THE LAND LAWS (AMENDMENT) ACT NO.28 OF 2016 PART 2

AMENDMENTS MADE TO THE LAND REGISTRATION ACT NO.3 OF 2012(the “LRA”)-PART 2

The Land Laws (Amendment) Act No. 28 of 2016 (the “LLAA”) received presidential assent on 31^st August, 2016.

1. Joint Tenancy

Section 91 (8) of the LRA limited joint tenancy to only between spouses, except with the leave of the Court. The LA has done away with this restriction.

2. Overriding Interests

Section 28 of the LRA is amended by section 11 of the LLAA by deleting subsections (a) and (f). Hence, the following shall no longer be deemed to be overriding interests over all registered land without them being noted on the register:-     

a)      Leases or agreements for leases for a term not exceeding two(2) years, periodic tenancies and indeterminate tenancies; and

b)      Spousal rights over matrimonial property.

3.      Lost or Destroyed Certificates and Registers

Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may now apply to the Registrar for the issue of a “replacement” and not a “duplicate” certificate of title or certificate of lease as previously provided for under the LRA.

4. Time Limit for Registration of Instruments

The time limit within which instruments should be presented for registration has been set at three (3) months. Late presentation of an instrument shall as well as registration fee, attract an additional fee equal to the registration fee payable for each of the three (3) months which have elapsed since that date: Provided that the additional fees, shall not exceed two times the original registration fees payable.

5. Ranking of Interests in the Register

Interests appearing in the register shall have priority according to the order in which the instruments which led to their registration were presented to the registry, irrespective of the dates of the instruments and notwithstanding that the actual entry in the register may be delayed.

6. Execution and Attestation of Instruments of Disposition by a Corporate Body

The execution of any instrument by a corporate body, association, cooperative society or other organisation shall in the first instance be effected in accordance with the relevant applicable law and in the absence, the execution shall be effected in the presence of either an advocate of the High Court of Kenya, a magistrate, a Judge or a notary public.

7. Spousal consent

Matrimonial property has now been defined in the LRA as any interest in land or lease that is acquired by a spouse or spouses during the subsistence of a marriage. This has brought clarity as to the instances in which consent of a spouse is necessary as property acquired by spouses prior to their marriage does not qualify as matrimonial property. However, spousal consent to charge, lease, and transfer or otherwise dispose of land should still be obtained over:

a)      All property acquired by a spouse during the subsistence of a marriage; and 

b)      The matrimonial home.

The duty imposed on a lender or transferee to inquire of the borrower or transferor, on whether the borrower’s or transferor’s spouse(s) has consented to the charge or transfer, has been removed by the LLAA.

8. Register of the Government Lands Act (the “GLA”) and Land Titles Act (the “LTA”)

It is now confirmed that the register or folio maintained under the GLA and LTA in respect of interest in land shall be deemed to be the register under the LRA.