2. Land Registration Act, No. 3 of 2012

The law provides for processes of registration of land/properties in Kenya.

Quick Link: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20300

· This law was passed to provide for a simplified property registration regime and effectively revised, consolidated and rationalized the registration of titles to land as well as give effect to the principles of a devolved government. The Ministry of Lands (through the office of the Chief Land Registrar and assisted by other Land Registrars in the various land registries across the country/in counties), is the one charged with land registration and issuance of title deeds.

· This was a departure from a registration regime that had earlier been described as highly centralized, complex and exceedingly bureaucratic. By way of context, the former regime was characterized by different property registration regimes i.e. Government Lands Act of 1915 (Cap 280) which provided for the registration of government land; the Registration of Titles Act of 1920 (Cap 281) which sought to address problems in the deeds system in the Government Land Act and was administered from the Central Land Registry in Nairobi/covered most land in Nairobi; Land Titles Act of 1908 (Cap 282) with a registry at Mombasa and which provided for registration of land at the Coast; the Registered Lands Act of 1963 (Cap 300) under which most land in rural areas was registered and the Indian Transfer of Property Act 1882 which was the procedural law governing transfers/transactions. Each of these statutes had its own register making the entire land registration cumbersome and complex.

· As a result, the Land Registration Act 2012 sought to create a single unitary regime for land registration. To operationalize this, there was a requirement for conversion/migration of all title deeds to the new system, which process entailed the cancellation of old titles and their replacement with new titles under the new regime. The anticipated deadline was December 2022. The steps to be followed in converting a title deed are detailed here.

· Section 6 provides that the Cabinet Secretary in consultation with the National Land Commission and county governments is to constitute an area or areas of land to be a land registration unit. It envisages a conversion process where there are established registration units divided into registration sections/blocks. Parcels in each registration section/block are to be numbered consecutively. Regulations have since been published to operationalize this provision, to wit, the Land Registration (Registration Units) Order 2017.

· Section 7 requires the establishment of a land registry in each land registration unit. The Cabinet Secretary for Lands set up 61 land registration units and designated corresponding Land Registries throughout the country following the revocation of the 1981 Registered Land (Districts) Order (Legal Notice No 124/1981). There are efforts to set up more land registries in various land registration units across the country.

· The conversion of titles into the single unitary registration regime and issuance of new title deeds will reduce land administration costs as it will use a uniform and easy-to-use Registry Index Map (cadastral map) and be under a single law. Further, landowners will now be able to deal with land registries close to them (location of the land) unlike currently where a land registry of a particular piece of land may be far away from its location.

· While title conversion is necessary and urgent, it faces some challenges: The first challenge is the monumental task of converting all the issued title deeds (in excess of 11 million currently) in the country. There are capacity concerns within the Ministry of Lands which is mandated with this function. The second is the lack of or low confidence among landowners in the conversion process given the high levels of fraud that have been associated with land registries in the past is stunting progress.

· Section 9 provides that the Land Registrar shall maintain the register in a secure, accessible and reliable format including electronic files. This is the legal basis for electronic land registers and electronic conveyancing. The current National Land Information Management System (ArdhiSasa platform) suffers from incomplete digitization, missing records, difficulties in users obtaining consent, and the first in first out principle not being adhered to. In addition, there is a need to complete title migration first to align the title with the requirements of the land register in the platform.

· Section 26 provides for the doctrine of sanctity of title where it states that a certificate of title issued upon registration shall be taken by all courts as prima facie evidence that the person named as the proprietor is the absolute and indefeasible owner subject to the interests registered thereon and the title shall not be subject to challenge except: on ground of fraud or misrepresentation to which the proprietor is proved to be a party; and where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

· Section 28 provides for what are known as ‘overriding interests’ referring to interests on land that may affect land even if they are not noted on the land register. These interests include: trusts including customary trusts; rights of way, water and profits subsisting at the time of first registration; natural rights of water, air, light and support; rights of compulsory acquisition, search, entry and user conferred by any other law; rights acquired through prescription/limitation of actions; charges for unpaid rates and other funds; electric supply lines, telephone and telegraph lines and poles, pipelines, canals, weirs, dams made in pursuance of a specific law; and any other rights provided under any other written law. The import of this provision is that interests in the nature mentioned herein can attach to any land even though the same is not indicated on the title document/land register, effectively burdening/encumbering the said land. This is certainly an issue to consider among prospective purchasers of land to minimize disputes and encumbrances.

· Section 36(4) imposes a penalty of an amount equal to the registration fee of any interest where an instrument for registration of interest in land is presented later than three months from the date of the instrument. Section 36(5) provides that instruments have priority depending on the order in which they are presented for registration irrespective of the date of such instruments and notwithstanding that the actual entry in the land register may be delayed. This provision speaks to the need to present instruments for registration as soon as possible for both proprietors and chargees/lenders who have an interest in land.

· Section 37 provides for transfers in land by a proprietor to another by filing an instrument and registration of the transferee as proprietor.

· Section 44 provides for execution of instruments in a disposition in land (including transfer, lease or charge) by providing that the same shall consist of a person appending their personal signature or affixing their thumbprint or other mark as evidence of personal acceptance of that instrument. Through amendments to the law made in 2020, there was introduced a section 44(3A) which now allows for electronic form of execution by providing that an instrument processed and executed electronically by persons consenting to it by way of an advanced electronic signature or an electronic signature shall be deemed to be a validly executed document.

· Section 45 provides for verification of execution of instruments by providing that a person executing an instrument shall appear before a Registrar/public officer/prescribed person alongside a credible witness who will attest to their identity unless the person is so known to the Registrar/public officer/prescribed person, who will ascertain that the executor of the instrument freely and voluntarily executed the instrument and completed a certificate to that effect. What this provision means is that there is still an insistence on physical presence for verification purposes even though the law has been amended to allow for electronic execution. It is necessary therefore that even electronic verification be provided for.

· Notably, section 45(3) provides that the Registrar may exempt the verification exercise where: the Registrar considers that the verification cannot be obtained or can be obtained only with difficulty and is satisfied the document is properly executed; if the Registrar knows the document has been properly executed and records the reason for dispensing with the appearance of the parties; and the instrument has been electronically processed and executed by the parties consenting to it.

· Sections 50 and 51 provide that a court may prohibit prejudicial dispositions in land that are meant to defeat the claims of a creditor through disposing with land that is to act as security or collateral.

· Section 56 provides for the right of a proprietor to charge their property/land for money or money’s worth, with a charge being registered as an encumbrance. Section 56(4) provides that no charge may be registered unless a land rent clearance certificate and consent to charge has been presented to the Registrar in case of leasehold interest. Land that is a sublease where the lease is by law subject to the full payment of rent by the head lessor is exempt as is a unit in a condominium. The latter is now likely to change considering the Sectional Properties Act 2020 which gives a certificate of title to each sectional unit.

· Part VII of the Act provides for restraints on the disposition of land, namely inhibitions, cautions and restrictions, which taken together serve to restrain/prevent transactions in land. They are useful tools for proprietors and other persons interested in a particular parcel of land to prevent dealings in a disputed land until a dispute is finally resolved. These tools can therefore be positive or negative in nature depending on who is affected, and generally, may stunt or delay a housing development as injunctive orders can be made by a court/Registrar preventing further developments until such restraint is lifted.

· Section 81(1) provides for the right to indemnity by the state/guarantee of title where a person suffers damage by reason of rectification of title by Registrar or any error in a copy or extract from the register certified under the law, so long as such person is not engaged in any fraud or negligence leading to such damage. Where a person is party to fraud or is negligent, no indemnity would accrue as stated by the court in Wibeso Investments Limited & another v Tamarind Meadows Limited & 5 others [2020] eKLR, paras 140-145. This is an encapsulation of the Torrens system of land registration which Kenya adheres to and which embodies the three principles: “the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy”.