Land Regime in Kenya

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As part of its power to create public rights of way, the National Land Commission may consider applications for their creation lodged by county governments.[10]Such an application is to be made in the prescribed form and shall be accompanied by any prescribed information or other information that the Commission may require the applicant to supply in writing. A county government may also submit an application to the Commission for a communal right of way in accordance with Section 145 of the Land Act, 2012.

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THE LAND REGISTRATION ACT, 2012

The Land Registration Act No. 3 of 2012 was enacted to revise, consolidate and rationalize the registration of titles to land, to give effect to the principles and objects of devolved government in land registration and for connected purposes.

Under section 6 (1), the Land Registration Act envisions registration areas gazetted by the National Land Commission to emerge from consultation with the national and county governments. Further, the act requires that such units be established at county level and such other levels to ensure reasonable access to land administration and registration services.[11] Such units shall house land registries as well as community land registers as described in sections 7 and 8.

Section 14 confers the general powers of land registrars upon county registrars in charge of registration units established at county level. These include the power to require any person to produce any instrument, certificate or other document relating to the land, lease or charge in question. They may also refuse to proceed with registration if anything required to be given is withheld or any act required to be performed under the Act is not performed.[12]

Prejudicial dispositions are land transactions or agreements to undertake land transactions that are made in apparent ignorance of any other party’s valid interests in such land. Such interests are often held by unpaid creditors. Section 52 of the Land Registration Act allows county governments, in instances where they are charged with the collection of money owed to them, to apply to the court for orders to set aside prejudicial dispositions. The court may thereafter, if satisfied with such a claim, order the debtor to hold the land as a trustee for creditors following re-assignment.

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THE NATIONAL LAND COMISSION ACT

The National Land Commission is formed under the Constitution of Kenya 2010[13]. This was pursuant to the advisement of the National Land Policy Sessional Paper No. 3 of 2009[14] whose main purpose is to guide the country into a more sustainable, equitable use of land; both public and private. The National Land Commission is governed by the National Land Commission Act whose authority is subject to the Constitution of Kenya.

The element of devolution in land matters has been well encapsulated in the National Land Commission Act:

The Act authorizes the commission to manage public land on behalf of the national and county governments[15]. Additionally, it gives it power to alienate public land, on behalf of, and with the consent of the national and county governments[16] and manage and administer all unregistered trust land and unregistered community land on behalf of the county government[17].

The commission has also been given authority to review all grants or disposition of public land to establish their propriety or legality upon a complaint by, inter alia, a county government[18]. It is also expected that it will set up offices in the sub-counties and counties as it may consider necessary[19].Worth noting also is the fact that the commission is expected[20] to hold consultations with the national and county government in carrying out its functions[21]

Article 18 of the Act establishes the County Land Management Board whose roles shall be:

(9) (a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and (b) Perform any other functions assigned by the Commission or by any other written law.

The county governments are also expected to send to the commission, such number of public officers as may be necessary for the performance of the functions of the commission.[22]It is also required that in every annual report, the commission must show every recommendation made to the county government and what action has been taken on it[23]. This way, the act establishes ways in which the county government is to be involved in the operations of the NLC in the management of land issues at the county level.

5. THE ENVIRONMENT AND LAND COURT ACT, 2011

This Act establishes a judicial forum for adjudicating matters relating to land and environment, it is of the same status as the High Court.[24]

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