DISCUSS THE LEGAL REGIME GOVERNING CONVEYANCING IN KENYA POST INDEPENDENCE

Land law and conveyancing are subject to ongoing legal and administrative developments that may
have a direct or indirect effect that sharpen the focus on land law and conveyancing. Post-
independence Kenya has undergone rigorous evolution in the conveyancing sector as follows:

 Commission of land law and conveyancing issue inquiries: With the Commissions of Inquiry
Act1 providing them with legal standing, the independent government has adopted the
practice of commissions of inquiry. This serves as the basis for commissioning an
investigation. Two commissions of inquiry were formed recently to investigate issues related
to land law and conveyancing: The Commission of Inquiry into the Kenyan Land System and
The Commission of Inquiry into the Illegal/Irregular Allocation of Public Land.

 Conveyancing and constitutional review: One cannot deny that a central concern of
constitutional review has been the land question. The Njonjo Commission2 recommended
that the constitution include provisions pertaining to basic land issues. The Wako Draft 3, also
known as the Draft Constitution, attempted to establish some essential land law concepts in
recognition of this. The Draft's seventh chapter was devoted entirely to land and property.

 The land law (amendment) bill4: As a follow-up to the Ndungu Report, the Land Law
(Amendment Bill) aimed to give the Report's implementation a legal foundation.
Consequently, it suggested amending the GLA in order to create and run the Land Titles
Tribunal and amending a few other laws, including the RTA, the Land Consolidation Act, the
Land Adjudication Act, the Land Disputes Tribunals Act, and the RLA5.

 Notices Gazette No. 300 and 301 dated January 19, 2007: In accordance with section 65 of
the Constitution, the Chief Justice issued Gazette Notices 300 and 301 on January 19, 2007.
Among other things, Gazette Notice No. 301 requested the establishment of a Land and
Environmental Law Division at the Nairobi High Court.

 Draft national land policy6: A organized method of managing and administering land in Kenya
is embodied in the Draft National Land Policy. The codification of policies offers a methodical
framework for tackling contemporary issues like land access, land use planning,
compensation for past injustices, environmental degradation, unplanned informal
settlement growth, conflicts, out-of-date legal and institutional frameworks, and information
management. Notably, the Draft National Land Policy also tackles constitutional matters like
tenure, police power, and eminent domain.

 E-Conveyancing: The advent of digital and electronic information technologies has

necessitated the computerization of the conveyancing process. According to Professor R.W.
Staudt, “lawyers for the twenty-first century must learn to use electronic information tools
1
the Commissions of Inquiry Act (Cap 102) Laws of Kenya.
2
Chapter 6, Njonjo Report.
3
Article 77 Draft Constitution of Kenya (Wako Draft).
4
The land law (amendment) bill 2005.
5
Kenya Gazette Supplement No. 82 (Bills No. 26), 24th November 2005, p. 1189.
6
Draft national land policy (2007)
 to find the law, interact with governmental agencies, prepare their own work and
communicate with courts, other lawyers and their clients”7. in Kenya this is evident by the
adoption of the Ardhi Sasa platform for conducting all conveyancing procedures.

 Transnational Law Practices: The establishment of the East African Community (EAC) has
presented a plethora of prospects for attorneys and conveyancers operating within the
region. Lawyers need to be prepared to handle conveyancing at a cross-border level due to
the harmonization of laws throughout the nation. Furthermore, the accession of Rwanda
and Burundi into the Community and the Community's rapid transition into a Political
Federation has necessitated in-depth familiarity with both international business
transactions and the customs and legislation of the Community's member nations.

In addition, Post-independence, Kenyan conveyancing is controlled by a number of laws and rules

designed to guarantee just and open transactions in property.

An outline of Kenya's conveyancing laws enacted post-independence is as follows:

 Constitution of Kenya8: The Kenyan Constitution establishes the general framework for all
areas of Kenyan law, including transactions involving property rights. It defines the
fundamentals of land ownership, use, and tenure. Article 68 of the constitution articulates
the legislation on land.
 The Land act9.
 The Land Registration Act10.
 The Stamp Duty Act11.
 The Law of Succession Act12

7
R.W. Staudt, “The Electronic Law School: A 1992 Snapshot of the Center for Law and Computers at Chicago
College of Law’ 1993 3(6) Comp & Law 33
8
Constitution of Kenya, 2010.
9
The Land Act (2012).
10
The Land Registration Act (2012)
11
The Stamp Duty Act (Cap 480)
12
The Law of Succession Act (Cap 160)