1. A SYNOPSIS OF THE LAND LAWS IN KENYA TODAY:
THE LAND ACT AND THE LAND REGISTRATION ACT
INTRODUCTION:
For a considerably long time, the land regime in Kenya has been plagued by many a
predicament ranging from, inter alia,
land laws in Kenya. This was most definitely the beginning of the many problems that
subsequently ensued. The Kenyan legislation was characterized by heavy borrowing of
draftsmanship from foreign jurisdictions which wer
jurisdiction, culture and traditions. However, positive change finally showed face recently as
a key achievement was brought about by the National Land Commission through the
enactment of the National Land Commission A
Commission to become operational.
This is by far one of the most
this should bring about the much desired
administration.
It has been argued that the new laws were passed in haste in an attempt to meet the
Constitutional deadline as was set by the government as is now starting to be seen
evidently in the enacted laws’ lack of clarity and substance
At Bloom Zeit, we have no doubt that t
important where one constantly deal
property securities. In 2009 the Kenyan parliament adopted a National Land Policy which
was envisaged to guide the formulation of new land laws to regulate the administration of
real property in Kenya. That the Constitution of Kenya, 2010 was subsequently promulgated
with significance placed on the National Land Policy. Article 72 of the Constitution of Ke
gives parliament the right to make legislation to implement its provisions on land and the
environment. Parliament has enacted new land laws: The Land Act, 2012; the National Land
Commission Act 2012; and the Land Registration Act, 2012 were then enact
The new land laws have led to the repeal of a number of land laws that were previously in
operation such as the Registered Land Act, the Registration of Titles Act (RTA); the Land
Titles Act (LTA); and the Government Lands Act (GLA). The land registrat
sole legal regime under which all interests in land are to be registered. The immediate
question that therefore follows is what happens to the title deeds that were acquired under
the repealed laws? Suppose one had been issued with a tit
act, one can still hold the same title deed under the land registration act. There is therefore
no cause for alarm for property owners or financial and lending institutions such as banks
and cooperative societies that had
A SYNOPSIS OF THE LAND LAWS IN KENYA TODAY:
THE LAND ACT AND THE LAND REGISTRATION ACT- ANALYSIS.
time, the land regime in Kenya has been plagued by many a
inter alia, uncertainty, inconsistency and non-
This was most definitely the beginning of the many problems that
subsequently ensued. The Kenyan legislation was characterized by heavy borrowing of
draftsmanship from foreign jurisdictions which were not adequately tailored to suit our
jurisdiction, culture and traditions. However, positive change finally showed face recently as
was brought about by the National Land Commission through the
enactment of the National Land Commission Act which provides a framework for the
ommission to become operational.
positive highlights of the new laws. Ideally
the much desired positive change in land management and
the new laws were passed in haste in an attempt to meet the
al deadline as was set by the government as is now starting to be seen
lack of clarity and substance.
have no doubt that today, knowledge on Kenya’s new land laws is
constantly deals in property investments, acquisitions, disposal and
. In 2009 the Kenyan parliament adopted a National Land Policy which
to guide the formulation of new land laws to regulate the administration of
real property in Kenya. That the Constitution of Kenya, 2010 was subsequently promulgated
with significance placed on the National Land Policy. Article 72 of the Constitution of Ke
gives parliament the right to make legislation to implement its provisions on land and the
environment. Parliament has enacted new land laws: The Land Act, 2012; the National Land
Commission Act 2012; and the Land Registration Act, 2012 were then enacted.
The new land laws have led to the repeal of a number of land laws that were previously in
operation such as the Registered Land Act, the Registration of Titles Act (RTA); the Land
Titles Act (LTA); and the Government Lands Act (GLA). The land registration act is now the
sole legal regime under which all interests in land are to be registered. The immediate
question that therefore follows is what happens to the title deeds that were acquired under
the repealed laws? Suppose one had been issued with a title deed under the registered land
act, one can still hold the same title deed under the land registration act. There is therefore
no cause for alarm for property owners or financial and lending institutions such as banks
and cooperative societies that had lent money on the security of old registration documents.
time, the land regime in Kenya has been plagued by many a
-consolidation of
This was most definitely the beginning of the many problems that
subsequently ensued. The Kenyan legislation was characterized by heavy borrowing of
e not adequately tailored to suit our
jurisdiction, culture and traditions. However, positive change finally showed face recently as
was brought about by the National Land Commission through the
ct which provides a framework for the
and essentially,
positive change in land management and
the new laws were passed in haste in an attempt to meet the
al deadline as was set by the government as is now starting to be seen
oday, knowledge on Kenya’s new land laws is
s, acquisitions, disposal and
. In 2009 the Kenyan parliament adopted a National Land Policy which
to guide the formulation of new land laws to regulate the administration of
real property in Kenya. That the Constitution of Kenya, 2010 was subsequently promulgated
with significance placed on the National Land Policy. Article 72 of the Constitution of Kenya
gives parliament the right to make legislation to implement its provisions on land and the
environment. Parliament has enacted new land laws: The Land Act, 2012; the National Land
ed.
The new land laws have led to the repeal of a number of land laws that were previously in
operation such as the Registered Land Act, the Registration of Titles Act (RTA); the Land
ion act is now the
sole legal regime under which all interests in land are to be registered. The immediate
question that therefore follows is what happens to the title deeds that were acquired under
le deed under the registered land
act, one can still hold the same title deed under the land registration act. There is therefore
no cause for alarm for property owners or financial and lending institutions such as banks
lent money on the security of old registration documents.

2. Financial Institutions, Lending and Borrowing:
Of significant importance to financial institutions and lenders are the provisions of the land
registration act where a person borrows money on the security of land and then seeks to
dispose of the land in an attempt to delay or defeat the exercise by his creditors, the
creditor may apply to court to set aside the prejudicial disposition. For example, John owns
a plot of land and is in debt and is worried his creditor may obtain a court order to attach
his land to recover the debt, John may decide to transfer his land to a good friend or grant a
long lease of his land to a relative so as to prevent the creditor from attaching his land. If
the creditor can prove that John’s intention was to defeat his claim to John’s property (for
example, by proving that John sold his plot at an undervalue price) then the transfer may
be set aside.
Spousal Consent- A requirement:
The land registration act contains a provision on spousal consent of which anyone who
wishes to deal in private land must be wary whether the concerned transaction is a transfer,
a charge, a mortgage etc. Where the land in question is matrimonial property then the
purchaser, lender, etc. is under a statutory duty to inquire of the borrower on whether their
spouse has consented to that charge, transfer or assignment. The Land Act defines
“matrimonial home” as any property that is owned or leased by one or both spouses and
occupied by the spouses as their family home. Anyone dealing in such matrimonial property
must therefore always make sure that the spouse of the land owner or anyone with
interests in that land has given consent to the transaction. As a result of this provision,
banks have changed their loan application forms such that where the loan is to be extended
on the security of some matrimonial property then the forms have a blank space on which
the borrower’s spouse must sign to consent to the transaction. If the spouse dealing with
the property deliberately misleads the lender or, the assignee or transferee by the answers
to the inquiries made, the transaction shall be void at the option of the spouse who has not
consented to it. This therefore means a sale or charge is voidable, if spousal consent is not
obtained.
Land held by Non-Kenyan Citizens:
Article 65 of the Constitution of Kenya, 2010, states that non-Kenyans can no longer hold
land in Kenya on the basis of a freehold tenure. They can only hold leasehold interests in
land, and such leases are held for a period not exceeding ninety-nine years. This means
that all such leases as had been granted previously, particularly the 999-year leases in land
that were granted British settlers during the colonial era as an investment incentive, have
therefore reverted to 99 year leases. Kenyan citizens are given priority when applying for
the renewal of a lease. Non-Kenyans on the other hand are not given such privileges. The
National Land Commission has recently made a statement that the renewal of leases will
largely depend on how the land has been used over the 99 year period.
Loan and Equity of Redemption:
Section 89 of the Land Act prohibits any rule, written or unwritten, that purports to
foreclose a borrower’s equity of redemption. A person who goes to a financial institution to
borrow money on the basis of holding the property as collateral must not be prevented by
any agreement with the lender from redeeming the property when he has paid the full
amount of the debt. The charge must also not contain conditions that the borrower is not
likely to meet. A borrower who wishes to pay out the entire loan shall give the lender one

3. month’s notice of termination or pay one month’s interest at the prevailing interest rate or a
lesser rate as may be agreed and all other monies secured by the charge.
Finally, perhaps one of the most pressing concerns to persons involved in the business of
land transactions is whether the new land laws have any effect on forms or the documents
that are used to effect transactions in land. These documents are of course expected to
change given the extent to which the new laws are at variance with the old ones. Meanwhile
however, the land registrar has issued guidelines that the old forms that were used to effect
land transactions are still applicable. So until such time as new formats are given for
drafting land documents, the ones that were previously used may still be filled out.
The issue of land, its ownership, use and management is a highly emotive one in Kenya and
was one of the key issues that drove the need for a new constitution. Following lengthy
deliberations and a comprehensive public participation process, a new constitution (the
"Constitution") was promulgated on 27 August 2010. The Constitution sets out principles
governing land and also requires all laws relating to land to be revised, consolidated and
rationalised within certain timelines.
"….it is a very difficult exercise; a very difficult undertaking", said Hon. James Orengo,
Minister for Lands, in Parliament, following the passing of a new suite of land legislation to
implement the principles governing land set out in the Constitution.
Parliament passed three bills related to land on 25th
and 26th
of April 2012. The President
assented to the bills immediately and the new land laws became effective on 2nd
May 2012.
The new land laws are:
• The National Land Commission Act, 2012;
• The Land Registration Act, 2012; and
• The Land Act, 2012.
Some laws repealed - not all
The new laws have repealed the following statutes:
• The Indian Transfer of Property Act;
• The Government Lands Act;
• The Registration of Titles Act;
• The Land Titles Act;
• The Registered Land Act;
• The Wayleaves Act; and
• The Land Acquisition Act.
The following are some of the laws that have not been repealed:
• The Land Control Act;
• The Landlord and Tenant (Hotels, Shops and Catering Establishments) Act;
• The Sectional Properties Act; and
• The Distress for Rent Act.
The new laws require all existing laws relating to land that have not been repealed, to be
applied with the necessary alterations and adaptations to give effect to the new laws.

4. However, in the absence of formal amendments to the existing laws that have not been
repealed, the altering and adapting of these laws in order to give effect to the new laws is
likely to cause some inconsistency in the practical application of the law.
Key Highlights of the New Land Laws
1. Land Administration
The administrative structures for management of land in Kenya have been changed. The
National Land Commission (the "Commission") will have wide powers in the management
and administration of public, private and community land.
The chairperson and members of the Commission will be identified through a public,
transparent and competitive selection process and ultimately approved by Parliament. This
process was to commence within 14 days of the coming into effect of the new laws, which
was 16 May 2012.
In order to carry out its functions effectively, the Commission is required to devolve the
administration of land. Consequently the Commission is required to establish offices and
land management boards at the county level. In the interim, employees of the Ministry of
Lands in departments whose functions have been moved to the Commission are required to
continue performing their services as if they were employees of the Commission. In due
course, they will be required to re-apply for their jobs and undergo a vetting process to
ensure their suitability to serve on the Commission.
2. Public Land
The allocation of public land to private individuals has been a concern for many Kenyans for
a long time. Allocation of public land was within the control of public officers at the Ministry
of Lands, who were susceptible to influence by the executive arm of the Government. The
process of allocation of public land was therefore shrouded in secrecy and often, members
of the public would only realize that public land has been expropriated, after a title deed has
been issued to private persons.
Allocation of public land to private persons will now be managed and supervised by the
Commission. This creates independence in the allocation process as the executive arm of
the Government will no longer have control of the process. In addition, land available for
allocation will now be Gazetted and notices published in at least two local dailies, prior to
commencement of the allocation process. This will go a long way in creating transparency
and public participation in the allocation process.
3. Community Land
The new laws require all land in Kenya, whether private, public or community land, to be
registered. The new laws therefore make provision for the registration of community land.
However, substantive provisions on the administration and management of community land
will be enacted by 2015 as required by the Constitution.

5. 4. Private Land
The new laws will have a significant impact on the administration and management of
private land in Kenya and the rights of various interested parties.
Some of the key changes are as follows:
4.1. Title to land; transfer of land and connected matters
(a) What happens to existing title deeds?
Under the old land law, title deeds were issued under any 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)
Retained titles: Title deeds issued under the RLA and RTA continue to be valid
notwithstanding the new laws. These are the most common title deeds in Kenya. In due
course, the registrar will issue new title deeds in the new prescribed form.
Titles to be examined and registered afresh: Title deeds issued under the GLA and LTA
on the other hand, will have to be examined and registered afresh under the new laws.
There are no specific timelines prescribed for the examination and fresh registration, save
that this has to be done 'as soon as conveniently possible' - as provided in the new laws.
This does not mean that GLA and LTA title deeds invalid. However, they will only be
recognized under the new laws after their examination and fresh registration.
The new laws are silent on whether holders of GLA and LTA title deeds will be allowed to
transact with their title deeds, pending their examination and fresh registration. This
appears not to be permitted and will almost certainly cause delays in ongoing transactions
related to land held under such title deeds.
Some of the main characteristics of GLA and LTA title deeds are as follows:
• GLA title deeds - most of them were issued prior to independence. They contain the
words "Indenture", "Conveyance" or " Indenture of Conveyance" as part of their
heading. They were mostly issued for land that was designated as 'farm land' prior to
independence and shortly thereafter. Such land includes some parts of Central
Province, Kericho and Nairobi, especially Karen. It is uncommon to find GLA title
deeds for land in other parts of the country. A few exist though.
• LTA title deeds - these were issued for land at the Coast and Lamu Island only.
(b) Pre-emption rights on expired grants
All land held on leasehold titles will revert to the Government on expiry of the term.
However, where the immediate past owner of the land is a Kenyan citizen, the Commission
is required to grant them the right to re-acquire the land, so long as the land is not required
for public purposes.

6. Following the promulgation of the Constitution, foreigners who held freehold titles or
leasehold titles that were for a term exceeding 99 years, had their titles reduced to 99 year
leasehold titles. There has been debate on when the 99 year period is deemed to
commence. One view was that the 99 year period commenced on the date the Constitution
was promulgated (27 August 2010) and the other view was that the 99 year period
commenced on the date the title was first granted. Unfortunately, the new laws do not
provide further clarity on when the 99 year period commences.
(c) Certificates of lease to be issued over apartments, flats, townhouses,
maisonettes and offices
Where a person is registered as the owner of a long term lease over apartments, flats,
maisonettes, townhouses or offices, the registrar will now be required to issue them
with a certificate of lease (title deed). The registrar is required to register such long term
leases where the property comprised is properly geo referenced and approved by the
Government's survey department. However, the processes and timelines for approval by the
Government's survey department have not been defined.
(d) Transfer of a portion of land - new subdivisions to be registered first
Transfer of portions of land will only be completed upon undertaking a subdivision and a
new register being opened for the new subdivisions. This means a new title deed for the
subdivision will have to be obtained prior to completing the transfer of a portion of land.
A transfer is defined as, among other things, the passing of land from one person to
another. Therefore, arguably, the passing of a long term lease from one person to another
may be deemed to be a 'transfer'. It is therefore likely that the sale of a portion of land by
way of a long term lease will be deemed to be a 'transfer of a portion of land' and therefore
require subdivision. However, the requirement for subdivision will not apply where such land
comprises of apartments, flats, townhouses, maisonettes and offices (which only require
geo-referencing and approval by the Government's survey department, as opposed to
subdivision).
(e) Spouse deemed ownership and requirement for spousal consent
"Are you married?"- This is a question that is likely to feature more in land transactions,
following the passing of the new laws. The new land laws have created statutory rights to
land for spouses. These rights affect all land and not just matrimonial property. These rights
include:
• Spouse deemed owner though not on title - where land is held in the name of
one spouse, but the other spouse has contributed to the productivity, upkeep or
improvement of the land, the contributing spouse shall be deemed to have acquired
an ownership interest in the land. These ownership rights shall be recognized as if
they were registered. Case law will hopefully interpret precisely what constitutes
spouse contributions.
• Sale or charge void, if spousal consent not obtained - Dispositions (including
sale, transfer, lease and charges) of any land or a dwelling house held in the name of
one spouse shall require the consent of the other spouse.

7. A lender or purchaser is now under a duty to inquire whether the consent of the other
spouse or spouses has been obtained. If the spouse undertaking the disposition misleads
the lender or purchaser or other transferee as the case may be, the sale, transfer, charge,
lease or other disposition shall be void, at the option of the spouse who did not consent to
the transaction.
The term 'spouse' has not been specifically defined in the new laws. However, its definition
could be inferred from the definition of the term 'marriage', which has been defined as a
"civil, customary or religious marriage". The lack of a specific definition of the term 'spouse'
is likely to cause practical difficulties in determining whether or not spousal consent was
obtained for a transaction. In addition, Kenyan law recognizes marriages that are currently
not capable of registration (due to lack of a legislative framework), such as marriages under
customary law. The existence of such marriages creates an opportunity for abuse of the
new legal requirements.
(f) Evicting a purchaser in possession not as easy - statutory protections apply
It is not unusual in transactions for sale of land, for the seller to allow the purchaser to take
possession of land prior to registration of the transfer, on terms agreed between the seller
and the purchaser. This is especially the case where registration is delayed due to
Government bureaucracy. The terms under which possession would be granted would
include an agreement on circumstances when the seller would require the purchaser to
vacate the premises, for example, if the transfer is not registered within a reasonable time.
Under the new laws, the terms upon which such a purchaser will take possession, will not
only be regulated by what the parties have agreed, but also the provisions of the new law.
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.
This will almost certainly result in sellers refusing to permit any form of possession prior to
completion.
(g) "Land Use Consent" may be required prior to effecting a transfer of land
An additional requirement before effecting a transfer of land is the consent of the county
land management board (a branch of the Commission), as to the use of the land. Whilst it is
not explicitly clear what this consent will contain, we presume it will contain a certificate to
the effect that the land is being used in accordance with the designated user.
(h) Prejudicial sales of land by debtors to be set aside
The sale or transfer of land by an owner of land who owes money to any person may be
restored for the benefit of unsecured creditors, where the owner of the land makes the sale
or transfer in order to prejudice unsecured creditors. This will involve a court process. Such
disposals of land will be deemed prejudicial if the seller will be unable to pay all their debts
without recourse to the sold land and the disposal is intended to hinder or delay recourse to
the land, by a creditor.

8. (i) Execution of documents by companies to be in the presence of an advocate
An additional requirement in terms of execution is that corporate bodies or associations
effecting dispositions of land (such as agreements for sale, transfers and charges), will now
be required to execute these documents in the presence of an advocate of the High Court of
Kenya, a magistrate, judge or notary. Presumably, this means that for companies, in
addition to having the usual two directors or a director and a company secretary witness the
sealing of a document, an advocate, notary, judge or magistrate should witness the sealing
of the document.
(j) Compulsory Acquisition - process now more just and fair
The process of compulsory acquisition of land is now more transparent and will be managed
by the Commission. In addition, the process is more just and fair to the owner of land as
the award of compensation (determination of amount payable) will be made prior to the
Government taking possession of the land. The Commission is expected to promulgate rules
to regulate the assessment of just compensation.
Where there is a dispute in the amount awarded, the Commission is required to place the
compensation awarded in a special account, which will earn interest at prevailing bank
interest rates, before taking possession of the land. This is a new requirement aimed at
making the process of compulsory acquisition more just and fair.
(k) Land Sizes - a scientific study to be commissioned within one year
A scientific study to determine the economic viability of minimum and maximum land sizes
will be commissioned within one year, which is by 01 May 2013. The findings of the study
will be subjected to public comments and thereafter debated and if deemed fit, adopted by
Parliament. Rules prescribing the minimum and maximum acreages, based solely on the
report adopted by Parliament, will then be published by the Cabinet Secretary in charge of
matters related to land.
(l) Government Fees - to be a percentage of value
Presently, save for stamp duty and exceptional matters such as annual rent which are based
on the value of the land, fees payable to the Government for all matters related to land are
nominal.
Under the new laws, all fees payable to the Commission for any application made under the
new laws will be based on a per centum of the value of the subject matter. Furthermore,
the new laws do not permit the Commission to prescribe a cap or collar for such fees. We
would hope that the Commission will be permitted to prescribe a cap or collar in the rules to
be issued under the new laws by the Cabinet Secretary in charge of land matters.
4.2. Leases over private land
(a) Mandatory provisions?
The new laws now prescribe what appear to be mandatory provisions governing all
transactions relating to leases. Part VI of the Land Act deals with leases. This part begins by
allowing parties to a lease to vary the application of any of the provisions in Part VI, at their

9. discretion. However, certain provisions within Part VI are deemed to be mandatory. This
appears to have been a drafting error. We think the intention was to allow parties to vary
the application of the part, save for those provisions deemed to be mandatory. The
provisions that are deemed to be mandatory include:
• Forfeiture of leases - landlords cannot forfeit a lease without giving notice to the
tenant (such notice to be for a minimum of 30 days) requiring the tenant to remedy
the breach within a reasonable time (if capable of remedy). In addition, upon
issuance of the notice, the tenant has a statutory right to seek the court's relief from
forfeiture. In considering such an application, the court shall look into the conduct of
the parties and the circumstances of the case.
• Retrospective effect - tenants who are presently undergoing a forfeiture process,
which begun prior to the enactment of the new laws, may go to court and stop the
ongoing process and require that the forfeiture process be commenced under the
new laws.
The exercise by landlords of their right of forfeiture will now take longer. In addition,
tenants will almost certainly invoke their rights for relief in court, in which case the
conduct of the parties will be considered by the court. In effect, this means that
before seeking to exercise the right of forfeiture, landlords should consider all other
remedies available to them and afford the tenant sufficient time and opportunity to
remedy the breach.
• Obligation not to withhold consent unreasonably - Where there is an obligation
for the tenant to obtain the consent of the landlord before doing something (or not
doing something), there is now a deemed obligation on the part of the landlord not
to unreasonably withhold consent. The landlord is also required to give or refuse
consent within a reasonable time. Actions that will be deemed unreasonable include:
o Requesting payment of a fee (other than to cover landlord's costs in granting
consent); and
o Imposing an unreasonable condition
(b) Certificates of title to be issued for certain leases
Under the Land Registration Act, certificates of title will be issued for leases for a period
exceeding 25 years. However, under the Land Act, long term leases for 21 years are
deemed to confer title and title deeds should ideally be issued over such leases as well.
There appears to be an inconsistency between the two laws.
4.3. Charges over private land - mandatory provisions and retrospective effect
There are now new provisions on regulating charges over land. These provisions are
mandatory and have retrospective effect, which means that they will apply to charges
created before the new laws came into force.
Enacting laws with a retrospective effect is unusual, particularly where the retrospective
effect is likely to cause detriment. In our view, retrospective legislation that leads to any
form of arbitrary expropriation of a right or interest in land may be challenged for being
unconstitutional.

10. Some of the key provisions regulating charges over land, including charges created prior to
the commencement of the new laws, are as follows:
(a) Variation of interest rates - notice required together with simple explanation
to the borrower
Where parties have agreed to a variable interest, any increase or decrease may only be
effected upon giving a 30 days' notice to the borrower and stating clearly 'in a manner that
can be readily understood' the new interest rate to be applied.
(b) Alternative to further charges? - Memorandum of increase or decrease in
amount secured
The amount secured by a charge may be increased or decreased by a signed memorandum
endorsed or annexed to the charge instrument. The memorandum may also vary the terms
and conditions of the charge, including the term of the charge.
(c) Spousal consent required for charge of land; charge may be void if no consent
obtained
As discussed above, spousal consent will be required in order to validly charge any land held
by a person who is married. If spousal consent is not obtained or if the borrower gives
misleading information on the lenders inquiries regarding spousal consent, the charge will
be deemed void at the option of the spouse or spouses whose consent was not obtained.
This provision does not have retrospective effect.
(d) Chargee's statutory power of sale - longer process and more notices required;
duty to obtain best price; ongoing sales by chargees over any land may be stopped
• Longer process - the process of exercising the chargee's statutory power of sale is
now more procedural with the addition of at least 40 days on the notice periods
previously applicable.
• Forced sale valuation required - a forced sale valuation must be undertaken
before exercising the statutory power of sale. The valuation shall be undertaken by a
registered and licensed valuer (under the Valuers Act).
• Duty of care to obtain best price - secured lenders are now under a statutory
duty of care to "obtain the best price reasonably obtainable at the time of sale" in
exercising their statutory powers of sale over the charged land. This duty of care is
owed to the borrower, guarantors and subsequent lenders secured on the same land.
• More ways in which sale may be concluded - statutory power of sale may be by
way of private contract at market value or public auction at a reserved price. In
addition, the sale may be of the whole or part of the land, by way of subdivision, for
purchase price to be payable in one sum or by instalments or such other conditions
as the lender may think fit taking into account their duty of care to obtain the best
price reasonably possible.
• Retrospective effect on ongoing sales by chargees - where a secured lender
had initiated "any steps to foreclose a charge" before the enactment of the new laws,
the borrower may apply to court for an injunction to stop the continuation of any
such step. If such an injunction is issued, the lender may commence fresh
proceedings under the new laws in order to exercise their statutory power of sale.

11. (e) Matrimonial property - charge may be re-opened and terms varied
The court may re-open a charge of any amount secured on matrimonial property, "in the
interest of doing justice between the parties". We presume the parties referred to by this
provision are the lender, the borrower, the borrower's spouse and any guarantors.
The power to re-open a charge may only be exercised by the court, on an application made
by the borrower, the lender or the registrar (in certain circumstances). The court has wide
powers in considering an application to reopen a charge on matrimonial property.
Furthermore, the court is required to consider, among other things:
• the financial standing and resources of the borrower, relative to those of the lender,
at the time the charge was created;
• the interest rates and any variation thereof from time to time; and
• the age, gender, health, experience and understanding of the commercial transaction
of the borrower, at the time the charge was created.
4.4. Corruption and other Offences
(a) Corrupt Transactions - transaction may be deemed void and land forfeited
Where the granting of public land or issuance of certificates of ownership is induced or
obtained through corruption on the part of any government official or employee of the
Commission, the transaction shall be void and of no legal effect.
Any land acquired through a process tainted with corruption shall be forfeited to the
Government. The term "corruption" shall be construed as defined in the Anti Corruption and
Economic Crimes Act, 2003. This definition is wide and includes 'abuse of office' and 'breach
of trust'.
(b) Offences and penalties
The new laws introduce new offences:
• There are several offences related to the giving of false information and other
fraudulent practices and these are punishable by a fine of up to KES 10,000,000;
imprisonment for up to 10 years, or both. Interestingly, the Land Registration Act
has a more lenient punishment for the same offences, being a fine of up to KES
5,000,000 and imprisonment of up to 5 years or both. These provisions may need to
be harmonized.
• Unlawful occupation of public land is now an offence which will attract fines of up to
KES 500,000 and if a continuous offence, a sum not exceeding KES 10,000 for every
day the offence is continued;
• Wrongful obstruction of a public right of way is now an offence and will attract a fine
of up to KES 10,000,000 and if a continuous offence, a sum of up to KES 100,000 for
every day the offence is continued.
In addition to these criminal sanctions, any rights over land that were obtained by virtue or
on account of an offence may be cancelled or revoked.

12. 4.5. Other matters: Savings and transitional provisions; rules to be published and
land court
(a) Rules to be approved by Parliament in certain instances
• The Commission and the Cabinet Secretary will have powers to make regulations to
better carry into effect the provisions of the Land Act and Land Registration Act. The
matters to be regulated by the regulations have been outlined and include, with
respect to squatters, regulations that "facilitate negotiations between private owners
and squatters" and also those that deal with the " transfer of unutilized land and land
belonging to absentee land owners to squatters".
• Where the Cabinet Secretary (as opposed to the Commission) makes regulations
under the Land Registration Act, these have to take into account the advice of the
Commission and be tabled before Parliament for approval. This is meant to allow for
public scrutiny and introduce transparency in the creation of the regulations. More
importantly, this is meant to ensure that the regulations are consistent with the
general objectives of the Commission.
(b) Savings and Transitional Provisions - unclear
There is a lack of clarity and depth in the transitional provisions of the new laws. In
addition, there are vacuums created by the repeal of most of the previous land laws which
are not addressed in the new laws. We expect these gaps and the resultant uncertainties to
cause substantial delays in land transactions.
(c) Environment and Land Court
The Environment and Land Court will have jurisdiction to hear and determine disputes
related to land.
Conclusion
The task of enacting new land laws is Kenya is by no means an easy one, not least because
land has always been an emotive subject in Kenya, eliciting views from persons across the
economic divide. Our law makers have spent a lot of time trying to balance the views of
Kenyans.
Email: info@bloomzeit.co.ke
The content of this Article is intended to be of general use only and should not be relied
upon without seeking specific legal advice on any matter