HISTORY OF LAND LAWS IN

KENYA
Pre- Colonial Times
• Every community had its own rules and
regulations to govern management and
administration of land- collectively African
Customary Law
• Individual ownership was unheard of, but certain
clans ad lineages would be granted occupancy of
certain areas for subsistence.
• The major weaknesses of laws at this time were:
• They were not written down
• They varied from community to community largely
based on predominant economic activity e..g
subsistence farming, pastoralists, hunters and gatherers,
fishermen etc.
The Colonial Time
• British’s penetration of East Africa Territory was
for the purpose of international diplomacy,
opening of the Suez Canal 1869 and control of
head waters of Uganda.
Before Radical Title
• Kenya declared a protectorate in 1895 however
this did not confer radical to the land in the
territory.
• In 1833 the legal officers of the Crown offered an
opinion with respect to the Ionian islands to the
effect that in a Protectorate the British Government
did not have the radical title to the land within
that territory.
• In the opinion of the legal officer such a title could
only be acquired through conquest or by way
treaty or sale.
• This presented two challenges to the british:
– Control of land was crucial to influence over
governence
– If grants of land were not possible, it was difficult to
attract white settlers
• British therefore Only had some title to land
within the ten (10) mile strip at the coast under the
jurisdiction of Zanzibar sultanate.
• This is because 1895 administration agreement
between the IBEAC and the British Government
conferred the latter control over all rights in land
ceded to the former by concession agreement
which the sultan of Zanzibar had signed in 1898
• Remedies for the protectorate status.
• Indian Land Acquisition Act of 1894 extended in
1896 to the sultans dominions pursuant to section 8
of the 1884 Zanzibar Order-in-council. It allowed
acqusition of land for Railway, government
buildings and other public purposes.
• Foreign Jurisdiction Act of 1890 gave the Crown the
power of disposition over ‘waste and unoccupied
land’
• Due to the doubts about whether the Crown
had acquired title to the land in the Protectorate
grants of freehold land were not at the outset
issued to the European settlers.
• Two further regulations were issued:
 East Africa Land Regulations 1897
• Distinguished land in Sultan’s dominion and that in interior
i.e. elsewhere in protectorate.
• For Sultan’s dominion, British could grant freeholds for
public, not private land or leaseholds of maximum 99 years.
However, many settlers were interested in interior not the
coast.
• For land in the interior, the Commissioner could only grant
certificates of occupation for a term of 21 years which could
be renewed for a further term of 21 years if certain conditions
were fulfilled. A year later, the term was increased to 99
years.
• Many settlers shunned this because it amounted to a mere
licence to use land, not protected title.
East African Registration Regulations 1901
• Issued to provide for provide for the registration of these
certificates.
• Adopted from Zanzibar where there had been established a
simple system of registration of deeds
 After confinement of Radical Title
• However, that position was reversed by another
opinion given by the legal officers of the Crown in
1899. It clarified that the British Government did
not enjoy the privilege of having radical title in
those Protectorates that could be described as
having settled forms of Government. East African
Protectorate did not have settled form of
government!
• Revisions incorporated in the East Africa (lands)
order in council of 1901, Crown Land Ordinance
(1902)
• The colonial government could now exert land
ownership beyond the 10 mile coastal strip to
attract private developers.
East African (Lands) Order in
Council 1901
• This ordinance clarified that the Crown automatically
acquired title to all land in the East Africa protectorate
by the mere declaration of a Protectorate.
• All Land in the protectorate was converted into Crown
Land, and vested in the Commissioner in trust for the
British Crown
• It empowered the Commissioner of the Protectorate
(later named Governor) to make grants or leases of
crown lands on such terms and conditions he/she
deemed fit, subject to directions of the Secretary of State
for the colonies.
• It described ‘Crown Land’ as “all public lands within the
East African Protectorate which for the time being are
subject to control of His Majesty by virtue of any treaty,
convention or agreement and all lands which have been
or May hereafter are acquired by His Majesty.”
 The Registration of Documents
Ordinance 1901
• This piece of legislation was enacted to remedy
intended repeal of 1897 regulations.
• It introduced a simple system of registration
which had been applied in Zanzibar before.
• It was based on the registration of deeds system
where any document is registrable.
• Section 4, it made it compulsory to register:
• All Grants of freehold and leasehold land
• All other documents that conferred, limited or
extinguished rights, titles or interests in land
• Its provisions came to life after enactments of the
1902 Crown Lands Ordinance.
• Registration was effected by filing a copy of the
document or deed in the register and each copy
numbered consecutively.
• There were penalties for failure to register a
document within two months from the date of
execution
• Registries were set up in Nairobi, Mombasa,
Malindi and Naivasha. Subsequently, due to
low volume of transactions, the registries in
Malindi and Naivasha were closed down and
their registers transferred to Nairobi and
Mombasa.
• However, the system under the Act was
defective in several respects.
• First, it did not require deed plans to be attached
to the document evidencing the grant. This meant
that there was no means of identifying parcels of
land, with it being described by reference to
landmarks such as trees, valleys, rivers and
springs.
• Second, an unregistered document could have
effect, although if it was being tendered as
evidence in court, leave of the court had to be
obtained.
• Third, registration of documents was haphazard
and uncoordinated because the register did not
have a separate folio that was devoted to each
parcel of land that was granted.
• Fourth, since registration of the documents was
not in itself proof of title investigation of the
documents by a purchaser would prove to be a
difficult process.
• Since independence the RDO, or RDA (A for Act)
as it is currently referred to remains mainly
applicable only to unadjudicated claims at the
Coast.
• However, it is noteworthy that major parts of the
Register kept pursuant to its provisions have been
converted to the Registered Land Act, (Cap 300)
and the Registration of Titles Act (Cap 281)
regimes of registration of interests in land
• Currently it only deals with registration of
documents.
The Crown Lands Ordinance 1902
• Enacted in 1902 and amended in 1915 to facilitate
alienation of crown land.
• The 1902 Crown Lands Ordinance (No. 21 of 1902)
had three main effects:
• Repealed the 1897 Regulations
• Declared radical title to the crown over land in the
interior
• vested power in the Commissioner to make grants of
freehold land in lots not exceeding 1000 acres (400
hectares) or leases for 99 years.
• The effect was that all land not in private European
ownership was Crown land which the colonial
government could alienate: this covered about 85%
of the protectorate’s land area.
• The 1915 Ordinance abolished and replaced the
1902.
• S.36 of the 1915 Ord. defined crown land as:
‘.......all public land including all land occupied by native
tribes of the protectorate and all lands reserved for
the use of the members of any native tribe.’
• In light of the foregoing definition it was not possible for
the Africans to hold any titles to lands they occupied.
• Sections 54 and 56:
• Any reservation of land for the natives shall not confer
on any members of the tribe any right to alienate the
land so resereved or any part thereof.
• They only had occupancy rights which were to be
exercised with close reference to the British law lest they
lost such rights.
• This position was buttressed in:
Isaka Wainaina v Murito wa Indagara (1922-23) IX KLR 102
Where Barth C.J held, “native rights, whatever they were ...
disappeared and natives in occupation of such Crown
land became tenants at will of the Crown.”
• 1915 Crowns Lands ordinance empowered the
commissioner:
• To grant 999 year leases (agricultural land) for a token and
99 years of land within townships at nominal rent.
• To convert 99 years leases to 999 year leases.
• To convert leases of agricultural lands into freeholds
• To subdivide town plot for purposes of construction.
• To reserve from sale, lease or other disposal any piece of
Crown land required for use by natives.
• To grant freeholds not exceeding 1000 acres (with approval
of the State Secretary).
• Africans occupying the reserves were not vested with
any rights.
• Only the white settlers who had been granted
agricultural land and/or town plots by the
Commissioner could alienate land.
• The 1915 Crown Land Ordinance heralded the onset of
private individual land ownership in Kenya.
• It further established a new system of registration
of deeds, superior to that contained in the RDO
1901.
• It established a new registration office and register
for Crown Land. It was an improvement to the
RDO register in several respects:
• It had a separate folio for each conveyance, lease or
licence that was granted, making a search for the
documents of title for a particular parcel much easier.
• A document could not be registered unless it had a plan
or a map which identified the property, defining the
boundaries and their extent.
• Unregistered documents were void and could not be
used as evidence in court
• However, weaknesses remained:
• Registration of a document was not proof that the
document was valid and a purchaser would have to
investigate the documents going back to the grant
of the land by the Crown in order to satisfy himself
as to the validity of the title offered.
• No provision was made for the repeal of RDO 1901,
nor was there provision for the compulsory
conversion of land on the register under the 1901
Ordinance to that under the 1915 Ordinance. It only
provided that no new registrations of documents of
land were to be made under RDO. That left us with
two competing systems of deeds registration.
 Natives Land Ordinance
• Alfred Sharpe, who was Commissioner then Governor
from 1896 to 1910, favoured a policy of creating reserves
limited to those areas required for African subsistence,
and allowing any land not required for subsistence to be
alienated for commercial farming.
• In 1904, he received powers to reserve areas of Crown
Land for the African people under the Native Locations
Ordinance, 1904.
• His successor, William Manning, Governor from 1911 to
1913, was more sympathetic to African farmers, and
opposed moving them into minimal reserves to clear
land for European settlers.
• By 1913, the Native Reserves covered 6.6 million acres
out the 22.3 million acres of land in the protectorate, and
a further 2.6 million acres of Crown Land were planned
to become future reserves.
• These lands were vested in the Secretary of State for
the Colonies, but administered by the Governor for
the use and common benefit of the natives.
• The authorities controlling land use and occupation
were African chiefs and headmen, and African
customs and laws were recognised as the governing
law.
• The continuous demand by Africans of their lands led
to formation of the Kenya Land Commission in 1932.
it tabled a report in 1934.
• The commission noted that Africans had no claims
over land in the White Highlands and recommended
guarantee of white settler rights through an Order in
Council leading to the Kenya (Highlands) Order in
Council 1939.
• For Native areas, the Commsision recommended
security of ownership to Africans by granting them
some right of ownership over land.
• This recommendation was effected through piecemeal
ammendments, first in 1936 leading to the 1936 Native
Trust Land Order.
• The Order recognised that Africans could occupy and
use Native Trust Land as a matter of right, but no
other racial group in the protectorate was similarly
entitled. The Governor could, however, grant a right
of occupancy of Native Trust land to a member of any
racial group, normally as a lessee.
• It was further ammended in 1938 and 1939 through
the Kenya (Native Areas) Order-in-Council 1939.
• This Ordinance:
• Divided Native areas into native lands, temporary
native reserves, and native leasehold areas.
• It established the Native Lands Trust Board to protect
the natives’ interests. It now held the native land in
trust on behalf of natives.
• Governor was expected to make a land available for the
displaced natives in other areas.
• It declared that native lands were not crown land,
amending the definition of crown land under the 1915
Crown Lands Ordinance.
• Subsequently, the 1950 Order-in-Council restyled
Native Trust Land as African Trust Land (as the
word “native” had pejorative connotations).
African Trust Land was now vested in the
Governor for the use and common benefit of the
Africans.
• This structure remained in place until independence in 1963.
The African Trust Lands Ordinace was re-enacted as Trust
Land Act. The frame work for administering trust land
remains set out in the Trust Land Act.
• At independence, Chapter nine of the Independence
Constitution dealt with Trust Lands.
• Section 114 of the 1969 Constitution defined trust land as
what were previously known as “Native Reserves” or
“Special areas”, land situate outside Nairobi whose
freeholdtitle was registered in the name of a County Council,
or vested in a County Council by virtue of an escheat.
• Section 115 of the previous Constitution vested the Trust
Lands in County Councils, to hold “for the benefit of the
persons ordinarily resident on that land”.
• The County Councils were enjoined to give effect to African
Customary Law for the time being in force and applicable
thereto, be vested in any tribe, group, family or individual”.
• Under the new land laws, trust land has been redesignated
community land, and is now managed as per Community
Land Act, 2016.
 The Lands Title Act (Cap 283 Laws of
Kenya) (Repealed)
• This Act, initially an ordinance , was enacted in 1908 for
purposes of facilitating alienation of Crown Land at the
Coast.
• The 1898 treaty provided that the British government
would exercise executive and judicial administration
over public lands in the strip and, in return, would pay
to the Sultan a sum of £11,000 per annum. They would
also recognize and protect rights of individual land
owners.
• The British faced uncertainties over land in this strip
because:
• There was no way of distinguishing private from public land
since the Sultan had not kept a record or a register of title.
• Many of those who claimed ownership of the land did not
have documents to prove such ownership
• It was therefore enacted to deal with the confusion.
• Its purpose was stated as to ‘make provision for the
removal of doubts that have arisen in regard to titles
to land and to establish a Land Registration Court.’
• Its specific objectives included:
• To distinguish between private land and crown land
situate within the ten (10) mile coastal strip
• To ascertain and recognise the rights of the inhabitants,
who were mostly Arab settlers, as per the 1898 treaty
with Sultan
• All persons ‘being or claiming to be proprietors’ or
having an interest inland were to bring their claims to
the court presided by the Recorder of Titles within a
period of six months from the date of the application
of the Act to the area where the land was situated.
• The procedure of adjudicating private claims to land
was borrowed from the Lands Act of Ceylon.
• If title to the land could be proved they were then
issued with a certificates of title depending on the
nature of title adjudicated which was either:
• Certificates of Ownership giving freehold title or
• Certificates of Mortgage or Interest covering lease holds
• A surveyor, who was attached to the court, would
then accurately survey the land and place boundary
marks.
• The register of certificates of title was to contain copies
of all the certificates granted with each certificate
granted constituting a separate folio of the register.
• Section 17 provided that all the land for which no
certificate of ownership had been granted was deemed
Crown Land.
• This established an advanced system of
registration of deeds for two reasons:
• Under S. 21 of the Act, a Certificate of Title was
conclusive evidence against all persons (including the
government) of all particulars on it.
• All documents affecting the land were to be registered
and these documents were to be accompanied by a plan
which clearly described the property.
• However, it fell short of the Torrens system of
registration of title because:
• The certificates of title were not declared by the Act to
be indefeasible
• No provision was made for indemnity where there
were mistakes, omissions or entries obtained by fraud
that could not be rectified.
 • Being a deeds deeds system, one could not simply rely
on the certificate of title but had to retrospectively
search all the documents registered to establish validity
of title.
• The titles issued under the LTA did not create new
rights, they only confirmed existing rights thus
they did not in any way pertain to Government
grants.
• It is worth noting that when the LTA had been
enacted in 1908, it had been expected that the
process of adjudication of claims would be
completed within a short time.
• Unfortunately, this was not to be so because of:
• Lengthy adjudication proceedings
• Lack of adequate funds
• The office of the Recorder of Titles was eventually
closed down due to lack of funds in 1922.
• In 1957, the office of Recorder of Titles was re-
opened
• In 1968, vide gazette Notice No. 106 of 1968 all
land which had not been successfully claimed was
declared government land.
• Governmnet revived the issue of private claims for
land at the coast again in 1984, reviving
adjudication process under RLA now.
• The adjudication process was only completed
recently i.e. after 2013- Remember Uhuru issuing
titles at coast??/.
• The failure of this Act is associated with the
massive landlessness in the coastal region.
 The Registration of Titles Act, 1919
(Cap 281 Laws of Kenya) (Repealed)
• Was enacted in 1919 whereupon all successfully claimed
plots were registered under it.
• It was was designed to remedy the deficiencies
prevalent under the Land Titles Ordinance 1908, more
specifically, ‘to provide for the transfer of land by
registration of titles.’
• It introduced a more complete system of land
registration based on the Torrens system in Australia.
• Land situated outside the Coast Province could only be
brought under the Act if it had been granted by the
government as freehold not lease
• It allowed for conversion of LTA titles to RTA.
• It was modelled upon the Registration of Title
enactment of the Federal Republic of Malaysia and the
Transfer of Land Act, 1890 of Victoria.
• It introduced major improvements to the LTA
and Crown Lands Ordinance system
registration system:
• Replaced the process of investigation of title with a
simple search of the register.
• Introduced conveyancing by statutory form. forms
were provided for the transfer of registered land.
• Provision was made for rectification of the register
including entries that had been obtained by fraud.
• Person could recover damages from the Registrar
where entries had been obtained by fraud or were
the result of error.
• Person with an interest in the registered land could
register a caveat which put a stop to dealings with
the land until it was removed.
• It however had its weakness;
• First, It added a new registration system without
providing for the repeal of the existing systems. This
created 4 parallel registration systems at the Coast
Province and two paralell systems for land in the
interior.
• Second, to obtain an indemnity, the person who was
adversely affected by the fraud or error had to bring an
action in court against the person who had caused the
fraud or error. Only if he was dead, insolvent or not
within the jurisdiction of the court, could the person
bring an action against the Registrar.
• Third, Weak provisions on using land as security.
Section 66 of provided that a lien could be created by
the deposit of title deeds. Bankers were reluctant to
create charges over land in such fashion
• Fourth, it limited in its application (generally being
confined to freehold titles).
• This Act applied to:
• Land subject to the Certificates of Ownership issued by
the Recorder of Titles under the LTA which had been
voluntarily converted
• All leaseholds which have been converted from the
terms of 99 years since 1920 (or even 999 years) to
freeholds
• Any titles converted on a voluntary basis from the
Government Land Act, (Cap 280) to RTA Titles.
• Unlike other statutes b4, it granted a conclusive
and indefeasible title that is state guaranteed.
• This was the first attempt to consolidate land
registration under one title regime.
• For lack of repeal of LTA and compulsory
conversion of applicable GLA and LTA titles, it
created much more confusion in land registration
in Kenya.
 The Indian Transfer of Property Act
1882 (Repealed)
• Basically, the LTA, RDO and the RTA were
registration statutes.
• They only provided for the registration of
ascertained interests in land but not the manner of
dealing or transacting in the said interests.
• The statutes did not contain substantive provisions
governing the conduct of proprietary transactions
or conveyancing, as they are commonly known.
• The concept of title was alien to the Kenyan legal
system as it obtained then.
• This state of affairs was addressed vide recourse to
Article 11(b) of the 1897 East Africa Order-in-
council. This article allowed the application of the
1882 Indian Transfer of Property Act to Kenya.
• This Act, (hereinafter referred to as the ITPA) was
applied in Kenya as a substantive law, principally
for the purpose of catering for the interests of
European Settlers.
• However, ITPA (1882) had inherent shortcomings:
• It dealt with property in general not land specifically
• On land, it was neither a conveyancing nor a
registration statute.
• This deficiency in the ITPA (1882) made it
necessary for documents relating to transactions to
be drawn in accordance with the provisions of the
English (1845) Real Property Act and the 1881
Coveyancing Act of Victoria.
• The ITPA (1882) remained as the main substantive
law governing transactions in land concluded
under the LTA, RTA, GLA until 2012.
• It was repealed by LRA 2012.
 The Registered Land Act, 1963 (Cap
300 Laws of Kenya)
• The Registered Lands Act was enacted in 1963
with the aim of achieving two policy objectives.
• First, to unify the system of land registration by
converting the titles subject to the LTA, GLA, RTA and
Land Registration (Special Areas) Act 1959 onto the
register created by the 1963 Act. It provided for the
voluntary conversion of a registration under any of the
other statutes into a registration under its provisions.
• Secondly, to continue facilitation of the registration of
land and issuance of title deeds to Africans. In this
regard it provided that ‘all land that was consolidated
or adjudicated in the African reserves and all lands
offered to the Africans for settlement in the settlement
schemes would be registered under it.’
• In the run up to independence a plan was
mooted to issue title deeds to africans
• The plan was implemented through the Native
Lands Registration Ordinance 1959, which was
after 2 months renamed to Land Registration
(Special Areas) Ordinance in 1959. It set on
motion the task of achieving individualisation
of land tenure among the African population.
• It introduced the fifth system of land
registration in Kenya.
• This system was unique and a major
improvement on previous land registration
systems since it made provisions on:
• adjudication and consolidation of land
• Devolved organization and administration of land
registries to the District level
• The procedure of conveyancing i.e. disposition of a
registered title,
• rectification and indemnity for errors and omissions
on the register,
• recognition of overriding interests
• protection of minor interests.
• substantive land law which would regulate land
registered under the statute, such as provisions on
leases, charges, easements and profits, prescription
and co-ownership.
• The ordinance was formulated to operate in FOUR
stages as follows:
1. Adjudication:- The Registrar would designate/declare
a particular area to be a registration region through
gazette notice and from that point the adjudication
process would begin. Adjudication was done by
adjudication committees consisting of provincial
administrators and local elders.
2. Consolidation:- If an owner happened to have many
different land holdings to undertake the consolidation
of those holdings so as to make larger holdings. This
was done by those owned many pieces of land
agreeing to swap, aimed at ensuring that a person
ownined one big piece of land at one place other than
many small pieces dotted all over the place.
3. Registration:- Once consolidation was achieved where
possible, there would be registration of title resulting
in a document of title being issued to the person who
is recognised as the owner.
 4. Granting indefeasibility to the title. Due to safeguards
because in the adjudication and consolidation process,
it was assumed there would be no grievances.
Therefore on first registration, then the resulting title
would be one that was not capable of being impeached
under any grounds whatsoever, including fraud.
• This process changed group ownership to
individual ownership.
• However an amendment was made to allow more
than one person be registered as an owner but
subject to a maximum of 5.
• The accommodation was targeted at
accommodating family interests. As long as a
group amongst themselves agreed that they jointly
owned the piece of land more than one person
would be registered but put a ceiling at five but.
This however left out those whose numbers were
beyond 5 who had a legitimate claim to the land
but could not fit in the register.
• At independence, the RLA repealed the Land
Registration (Special Areas) Ordinance which was
the renamed version of Native Lands Registration
Ordinance of 1959, save for its adjudication and
consolidation provisions.
• Both repealed laws were focused on recognizing
and registering the claims of Natives to land under
customary law
• The RLA was both procedural and substantive
statute. The 1882 ITPA would cease to apply to
land registered under RLA.
• Titles registered under the Land Registration
(Special Areas) Ordinance 1959 were automatically
converted onto the register under the 1963 Act.
 The Government Lands Act (Cap 280
Laws of Kenya) (Repealed)
• It replaced the Crown Lands Ordinance (1915).
• Its object was to make further and better provision for
regulating the leasing and other disposal of Government
lands, and for other purposes which can be broken
down as follows:
• To provide deed plans and achieve better administration
and registration of government plans in land;
• To offer remedy to all instances of defects patent on earlier
registration especially in RDA cap 285; and
• To introduce a fairly advanced system of registration of
deed plans
• The GLA further provided that all future grants of
Government land and transactions relating thereto
would be registered in the manner prescribed by the Act
• All past documents relating to government land that had
been registered under RDA had to be registered afresh under
the GLA.
• It ushered in the English-type of conveyancing.
• It allows the state to resettle people on Public land. The first
such settlement was the Kibera Settlement Area at around
the area currently occupied by Kibera slums.
• The President was given immense powers under S.3 which
included making grants and disposition of any estate,
interests and rights in un-alienated govt land. He would,
with the consent of the owner, vary, remit or extend the
terms of an agreement in relation to land. He also had the
power to accept any surrender of any instrument conferred
to a person in relation to land.
• This power was delegated to commisioner of lands n the
final years of Kenyatta era.
• Section 9 provided that the Commissioner of Lands may
cause any portion of a township plot which is not required
for public purposes to be sub-divided into plots suitable for
construction of business or residential buildings.
• Section 12 provided that such plots could be
allocated through auction unless the president
ordered otherwise.
• It lays down the procedures the Commissioner of
Lands must follow in allocating land, including
proper notification to the public of land available
for grant and for the assessment of applications.
• However, these are routinely ignored or by-passed
by public officers in the Commissioner’s office.
This was an opportunity for the President and
successive Commissioners of Lands to illegally
and irregularly allocate land.
• The register under the GLA is modeled under the
Land Title Act, that is its system of registration of
deeds. Under this system it is necessary to trace
title backwards up to the government grant.
• Conveyance under the GLA must be by way of
deed which must be; signed sealed and delivered.
 Trust Lands Act
• This replaced the African Trust Lands Ordinance.
• Trust land consist of areas that were occupied by
the natives during the colonial period and which
have not been consolidated, adjudicated or
registered in individual or group names, and
native land that has not been taken over by the
government.
• The Act vests all trust lands on local authorities or
county councils. The land was to be managed by
the Commissioner of Lands as an agent of the
Councils.
• County Councils have since been abolished after
2013 General Election. Currently its managed by
the NLC on behalf of County Governments
• In respect of the occupation, use, control, inheritance,
succession and disposal of any Trust land, the Act grants
every tribe, group, family and individual all the rights
which they enjoy or may enjoy by virtue of existing
African customary law or any subsequent modifications
thereof.
• Trust land could be converted into either public or
private land.
• It would be converted into private through allocation
and registration.
• The allocation of trust land can only be made to the local
people of the area. County councils in many cases
allocated trust land irregularly and illegally, allocating
trust lands to themselves and political cronies.
• Registration- The area would be declared an
Adjudication area. The local people had to be given
ample notice and opportunity to make claims of
ownership to the land in accordance with their
customary law.
• Section 118 of Independence Constitution allowed the
President to set aside Trust land for Government
purposes, after consulting with the County Councils in
which the relevant land was vested.
• Setting aside Trust lands through gazettment meant
removing them from community ownership and
converting them into public land, placing them in the
domain of public ownership.
• The Act details an elaborate procedure to be followed in
such cases, which inter alia, protects the rights of
residents from expropriation of Trust land without
compensation.
• This was used to transfer trust lands to many
government corporations e.g. National Social Security
Fund (NSSF). Others include the Kenya Meat
Commission, Kenya Railways , ADC among others.
• However, this procedure has routinely been
disregarded.
 The Land Control Act, 1967 (Cap 302
Laws of Kenya)
• The Land Control Act was enacted in 1967 with an
aim of regulating, by means of public control, the
manner in which the landowner or the interest in
land is supposed to deal with his land.
• It owes its origin to two statutes:
• First is the Land Control Ordinance of 1944. This
put controls on dealings in land, ensuring that
only those who were capable of developing land
could own it.
• This was perhaps necessitated by the fact that the
Second World War, had caused a dwindle in farm
production as farms were neglected. It was
therefore necessary to take steps to ensure that
land would be used for the benefit of the country.
• The land tenure committee appointed in 1941
recommended that ‘any system of land tenure would be
unsatisfactory which permitted unrestricted transfer and
unrestricted use and misuse of land.”
• The 1944 Ordinance, therefore, established a Land
Control Board whose consent had to be obtained before
any transaction in land was seen as valid.
• The membership of the board comprised of the
Commissioner who was the chairman, a finance
secretary, a director of agriculture and six other persons.
• The Board was given power to impose conditions as to
the development of land and failure to comply with
these conditions would lead to one’s forfeiture of his
land.
• Appeals were to the Land Control Appeals Tribunal
whose decision was final. The 1944 Ordinance was only
for the control of land in the ‘white highlands.’
• After Second World War, the administrators saw
the African Reserves as productive units and
wanted to encourage the growing of cash crops.
They therefore needed a change from communal
land ownership to individual land tenure.
• In advocating for this, Swynnerton stated that
Africans “must be provided with security of tenure
through an indefeasible title as will encourage him
to invest his labour and profits towards
development of his farm as will enable him to offer
it as security against such financial credit as may be
open to him.”
• The idea was further developed by the East African
Royal Commission which suggested that for the
Africans to develop their land, they needed to own
it individually.
• There was therefore needed a system to control
productivity of the land. The recommendations of the
two groups formed the basis of land registration and
land control.
• These were the reasons for the enactment of the 1959
Land Control (Native Lands) Ordinance. It provided for
establishment of Divisional and Provincial Land Control
Boards without whose consent dealings in land would
be void.
• The aim was to prevent the Africans after registration
from sub-dividing, selling and living on the land
without adequately developing it.
• Under this Ordinance, all transactions in land were to be
controlled except three types of transactions:
– transmissions of land unless it involved sub-division;
– foreclosures;
– transactions made in favour of the Government oR Trust
Board.
• Consent would not be granted to any transaction
which would cause the creation of smaller pieces
of land and reduce productivity.
• At independence, the provisions of the 1944 and
1959 Ordinances were incorporated in the Kenya
(Land Control) Transitional Provisions
Regulations 1963. These regulations were to serve
until provisions could be made by law. These rules
served from 1963 to 1967 when the Land Control
Act (Cap 302) was enacted.
• This Act however did not depart from the system
that had earlier existed except with regard to the
composition of the Board and the application of
the Act to most areas of the country.
• It is under this Act that the regime of land control
in Kenya is today embodied.
 Land (Group Representatives) Act,
1968
• This is one of the exceptional statutes that recognized
group tenure over land prior to the current land
governance arrangements.
• The Act provides for the incorporation of
representatives of groups who have been recorded as
owners of land under the Land Adjudication Act
• It defines a group as a “tribe, clan, family or other group
of persons, whose land under recognized customary law
belongs communally to the persons who are for the time
being the members of the group, together with any
person of whose land the group is determined to be the
owner.”
• A group ranch refers to a demarcated area of rangeland,
to which a group of pastoralists who graze their
individually owned herds on it, have official land rights.
• The Act establishes the position of a Registrar of Group
Representatives whose roles are to supervise the
administration of the groups, and ensure proper records
of the groups are kept.
• The registrar presides over election of group
representatives, who upon incorporation have powers to
sue and be sued in their corporate name, and to acquire,
hold, charge and dispose of group property.
• The group representatives have a duty to hold any
property which they hold as such, and to exercise their
powers as such, on behalf and for the collective benefit
of all the members of the group, and fully and
effectively to consult the other members of the group on
such exercise.
• The registrar ensures resolution of disputes either
through internal mechanisms or through the Magistrate
Courts.
• However, land registration under this statute faces
many challenges.
• First, in many cases, the group representatives
entrusted with the management of such group land
disposed of group land without consulting the other
members of their groups.
• Secondly, the group representatives lacked the
authority of traditional leaders leading to questions
over their legitimacy.
• Thirdly, government policy has tended to emphasize
individual land rights over group ownership.
• These factors have led to defensive subdivision
and individual titling of land within group
ranches to avoid encroachment by government or
other entities.
 Land Adjudication Act 1968
• It was enacted to provide for the ascertainment and
recording of rights and interests in Trust land.
• Largely derived from the Land Registration (Special Areas)
Ordinance 1959
• At Independence RLA repealed the Land Registration
(Special Areas) Ordinance save for its adjudication and
consolidation provisions.
• Part II (ss5-30) – had provisions on Ascertainment, Recording
and Demarcation of Rights and Interests in Land; and
Creation of Adjudication Register.

Land Consolidation Act, 1968

• The provisions of the Ordinance on Consolidation of land
were re-enacted into the Land Consolidation Act, 1968
• It allows persons who own scattered parcels of land upon
adjudication to consolidate them into larger parcels through
swaps and purchases before registration.
 Sectional Properties Act 1987
• Enacted to address increase in storey
apartments.
• Its main provisions were to facilitate
development and registration of the sectional
plan
• The Plans would then support titles to different
persons for different parts of buildings
• It is also the substantive law governing the
dealings and rights of proprietors in sectional
properties.
 Land Disputes Tribunal Act, 1990
(Repealed)
• Enacted to deal with the many land disputes
that clogged the judicial system creating huge
backlog.
• It created a system of tribunals at district and
provincial levels and prescribed how land
disputes were to be resolved.
• It empowered the various Tribunals and
limited their powers on resolving disputes.
• It has since been repealed by the Environment
and Land Court Act, 2011.
 Physical Planning Act, 1996
• In 1996 the Physical Planning Act was enacted
to revise and consolidate earlier laws which
dealt with physical development in urban and
rural areas.
• The Act repealed the Town Planning Act and
the Land Planning Act, 1970.
• It creates controls on land use.
• Authorises local authorities to zone certain
areas for specific uses.
• Demands for planning approvals on all
constructions and developments on land from
the local authorities
Land Lord and Tenant (Shops, Hotels
and Catering Establishments) Act,
1996
• Enacted to deal with leasing of commerciaal
premises.
• This governed the relationship between the
land lord and tenant, the various types of
tenancies and the legal avenues to resolve
disputes.
• Establishes the Business Premises Rent
Tribunal
• This Act has not been repealed and is still in
operation to date.
 1999 Njonjo Commission
• The Njonjo Land Commission was appointed
by the government to inquire into land law
systems of Kenya.
• The main aim of the commission was to come
up with principles of a National Land Policy.
• The Commission was under Charles Njonjo
and was also supposed to establish the position
of the constitution on land and make proposals
of how to entrench land law in the legal system.
• Assignment- Read the report and note the
major findings and recommendations.
 2003 Ndung’u Land Commission
• The Ndung’u Land Commission, 2003 was
appointed by President MwaiKibaki chaired by
Paul NdirituNdung’u.
• The commission reported on the various ways that
were used to grab land and how presidential
powers were abused in land allocation. An
example was how land set aside for the Nairobi
by-pass was allocated to individuals.
• There were quite a number of interesting findings
which included inter alia that, massive illegalities
on land were committed after the 1992, 1997 and
2002 multiparty elections.
• Assignment- Read the report and note the major
findings and recommendations.
 2013 Truth, Justice and
Reconciliation Commission Report
• The TJRC was appointed in 2008 as part of
Agenda 4 objectives.
• The commission in its land chapter reported on
the various ways that were used to grab land
and made far reaching recommendations on
reforms necessary.
• Assignment- Read the chapter on land and note
the major findings and recommendations.
 2009 National Land Policy
• The ministry of lands published the Draft National
Land Policy which was created to implement the
Njonjo Commission and the Ndung'u
Commission.
• The policy was directed at achieving efficient,
sustainable and equitable use of land.
• The recommendations were that land be provided
for independently in the constitution as opposed
to the way it was provided for under the larger
umbrella of Property.
• Marginal groups including, inter alia, children,
persons with disabilities, some communities and
even, women had little or no access to land.
• In summary, apart from massive violation of the
provisions of the Trust Lands Act and the Lands
(Group Representative) Act , there was lack of
adequate legal attention and treatment for land
owned by the community, land owned by
minority groups and surprisingly,
individualization undermined traditional resource
management institutions and ignored customary
land rights.
• Following this policy land was classified as
private, public or communal land.
• Sessional paper No 3 of 2009 acknowledged that
there were too many statutes dealing with land
and proposed harmonization to bring about
efficiency and transparency.
• Assignment- Read the policy and note the major
findings and recommendations and proposals.
• The government was obliged to:
– 1) Repeal the land registration stipulations of the
Registration of Titles Act
– 2) Repeal the Land Adjudication Act
– 3) Repeal the Consolidation Act
– 4) Enact a Land Registration Act
– 5) Amend the Land Titles Act
– 6) Amend the Registered Land Act.
 Constitution of Kenya, 2010
• Kenya conducted a Referendum and a new Constitution
was promulgated. The Constitutional provisions were
informed by the Ndung'u Report, the Njonjo
Commission and the Draft National Land Policy among
other documents and historical events.
• Article 40 of the constitution provides for sanctity of
property rights. It acknowledges individual rights as
well as rights in association with others to acquire and
own property.
• Chapter Five- ArticleS 60-72- Is wholly dedicated to
Land and Environment. There is little difference
between Chapter five and the Sessional Paper No 3 of
2009, the recommendations of the Ndungu Report and
the Njonjo Commission because Chapter 5 simply
implemented the Reports.
• Assignment- Read Article 40 and chapter V on land and
note the major Provisions.
• Land is classified as public, community or private
under Article 61 which further acknowledges that
all land in Kenya belongs to the people of Kenya.
Before the 2010 Constitution land was classified as
Government Land, Trust Land or Private Land.
• Article 62, 63 and 64 discusses the three
classifications of land.
• Most notably Article 67 establishes the National
Land Commission
• Article 68 which obliges Parliament to revise,
consolidate and rationalize existing land laws as
well as enact legislation to govern conversion of
land, govern matrimonial property, and limit land
holding acreages for private land.
 Environment and Land Court Act,
2011
• This Act establishes the Environment and Land Court,
empowered the court and limited its jurisdiction.
• This specislised Court, with the status of the High Court,
is aimed at ensuring land issues are determined within a
period of time that is reasonable.
• This Act repealed the Land Disputes Tribunal Act, 1990.
• Assignment: Read the Act and make notes on:
– Establishment- Sections of Const. and Act
– Composition- Designation, numbers, leadership structure
– Jurisdiction
– Appeals
– Involvement of Magistrates in Land matters
 Land Reforms of 2012
• On 25th and 26th April 2012 Parliament passed three bills
which were immediately assented to by the President.
• 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 Land Act, 2012
• This Act was enacted to give effect to Article 68 of the
constitution of Kenya 2010, to revise, consolidate and
rationalize land laws in Kenya and to provide for the
sustainable administration and management of land in
Kenya.
• It provides a mechanism for sustainable administration
and management of land. For conversion of public land
into private land parliamentary consent is required, and
helps reduce abuse of power by the president or any
other institution.
• The important highlights of this statute include the
following;
• The Act provides for the land systems in Kenya namely:
– Freehold
– Leasehold
– Customary land holding
• The Act provides for the methods of land acquisition
which include;
– allocation;
– land adjudication process;
– compulsory acquisition;
– prescription;
– settlement programs;
– transmissions;
– transfers;
– long term leases exceeding twenty one years created out of
private land; or
– any other manner prescribed in an Act of Parliament
• Under Part III and IV the Act provides for the
administration and management of public Land in
Kenya, previously this was regulated by the
Government Land Act.
• Under Part V the Act provides for the administration
and management of private land in Kenya.
• The Act provides for the Creation of and administration
of secondary/ derivative interests in land these include
leases, charges, and easements. Particularly on charges,
the Act provides for elaborate procedures on creation of
Charges which include;
• The Act provides for new forms of charges namely
formal, Informal and customary charges.
• The Act provides elaborate remedies and rights of the
parties in a charge instrument, in particular the Act
affords a chargor more protection namely; Chargor right
of redemption, the chargor right to be informed of a
variation in the interests rates, the right of consolidation
and foreclosure prohibited are prohibited and the
chargor right to have his interest being safeguarded
during the chargee exercise of the statutory powers of
sale. These provisions on charges have the net effect of
the law envisaging that security contracts relating to
land should be charges and not mortgages.
• The Act provides for minimum and maximum land holding
in Kenya. A scientific study to determine the economic
viability of minimum and maximum land sizes was to be
commissioned within one year, which is by 01 May 2013. The
findings of the study were to 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, were then be published by the Cabinet Secretary
in charge of matters related to land., this provision however
remains postponed- for obvious reasons.
• The Act provides for compulsory land acquisition and
establishes a land settlement fund.
• The Act clearly defines contentious terms that were
confusing. Methods of Land acquisition are mentioned to be
allocation, transmission, compulsory acquisition, settlement
programs, transfers and long term leases.
• It repeals the Land Acquisition Act and the Way Leaves Act.
• Land mentioned under Articles 64, 63 and 62 of the
Constitution are to be governed by this Act.
 The Land Registration Act, 2012
• This statute has introduced a number of changes in the
registration of land interests in Kenya and where it has not
introduced new provisions, it has consolidated the existing
provisions into one Law.
• The Act advocates for devolution and goes even further to
revise, consolidate and rationalize legislations which
provided for registration of title to land. The process of Land
Adjudication is simplified by the Act.
• The purpose of this statute is amongst other things to revise,
consolidate and rationalize the registration of title to land as
well as too give effect to the principles of devolved
government in Kenya.
• The important highlights of this statute include the
following;
• The Act defines a charge as including a Mortgage, this
presupposes that mortgages in Kenya will acquire the
character of charges. The statute emphasizes that a charge
shall always operate as a security only and no a transfer.
• The Act provides for the establishment of a land registry
and for the appointment of a chief registrar of land.
• The Act provides for the effect of registration an interest
in land just as it was provided under RLA.
• The Act Provides for the doctrine of indefeasibility of
Title as well as elaborate exceptions to the doctrine
namely misrepresentation, Fraud and unprocedural
acquisition of land.
• The Act Provides for additional overriding interests,
which include inter alia;
– Spousal rights over matrimonial property.
– Trusts including customary trusts.
– Rights of way.
– National rights of light.
– Leases.
– Charges.
– Rights obtained through prescription.
• The Act provides for elaborate transfer and registration
procedures of interests in land, these procedures include
inter alia;
– The transfers’ documents to be presented at registration
which include; copy of id, pin certificate, passport photos
and where applicable a marriage certificate.
– The process of execution of transfer documents has an
interesting change in that the documents must be executed
and witnessed and the person executing the documents
must be examined by the chief registrar of land unless where
the chief registrar dispenses with such examination.
• The Act provides for elaborate provisions relating to Co-
tenancy and Partition, which enacts the common
userlaw principles on Co-tenancies in Statutory
provisions. Of particular interest is the Protection of
spouses in co-tenancies.
• The Act recognizes the Jurisdiction of the Environment
and Land Court established by the Environment and
Land Court Act, 2011 No. 19 of 2011,on matters
emanating from the Act.
• The Act repeals the following laws;
– The Land Titles Act,
– The Registration of Titles Act,
– The Registration of Land Act,
– The Government Land Act and
– The Indian Transfer of Property Act.
• Title deeds issued under the Registered Lands Act
and the Registration of Titles Act continue to be
valid but the Registrar is mandated to issue new
titles in the prescribed form.
• A title issued under the Government Lands Act
and the Lands Titles Act is not valid until it was
examined and registered afresh.
• This Act also repealed the Indian Transfer of
Property Act, 1959 and the Land Disputes
Tribunal Act, 1990.
National Land Commission Act, 2012
• Following the establishment of the Commission by Article 68
the Act makes further provision as to the functions and the
powers of the Commission.
• The Commission is mandated to manage public land and
recommended a national policy on registration of title.
• Pursuant to Article 67(2) of the Constitution, and Section 5 of
this Act the functions of the Commission are:
a) to manage public land on behalf of the national and county
governments;
(b) to recommend a national land policy to the national
government;
(c) to advise the national government on a comprehensive
programme for the registration of title in land throughout
Kenya;
(d) to conduct research related to land and the use of natural
resources, and make recommendations to appropriate
authorities;
(e) to initiate investigations, on its own initiative or
on a complaint, into present or historical land
injustices, and recommend appropriate redress;
(f) to encourage the application of traditional
dispute resolution mechanisms in land conflicts;
(g) to assess tax on land and premiums on
immovable property in any area designated by
law; and
h) to monitor and have oversight responsibilities
over land use planning throughout the country.
(2) In addition to the functions set out in subsection (1), the
Commission shall, in accordance with Article 67(3) of
the Constitution—
(a) on behalf of, and with the consent of the national and county
governments, alienate public land;
(b) monitor the registration of all rights and interests in land;
(c) ensure that public land and land under the management
of designated state agencies are sustainably managed for
their intended purpose and for future generations;
(d) develop and maintain an effective land information
management system at national and county levels;
(e) manage and administer all unregistered trust land and
unregistered community land on behalf of the county
government; and
(f) develop and encourage alternative dispute resolution
mechanisms in land dispute handling and management.
(3) Despite the provisions of this section, the
Commission shall ensure that all unregistered land
is registered within ten years from the
commencement of this Act.
Assignment: read and summarize Supreme Court
Advisory on functions of NLC v land ministry.
• It is important to note that the above-discussed
Acts of Parliament are the main statutes that
largely impact on the theory and practice of
conveyancing in Kenya.
• However, there are other numerous pieces of
legislation that in one way or another are
significant to a fuller and complete understanding
and practice of land law in the country.
• These statutes include, amongst others, the
following:
– Stamp Duty Act, (Cap 480).
– Companies Act, (Cap 486)
– Rent Restrictions Act, (Cap 286).
– Auctioneers Act No. 5 of 1996.
– Law of Contract Act (Cap 23).
– The Distress for Rent Act, (Cap 293)