THE LAND LAWS (AMENDMENT) ACT NO.28 OF 2016 PART 1:

THE LAND LAWS (AMENDMENT) ACT NO.28 OF 2016 PART 1:

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

AMENDMENTS MADE TO THE LAND ACT NO.6 OF 2012(the “LA”)-PART 1

Highlights of changes introduced by the LLAA to the LA include the following:-

·       The Cabinet Secretary with effect from 21^st September, 2016 is now empowered to publish guidelines on the penalties for non-compliance with the provisions of Article 60(1) (a) and (c) of the Constitution as regards maximum land holding acreage and Article 40, with regards to minimum land holding acreage. 

·         The Land Compensation Fund which was previously provided for under Section 153 of the LA, has been done away with completely. The Land Compensation fund offered compensation to any person who, as a result of the implementation of any provisions of the LA by the National Government, County Government, Urban Area or City suffered any loss or deprivation or diminution of any rights or interests in land or any injurious affection in respect of any ownership of land.

·         With effect from 21^st September, 2016, the owner or the person in charge of private land is now empowered to serve a noticeof not less than three (3) months before the date of the intended eviction to an unlawful occupier.

·         The proprietor/occupier of land will no longer have the right to cancel and extinguish any easements or analogous rights granted.

·         The National Land Commission will no longer have the mandate to administer the Land Settlement Fund, it will with effect from 21^st September, 2016 be administered by a board of Trustees known as the Land Settlement Fund Board of Trustees.

·         The retrospective effect of the LA, on charges made before the coming into effect of the LA shall no longer be applicable, hence this means that any charge, mortgage or other security instrument which was valid before the commencement of the LA shall continue to be valid in accordance with its terms. However, notice to spouses shall still be required to be served.

·         The National Land Commission is now required to notify the lessee within five (5) years before the expiry of the leasehold tenure, by registered mail, of the date of expiry of the lease and inform the lessee of his or her pre-emptive right to allocation of the land upon application; and if within one (1) year the lessee shall not have responded to the notification, publish the notification in one newspaper of nationwide circulation.This however shall only apply to Kenyan citizens and only if the land is not required by the national or county government for public purposes.

·         A registered proprietor shall no longer be obliged to surrender the freehold interest in exchange for leasehold. This comes as a welcome change to the previous position which required one to surrender their freehold title in exchange for a leasehold title, with new terms and conditions. Holders of freehold titles can now obtain planning permission without the fear of losing their freehold interest in the property.

A more in-depth analysis of the changes to the effected to the Land Act, is available below:

Minimum and Maximum Land Holding Acreages

The LLA, provides for a new Section 159, which empowers the Cabinet Secretary to publish guidelines on the penalties for non compliance with the provisions of Article 60(1) (a) and (c) of the Constitution as regards maximum land holding acreage and Article 40, with regards to minimum land holding acreage. 

Land Compensation Fund

The LA under Section 153, previously provided for a Land Compensation Fund which offered compensation to any person who, as a result of the implementation of any provisions of the LA by the National Government, County Government, Urban Area or City suffered any loss or deprivation or diminution of any rights or interests in land or any injurious affection in respect of any ownership of land. This fund has been completely done away with by the LLA.

Prohibition of Unlawful Occupation of Land

The LLA, expressively prohibits unlawful occupation of public, private and community Land and provides the procedure for eviction of such unlawful occupiers, depending on the classification of the land as below:

Public Land

The National Land Commission is mandated in this case to notify all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three (3) months before the eviction.

Community Land

The County Executive Committee Member responsible for land matters is mandated to notify all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three (3) months before the eviction.

Private Land

In the case of private land if the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice, of not less than three (3) months before the date of the intended eviction.

Cancellation and Extinguishment of easements and analogous rights

The proprietor/occupier of land will no longer have the right to cancel and extinguish any easements or analogous rights granted.

Land Settlement Fund

The National Land Commission will no longer have the mandate to administer this fund, it will with effect from 21^st September, 2016 be administered by a board of Trustees known as the Land Settlement Fund Board of Trustees.

Interest on unpaid compensation

Payment of interest on unpaid compensation in respect of compulsory acquisition shall be the base lending rate set by the Central Bank of Kenya prevailing at that time as opposed to the rate prevailing bank rates as previously provided for under the LA.

Power of Sale

The Chargee in a sale by a private contract, is now entitled to rely on a valuation carried out by a valuer who is registered with the institute of Surveyors of Kenya and the report shall in the absence of a manifest error, be conclusive in relation to the market price, provided that the valuation report shall at the time of sale be not more than six (6) months old.

Power of Chargee taking possession of Charged Land

A Chargee taking possession of charged land due to default by the Chargor shall now only be able to exercise the power of entry either peaceably or forcibly after obtaining a court order.

Remedies of a Chargee

The Chargee will now only be able to exercise their remedies for default by a Chargor in a Charge, ninety (90) days after serving the default notice and not two (2) months as previously provided under the LA.

Sale of Land under an Informal Charge

A Chargor is prohibited from possessing or selling land whose title documents have been deposited by a chargee under an informal charge without an order of the court.

Order of Priority of Charges

The LA previously provided that Charges shall rank according to the order in which they are registered. The mandatory effect of this section has been removed by the LLA which provides that the ranking order shall not apply if the Charge instrument states otherwise. Hence, this gives the parties to the Charge, the power to rank the Charge within its provisions.

Retrospective effect of the LA

The LLA amends the LA which provided that Part VII of the LA (General Provisions on Charges) applied to charges on Land made before the coming into effect of the LA. Hence, this means that any charge, mortgage or other security instrument which was valid before the commencement of the LA shall continue to be valid in accordance with its terms. However, notice to spouses shall still be required to be served.

Validity of Contracts in Sale of Land

The LLA, excludes the following contracts from the requirement that no suit shall be brought upon a contract for the disposition of an interest in land unless the contact upon which the suit is founded is in writing, is signed by all parties thereto and the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party:-

a)      a contract made in the course of a public action;

b)      the creation or operation of a resulting, implied or a constructive trust; or

c)       any agreement or contract made or entered into before 21^st  September, 2016, provided that the verbal contracts shall be reduced to writing within two years from this date.

Lessee pre-emptive right to allocation

The National Land Commission is now required to notify the lessee within five (5) years before the expiry of the leasehold tenure, by registered mail, of the date of expiry of the lease and inform the lessee of his or her pre-emptive right to allocation of the land upon application; and if within one (1) year the lessee shall not have responded to the notification, publish the notification in one newspaper of nationwide circulation.

This however only applies to Kenyan citizens and only if the land is not required by the national or county government for public purposes.

Dealings with Controlled land

Prior written approval of the Cabinet Secretary shall now be required prior to any dealings in respect of Controlled Land. Controlled Land is defined under the LLA to mean land in Kenya which is:

a)      within a zone of twenty-five kilometres from the inland national boundary of Kenya;

b)      within the first and second row from high water mark of the Indian Ocean; or

c)      any other land as may be declared controlled land under any law or statute.

Retention of Freehold Interest when seeking planning permission

The LLA has added a new section to the LA which provides that, save as provided for in the Constitution, a registered proprietor shall not, for the purposes of obtaining planning permission, be obliged to surrender the freehold interest in exchange for leasehold. This comes as a welcome change to the previous position which required one to surrender their freehold title in exchange for a leasehold title, with new terms and conditions. Holders of freehold titles can now obtain planning permission without the fear of losing their freehold interest in the property.

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