KSL ATP 107-CONVEYANCING LAW

WEEK 2 HISTORICAL AND CURRENT LEGAL AND REGULATORY

FRAMEWORK FOR CONVEYANCING

The History of Conveyancing Law in England from 1535 to 2002

1051-1535: Feoffment and Livery of Seisin

➢ Conveyancing in Kenya can trace its origins to 1051 A.D in England. At that time
in England, conveyancing was effected by means of a feoffment.

➢ Feoffment is a document noting that one particular Lord was transferring his
interest in land to another Lord. This would be regarded by the Lord of Manor as
evidence of feoffment.

• Lord Denning in Corpus Christi College Oxford v Gloucestershire County Council

(1983) QB 360, described the manor thus:
In medieval times the manor was the nucleus of English rural life. It was an
administrative unit of an extensive area of land. The whole of it was owned
originally by the Lord of the Manor. He lived in the big house called the
manor house. Attached to it were many acres of grassland and woodlands
called the park-these were the “demesne lands” which were for the personal
use of the lord of the manor. Dotted all round were the enclosed homes and
land occupied by the “tenants of the manor”.

➢ This was never complete until a public ceremony known as the “livery/delivery of
the seisin/possession to land” in the presence of all the lords followed by delivery
of the physical possession e.g. by way of a tuft of grass being transmitted.

➢ Lord of Manor witnesses the ceremony completing the process.

In 1535: Statute of Uses 1535

➢ In 1535, the Statute of Uses was enacted by Henry the VIII.

➢ The purpose of this statute was to mitigate and stall losses that the crown was
incurring because the feudal lords decided they could also trade on the
property.

➢ Prior to 1535 the land would be owned by the Lords and produce owned by
the state.

➢ The Statute of Uses introduced the principle that any property owned was to

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 be transferred “unto the use of the transferee and subject to the right of the
crown”. This ensured that any transfer had to be drawn in a particular way.

➢ (Elaborate on the concept of use and what the statute of uses aimed to curtail.)

In 1536: Statute of Enrollment 1536

➢ In 1536, the Statute of Enrolment was enacted with the purpose of keeping the
feudal system.

➢ The statute of enrollment endorsed the regulation that each conveyance had to
be sealed by the Crown and enrolled (registered) within six months with the
Chief Lords.

In 1677: Statute of Frauds 1677

➢ In 1677, the Statute of Frauds was enacted.

➢ The Statute of Frauds required that all conveyancing documents had to be by

way of deed and in writing, sealed by the party transferring the property before
three or more credible witnesses. This has continued to date.

In 1677-1925(Real Property Act, Land Transfer Act, and Vendor and Purchasers Act)

➢ In this period, the Real Property Act, 1845, Land Transfer Act 1875 (amended
in 1897) and Vendor and Purchasers Act, 1874 were enacted. Registration was
still not strict.

1925: Law of Property Act 1925

➢ Law of Property Act of England was enacted in 1925.

➢ It formed part of an interrelated programme of legislation introduced by Lord

Chancellor Lord Birkenhead between 1922 and 1925.

➢ The programme was intended to modernize the English law of real property.

➢ It was part of a series of Acts of Parliament passed in the UK in 1925 to reform

the system of land holding, registration and transfer.

➢ The other Acts were; Land Registration Act 1925(which has been repealed the
Land Registration Act 2002), the Settled Land Act 1925(repealed by Trusts of
Land and Appointment of Trustees Act 1996/TLATA), and Land Charges Act
1925.

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 ➢ The Registered Land Act Cap 300, Laws of Kenya (repealed) was modelled on
the Law of Property Act of England.

➢ The Act was also meant to simplify conveyancing. It is still applicable in

England.

Historical Evolution of Law on Land and Conveyancing Law in Kenya Pre and Post
Colonization

➢ In Kenya, Conveyancing developed along the English model.

➢ Prior to 1901, the Englishmen who were the only ones who could own land did
everything.

In 1901: Registration of Documents Act, Cap 285

➢ In 1901, the Registration of Documents Act (RDA) was enacted.

➢ It dictated that (Section 4) any document transferring an interest in land had to

be registered within one month of transferring it.

➢ It did not grant any title to land and no forms were prescribed.

➢ Before the enactment of the LTA, GLA, RTA and RLA, isolated transactions
relating to land were recorded and registered in an unco-ordinated manner
under the RDA.

➢ There were no separate folios for each piece or parcel of land.

➢ The record of a transaction under this Act was merely evidence that a
transaction had taken place, but was not proof of the legality of the transaction.

➢ There was no guarantee of title under this Act.

➢ Subsequently, all land registered under the RDA was converted to the GLA.

➢ Presently, the Act is used to register documents other than those alienating
interests in land. Examples of such documents are Powers of Attorney and
Building Plans.

➢ There are two registries, one in Mombasa and the other in Nairobi.

➢ Note: The RDA is still in force for purposes of registering other documents. It

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 is not included in the list of repealed Acts contained in the Schedule of the Land
Registration Act.

1908: The Land Titles Act, Cap 282(Repealed)

➢ This Act dealt with matters relating to private ownership of land at the Coast.

➢ The officer of Recorder of Titles was set up under this Act to deal with
adjudication of private claims to land. Titles were issued on proof of
ownership.

➢ If a claim of ownership was unsuccessful, the land in question became

Government Land.

➢ Titles issued under the LTA were not government grants. They were issued on
the basis of existing rights and were freeholds.

➢ The LTA introduced an advanced form of registration of documents with a

separate folio for each piece of land.

➢ The register under the LTA is a volume called an Abstract Register. In the
Register, short particulars of documents presented for registration are
recorded.

➢ Copies of these documents are kept in large envelopes called Deed files.

➢ The Government did not guarantee title under the LTA and no indemnity was
provided.

➢ Upon enactment of the RTA in 1920, new and successful claims under the LTA
were registered under the RTA. Adjudication would take place under the LTA
but title would be registered under the RTA.

➢ With the enactment of the RLA in 1963, some of the titles registered under the
LTA, GLA and RTA were converted to the RLA on a voluntary basis.

In 1915: The Government Lands Act of 1915, Cap 280(Repealed)

➢ It was meant to control the interior hinterland.

➢ It introduced the deed plan-a document drawn by a qualified surveyor for

purposes of identifying each parcel of land.

➢ It also introduced a systematic approach to registering ownership in land. If the

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 government alienated land and gave someone it would be by way of grant or
indenture of lease and would be registered.

➢ This Act dealt with land which was the subject of Government grants prior to
1920, whether freehold or leasehold, with the exception of leaseholds which
had been converted from 99 years to 999 years or to freeholds. Such leaseholds
were registered under the RTA.

➢ The Register under the GLA is modelled on that of the LTA. A separate folio is
opened for each piece or parcel of land and transactions are registered against
each parcel.

➢ Copies of all deeds are kept in the registry.

➢ Short particulars of each transaction are recorded in a volume referred to as

an Abstract Register.

➢ It is the deed, not the title which is registered. As such, when investigating title
under the GLA, it is necessary to trace backwards up to the Government grant
in order to ascertain a good root of title.

➢ Under the GLA, the state did not guarantee title and no indemnity was
provided.

➢ The two registries, one in Mombasa relating to public/Government land at the

coast, and the other in Nairobi in respect of the remainder of the country.

1920: The Registration of Titles Act of 1920, Cap 281(Repealed)

➢ It is intended to get rid of the previous Acts.

➢ It was based on the Australian Torrens System that emphasized proper

systematic registration of title and proof of registration of title.

➢ It guaranteed registered title and prescribed for the first time statutory forms
to be used in conveyancing.

➢ Title documents are a Certificate of Title or a Grant

➢ This Act applied to the following lands:

i.All land which was the subject of a Government grant from 1920 or a Certificate
of Title issued by the Recorder of Titles after 1920.
ii.Leaseholds which had been converted from 99 years to 999 years or to
freeholds.

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 iii.Titles that had been converted from the LTA and GLA on a voluntary basis.
iv.Grants that were made by local authorities in respect of trust land. Trust land
is land which is vested in a local authority in whose area the land is situate for
the benefit of persons ordinarily resident in that area.

➢ The title was a Grant or a Certificate of Title issued to the proprietor. A

duplicate of the Grant or Certificate of Title is kept in the Registry. The original
grant or certificate of title is kept by the proprietor.

➢ The state guaranteed title and provided indemnity.

➢ Under the RTA, coastal titles were prefixed “CR”. For the remainder of the
country, the prefix is “IR”. For any trust land the prefix is “IRN”

➢ A piece of land under the RTA may therefore be referred to using its Title
Number which is CR, IR or IRN, or by means of a Land Reference Number
which is a number given to that piece of land by the Director of Survey.

➢ Under the RTA, there is a register for every piece of land. The register is a
duplicate of the grant or certificate of title which has said is issued to the
proprietor. The original Grant or Certificate of Title issued to the proprietor.

➢ Registrable transactions under the Act are registered against each title. A
memorandum of the transaction or dealing is endorsed on the Register and on
the original Grant or Certificate of Title issued to the proprietor.

➢ For this reason, the Original Grant or Certificate of Title must be produced to
the Registrar whenever an instrument containing any dealing in the land is
presented to the registrar for registration. The duplicate of the Grant or
Certificate of Title and the instruments which support the memoranda or
entries in the Register are kept in a Deed File.

➢ Previously, for titles under LTA, GLA and RTA, it was required that a Survey
Deed Plan be prepared for every piece of land. The Plan was attached to the
title document for purposes of identification of the piece of land. The Deed Plan
was prepared by the Director of Survey.

1963: The Registered Lands Act, Cap 300(Repealed)

➢ This Act governed the following lands;

i.Titles that had been converted from the LTA, GLA and RTA on a voluntary
basis.
ii.Adjudications under the Land Adjudication Act (Cap 284) and Land
Consolidation Act (Cap 293) since 1963 and successful claims under the LTA

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 after 1963.
iii.Titles which were registered under the Land Registration (Special Areas) Act
of 1959. This was land held under customary law and registered after
adjudication and consolidation.

➢ Under the RLA a proprietor’s title was unimpeachable except on grounds of

fraud or mistake to which the proprietor was a party. Exception: A first
registration however, could not be impeached. In addition the State guaranteed
title and provided for indemnity.

➢ Under the RLA, the Director of Survey was required to prepare a Registry
Index Map for every District. Survey Deed Plans were not required under the
RLA, unlike the LTA, GLA and RTA. The Index Map was kept by the District
Land Registrar in the appropriate District Land Registry.

➢ Land under the RLA was described by reference to its serial number which is
a combination of the District, Section or Block and the Parcel Number.
(eg.Kajiado/Kaputie-North/2031)

➢ The title document under the RLA was a Title Deed a.k.a, Land Certificate (for
absolute proprietorship) or Certificate of Lease (for a leasehold).These were
only issued on request by the proprietor upon payment of the requisite fee.
Where they were issued, they had to be produced to the Registrar when
presenting an instrument for the registration of a transaction or dealing.

➢ Under the RLA, there is a register for every piece of land (absolute
proprietorship). This is referred to as the “green card.” There is also a separate
Register for every Lease.

➢ The Register is divided into 3 Sections:

1. The Property Section
This contains the title of the Land or Lease and any Plan.
2. The Proprietorship Section
This contains the name and address of the proprietor and any inhibition,
caution or restriction affecting the owner’s right of disposition.
3. The Encumbrance Section
This contains any encumbrances that affect the land e.g. a charge or any right
adversely affecting the land or lease.

➢ The instruments which support the entries in the Register are kept in a Parcel
File.

➢ Once the Register is compiled, it is conclusive evidence of the matters stated

therein. Therefore anyone dealing with a proprietor under the RLA is not

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 required to trace backwards to find out how the person became a proprietor.

➢ It is provided for mandatory statutory forms to be used in conveyancing. It is

simplified conveyancing.

➢ Title documents issued under RLA include a Certificate of Lease and a Title
Deed or Land Certificate.

2012: The Land Registration Act, No. 3 of 2012 (now Cap 300)

➢ As indicated the Act was enacted in 2012 to take effect on 2 nd May 2012.

➢ The registration system, style and format is greatly borrowed from the RLA
(repealed).

➢ In that case, the Act establishes registration units in line with the devolved
system of government.

➢ It also establishes in each registration unit, a land registry in which is kept the
land register, cadastral map, parcel files, any plans, the presentation book,
index of names of proprietors, as well as register and file or powers of attorney.

➢ There shall also be kept a community land register in respect of land held
communally.

➢ The Act also recognizes the need for electronic registration.

➢ This Act at section 109 repealed the following Acts;

i.The (Indian) Transfer of Property Act 1882 (ITPA)
ii.The Government Lands Act (Cap 280) (GLA)
iii.The Registration of Titles Act (Cap 281) (RTA)
iv.The Land Titles Act (Cap 282) (LTA)
v.The Registered Land Act (Cap 300) (RLA)

➢ Section 104 of the LRA provides that the register maintained under any of the
repealed Acts shall, on the commencent of this Act, be deemed to be the land
register for the corresponding registration unit established under this Act.

➢ Under Section 105 of LRA, title documents (other than titles under GLA and
LTA) issued under the repealed Acts shall be deemed to be title documents
issued under the Land Registration Act 2012.

➢ Also, the folios of the registers of titles kept under the repealed Acts shall be
deemed to be registers under this Act.

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 ➢ In respect of titles under GLA and LTA, the Registrar is supposed to:
i.As soon as conveniently possible, cause the title to be examined;
ii.Prepare a register in the prescribed form, showing all subsisting particulars
affecting the parcel which are capable of registration under this Act;
iii.Serve on the proprietor and on the proprietor of any lease or charge, a notice of
intention to register; and
iv.Issue to the proprietor, upon request, a certificate of title or certificate of lease
in the prescribed form.

➢ Why this differentiated procedure for GLA and LTA titles? Is it because the
titles are not deemed as conclusive evidence of ownership unlike under RLA
or RTA? Are these titles inferior? This raised doubts of this kind of titles that
some banks at some point thought of not using them as collateral.

Conclusion

➢ From 1901 to 2012, legislations were enacted that dealt with Conveyancing,
RDA 1901, LTA 1908, GLA 1915, RTA 1920, RLA 1963 and LRA 2012, being the
conveyancing/procedural statutes and ITPA 1882(repealed) and LA 2012 being
substantive statutes. Though, RLA was both a substantive and
conveyancing/procedural statute.

➢ That means prior to 2nd May 2012, 5 statutes regulated conveyancing, and 2
statutes regulated substantive land matters. From 2012, the LA is the
substantive law, while the LRA is the registration/conveyancing/procedural
law.

➢ Other Acts that touch on Conveyancing in one way or another include the
following:
a) Sectional Properties Act No 21 of 1987 (now of 2020)-to be discussed
under the topic on sectional titles.
b) Physical Planning Act Cap 286 (now Physical Planning and Land Use
Act of 2019?)
c) Valuation for Rating Act Cap 266
d) Stamp Duty Act Cap 480
e) Landlord and Tenants (Shops, Hotel and Catering Establishments) Act
Cap 301
f) Rent Restrictions Act Cap 296
g) Law of Contract Act Cap 23
h) The Distress for Rent Act Cap 293
i) Land Adjudication Act Cap 284-for ascertainment and recording of
rights in trust lands.

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 ➢ As you can see, land regimes were scattered in various legislations, which
convoluted the whole system.

➢ At least now, there are two statutes, but so far there has not been a smooth
transition.

#Task: Sample titles under Registration of Documents Act (if any); Government Lands Act (repealed),
Land Titles Act (repealed), Registration of Titles Act (repealed), Registered Land Act (repealed),
Sectional Properties Act, as well as Subleases/Leases (for sales by way of long term leases); and Land
Registration Act 2012. See attached folder as well as the Firm presentation.

Formal Requirements of Conveyancing in Kenya

Formality of Writing in Conveyancing

➢ One cannot buy land the way one would buy a newspaper or a loaf of bread.
The contract must be in writing, executed by both parties and attested. This is
a mandatory statutory requirement.1

➢ Section 3(3) of the Law of Contract Act provides that:

(3)No suit shall be brought upon a contract for the disposition of an interest in land
unless-

a) The contract upon which the suit is founded-

i. Is in writing ii. Is signed by all parties thereto; and
b) The signature of each party signing has been attested by a witness who is
present when the contract was signed by such party:

Provided that this section shall not apply to a contract made in the course of a public
auction by an auctioneer within the meaning of the Auctioneers Act, nor shall
anything in it affect the creation of a resulting, implied or constructive trust.

➢ Under Section 44(1) of the LRA every instrument effecting any disposition
under the Act shall be executed by each of the parties consenting to it, in
accordance with the provisions of this section. And this is by way of appending
a person’s signature on it or affixing the thumbprint or other mark as evidence
of personal acceptance of that instrument.

➢ The formality of writing serves three purposes: Evidentiary, Protective and

Forensic:

➢ The formality of writing performs the forensic (of or used in court of law)
function in providing simple yet conclusive evidence of the fact of agreement.

1
Section 3 of Law of Contract Act Cap 23 Laws of Kenya

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 The Statute of Frauds 1677 expressly provided that the requirement of writing
was intended to guard against the fraud.

➢ Formality of writing also performs useful evidentiary function in encouraging

precision and recording the result for posterity. Writing helps to avoid
disputes as to what interest has been or is intended to be conveyed. Remember
too that land can generate an array of interests from its original form in the
freehold estate.

➢ Thirdly, it is argued2 that the formality of writing performs the protective

function of giving parties a chance to reflect and think on the deal before
executing a binding contract that they may wish so shortly before the ink is dry
to renege on. It is stated that if the agreement was to be oral there would be no
time for reflection on the deal per se. This function has been reinforced further
by the requirement of “independent legal advice” to be given by a qualified
conveyance.

➢ [Reflection: Are these arguments conclusive? E.g. has writing gotten rid of
fraud in conveyancing and how often do we make sensible decisions orally?]

Execution, Attestation & Verification

Execution

➢ Execution is the signing of documents the purpose of which is to authenticate

and acknowledge the same. Signature on the other hand is the “writing or
otherwise affixing a person’s name or a mark to represent his name by himself
or by his authority with the intention of authenticating a document as being
that of, or as binding on the person whose mark or name is so written or
affixed”.

➢ Initials, thumb prints (originally left thumb for men, right for women) are
deemed to be signatures but mere typing of a first name is not. (See: Lord
Denning in Goodman Vs. J.Eban 1954 1QB 550,see also First Post Homes Ltd
–vs- Johnson [1995] 4 All.E.R 355, Section 3(6) of the Law of Contract Act (Cap
23) Laws of Kenya).

➢ Section 44 of the LRA provide for execution of documents.

➢ Natural persons can sign by themselves or by their duly constituted

Attorney(s). Companies and other juristic persons will execute the document
as per the provisions of their respective constitutions, memoranda, charter or
the constituting statute as necessary. Such juristic persons may also execute
documents through their duly constituted attorneys. A close perusal of these

2
Moriaty,1984 LQR376(Ojienda,2008)

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 constituting or establishing documents or statutes is thus important. Look at
Sections 43-48 of the LRA.

➢ Documents will be signed at the signature block which appears at the very end
of the conveyancing document. It is however prudent to achieve the aim of
execution and also to guard against unscrupulous practitioners, parties be
encouraged to initial or sign every page of the document.

Attestation/Verification

➢ Attestation is the proper witnessing of a signature or execution. It simply

means to bear witness to a fact.

➢ The person witnessing the execution must be present as the executant ascribes
his mark. The object is to help guard against fraud and thus a party to a deed
cannot attest to its execution. A vendor ought not to witness the purchaser’s
signature and vice versa.

➢ So seriously is the issue of attestation taken that the Court of Appeal in

Lamchand Fulchand Shah –vs. – I &M Bank Limited C.A.C.Appl. No. 165 of
2000 decreed that where there is a question of proper or improper attestation
then the Advocate who purportedly witnessed the execution must be made
party to the suit. The conveyancer must thus take care and ensure the document
has been executed in his presence.

➢ Verification is explicitly provided for under section 45 of the Land Registration

Act.

➢ It is however more than just witnessing. A person executing an instrument is

required to appear before the Registrar, Public Officer or other person as is
prescribed; and be accompanied by a credible witness for the purpose of
establishing identity, unless the person is known to the Registrar, public officer
or other person. The Registrar, public officer or other person shall then identify
the person and ascertain whether the person freely and voluntarily executed
the instrument, and shall complete thereon a certificate to that effect.

➢ According the Fourth Schedule of the Land Registration (General) Regulations,

2017, the following are the prescribed persons to verify execution of
documents:

• Instrument executed in Kenya; (a) a person qualified to practice as an

advocate; (b) a Judge, Magistrate or Kadhi; (c) the Registrar or the Deputy
Registrar of the High Court; (d) a Registrar; or (e) a Superintendent of
Prisons.

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 • Instruments executed in foreign countries; (a) a notary public; (b) a Kenyan
High Commissioner; (c) a Kenyan Ambassador; or (d) a Kenyan Head of
Consulate.

Stamp Duty

➢ As part of conveyancing and taxation, stamp duty is basically revenue raised

by the Government requiring stamps sold by the Government to be affixed to
designated documents.

➢ The stamps are affixed or embossed or impressed by means of a red dye or

franking or adhesive revenue stamps.

➢ The Stamp Duty Act (Cap 480) Laws of Kenya designates various conveyancing
instruments to be stamped.

➢ Section 5 of the said Act demands that every instrument relating to property in
Kenya, if specified in the Schedule to the said Act; do fetch stamp duty as
prescribed.

➢ The duty is to be paid within 30 days of execution of the document or of its

receipt if it is executed outside Kenya (Section 6).

• Practice: leave the conveyancing instrument undated so that the person

processing stamp duty dates, to avert penalties for delayed in payment.

• As per section 20 of the Stamp Duty Act, the Collector of Stamp Duty, is
satisfied that there was not intention to evade tax, may authorize payment of
stamp duty beyond the statutory time, but that the same attracts a penalty of
KES 1 in respect of every KES 20 or fraction thereof and in respect of every
3 months or part thereof after the lapse of the period allowed for stamping.

✓ Such penalty should not exceed 100% of the principal duty, and
a maximum of KES 1,500,000 unless with the approval of the
Cabinet Secretary.

• Contrast the foregoing with the penalty, in section 19, of KES 10 for KES 20
or fraction thereof so as to admit a document for use as evidence court.

➢ Otherwise, failure to pay duty is equivalent to evasion of tax and is a criminal

offence under Section 113 of the Act.

➢ As per section 19 of the Stamp Duty Act, a document that has not been stamped
shall not be received in proceedings, except in criminal proceedings and civil
proceedings by the Collector of Stamp Duty.

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➢ Section 46 of the LRA supplements the Stamp Duty Act and under the Section
no document is acceptable for registration if the stamp duty required to be paid
has not been duly paid and documents properly stamped.

➢ Reflection: What is proper stamping: franking, embossing ink/dye, or

revenue/adhesive stamps?

➢ Duty on conveyancing instrument is paid on the ad valorem value (i.e according

to value) at the statutory rate. The rates currently are –Transfers 4% for
properties situate within cities, municipalities and 2% of the value for
properties outside municipalities/cities; Charges and Mortgages – 0.1% of the
amount secured; Discharges/Reconveyances- 0.05% of the amount secured and
Leases 1% of the annual rent for a Lease of less than 3 years and 2% of the
average rent for a Lease of 3 years or more. Long term Leases or subleases are
deemed to be Transfers and fetch duty as if they were Transfers.

➢ Currently, Stamp Duty Fees is collected directly by the Kenya Revenue

Authority by payment being made to the Authority’s account in commercial
banks, or though mobile money. The document together with the stamp duty
assessment form and the banking pay-in slip is then delivered for stamping by
the Collector of Stamp Duty. The Collector has powers to adjudicate and decide
whether a document should fetch duty. Payment is processed through iTax,
and now Ardhisasa.

➢ In case of doubt, a person, may the opinion of the Collector of Stamp Duty,
whether an instrument should attract stamp duty, and if so, how much? See
Section 17 of the Stamp Duty Act on adjudication on stamp duty.

➢ Under section 18, a party dissatisfied with the Collector’s assessment for stamp
duty may appeal to the High Court.

➢ The Schedule to the Stamp Duty Act prescribes the instruments to be stamped,
the amount of stamp duty, as well as the party responsible for stamping. It also
provides a list of instruments generally exempted from stamp duty.

➢ Specific exemption from payment of stamp duty, as to instruments that attract

stamp duty, is the recluse of the CS for Finance after receiving the appropriate
recommendation from the CS for Lands [See section 106].

➢ Relief and or exemption will be granted to charitable organizations as well as

religious organizations or institutions. Certain institutions are also Duty –
exempt. These include educational institutions, government departments (e.g.
Central Bank of Kenya) and the Export Processing Zone Companies. [Reflection:

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 What possible reforms would you recommend to the Stamp Duty regime? E-stamping,
first time home owners be duty exempt”]

➢ It is important that in every conveyancer’s brief; the Stamp Duty Assessment

Form is completed in a legible manner, the payment is re-checked to have been
fully made to match the amount assessed, all receipts are available copied and
properly filed and any certificated for purposes of relief or exemption required
are obtained in time. The forms are filled online, through iTAX, and now
Ardhisasa.

➢ Process:
• Applicant presents documents for assessment by collector. Fills Form
SD1
• Assessor confirms if duty is payable, counterchecks info on the form and
document, ascertains amount and endorses both Form and document
• Applicant pays amount in designated bank, or mobile money.
• Returns document with proof of payment to Collector of Stamp Duty
• Collector of Stamp Duty reconciles, records and stamps document by
franking, or embossing ink.
• Audited by Government accountant and dispatched

Rates& Rent Clearance Certificates

Rates Clearance Certificate

➢ Rates are levies payable to the Government through the local authorities under
the Rating Act (Cap 267) Laws of Kenya. It is simply a form of taxation and
conveyancing helps in a way towards its collection. Upon full payment of rates
due on any parcel of land, the local authority’s Clerk issues the owner of the
parcel with a Rates Clearance Certificate. It is prima facie evidence that the rates
due and any interest accrued thereon have been fully paid.

➢ Before repeal, section 38 of LRA required that prior to the Registrar accepting
any document intended to transfer or vest any interest in land for registration
there must be also produced a valid Certificate or Statement showing that the
rates have been cleared or paid up. Rates will be levied on all parcels of land,
freehold or leaseholds.

➢ It is no longer a registration requirement, but can be made a completion

document in a conveyancing contract to ensure that a vendor has paid rates

➢ The Business Laws (Amendment) Act of 2020, with an aim of easing the doing
of business, repealed section 38 of the LRA that required submission of a land
rates clearance certificate to the registrar for registration of dispositions. The
repeal happened during the Covid period.

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 ➢ The land rates clearance is issued by the appropriate local authority in whose
area the land is situated. It certifies that all monies payable to the local authority
in respect of that property have been paid. Such monies include:
i. Land Rates; and
ii. Interest charges on rates.

Land Rent Clearance Certificate

➢ Land Rent, too, is a source of income for the National Government as a

Landlord. Land Rent will be levied only on national government leasehold
parcels where the annual rent has been reserved at the time of the grant being
issued. [Reflection: What is a peppercorn?]

➢ Before repeal, section 39(1) of the LRA helped to assist the Government in
collection of rent as the section required that before any transaction on a
leasehold property is registered the parties must produce to the Land Registrar
a valid Rent Clearance Certificate.

➢ It is no longer a registration requirement, but can be made a completion

document in a conveyancing contract to ensure that a vendor has paid rent.

➢ The Business Laws (Amendment) Act of 2020, with an aim of easing the doing
of business, repealed section 39(1) of the LRA that required submission of a
land rent clearance certificate to the registrar for registration of dispositions.
The repeal happened during the Covid period.

➢ It is always the duty of the registered proprietor to pay and obtain the Rates
and or Rent Clearance Certificate, unless agreed otherwise. [Reflection: What is
the process of obtaining either a Rent Clearance Certificate or a Land Rates Clearance
Certificate? What are the challenges met by ordinary practitioners?]

➢ All leaseholds from the National Government are subject to annual rent that is
payable by the grantee of the lease.

➢ Examples of other transactions where a LRCC was required for leasehold land:
Lease, Charge.

Consents

➢ There are a number of consents in conveyancing to ensure the success of a

transaction. Different transactions however require different consents and
occasionally some will over-lap. [Reflection: What is the rationale behind the
various consent?]

Consent from the National Government or County Government (Commission

of Lands)

Page 16 of 35
 ➢ Before repeal, the Registrar was not to register an instrument effecting a
transaction unless satisfied that any consent required to be obtained in respect
of the transaction has been given by the relevant National Government or
County Government on the use of the land, or that no consent is required
(section 39(2) of the LRA). This includes paying all outstanding land rent. It will
be applicable only to leasehold properties and not freeholds.

➢ The Business Laws (Amendment) Act of 2020, with an aim of easing the doing
of business, repealed section 39(2) of the LRA that required submission of the
consents to the registrar for registration of dispositions. The repeal happened
during the Covid period.

Land Control Board Consent

➢ This applies to all land designated as “agricultural land” under Section 2 of the
Land Control Act (Cap 302) Laws of Kenya [Reflection: What is “agricultural
land?’’]

➢ And is required for all transactions touching on and concerning such land. The
particular transactions are outlined in section 6(1) of the Land Control Act.eg.
Sale, Charge, Transfer, Lease etc.

➢ The consent is granted by the local Land Control Board on application by both
parties to the transaction. The application is made in a prescribed form and
consent also issued in a prescribed form.

➢ Transactions touching on and concerning agricultural land will be exempt from

the Land Control Board Consent if the President so directs or if it is a
transmission or if the Government is a party.

➢ The application to the Board must be made within six(6) months from the date
of the transaction otherwise the transaction is null and void: Simiyu –vs-
Watambamala 1985 KLR 252,Karuri –vs Gituru 1981 KLR 247,JacobMinjire –
vs-AFC,Njamuyu –vs-Nyaga 1983 KLR 282.

➢ A case in point is Neslon Githinji et al vs. MuneneIrangi 3 where the court of

appeal categorically stated that the effect of section 6(1) of the Act was to render
null and void any transaction, sale, transfer or other disposition or dealing in
agricultural land situate in a land control area without a Land Board Consent.

Facts

3
Civil Appeal No. 133 of 1987 at Nyeri

Page 17 of 35
 The suit land was agricultural land, but the consent of the Land Board was not obtained.
There was supposedly an arbitration, which recommended that the superior court
should order the appellant to transfer the suit land to the respondent without delay. On
appeal;

Held

The transaction for which the respondent sought specific performance required the
consent of the relevant Land Control Board. This was a legal requirement. The effect of
the arbitrator’s award was to grant the respondent the specific performance he sought.
If no consent of the relevant Land Control Board was obtained, then that award was
illegal.

Other Consents include:

➢ Consent of the Railways Corporation (for land adjacent/adjoining railway

lines), Consent of Kenya Airports Authority (for land adjacent/adjoining the
airports or flight paths), consent of Chargee (see Section 59 of the LRA),
Consent of the Lessor/Landlord section 55&56 of the LRA, Spousal consent
under section 93 (3) of the LRA. [Reflection: Whose responsibility is it to obtain the
requisite consent? Which consent(s) may require to transfer a free hold property? And
an Apartment under a Sub-Lease? What are the consequences of not obtaining a
requisite consent or clearance certificate?]

➢ Unless otherwise agreed it is the responsibility of the person who intends to

dispose of the interest to obtain the consent.

The Consent of the Kenya Railways

➢ For any land adjacent to or adjoining the Railway land, the consent of the
Railways Corporation is required prior to any dealing in that land. Cap 397-
Kenya Railways Corporation Act does not provide for the above requirement.

➢ Most of the time when one applies for this consent, one is required to pay cess
to the Corporation before being granted the consent. The Deed Plan to most
properties reveal a Railway Line running through some parcels of land. This
consent would be in addition to the LCB consent where applicable.

The Consent of the Kenya Airports Authority

➢ This consent is issued by airport owners for all properties which may be
adjoining flight paths. The whole purpose of this is for the authority to find out
what one wants to do with the property. One is supposed to be given a
questionnaire to fill in. One must consult before doing anything on the land.

The Consent of the Landlord [Lessor’s Consent]

➢ This refers to one who has obtained leasehold from Government (head lessor)
and wants to sub lease it. This is found in sub-leases. One will need the consent

Page 18 of 35
 of the Landlord. Aimed at ensuring agreements in the lease are honoured as
well as all rent being paid.

The Consent of Trustee of National Parks

➢ Properties adjoining or within parks require this consent prior to any

conveyancing transaction involving such land. The Kenya Wildlife Service is
the Trustee of such parks. This is to ensure there is no derogation of title.

Spousal Consent

➢ Section 93 of the LRA 2012 as read with Section 12 of the Matrimonial Property
Act require the consent of a spouse where the other spouse seeks to dispose
matrimonial land or a dwelling house which that other spouse holds in his or
her name individually.

➢ Before the amendment of section 93 of the Land Act, where there was no
spousal consent, the Act provided that such disposition (including
charges/mortgages) were void-this threatened the viability of land as security
for borrowings. The consent is usually given in the form of an Affidavit.

1. These consents are required to complete any given transactions. In the

absence of these consents the conveyance e.g. lease, mortgage etc. would not
be registered.

2. In practice, certain land registries do not require submission of spousal

consent. In that case it remains as a contractual completion document.

3. LSK Conditions of Sale provides that for purposes of completion, all

necessary consents must be obtained by the vendor/lessor (he who is parting
with the interest). In practice, the person obtaining the interest is given a
duty to assist in obtaining the consent especially where both parties presence
is required.

4. If the consent is not availed or obtained one will be held to be in breach.

Unfortunately, the person who is aggrieved has remedies in damages only.
There is no room for specific performance because as long as the consent is not
given within the specified period, the agreement lapses.

See: Mucheru v Mucheru [2002] 2 EA 456

The CA held that if LCB consent is not obtained the transaction becomes void
even if the duty to obtain the consent was not exercised.

Facts: The respondent filed suit seeking an order to bury a deceased husband
on the property in the control of the appellant who was the widow of the
registered proprietor. The respondent claimed that her deceased husband was
entitled to a portion of that property under Kikuyu customary law. The

Page 19 of 35
 respondent proved trust under the customary law and that the administrator
was to obtain LCB consent. The court held she was entitled to the portion
subject to the LCB consent.

The CA held that the establishment of a trust is a disposition of property within

the requirements of Sec 6 LCA and LCB consent was necessary. Having not
been obtained within the required time i.e. 6 months, the whole disposition was
void:

Jacob Gichuki Mijire v AFC CA 61 of 1982

AFC sold Dagoretti/Riruta/1139 to the appellant at a public auction where the

appellant was the highest bidder. The appellant paid 255 deposit but no
agreement was signed as per s.3 of LCA.

AFC refused to complete despite payment of the balance of the bid price within
the required 30 days. The appellant sued for specific performance but AFC
contended that the land was agricultural and a controlled parcel leading to the
auction being a controlled transaction as per s.6(2) of the LCA and the sale was
consequently void for all intents and purposes as no LCB consent had been
obtained or an application filed within 6 months.

Held: No specific performance would be granted because:

a) Property had already been redeemed. Equity could not act in vain.
b) No LCB consent was obtained.

Bosire J said:

“The lack of statutory consent at the expiry of the 3 months makes the transaction void
for all purposes until then there is only a de facto agreement which has no legal effect”

Formality of Registration in Conveyancing

➢ Conveyancing is complete only once registration is affected. Registration is the

keeping of records of land transactions in the Land Register. It involves
registration of both the title and as well as the interest. What is registered is
usually the title or ownership to land and any instrument dealing with land or
the disposal thereof.

➢ Security of tenure: A registered proprietor acquires an indefeasible title against

the whole word. The security of tenure acquired through registration also gives
the property, owner a right to indemnity from the Government where there is
fraud or an error in the Register. See LRA 81-84, but note the qualification in S.
80(1)

➢ Reduction of unnecessary litigation: The registered owner can transact or

settle his land without the fear of being sued to challenge his title because upon
registration, he acquires an indefeasible title against the whole world.

Page 20 of 35
 ➢ Prevention of re-fragmentation of land: Registration helps to determine
whether or not a particular piece of land can be sub-divided because his tide
details pertaining to the land, such as acreage, will have been noted in the
Register.

➢ Facilitation of Government property tax administration: Through

registration, the Government is able to identify persons/property owners on
whom to levy tax in respect of a particular piece of land and also keep track of
the Government’s planning programmes.

➢ Efficient administration and facilitation of the loan system: The security of

title which flows from registration makes it possible for property owners to
obtain loans from financial institutions .A prospective purchaser has more faith
dealing with an owner whose land is registered.

➢ Prevention of concealed dealings in land: Registration gives publicity to land

transactions. Since the register is a public document and is therefore open to
the public, it is possible to ascertain who owns what interest in land.

➢ Upon registration of the land or conveyance the registered proprietor acquires

an indefeasible title against the whole world. [Section 24 of the Land
Registration Act No.3 of 2012]

➢ Registration is effected at the relevant Land Registries. Care must be taken that
the conveyancing instrument is not only presented at the proper registry but is
also signed/registered by the proper registrar.

➢ What is registered? Title (land) and interest (servitudes, encumbrances, quasi-

encumbrances). The latter includes charges, leases, easements, profits,
restrictive agreements or covenants.4The former involves the estates namely
allodiums (absolute), fee-simple, freeholds and leaseholds.

Effect of Registration

➢ Pursuant to Section 24 of the LRA the registration of a person as the proprietor

of land shall vest in that person the absolute ownership of that land together
with all rights and privileges belonging or appurtenant thereto; and the
registration of a person as the proprietor of a lease shall vest in that person the
leasehold interest described in the lease ,together with all implied and
expressed rights and privileges belonging or appurtenant thereto and subject
to all implied or expressed agreements, liabilities or incidents of the lease.

➢ One becomes an absolute owner of the title or interest registered. [Reflection:

How absolute is absolute?]

4
(see Tulk-v-s Moxhay [1843-60]All E.R 9)

Page 21 of 35
 ➢ Pursuant to section 25 of the LRA The rights of a proprietor, whether acquired
on first registration or subsequently for valuable consideration or by an order
of court, shall not be liable to be defeated except as provided under the Act,
and shall be held by the proprietor, together with all privileges and
appurtances belonging thereto, free from all other interests and claims
whatsoever, but subject-
a) To the leases, charges and other encumbrances and to the conditions and
restrictions, if any shown in the register; and
b) Overriding interest (see S.28 LRA)
See also: National Prov.Bank Limited-vs-Hastings (1964) Ch 9
Mbui-vs-Mbui (2005) I E.A 256
Marigi V Marigi 1996 LLR 463
Ogongo V Ogongo CACA 29/2003
Esiroyo-Vs-Esiroyo (1973) E.A

NB

• Registration at the Company’s Registry under Section 878 of the

Companies Act 2015 is required where a Company creates a charge over its
parcel of land.
• Registration at the Registrar of Co-operative Societies.
o Purpose in both instances:
➢ Create a secured creditor vis-à-vis insolvency
➢ Notice to prospective Debenture-holders
• Reflections on Registration: Where is registration effected? Who effects
it? When is it deemed to have been effected? What is registration subject to?
What is (must be) registered?

Inside a Lands’ Registry

1. Filled Valuation Forms lodged with the collector of Stamp Duty for purposes
of valuation. Particulars of Property Form filled by conveyancer. Valuation for
Stamp Duty Requisition Form filled by the Collector and sent to Chief
Government Valuer for valuation. Valuation is only applicable where the
instrument is a transfer or deed of conveyance.
2. Document stamped and duty paid at the Banks (KCB/NBK/Huduma/mobile
money) then document lodged for registration.
3. Documents presented together with all requisite documents e.g. original of the
government’s valuation report, (previously with consent, clearance certificate),
original title etc.
4. Fill out application for registration and pay registration fees 500/=
5. Upon presentation of document and a Day Book number given entered into a
register and date and time of presentation endorsed on the document for
purposes of priority. The time of presentation of document, not execution or
date thereof, counts to pass interest.

Page 22 of 35
 6. Taken into audit and Government Auditor ascertain stamp/duty and
registration fees have been paid.
7. Left for matching with the Deed or Parcel files from the strong room.
8. Registration proper commences with the registry-in charge of marking the
documents for action in a register known as the ‘A’ book.
8.1.First is verification of document by an officer in the registry: detection
of any defects.
8.2.Second is inspection of the title by an officer to ensure title is clear and
registration can proceed
8.3.Third is entry of particulars of interest being acquired
9. Document is then passed to relevant registrar for execution and ultimate
registration. Registrar vets it again and then signs in approval or rejection with
reasons.
10. In epilogue(conclusion): Document is photocopied (except RLA documents)
and sealed with Land Registry’s Seal (except GLA documents)
11. Released to owner. If RTA, RDA, GLA or LTA the Registry keeps a photocopy,
if RLA the Registry keeps the original and releases the counterparts.
12. The current LRA procedure is similar to the previous RLA procedure.

#we should get a guest from the lands office to elaborate on the above, including
the Ardhisasa process (that will be discussed later but which in the meantime
time you can navigate on the Ardhisasa online platform. Actually, open an
Ardhisasa account).

[Reflection: Why does it take more than 14 days to complete such a simple looking
process?]

The Types and Goals of Registration

For a long time in Kenya, there has been in place two types of registration
systems:

➢ Registration of Deeds

➢ Registration of Titles

These two are distinct and one ought to have a fairly good understanding
of what each of them deals with to appreciate the distinction.

Registration of Deeds

➢ The registration of deed system entails maintenance of a public register

in which documents affecting interests in a particular registered land
are copied.

➢ Such a deed is merely evidentially of the recorded transaction and is

Page 23 of 35
 by no means proof of title.

➢ The most that can be made out of a deed is to invoke the records as
prima facie proof of the fact that the transaction in question did occur.

➢ It cannot and will not suffice to prove the validity or legitimacy of such
transactions.

➢ As a matter of requirement the deed does not even have to be

consistent with any registered transaction which may have previously
taken place in connection with the property in question.

➢ Consequently the deeds system cannot confer any secure title to land
in favour of the person in relation to whom the registration of the
deed has been executed.

➢ The reliance on the deed system is therefore as risky as reliance on the

unregistered system as it entails a historical deduction of the title in
respect of the property in question if one is to be sure that the title is
good and well rooted.

➢ There is no government guarantee with regard to deeds and so there

is no guarantee as to the accuracy of entries and no indemnity would
be available to take care of any losses arising from omissions that may
be disclosed in the register.

➢ In a sale and purchase of land under this system, therefore, a vendor

was required to show a "good title" to the purchaser. Since the land
search record is not conclusive, it leads to problems when a vendor
has to prove his title, in particular when the land is old or involves
multiple encumbrances.

➢ In Kenya, Registration of deeds was embodied in the Registration of

Documents Act Cap 285 which is section 4 provided that: "All
documents conferring, or purporting to confer, declare, limit or
extinguish any right, title or interest, whether vested or contingent to,
in or over immovable property (other than such documents as may be
of a testamentary nature) and vakallas shall be registered. " Documents
were also registerable and under the Government Lands Act and Land
Titles Act Cap 282 (see s 58 of LTA).

Page 24 of 35
Registration of Title

➢ This refers to the maintenance by the state of an authoritative record of

all rights in relation to particular parcels of land such particular parcels
as may from time to time be vested on specific individuals or legal
entities.

➢ Subject to such limitations as may be disclosed in the register itself, and

save for such interests as may be of overriding nature (found section
30 of the repealed RLA; now section 28 of the Land Registration Act
201 2), the register is a true reflection of the position of the land in
question.

➢ Registration of title provides convenience and simplicity based on

certain solid principles that any body interested in a given property
would want.

➢ The case for registration of title is made out by the fact that it offers
cheap and expeditious and secure methods in property dealings
which are in sharp contrast to the position in the unregistered system
which was thought to be costly, disorganised insecure and
complicated.

➢ Its principle objective is to replace the traditional unregistered system

and the registration of deeds method with a single established register
which is maintained by the state to be a conclusive and authoritative
proof of the details or particulars set out therein. It is precisely because
of that that it is credited in eliminating wasteful burden placed on
potential purchasers under the unregistered system which requires
them to separately investigate titles to assure themselves that it is a
good title that can pass and which is free from any hidden claims
which may be adverse to their interests.

➢ Since the register is state maintained and operated, the title registration
system enjoys all the advantages that are unavailable under the
registration of the deed system which is not very different from the
unregistered system.

➢ Unlike the registration of the deed system, the registration of title

system has the capability of investing secure titles in all persons in
whose favour such registration may be effected. It is further regarded
as final authority on the correct position regarding any registered

Page 25 of 35
 land. It is also cheap and expeditious in terms of facilitating various
transactions regarding registered land. State indemnity is available
for any losses that may be incurred and so it makes conveyancing
very simple .

➢ The register is a very important document as it is the sole authoritative

record wherein lies title to all registered plans. The register is kept at
the lands office , the central registry in the lands office. The register
itself refers therefore refers to the official record containing details of
one' s estates, particulars of the property and the interests that affect
the property. It would identify the nature of the Estate whether
leasehold property or freehold or an absolute estate.

➢ The records are described by reference to an official map plan that is

maintained at the registry. In that sense, the register may be used in
reference to the entire index of many individual registers that
comprise the sum total of all titles relating to registered land in the
country.

➢ The register has various sections into which it is divided. There are 3
main sections so that each register is divided into 3 parts, property
section, proprietorship section and finally the encumbrances sect
ion.
□ The property section - contains a section of the registered property
and identifies such property by reference to a map plan included
in this section are details of the date of first registration of the
land. It may also contain notes relating to any exemptions or other
adverse interests to which the property is subject. In the case of
registered lease or land there would also be particulars of the
lease including the title number and a statement to any
prohibitions against

□ The proprietorship section - states the nature of the registered title , name
and address and other description of the registered proprietor, any restraint
if at all to which is powers of disposition are subject.

□ The encumbrances section - gives particulars of subsisting burdens to

which the property is subject and any restrictions that are endorsed have
the effect of preventing such dealings in the property as maybe
inconsistent with the restrictions imposed.
➢ Administration of registration system is the most crucial department
involved here.

Principles behind Registration of Titles Registration

Page 26 of 35
➢ A system like this needs to be based on some principles. By far the most
important source from which these principles were drawn is the Torrens
System.

➢ The system was named after Sir Richard Torrens (former Australian Legislator
and Premier) who formulated the same in 1858 in South Australia from where
it later spread to other parts of the world.

➢ Most jurisdictions embrace this system because of its demonstrable superiority

over other systems. It is significant because it provides a new and improved
information system on property in the form of a register and the register
contains all the material facts about a particular property. Other than that, in
such a register would be entered all such information so that they can be
accessed and a document of title would be issued to the owner upon such
property changing hands through subsequent transactions.

➢ The document of title in respect of property would be surrendered to the new

owner and the information would be effected in the proper register so that the
necessary changes can reflect all the material details and indicate the true status
as regards, among other things, ownership of the property or any other
interests which affect such ownership.

➢ In effect, it leads to a creation of a public record on property full of information

of the kind that would be of interest to anybody wishing to have any dealings
in such property. By creating a public record system there is the element of
security of such a title or title assurance which does offer a measure of
protection to the bona fide purchaser without notice who may wish to acquire
such a property in future. In contrast to an unregistered land system, there is
no risks or uncertainties whatsoever as to the ownership including whether
there are claims acquired, whether it has been charged all these things would
be disclosed in the register. There are guarantees that come with the
registration since it is government maintained.

➢ There are principles relating to the said Torrens System:

The mirror principle

• This relates to the accuracy, certainty or conclusiveness of the entries

in the register.

• Under the principle, the entries in the register reflect the true status of
the title concerned. Whatever is found in the register is to be taken as
accurate and conclusive on what it purports to inform us about.

Page 27 of 35
• All material details, including true position of ownership, the interests
or other rights to which such ownership could be subject are to be
found in the register.

• The history of how this property has changed hands, if at all, the first
time and at any time changing hands might have taken place are entered
into the register.

• Mirror principle stands for transparency in shedding light about what

the position is and once we have accepted the principle there is the
element of confidence and assurance that we are not having any
hidden factors or interests that may be adverse to the interests of the
parties concerned.

Insurance/Compensation/Indemnity Principle

• This relates to the fact that since the state has undertaken to establish
and maintain the register.

• The state by extension guarantees the accuracy of the entries in the

register. It also guarantees that there would be indemnity offered to
compensate anyone who may suffer loss as a result of mistakes in the
register.

• If by reason of operating that system, injury or damage arises to any

individual, then, since the register is state run, the government
undertakes to compensate any person who suffers loss to the extent of
such loss.

Curtain Principle

• This relates to the requirement that the register should disclose precisely
the nature of the interests and who the owners are.

• The principle implies that the right which the purchaser is not concerned
with are not disclosed on the register but are hidden behind the curtain
of registration.

• A purchaser of land is not concerned with the matters behind the entries
on the register. In particular, the details (as opposed to the existence) of
trusts affecting registered land should not be entered in the register

Indefeasibility

Page 28 of 35
 • This is to the effect that once registered as the owner of an interest and
such interest duly disclosed or entered in the register, the rights acquired
cannot be defeated by any adverse claims which are not disclosed in the
register.

• The register is a public document and open for inspection by the public
so that the presumptive position is that everyone will be deemed to know.

• Discoveries can be made of material details which would affect a person

in one way or another and it is good public policy that the openness
allows you to know any adverse interest before one goes very far with
the transaction one can seek explanations.

• Once we've got all these guarantees, we shouldn' t allow them to be

defeated by any hidden claims and the registers should be open for
anyone to see.

• The idea of public notice provided for by keeping a policy of an open

register should work towards strengthening the rights of an individual
with an interest.

The Goals of Registration

➢ In a way, the goals of registration under the LRA 2012 do not depart
fundamentally from the issues such as security of tenure that was the
basis of the repealed system.

➢ Under the system repealed in 2012, in the RLA provisions of sections 27,
28, 29 and 39 were instructive, while in RTA sections 23 and 24 were
relevant on the safeguards to a registered proprietor and any person
dealing with property. These safeguards exist in the Land Registration
Act (sections 24 and 25) and are against the eventuality of one losing
their interests in land.

➢ There is a guarantee that the government gives as to the reliability on

what is disclosed in the register and there is a title assurance which are
central to the security of tenure given that dealings in such property
will not predispose an individual to any damage.

➢ There is bound to be confidence in commercial business circles with all

those participating in the process being unbothered with the
possibilities of incurring losses.

Page 29 of 35
➢ The issue of losing one' s title is taken care of. No claims that are
inconsistent with a registered title would be entertained. Such adverse
interests cannot be treated favourably as against that of the registered
proprietor. In the case of Obiero v Opiyo and others [1972] EA 227, the
Court observes that a person who acquires a first registration title under
RLA acquired an indefeasible title that is better as against the whole
world. This would stand under the current system by virtue of section
26 of LRA 2012.

➢ Before one is registered as a proprietor of a given property, there are

preliminary stages that have to be dealt with and the most important
stage is that of adjudicating the claims.

➢ Whoever claims to be the owner or is entitled to a particular property

has to prove the claim and have to face challenges from interested
parties who are allowed to make representations.

➢ Adjudications are conducted with the help of the locals to ensure that
only true claimants can acquire the title. Whoever succeeds on gaining
first registration will have shown the most effective entitlement to the
title .

➢ If it works out that way, it should follow that there would be no disputes
that would go to court. The bulk of the cases are in land related cases
and therefore the theory has not been proved right. There has been a
lot of litigation revolving around land which makes one wonder if the
system has been effective.

➢ It has also been suggested that the other goal is to avoid the old practice
of land fragmentation. This was in fact one of the other objectives that
registration sought to achieve through consolidating smaller holdings
into bigger ones.

➢ A number of social factors explain why the land units were fragmented
as they believe that every son must get a share of family land no matter
how small the piece of land is and one ended up with small pieces of
land in different place and this was identified as a militating factor
against productivity.

➢ Eventually they decided that consolidation would make one end up

Page 30 of 35
 with one larger unit which could be more productive due to economies
of scale. The RLA (repealed) prohibited the registration of more than
five people to be registered in one parcel of land. Any limitation in
current regime?

➢ It has also been suggested that another goal is to facilitate tax

administration.

➢ Historically, the case has been that levies imposed from land have
since time immemorial served as vital sources of revenue. The feudal
systems in England and collective system in Russia, for example, have
served as main sources of revenue to the government.

➢ In Kenya, Land Rates and Land Rent fees were previously paid. Under
the Land Planning Act there is a planning fee; Stamp duty is payable
under Stamp Duty Act; and registration fees are payable under the
LRA. Registration facilitates the question of administering taxes due
by identifying the way to levy taxes. One has to fulfil a number of
requirements which relate to tax administration based on levies on
land before any transaction can take place.

➢ The other goal is to facilitate workable loans systems by having a

credible registration system in place where one creates ample securities
and adequate checks and guarantees based on land as a commodity in
the market place.

➢ One can surrender their title documents as security in return for

financial accommodation through being afforded credit facilities. This
is a healthy phenomenon is it works along the lines that it should, that
it is it is presupposed that one has a development plan and can take
advantage of finances available which one would not have access to in
the absence of title.

➢ It is possible to improve one' s property and pay back the financier.

The financier is the one who gambles by giving the credit in hope that
one is going to make good or have the ability to pay. In the event that
one defau lts, then the property is liquidated to recoup whatever is
charged. There is a statutory power of sale that vests on the financier if
one does not make good to repay .

➢ The other goal which legislation seeks to attain relates to limiting or

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 eliminating all together prospects of litigation arising from rival
disputes by different claimants in respect of land so reduction of
unnecessary litigation is one of the goals set to be achieved.

➢ Land is a very thorny issue especially in our society and most of the
disputes that we have the potential to last for years on end.

➢ The exercises that precede legislation such as the preliminary process

of adjudicating claims and ascertaining rights and interests is
conducted, representations are allowed from various quarters and at
the end of that process the legislation results in favour of the successful
claimant who will have proved ownership of that land including the
extent of the land in question or the size of the holding which will
have been verified by those best placed to undertake that process
and in the end it is expected that no further disputes will follow.

➢ This is not always the case; the presence of this preliminary exercise
has not stopped people from litigating in court. In any case what
would happen in the absence of such a system is probably having
too many cases than we are experience and looked at either way
there is a measure of success to be attributed insofar as this particular
goal is concerned.

➢ Legislation seeks to avoid the possibility of fragmentation of land and

this is an inbuilt mechanism that is part and parcel of the entire
legislation exercise.

➢ One of the problems that was identified to exist within indigenous land
holding was one that was primarily brought by cultural practices that
demanded that some things like sharing land to all those thought to be
entitled was applied.

➢ Wherever communal land was found each and every individual that
qualified to own a piece would get a piece and the situation arising was
one where a particular person would end up with many small pieces
cropping up all over the place and this was not economical.

➢ The productivity or output from working such holdings was not

making any sense. With the advent of the legislation process this
particular element would be cured once and for all by comparing an
amalgamation of holdings to a number of forms.

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 ➢ Those who owned land could be forced to swap and in the end have
the pieces combined in one area to make up a bigger unit so as to deal
with the problem of fragmentation.

➢ Consolidation of units would be encouraged and the result would be

that land fragmentation would be minimised or eliminated altogether.

Advantages of Registration of Titles

➢ The registered land system gives title assurance so that in terms in

administering property rights we have that title assurance that bestows
confidence on any person dealing with the property in the sense that
the owner will have been portrayed as having a good title to pass with
regard to the property.

• Such assurance is achieved through the process of maintenance of

an organised or systematic state recording and issuance of title
document to each successive owner of the property in question,
which then is reflected in the register in a chronological order, it is
easy to learn the history of the property if one wishes.

➢ It also establishes a system of public data bank of some sort which

contains records of all property titles such data can be accessed easily and
is available to almost the entire public through conducting a search so
that any interested persons can easily take advantage of that.

➢ The other advantage is that it makes available a property map plan of

scientific accuracy which is based on survey work that precedes the
process of adjudication and registration. Such a map is revised and
updated regularly so as to offer a clear picture in terms of identifying the
property so one cannot be easily fooled by fraudsters.

➢ In certain cases this system also serves to preserve in secure place

important documents of titles relating to various properties which would
otherwise be completely lost or unsafe if left in private hands .

➢ It has also been suggested that the system serves as a constructive

public notice i.e. the records that the system serve as a notice to all and
sundry as to the true status of the registered property. By reason of that
fact, it has been suggested further that it protects potential purchasers for
value against other unregistered adverse interests which may have been

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 acquired prior to the purchasing of the property in question since such
unregistered interested are not reflected anywhere in the register and are
therefore deemed to be unknown. By protecting the purchasers, they are
effectively cushioned against uncertainties that characterise the unrecorded
system.

➢ It has also been suggested that given the current policy towards the
registration system, it helps in an important way towards abolishing the
earlier inconclusive and costly title investigation system which
characterises the unregistered system. Instead it seeks to substitute one
that is final and absolutely authoritative which can be carried out at the lands
registry using the assistance of experts in charge of the registry.

➢ Again the fact that it leads to the creation of a register means that all
interests that affect that title be they mortgages, charges or whatever
burdens that the title is subject to will easily be disclosed so that one
makes an informed choice so that short of overriding interests that are
never reflected on the register, everything else that affects that title would be
evident and made available to the interested parties.

➢ The process also leads to the proprietor of the particular property an

official title document. That official document bears details of the entries
to be found in the register but most importantly it is a document that can
be used by the proprietor in a number of transactions because it is valid and
legitimate and the business practices whether it is seeking financial or
offering security in other aspects, it makes it possible for the owner to rely
on such official documentation.

➢ The fact that the intention is to create a public record means that there is
a mechanism through which the public can access. So an official search
can be conducted at the relevant registry to enable a person acquaint
themselves with any facts regarding the property. Personal search can be
conducted by the individual through perusal of record, but has no
guarantees.

• The official search is the one conducted by the officials of the registry
and in terms of accuracy, the registry is vouching that whatever
information you have been supplied with as of that time reflect
accurately the true position regarding the status of the property.

➢ A registered system would be to a large extent expose any defects which

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 may have occurred in terms of various dealings with regard to land
transactions, as the registry will not accept faulty documents until and
unless such documents conform to the necessary statutory
requirements. It streamlines the whole exercise.

➢ Because of the perceived advantages, it has been argued that it is

perceived to reduce litigation in relation to land simply because it filters
issues that make litigations arise in the first place.

➢ It has also been suggested that since this is a state maintained and run
system, what is created is some insurance scheme to indemnify those
incurring any losses by reason of mistakes or omissions in the register.
The state insurance scheme will meet the costs arising to any party that
may suffer such damage by reason of an error in the register.

➢ Thus, the role of Registration in Property Law, in relation to the law of

registration, to documents it is clear that registration plays a number of
roles in property system:

(i) With regards to the passing of interests and rights from one party
to another, it serves as a documentary manifestation of land as a
commodity;

(ii) It provides information regarding the quantum of rights in a

particular parcel of land; and

(iii) It also provides a framework for easy transferability of such.

▪ Week 3 Firm Tasks.

❖ END of Week 2

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