Significance of New Land Laws in Kenya

Topics: Real property law, Land Registration Act 2002, Mortgage Pages: 7 (1807 words) Published: October 10, 2014
Following promulgation of the Kenya Constitution 2010, Land Law in Kenya was reviewed, repealed and new legislation enacted. Does the new Legislation on land Law adequately address all the shortcomings that were inherent in the old law regime? Kenyan Land system was governed by a number of laws that were complex and with many shortcomings. Some of this shortcomings included lack of distinction in ownership between citizens and non-citizens, long leases of 999 years, inadequate protection of matrimonial and spousal rights, different and confusing registration regimes, and complex transfer processes among others. Subsequent to the promulgation of the Constitution of Kenya 2010, a number of Land Acts were repealed and replaced with 3 operative Acts of Parliament. The Repealed Acts

The following Acts have been repealed:
The Indian Transfer of Property Act, 1882
The Government Lands Act
The Registration of Titles Act
The Land Titles Act
The Registered Land Act
The Way leaves Act; and
The Land Acquisition Act
Chapter 5 of the Constitution of Kenya 2010 gave effect to a radically different land regime in Kenya. Article 68 specifically gave Parliament scope to: Art 68. Parliament shall— (a) revise, consolidate and rationalise existing land laws; (b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and (c) enact legislation—

(i) To minimum and maximum land prescribe holding acreages in respect of private land; (ii) To regulate the manner in which any land may be converted from one category to another iii) To regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (iv) To protect, conserve and provide access to all public land; (v) To enable the review of all grants or dispositions of public land to establish their propriety or legality; vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter. Articles 60- 67 of the constitution address a number is issues. Article 60 deals with the principles of land ownership in Kenya, 61 with classification of land into public, community and private with 62, 63 and 64 dealing specifically with each of the three classifications. Article 65 deals with the restrictions to the holding of land by non –citizens. The holding of freehold land by non citizens is removed to avoid situations where non Kenyans are competing with Kenyans in the villages on ancestral and agricultural subsistence land. The article also restricts leasehold tenure to not more than 99 years. Article 66 deals with regulation and 67 with the setting up of the Land commission. The constitution further laid out the setting up of an Environment and Land Court of the level of the High Court. The construct therefore of the 2 Consolidating Land Acts was to give effect to the specific provisions as instructed by the Constitution. The Land Act No. 6 of 2012 deals with all the policy and administrative issues relating to Land while the Land Registration Act No. 3 of 2012 deals with all land Registration issues, including restraints, charges, easements and special rights as well as jurisdiction of the Environment and land Court. The two Acts addresses a number of aspects and shortcomings relating to the earlier laws as raised, not earlier addressed:- Land Act 2012

1) Conversion of land from public to private to have Parliamentary Consent The Act under S9 also provides for conversion of land from one category to another. Public land may be converted to private land and vice versa. However, any substantial transaction to convert public land to private land will require parliamentary and county approval as the case may be – this is as per S9 (3) of the Land Act. The Act introduces this major change to...

References: The Indian Transfer of Property Act, 1882
The Lands Act Cap 280, Laws of Kenya (Repealed)
The Registered Land Act Cap 300. Laws of Kenya (Repealed)
Land and Conveyancing in Kenya, Ojienda, T, Law Africa, 2008
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Land Law Registration Essay
  • Land law in kenya Essay
  • Land Law Procedures in Kenya Essay
  • Land Law Hedges Research Paper
  • Land Law Essay
  • Essay about Land Acquisition in Kenya
  • Land Law Essay
  • Land Law Essay

Become a StudyMode Member

Sign Up - It's Free