest in the land, immediately
and without delay however the law fails to stipulate a clear time frame for the payment of
compensation which promotes delayed payments. As illustrated in the case of Mathatani Limited
v Commissioner of Lands (2013) eKLR. The court held that the compensation paid to the
claimant after four years of the acquisition, was null and void. It was not prompt and therefore
did not amount to just compensation.
3. The land must be private property.
4. The state must have the capacity to take physical possession of the property. They can not
acquire that which is intangible.

The National Land Commission is mandated to compulsorily acquire land on behalf of the
national or county government only upon request. The request is made by order in the
government gazette to reserve public land in question. It is also mandated to set aside land for
investment purposes which may include land for mining projects and gas.

6
(2016) eKLR
Statutes

Land acquisition in Kenya was governed by provisions of the Land Acquisition Act, Cap 295
laws of Kenya until 2012 when it was repealed by the enactment of the Land Act, 2012. The
Land Act provides conditions under which private land would be acquired and methods of
acquisition. The Land Act, 2012 under section 111 provides for just compensation paid promptly
in full to all persons whose interests in land have been determined only if land is acquired
compulsorily under this Act.

The Community Land Act, 2016 establishes that community land may be converted to public
land by compulsory acquisition under Section 22(a).7 The Act provides that subject to the
Constitution and the Land Act, no right over community land may be compulsorily acquired by
the state except with the law, for a public purpose and upon payment of just compensation to the
person or persons, in full or by negotiated settlement (Section 5(2)).The Act also outlines fair
compensation of persons affected through compulsory acquisition. It insinuates that there is a
need to establish the criteria for determining value of land whether registered or unregistered.
This is a new phenomenon mainly because most valuations for compensations have been
effected on formally registered interests in land. However this legislation does not provide for
mechanisms to be used in the fulfilment of fair compensation. Therefore, there exists a need of
clarification law for this process to be legally admissible in courts of law.

The Constitution of Kenya embraces the protection of right to property, Article 40(3) provides
that a state shall not deprive a person of property of any description, or of any interest in, or
right over, property of any description unless the deprivation is for public purposes or public
interest. And that it should be carried out in accordance with the Constitution and any Act of
Parliament. It goes ahead to provide for prompt payment of full and just compensation to the
land owners. Further, Article 40(4) also provides that compensation should also be paid to
occupants of acquired land in good faith who may not hold title to the land.

7
Community Land Act 2016, Section 22(a)
Process of Compulsory Acquisition of Land

1. Preliminary Notice: The Cabinet Secretary or the County Executive Committee member
shall submit a request for acquisition of public land to the commission to acquire the land
on its behalf.
2. Prescribe criteria and guidelines: The commission prescribes criteria and guidelines to
be followed in the acquisition of land.
3. Approval / Decline of request: The commission may reject a request of an acquiring
authority to undertake an acquisition if the request does not meet the requirements
prescribed under subsection (2) and Article 40(3) of the Constitution. The commission
shall provide reasons and condition as to the decline.

4. Notice of acquisition: Upon approval of a request, the Commission shall publish a notice
in the Gazette and the County Gazette and shall deliver a copy of the notice to the
Registrar and every person who appears to the commission to be interested in the land.
5. Registration of the Intended acquisition: Upon service of the notice, the registrar shall
make an entry in the register of the intended acquisition.
6. Survey: All land to be compulsorily acquired shall be geo-referenced and authenticated
by the office or authority responsible for survey at both National and County government.
7. Inspection: The commission may authorize any person in writing to enter upon such land
in a notice to inspect the land and ascertain whether the land is suitable for the intended
purpose. The authorisation to enter shall be given once CONSENT has been granted by
the occupier and that it was served on the occupier not less than seven days written of the
intention to enter.
8. Compensation in case of damages during inspection: The commission shall promptly
pay in full, just compensation for any damages resulting from entry.
9. Notice of acquisition and effect of acquisition on plant and machinery: Land may be
acquired once the commission certifies in writing that land is required for public purposes
or in the public interest.
10. Compulsory Acquisition fails: The commission may offer the original owners or their
successor’s title once the interest justifying the compulsory acquisition fails.
11. Payment of Compensation: Just compensation shall be paid promptly in full. This shall
be guided by the commission’s rules regulating assessment of just compensation.
12. Inquiry of compensation: Commission appoints a date for an inquiry to hear
compensation claims by interested persons in the land. Notice of inquiry shall be
published in the Gazette or county gazette at least 15 days before the inquiry and a copy
of the notice should be served on every person who appears to the commission as an
interested party to the land.
13. Submission of written claims for compensation: Persons interested in the land shall
deliver a written claim of compensation to the commission not later than the date of
inquiry. The commission may postpone and adjourn hearings, summon and examine
witnesses, administer oaths and affirmations and compel production and delivery to the
commission of documents of title to land.
14. Award of compensation; through a written award, a commission shall make separate
award of compensation for every person who has an interest in the land. The award shall
be final and conclusive evidence of size of land and the value of the land amount payable
for compensation.
15. Notice of award; shall be served to all interested persons in the land. Such persons may
receive a grant of land not exceeding in value the amount of compensation instead of
receiving an award.

16. Payment of compensation; Commission shall promptly pay compensation in accordance

with the award to the persons entitled except in a case where there is no person competent
to receive payment, person entitled does not consent to receive the amount awarded or
there is a dispute as to the right of the persons entitled to receive the compensation or as
to the shares in which the compensation is to be paid. In such instances the Commission
may pay the amount of the compensation into a special compensation account held by the
Commission, notifying any persons interested accordingly.
17. Payments in error; the Commission may, by notice in writing served on that person,
require that person to refund to the Commission the amount received, and the amount
shall be a debt due from that person to the Commission.
 4. PRESCRIPTION

Definition

Prescription is a form of easement or acquisition of title gained under what was formerly referred
to as the principle of adverse possession, which is where an individual, or otherwise a group of
persons, gains absolute title to real property through the occupation of said piece of land for a
period no less than 20 years and without any opposition.

The rationale behind prescription is that, since the owner of the land has failed to protect his/her
land against the adverse possessor who has taken possession for 20 years, the adverse possessor
is therefore recognized as the owner. It was held in the case of Athman Bwana and Alim
Bwanahave v Haji Abdulla Ibrahim and Husein Haji Abdulrehman that ‘there must be actual
possession which requires some sufficient degree of physical occupation for the requisite
period’.8

Related Statutes

The Limitations of Actions Act is the main Act with provisions on prescription. The same is
provided for in Section 32(1) and (2). It states that;

(1)Where, (a) the access and use of light or air to and for any building have been enjoyed with
the building as an easement; or (b) any way or watercourse, or the use of any water, has been
enjoyed as an easement; or (c) any other easement has been enjoyed, peaceably and openly as of
right, and without interruption, for twenty years, the right to such access and use of light or air,
or to such way or watercourse or use of water, or to such other easement, is absolute and
indefeasible.

(2) The said period of twenty years is a period (whether commencing before or after the
commencement of this Act) ending within the two years immediately preceding the institution of
the action in which the claim to which the period relates is contested.

8
Athman Bwana and Alim Bwanahave v Haji Abdulla Ibrahim and Husein Haji Abdulrehman, (1948) 15 EACA.
 5. SETTLEMENT PROGRAMMES

Land settlement is the sub-division of large tracts of land into smaller economically viable
agricultural settlement plots.9 The plots are then allocated to unemployed and landless Kenyans.
Land settlement was mostly witnessed during the post-colonial period following Kenya’s
independence where thousands of Kenyans were left landless after the colonial rule.

Section 2 of the Land Registration Act defines allocation of land as the legal process of granting
the right to public land. Under the current Ministry of Lands, there are two departments namely;
the land adjudication department and the settlement department. The settlement division deals
with the acquisition, planning, demarcation, survey and allocation of economically viable lands
to the landless, poor and unemployed Kenyans.

6. TRANSMISSIONS

This is another way in which one can acquire title as provided under section 7 of Land Act. The
word transmission has been explained to mean the passing of land, lease or charge from one
person to another by operation of law.10 Transmission is another type of conveyancing done on
the behalf of a proprietor because he/she is unable to do the transfer by himself. This is often
upon the proprietor’s death, insolvency or bankruptcy.
a) Transmission on land upon the death of proprietor

This is done through the process of succession. There are two types of succession the testate
succession and intestate succession.

A. Testate succession

The procedure of acquiring the grant of probate is;

1. Acquisition of Death certificate:

A death certificate is a document used as prove of death of the proprietor of land or any other
asset. A person seeking to obtain a death certificate is required to approach the registrar of births

9
Ministry of Lands and Physical planning, < http://lands.go.ke/programmes-and-projects/> accessed on 26/02/2019
10
Tom O. Ojienda, Principles of Conveyancing in Kenya : A Practical Approach,2007
and deaths in their respective sub-counties together with a burial certificate together with the
deceased’s identity card and a letter from the chief where necessary. Where the death occurred
before the enactment of the registration of deaths and births, the registrar will issue a
confirmation of death through a letter that relies on information given by the chief and indicate
the time of death.

2. Petition through Valid will to the High Court:

In instances where there is a valid will, the petitioner may approach the court for grant of probate
to execute the will then administer the estate in accordance with the will. A probate is an
enforceable court order to be followed by the executor to the letter. It gives the executor the
authority to deal with the property of deceased in accordance with the provision of the will.

B. Intestate succession

In the absence of a will, the process of intestacy commences. The rules of intestacy determine
who is entitled to the property of the estate of an intestate (person who died without a will).

(i) Letter of the chief identifying the liabilities, spouses and heirs

The process commences with a letter from the local Chief which identifies the facts of the
deceased’s estate and the spouses and heirs. The letter may mention liabilities where it’s
necessary. Liabilities may include people who are owed money by the deceased or people who
had purchased part of the land. The Chief’s letter is always addressed to the court. The Chiefs are
entrusted with this mandate because they are closer to the family and are aware of all the
relationships in the family of the deceased.

(ii) Filling of Petition for letter of administration intestate (Form P&A 80):
Upon presenting the Chief’s letter, searches and death certificate to the court, the applicant is
allowed to file an official petition or a formal request to the court to be appointed as an
administrator of the deceased’s estate. The applicant does this by filling form P& A80 called
petition for letters of administration intestate. This petition is either attested by a lawyer or a
magistrate.
 (iii)Filling of Affidavit in support of petition for letter of administration intestate (Form
P&A 5):
This is a sworn affidavit which confirms the facts of the case, the estate and the heirs as
contained in the chief’s letter. This affidavit turns the chief’s letter into a sworn statement made
by the applicant(s) adoptable in law. The petitioner is required to appear before the judge in
person with witnesses to confirm to the content of the petition and the claim therein.

(iv) Guarantee by Personal Sureties (Form P&A 57):

This form is filled by people who know the applicant, the estate and the heirs very well and
constitutes a guarantee by the guarantors to ensure that the petitioner fulfills his mandate as
promised in the petition papers.
Forms P&A 80, 5 and 57 may be collected together from the court and filled at the same time
and returned to the court. One should always ask the court officials to help you fill the forms if
you are not certain or if they are not represented by an advocate. The guarantors may be required
to swear an affidavit to support petition before a judge.

(v) Notice in Kenya Gazette:

The court upon receiving the petition papers which are dully signed and attested prepares a
notification for the gazettement. The notification informs all about the petition and gives those
with interest a chance to raise an objection within 30days. 11 Upon lapse of 30 days, the petitioner
may return to court to collect the letters of administration. If an objection that brings up
substantive issues is raised12, the petition process is halted and a full hearing of all parties
together with witnesses is ordered by the court.13

(vi) Grant of letters of administration intestate (Form P&A 41):

Letters of administration may be issued to the petitioner if an objection is not raised within the
stipulated period of 30 days. This gives the administrator power to administer the deceased’s
estate. The administration may include completing all the uncompleted documentation for
instance obtaining titles that the deceased had not obtained in his name as an administrator.

11
Law of Succession Act 1981, section 67
12
Law of Succession Act1981, section 68
13
Law of Succession Act 1981, Section 69
When ready to dispense with the estate, the administrator goes back to the court for the final
documents.

(vii) Sworn affidavit by petitioner requesting for confirmation of grant:

Sworn affidavit by petitioner requesting for confirmation of grant as per section 7 (2) (4) cap 160
of the laws of Kenya and indicating how the estate should be shared between the heirs and
liabilities is launched. It is important that the spouses and heirs have an agreement on how the
estate will be shared before filing this affidavit. It should be noted that many disputes may arise
at this level concerning fairness in sharing of the deceased’s estate.

(viii) Notice of motion to hear the application for confirmation of grant:

These are summons to appear before the judge by all the concerned parties to confirm that they
are in agreement with the manner in which the estate has been distributed by the
administrator(s).14 Any objection at this stage will require the parties to iron their differences and
come back after consenting. Further objection may lead to full hearing.

(ix) Certificate of confirmation of grant issued under Cap 160 section 7(1) and (3) (form
P&A54):
If there is agreement by all with the manner in which the estate has been distributed the court
will issue a certificate of confirmation of grant which shows what each beneficiary will gets what
from the estate. This grant is a court order and must be followed by all to the letter without any
alterations. In of need for any change or if an omission is discovered, the orders should be taken
back to the court for endorsement.

(x) Transfer of the estate to the administrator ( Form RL 19):

Form RL 19 is used to transfer land from the deceased’s name to that of the administrator upon
his appointment by the High court. The form is executed by the High court Executive Officer
and gives the Administrator power to administer and distribute the deceased’s estate in
accordance to the agreement endorsed by the court or probate grant.

14
Law of Succession Act 1981, section 71
 (xi) Transfer of personal representative to persons entitled under a will or on an
intestacy (Form RL 7):
At this level the land is already in the name of the administrator(s).In order to o transfer the land
to the beneficiaries the administrators should obtain and fill form RL 7 which is obtained from
the land registry. The forms should be accompanied by the passport photos of both the
administrator and the beneficiaries together with their Identification and pin numbers. At the end
of this stage everybody entitled to the estate should have their title deeds.

Joint proprietor

Under the joint proprietor, Section 49 of the Land Act provides where one of two or more joint
proprietors of any land, lease or charge dies, the Registrar shall upon being provided with proof
of the death, delete the name of the deceased from the register by registration of the death
certificate.15

Sole proprietor

Upon the death of a sole proprietor or a proprietor in common, the proprietor’s personal
representative is required to apply to the Registrar in the prescribed form and on production to
the Registrar of the grant, is entitled to be registered by transmission as proprietor in the place of
the deceased with the addition after the representative’s name as executor of the will of the
deceased.16 Upon production of a grant, the Registrar may, without requiring the personal
representative to be registered, is to register by transmission any transfer by the personal
representative; and any surrender of a lease or discharge of a charge by the personal
representative.17.

Personal representative or a beneficiary upon the death of the deceased proprietor holds land,
lease or charge which is subject to any liabilities, rights or interests that are unregistered.
However, they are enforceable and where the deceased proprietor held the same, for the purpose
of any dealing, the person is deemed to have been registered as a proprietor with all the rights
conferred on a proprietor who has acquired land, a lease or a charge, as the case may be, for

15
Land Registration Act 2012, section 60
16
Land Act 2012, section 50
17
Land Registration Act, section 61(2)
valuable consideration. The registration of such a person takes effect from the date of the death
of the proprietor.

b) Transmission on bankruptcy or company’s liquidation.

I. Personal bankruptcy

The process of adjudication of bankruptcy applications commences on the making of a

bankruptcy order, where the date and time of bankruptcy order is to be recorded. The Registrar
of the Court is to notify the trustee of the bankruptcy order. The Official Receiver ought to
nominate a bankruptcy trustee. The Bankruptcy order is binding on all persons. The Official
Receiver is to maintain the public register of un-discharged and discharged bankrupts. When a
bankruptcy order commences all proceedings to recover the bankrupt's debts are stayed and the
property of the bankrupt (whether in or outside Kenya), and the powers that the bankrupt could
have exercised in respect of that property for the bankrupt's own benefit, vest in the Official
Receiver. Within thirty days after the date of the bankruptcy order, the Official Receiver is to
publish a notice advertising the order-

(i) once in the Gazette; and

(ii) once in a newspaper widely circulating in the area in which the bankrupt resides; or
(iii) If the Court directs that the order be advertised in some other publication-publish such a
notice in that other publication.

Within fourteen days after being served with the notice, the bankrupt party is expected to lodge
with the Official Receiver, a statement of the bankrupt's financial position setting out-

(a) Particulars of the bankrupt's assets;

(b) The bankrupt's debts and liabilities;

(c) The names, residences and occupations of the bankrupt's creditors;

(d) The securities held by the bankrupt's creditors;

(e) The dates when the securities were given; and (0 such other information as may be
prescribed by the insolvency regulations or as the bankruptcy trustee may reasonably require.
(2) The Official Receiver shall convene the meeting by giving notice of the time, date and place
of the meeting to-

(a) The bankrupt;

(b) Each creditor named in the statement of the bankrupt's financial position; and

(c) Any other creditors known to the bankruptcy trustee.

Bankruptcy trustee is appointed by

a) by a creditors' meeting;
b) the Official Receiver;
c) by way of a court order

Upon production to the Registrar of a certified copy of the order of court proving a proprietor
bankrupt, or directing that the estate of a deceased proprietor is to be administered according to
the law of bankruptcy.18 A copy of the order is filed with the registrar; and the trustee in
bankruptcy is registered as proprietor of any land, lease or charge of which the bankrupt or the
deceased proprietor is proprietor, in place of the bankrupt or deceased proprietor.

Where the land is owned by the bankrupt, is subject to a mortgage or a charge and is not
disclaimed by the bankruptcy trustee, the bankruptcy trustee is to arrange for the transmission of
the interest in the land to the bankruptcy trustee to be registered under the Land Registration Act,
2012.19 The bankruptcy trustee is also to give notice to the mortgagee or other person entitled
under the charge that the Bankruptcy trustee cannot, or does not intend to, register transmission
of the interest in the land.

18
Land Act 2012, section 52
19
Insolvency Act 2015, Section 123(1)(a)
 II. Company liquidation

A bankruptcy application may be made to the Court in accordance with the provisions
bankruptcy of natural persons

a) by one of the person's creditors or jointly by two or more one of them;

b) by the debtor; or
c) by the supervisor of any person who is for the time being bound by a voluntary
arrangement proposed by the debtor and approved.

On the hearing of such an application, the Court may, subject to and in accordance with the
provisions make a bankruptcy order. An application may be made by a person referred to is only
if the debtor is domiciled in Kenya, is personally present in Kenya on the date on which the
application is made or at any time during the three years immediately preceding that date-

i. Has been ordinarily resident, or has had a place of residence

ii. Has carried on business in Kenya.

c) Transmission in other cases

If a person has become entitled to any land, lease or charge under any law or by virtue of any
order or certificate of sale made or issued under any law, the Registrar, on the application of any
interested person supported by such evidence as the person may require, shall register the person
entitled, as the proprietor.20

7. TRANSFERS

Acquisition of Title by Way of Transfers

Definition

Section 2 of the Land Act defines a transfer as ‘the passing of land, a lease or a charge from one
party to another by an act of the parties and not by operation of the law and includes the
instrument by which such passing is effected’.

20
Land Act 2012, section 54
It is provided for under Section 7(g) of the Land Act. It states that title to land may be acquired
through transfers.

Instruments of Transfer (Legal Notice No.278 of 2017)

i. Transfer of interest in land -Form LRA 33

ii. Transfer of charge - Form LRA 57
iii. Transfer of lease - Form LRA 63
iv. Transfer subject to an encumbrance - Form LRA 34
v. Transfer of undivided share - Form LRA 35
vi. Transfer of joint interest - Form LRA 36
vii. Transfer to companies and limited liability partnership - Form LRA 49
viii. Transfer to personal representative - Form LRA 39
ix. Transfer by personal representative to beneficiary - Form LRA 42
x. Transfer to personal representative to third party – Form LRA 43

Procedure

i. Apply and obtain land rent clearance certificate

This is done from the office of the Commissioner of Lands.

ii. Apply, pay and obtain rates clearance certificate

This is done by the seller’s lawyer from the national, city or county government.

iii. Apply for a search on the title

This stage is important as it shows if someone else owns the land or if it has been registered
before.

iv. Apply and obtain consent to transfer

The consent to transfer leasehold land held by the government, under the Repealed Act, it is
required to be obtained from the National Land Commission.
 v. File the transfer instrument

The draft transfer is done by the buyer’s lawyer at the National Land Commission. The transfer
instrument has to be approved by the seller’s counterpart before it is filled at the land’s office, to
be assessed for stamp duty.

vi. Get site inspection by government valuer and valuation report

An inspector will visit the site to verify the the state of the property. Once the valuer has
inspected the property, a report is compiled. The value is endorsed on the transfer.

vii. Endorsement of value for Stamp Duty and its Assessment

Complete the Stamp Duty form including the purchase price. The stamp duty assessment officer
will then assess the duty payable and indicate the amount on the forms.

viii. Payment of Stamp Duty

Pay the stamp duty.

ix. Lodge stamped transfer document for registration

The stamped transfer documents are lodged for registration at the Land’s Office.

Transfer of Charges

The Act recognises transfer of charges at the request of the chargor in writing at any time other
than when a chargee has taken possession. A similar request may be made by the following
persons, subject to the consent of the chargor:

1. Any person who has an interest in the land that has been charged;

2. Any surety for payment of the amount secured by the charge; and

3. Any creditor of the chargor who has obtained a decree for sale of the charged land
The chargee on receiving written request and on payment of the amount secured by the person(s)
making the request and the performance of all obligations secured by the charge shall transfer the
charge to the person named in the written request.

8. LONG - TERM LEASES

Long term leases exceeding 21 years carried out of private land.

Section 7 of the Land Act (2012) mentions various ways through which title to land can be
acquired. Among them are long term leases exceeding twenty-one years created out of private
land. This will be discussed in detail below.

Definition

A lease is defined under section 2 of the Land Registration Act as a lease or a sub-lease, whether
registered or unregistered of land; or a short term lease or an agreement to lease21. In other
words, a lease is the grant, with or without consideration, by the proprietor of land of the right to
the exclusive possession of his or her land, and includes the right so granted and the instrument
granting it, and also includes a sub-lease and an agreement to lease.

ESSENTIALS OF A VALID LEASE

1) Exclusive possession
2) There should be defined areas and parties to the lease22.
3) Certainty of duration
A lease has to be for a definite period, or for the life of either the lessor or lessee23. For future
leases, the lease may be made for a term to begin on a future date, not being later than twenty-
one years after the date on which the lease is executed24. For such future leases exceeding five
years they shall not be of any effect until they are registered25.In case of a future date of

21
Land Registration Act (2012), section 54
22
Land Act 2012, section 52
23
Land Act 2012, section 52
24
Land Act 2012, section 61(1)
25
Land Act 2012, section 61(2)
termination, the events must be so clearly defined in the lease so that it is identified when it
occurs26.
4) Registration
A long-term lease of more than 21 years has to be registered but a short term lease made for a
period of less than 2 years is not registrable27. On registration, the registrar upon request by the
proprietor of the lease where no certificate has been issued yet may issue a certificate of lease in
the prescribed form. No certificate of title or certificate of lease shall be issued unless the lease is
for a certain period exceeding twenty-one years28.
PROCEDURE FOR ACQUISITION OF TITLE
The Land Registration Act establishes that the Cabinet Secretary may prescribe regulations
regarding registration of long term leases29. The registrar is tasked with the responsibility of
registering long term leases and issuing certificates of lease having the effect of conferring
ownership, if the property is properly geo-referenced and approved by the statutory body
responsible for the survey of land30.

Legal Notice No. 278 of 201731 which states that a long term lease shall be in Form LRA 64, and
shall be accompanied by other documents such as;

a) Original title documents relating to that particular land

b) Land rates clearance certificate
c) Land rent clearance certificate, where applicable
d) The consent of the lessor, where applicable.
e) Any other consent required for registration unless a particular consent has been endorsed
on the lease document or has otherwise been dispensed with the registrar.
f) A sectional plan drawn by a surveyor and approved by the authority responsible for land
survey which plan shall;
i. Delineate the external boundaries of the land and the location of the demised part
of the land.

26
Land Act 2012
27
Land Act 2012
28
Land Registration 2012, section 30(2)(b)
29
Land Registration Act 2012, section 54(6)
30
Land Registration Act 2012
31
Legal Notice No. 278 2017, Regulation 77.
 ii. State and show the co-ordinates for the land being leased.
iii. State the approximate ground area of the land being leased.
iv. State and show access road for that land as per the standards approved by the
relevant county government or regulatory body.
v. State any present developments on the part of land being leased.
vi. Have a unique number that is provided by the authority responsible for land
survey.
g) A transfer of lease in Form LRA 63
h) Any other document or approval as may be required under the Act or any other written
law.

Whereas the above guidelines are specific for long term leases, the procedure provided for
acquisition of title is not conclusive and as such, the general procedure used in acquisition of title
in respect of leases is used.

General Process for Acquisition of Title in Respect of Leases

This process follows various steps, which include;

1) The preliminary stage (the pre-contract period) - This involves identification of suitable
lessees and also investigation of the title to the land by the lessee through searches and
physical inspection of the land.
2) Drawing, execution and attestation of the lease- This is done by the lessor’s advocate.
Information to be contained in a lease includes aspects such as the period of the lease, the
rent and rates to be paid, the land to be leased including its particulars, the agreed use of
the land and any other information that the parties see it fit to include in the lease.
The lessee at this stage also reads through the lease and approves it as the case may be.
Both parties then sign the lease32.
3) Obtaining of consents from;
 Land Control Board- It is mandatory to obtain consent from the Land Control
Board if the land in question relates to agricultural land33. Within 6 months from

32
Land Registration Act 2012, section 44(1)
33
Land Control Act. section 6
 the date of the agreement, an application should be made in the prescribed form
and delivered to the board34.
It should be noted that the board’s decision regarding such an application is final
and not subject to challenge in any court. The only remedy available is an appeal
as conferred by the Land Control Act35.
 Other spouse- this is the case for matrimonial property36. Here, spousal consent is
an overriding interest.
 Head Lessor- for cases of subleases37.

This section is not exhaustive as various consents will be required for various parcels of land or
land transactions. Each transaction or application must thus be dealt with on a case by case basis.

4) Payment of stamp duty- A lease is among the chargeable instruments under the Stamp
Duty Act38.
Leases for a period of over twenty-five years are deemed to be transfers (at least for the
purposes of registration and stamp duty). Stamp duty for these leases is chargeable at 4%
for those in municipalities and 2% in other areas. Stamp duty in respect of a lease should
be paid within 30 days of the execution of the lease or its receipt if executed out of
Kenya.
5) Registration of the lease – This is done through production of the original lease and
copies of the same to the registrar so that he can note the particulars. This is optional if
the registrar is content that they need not be produced39. Other documents required to be
presented are then presented to the registrar who then enters the information in the
register.
6) Application for certificate of lease- this application is done upon request by the proprietor
of the lease whose name appears in the register. If no certificate has been issued yet, then
the registrar may issue a certificate of lease in the prescribed form, if it is a lease for a
period exceeding 21 years.

34
Land Control Act, section 8(1)
35
Land Control Act, section 8(2)
36
Land Registration Act 2012, section 28
37
Land Registration Act 2012, section 55
38
Land Registration Act 2012, section 46
39
Land Registration Act 2012, section 32
 In respect to long term leases, once the registrar is satisfied that the requirements have
been met, then he or she shall register the long term lease and issue a Certificate of Lease
over the leased land. This Certificate of Lease has the effect of conferring ownership of
the leased land.
It should be noted that no certificate of title or certificate of lease shall be issued unless
the lease is for a certain period exceeding twenty one years40. Also, a short term lease is
not registrable41.

9. SECTIONAL PROPERTY

ACQUISITION OF SECTIONAL TITLE

The Land Registration Act 42(LRA) which is the substantive law on sectional properties provides
for sectional properties under section 54. It also refers us to the Sectional Properties Act 43(herein
after SPA) for the procedure of registration of interests in land under sectional properties. The
LRA goes ahead to vest the registrar with powers to issue long term leases and issue certificates
of lease over apartments, flats, maisonettes, town houses or offices as long the properties in
question are first geo-referenced and approved by the body responsible for land surveying.

The Sectional Properties Act is the legislation governing the procedural aspect of sectional
properties.

METHOD OF REGISTARTION OF SECTIONAL PLANS AND UNITS

Part two of the SPA outlines the method in which interests in sectional properties are
registered.44

 Firstly, the building in question has to be divided into units.45

40
Land Registration Act 2012, section 30(2)(b)
41
Land Act 2012, section 58(3)
42
Act No 3 of 2012, Laws of Kenya
43
Act No 21 of 1987, Laws of Kenya
44
Sectional Property Act, section 4-16.
45
Sectional Property Act, section 3(1) defines a unit as, ‘a space that is situated within a building and described in a
sectional plan by reference to floors, walls and ceilings within the building.’
  Four parts of the resulting sectional plan, surveyor’s certificates46 and a certificate from
the local authority in which the sectional plan is situated47 are then presented to the
registrar for registration. The sectional plan has to meet the requirements of the SPA in s
9.
 The registrar, upon registering a sectional plan, shall close the register of the parcel (of
land) described in it and open a new register for each unit.
 The registrar then issues a title for each unit upon payment of the required fees.

A unit registered in accordance with the above procedure may be dealt with as any other
registered land. For instance, such a unit may be transferred, leased or charged.48

What is contained in the register of a unit?

 The interests affecting the parcel whose register is closed will be lifted to each of the new
unit registers.49
 Interests affecting individual units may also be included in the specific units’ register and
title deed.
 The common property50 is held by the owners of the units as tenants in common51 and is
to be indicated in the register and title deed of each unit.

46
Sectional Property Act, section 11(1)(a)
47
Sectional Property Act, sectiomn 11(1)(b)
48
Sectional Property Act, section 5(6)
49
Sectional Property Act, section 5(2)
50
Sectional Property Act, section 3(1), Common property means so much of a parcel as is not comprised in a unit
shown in a sectional plan.
51
‘Where a tenancy in common exists, each co-owner holds a quantified proportion of the beneficial interest which
is capable of being disposed of inter vivos or by will or passes on the intestacy of the deceased tenant in common’
Halsbury's Laws of England, Conveyancing , Volume 23 (2016). Available at
https://vpn.uonbi.ac.ke/proxy/666e88bb/https/www.lexisnexis.com/uk/legal/results/enhdocview.do?docLinkInd=tru
e&ersKey=23_T28489964416&format=GNBFULL&startDocNo=0&resultsUrlKey=0_T28489964418&backKey=2
0_T28489964419&csi=274661&docNo=5&scrollToPosition=612 Accessed on 28 February 2019.
SUBDIVISION AND CONSOLIDATION OF UNITS

This is provided for in section 12 of the SPA

Units may be subdivided or consolidated using the same procedure of registering a sectional
plan. The provisions applying for sectional plans apply also for sub divisions and consolidations.

EASEMENTS AGAINST AND IN FAVOUR OF OWNERS OF UNITS

Easements implied against and in favour of the owner of a unit include an easement for support,
an easement for shelter and an easement for passage of amenities and services.52

52
Sectional Property Act, section 14 and 15