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Land Law 1 (cls 300)

CATHOLIC UNIVERSITY OF EASTERN


AFRICA
GROUP B (No. 6)
Lecturer Mr Ken Mburu
4th March, 2014
3rd Year, 1st Trimester
Group Members
1. Antoinette Wathi Muthengi - 1021515
2. Cecilia Mukulu Somba - 1021452
3. Christine Achieng Obiero - 1021522
4. Marie Mugali Philis - 1021506
5. Brigid Maina Wamboi - 1021859
6. Victor Mahindu Aswani - 1021387
7. Elizabeth Njoki M. - 1021396
8. Lesly Kerubo Bwoma - 1021403
9. Jimmy Kibet Sigei - 1021373

Registration of Interests of Land in Kenya


1.1 Introduction

To define what Land Registration is, it is considered as the official record of right in a defined

area of land or an authoritative record of information concerning land for legal purposes of

dealings, establishment or extinguishment of rights in land. In Kenya, the law on registration of


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land is conveyed in the Land Registration Act . Also, there is the establishment of the Mining
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Act which grants lease to allow companies to prospect and mine on particular land. Another

statute granted on the matters of land registration is the National Land Commission Act of 2011

which aids in the smooth transition of land according to devolution. The constitution also directs

this act in registration of public and private land in:

a) Registration of interests in all public land as declared in article 62 (1)(a)

b) Registration of interests in all private land as declared in article 64

c) Establishment of the National Land Commission as provided in article 67

d) Registration and recording of communion land

e) Establishment of compensatory rights article 42

1.2 Advantages of a Registration System

The land registration system is provided for under the Land Act. It is a system by which

matters concerning ownership, possession or other rights to land are recorded under with a

government agency to provide evidence of title.

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no. 3 of 2012
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Cap 306
As population gradually grew in most societies, land became an increasingly scarce resource

and various types of rights to use the land developed. Land transfer became a legally binding

agreement upon the delivery of transfer price or an oral agreement and this became

increasingly necessary to develop systems which would clarify ownerships and minimize

disputes.

For instance, in Hong Kong, there is little public demand for a land title registration system.

It is so because the general public is usually not concerned with land registration matters, but

relies mainly on solicitors to deal with land transactions.

In that case, Kenya as a state came up with ideas on establishing land registration systems. It

was clear that land title registration systems will offer greater certainty of title, simplified

conveyance procedures and statutory protection to property owners and purchasers.

The benefits/advantages of the land registration systems include;

1) Property purchasers can be sure that the registered owner is the legal owner.

2) Property acquired by purchasers in good faith will not be affected by claims which are

not registered in the land registrar.

3) Defects or uncertainties in title which affect the value and redevelopment potential of

some properties will be brought to definite conclusions.

4) Property conveyance will be simplified as it will not be necessary to look at old title

deeds to ascertain if the registered owner is the legal owner.


5) Securing of ownership and tenure rights.it reduces the amount of land disputes which is

and is still is a major issue, by so it stimulates land development.

6) More efficacies in land transfer. The cost of delay for permit is a serious constrain

however with the registration system make transfer easy, less expensive and secure

7) Security if credits. The land title can be used in as collateral for loans, this security as a

high impact on the productivity of land since it enables realize major financial resources

for development in land

8) Public control of land markets and intervention. Policies such as land redistribution and

control over foreign land ownership are difficult to supplement without a functional and

registration system

9) Support for the land taxation system. The expenses for improving the registration system

would in actual facts quickly be covered by increased property tax revenue

10) Improve land use and management. It can directly provide better information on land

ownership and rights for physical planning as well as facilitate the development of other

planning such as information banks covering land use, land value and population

11) Provides a tool to restrict certain land use with a negative environmental impact

12) It has been proven that the cost for improving the registration system can be recovered

within a very short time span with revenue from land transfers

1.3 Registration Systems in Kenya


There are in place two types of registration systems

1. Registration of Deeds

2. Registration of Title

1. Registration of Deeds.

The registration of deed system entails maintenance of a public register in which documents

affecting interests in a particular registered land are abstracted. The document is the one

which is always registered and not the title, hence the documents prove the title and not the

register. If one wishes to use this type of register they have to go through the history of all

transactions of that land with the help of the Public Registries, the establishment of the good

root of title by tracing from the proprietorship to the original grant.

The disadvantages of this system would be that the government does not guarantee the

accuracy, of the register with the consequence that any person suffering loss as a result of the

inaccuracy therein is not entitled to state indemnity. This registration system is very

expensive in terms of the resources required to be expended by a conveyance. One has to put

in a lot of time, money and personnel. The registration of documents is largely a province of

the following Acts: Registration of Documents Act (Cap 285), Land Titles Act (Cap 282),

and the Government Lands Act.


2. Registration of Title

In the registration of titles, a register of title will provide a commanding record of the rights

to the piece of land vested in a particular person or body together with the limitations that

may be present to those rights together with all details pertaining to that land. Once the

property is recorded the land registrar will check the details of the recorded property and

once he is satisfied that the property is in order, then the existing legal owner of the property

will be recorded in the register as the registered proprietor.

Registration of title provides for that convenience and simplicity. Anybody interested in a

given property would want the simplicity and convenience based on principles that are by far

quite different from those applicable under the unregistered system. Registration of title

offers cheap expeditious and secure methods in property dealings unlike, the unregistered

system which was thought to be costly, disorganized, insecure and complicated.

Its principle objective is to replace the traditional and registered title method with a single

established register which is state maintained and therefore conclusive and authoritative as to

the details or particulars set out therein. It is credited with eliminating the wasteful burden

placed on potential purchasers under the unregistered system which requires them to

separately investigate titles to assure themselves that it is a good title that can pass and which

is free from any hidden claims which may be adverse to their interests. Since it is state
maintained and operated, the title registration system enjoys all the advantages that are

unavailable under the registration of the deed system which is not very different from the

unregistered system.

Unlike the registration of the deed system the registration of title system has the capability of

investing secure titles in all persons in whose favor such registration may be effected. It is

further regarded as final authority on the correct position regarding any registered land. It is

also cheap and expeditious in terms of facilitating various transactions regarding registered

land. State indemnity is available for any losses that may be incurred and so it makes

conveyance very simple.

The register is a very important document as it is the sole authoritative record wherein lies

title to all registered plans. The register is kept at the lands office, the central registry in the

lands office. The register refers to the official record containing details of ones estates,

particulars of the property and the interests that affect the property so it would identify the

nature of the Estate whether leasehold property or freehold or an absolute estate and such

records are described by reference to an official map plan that is maintained at the registry.

The register can also be used in reference to the entire index of many individual registers that

comprise the sum total of all titles relating to registered land in the country.

In each case the register has divisions or sections into which it is divided. There are 3 main

sections so that each register is divided into 3 parts, property section, proprietorship

section and finally the encumbrances section.


When the property is recorded on the register, the land registrar checks the details of the

property. If the registrar is satisfied that the title is in order then the current legal owners will

be entered on the register as the registered proprietors. The registrable transactions are thus

registered against each title document kept in the registry and a memorandum thereof is

endorsed on the register and on the grant/certificate issued to the proprietor.

Registration under this system is affected by the three fundamental principles of the
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Australian Torrens System. These principles will be discussed further in the topic:

The Mirror Principle

The Curtain Principle

The Insurance Principle

Theodore Ruoff and Robert Roper in their book Ruoff and Roper on The Law of Registered

Conveyancing identify advantages and/or features of registered titles as:

Registration of title gives finality and certainty by providing an up-to-date official record

of land ownership. The need to examine the past history of the title on each successive

transaction is thus eliminated.

A registered title is guaranteed because there is express provision for indemnity should

any person suffer loss through any error in or omission from the register.

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The Torrens system of land titles was introduced into South Australia by Sir Robert Torrens and has since spread
into many communities in the British Commonwealth and some countries outside it.
Registration can cure defects in title which, may, up to the time of first registration, have

been the subject of recurrent conditions of sale and enquiries. In addition, many

unregistered titles have been successfully re-established by registration after the title

deeds have been lost or destroyed.

For each title there is provided an official plan which clearly identifies the extent of the

registered land.

The proprietor of registered land (when it is not in mortgage) is issued with a land

certificate which contains a copy of the entries in the register and of the official plan

identifying the land. This certificate, unlike the often numerous and bulky title deeds of

an unregistered property, is a comparatively simple and compact document from which a

proprietor can readily see and understand exactly what he owns. If the certificate is lost it

can be replaced so that the proprietor will still be able to deal with his land.

When unregistered land is mortgaged to secure a loan, the mortgagee holds the title deeds

as part of his security. In the case of a mortgage of registered land, the mortgagee holds a

charge certificate which is a document similar on form to a land certificate and to which

is annexed the mortgage deed. This can be can be particularly helpful to mortgagees

because it reduces the costs of handling and storing bulky documents. So far as the

mortgagor is concerned, he is always able to obtain an up-to date record of his title

without having to go to his mortgagee because he can obtain from the land registry an

official copy of the register of his title.


A proprietor registered with an absolute title has a title to the land, together with all its

appurtenant rights, which is good against the world and which is subject only to such

mortgages and other burdens as are set out on the register or are declared by statute to be

overriding interests. Overriding interests are matters which do not normally appear in the

abstract of an unregistered title. They may, for example, be local land charges which can

be discovered by means of enquiries of the local authority, or short-term occupation

leases, which will be revealed by an inspection of the property or by enquiry of the

occupier.

Registration of title eliminates the need for the deduction by the vendor and the

examination by the purchaser of proof of ownership originating from a satisfactory root

of title, as is necessary on each successive transaction with unregistered land. Should the

proprietor of registered land wish to sell his property, he can speedily offer proof of his

title by obtaining an official copy of the register and the title plan without normally

facing any problems arising from defects in the title or in the identity or extent of the

land.

In his turn, the purchaser can quickly and safely accept the evidence of title offered by

the vendor without the need to investigate the past history of the title. He can then protect

himself by making an official search of the register immediately before the completion of

the purchase. This will ensure that no other entries have been made on the register since

the date of the official copy which the vendor has supplied to him and the search will

have the effect of reserving priority for the subsequent registration of his transfer.
Simple forms are prescribed for transfers and mortgages of registered land. Furthermore,

because each registered title is identified by its registration number, the description of the

property in any document dealing with ii can be reduced to a few words.

Registration of title results in reduced costs because of the simplification of the

conveyance work. It also excludes the possibility of fraud resulting the duplication or
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suppression of title deeds.

Registration of titles is generally a preserve of the following Acts of Parliament: Registration

of Title Act, Cap 281 and Registered Land Act, Cap 300.

The fact that there are two parallel systems of registration in Kenya, it ordinarily follows that

there are different laws that regulate the registration of documents on one side, and the

registration of titles on the other.

NB: Prior to 2nd May 2012, title deeds were issued under any one of the following statutes,

which have now been repealed:

The Registered Land Act (RLA);

The Registration of Titles Act (RTA);

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Theodore Ruoff& Robert Roper, Ruoff and Roper on The Law and Practice of Registered Conveyancing, (4thedn),
Stevens and Sons, London, 1979, p 8-10
The Land Titles Act (LTA); and

The Government Lands Act (GLA)

Retained titles : Title deeds issued under the RLA and RTA continue to be valid

notwithstanding the new laws. These are the most common title deeds in Kenya. In due

course, the registrar will issue new title deeds in the new prescribed form.

Titles to be examined and registered afresh: Title deeds issued under the GLA and LTA

on the other hand, will have to be examined and registered afresh under the new laws. There

are no specific timelines prescribed for the examination and fresh registration, save that this

has to be done 'as soon as conveniently possible' - as provided in the new laws. This does not

mean that GLA and LTA title deeds invalid. However, they will only be recognized under

the new laws after their examination and fresh registration.

The new laws are silent on whether holders of GLA and LTA title deeds will be allowed to

transact with their title deeds, pending their examination and fresh registration. This appears

not to be permitted and will almost certainly cause delays in ongoing transactions related to

land held under such title deeds.

1.4 Categories of Land

Land in Kenya can be in form of:


a) Urban/build upland- It comprises of areas of intensive use with much of the land

covered by structures. It includes; cities, towns, villages, strip development along

highways and transportation.

b) Agricultural- Land that is used primarily for production of food and fiber.

c) Range land- Land where the potential natural vegetation is predominantly grasses, grass

liked plants or shrubs and where natural herbivore was an important influence in its pre-

civilization state.

d) Forest land- It has a tree crown area density of 10% or more stocked with trees capable

of producing timber or other wood products and exerts an influence on the climate or

water regime. Land from which trees have been removed to less than 10% crown

closure, but which have is rotation cycles of clear cutting and block planting are part of

forest land.

e) Water- this is water masses including lakes, estuaries and rivers

f) Wetland- This is an area where water tables is at or near of above the land surface for a

significance part of most years.

g) Barren land- This is land of limited liability to support life and less than one third of

the area has vegetation cover. It is characterized as an area of in soil sand or rocks and

vegetation, if present, is widely spaced scrub and in case of heavy rainfall which is

unusual, the vegetation that grows is short lived.


Classification of Land

Classification of land is provided for in Chapter 5 of the constitution in articles 61-64 and

according to article 61; it states that all land in Kenya belongs to the people collectively as a

nation, as communities and as individuals. This therefore categorizes into 3; public,

community or private land

Public Land

On matters of public land as per article 62 (1), it is Land which at the effective date was

unalienated government land as defined by an act of parliament in force at the effective date.

This type of land that is lawfully held is used or occupied by any state organ, except any such

land that is occupied by the state organ as lease under a private lease. Public land can be

transferred to the state by way of sale, revision or surrender. Land in respect of which no

individuals or community ownership can be established by any legal process it is as well in

respect of which no heir can be identified by any legal process.

All mineral oils defined by law are considered to be part of public land. Another part of public

land is government forests, other than forests to which article 63(2) (d)(1) applies, government

game reserves, water catchment areas, natural parts, government animal sanctuaries and specially

protected areas. Other types of public land include:

I. All roads and thoroughfares provided for by act of parliament

II. All rivers, lakes other water bodies

III. The territorial sea, the exclusive economic zone and the sea bed
IV. The continental shelf

V. All land between the high and low water marks

VI. Any land not classified as private or community land under this constitution

VII. Any land declared to be public by an act of parliament

According to the article 62(2) of the constitution it provides that public land shall be vested

in and be held by a county government in trust for the people resident in the county, and

shall be administered on their behalf by National Land Commission if it is either land

which at the effective date was unalienated government land as defined by an act of

parliament in force at the effective date, land transferred to the state by way of sale,

revision or surrender, land in respect of which no individuals or community ownership can

be established by any legal process or land in respect of which no heir can be identified by

any legal process and land lawfully held used or occupied by any state organ, except any

such land that is occupied by the state organ as lease under a private lease other than land

held, used or occupied by a national state organ.

In article 62(3) the rest of the types of public land that has not been mentioned in

sub-article (2) will be vested in and be held by the national government in trust for the

people of Kenya and shall be administered on their behalf by the national land commission.

Article 62(4) of the constitution, states that public land shall not be disposed of or

otherwise used except in terms of an act of parliament specifying the nature and terms of

disposal or use.
Community Land

This can be found in article 63 of the constitution of Kenya. Sub-article (1) talks of how

community land shall be vested in and be held by communities identified on the basis of

ethnicity, culture or similar community of interest and article 63(2) classifies community

land as:

I. Land lawfully registered in the name of group representatives under the

provisions of only law

II. Land lawfully transferred to a specific community by any process of law

III. Any other land declared to be community by any an act of parliament

IV. Land that is lawfully held, managed or used by specific communities as

community to rests, grazing areas or shrines, ancestral lands traditionally

occupied by hunter gatherer communities or lawfully held as trust land by

the county government, but not including any public land held in trust by

the country government under article 62(2)

Any unregistered community land shall be held in trust by country government on


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behalf of the communities for which it is held . Also, community land shall not be

disposed of or otherwise used except in terms of legislation specifying the nature

and extend of the nights of members of each community individually and


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collectively .

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Article 63(3) of the 2010 Constitution of Kenya
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Article 63(4) of the 2010 Constitution of Kenya
Private Land

According to article 64 of the constitution, private land is registered land held by any

person under any free hold tenure, land held by person under lease hold tenure and any

other land declared private land under an Act of parliament.

1.5 Principles of Registration

There are three principles of land registration:

1. The insurance principle.

2. The curtain principle

3. The mirror principle

a) THE INSURANCE PRINCIPLE

The insurance principle refers to the guarantee secured by the State that any loss incurred

by a registered land resulting from reliance on the conclusiveness of the land Registry by a

land purchaser will be compensated through a statutory indemnity system. This relates to

the fact that since the state has undertaken to establish and maintain this sort of system, the

state by extension guarantees that there would be indemnity offered to compensate anyone

who may suffer loss as a result of mistakes in the register or merely by reason of the fact of

operating that system itself that in event of injury or damage arising out of such

circumstance, there is a state run system that will compensate any person who suffers loss

to the extent of such loss.


b) THE CURTAIN PRINCIPLE

The curtain principle is the concept that land registration may allow certain equitable

interests attached to the land hidden from a purchaser's view. This curtain,' however, does

not affect the validity of any transaction on the registered land so long as the details of the

registration reflects the validity of the title. This is to the effect that once registered as the

owner of an interest and such interest duly disclosed or entered in the register the rights

acquired cannot be defeated by any adverse claims which are not disclosed in the register.

The register is a public document and open for inspection by the public so that the

presumptive position is that everyone will be deemed to know. Discoveries can be made of

material details which would affect a person in one way or another and it is good public

policy that the openness allows you to know any adverse interest before one goes very far

with the transaction one can seek explanations. Once weve got all these guarantees, we

shouldnt allow them to be defeated by any hidden claims and the registers should be open

for anyone to see. The idea of public notice provided for by keeping a policy of an open

register should work towards strengthening the rights of an individual with an interest.

c) THE MIRROR PRINCIPLE

The mirror principle refers to the idea that the due registration of a land title must reflect all

the important and significant details that a purchaser must know before buying the land.

These details refer to the identity of the owner, the nature of his ownership, any limitations

on his ownership and any rights enjoyed by other persons over the land that are adverse to

the owner. This relates to the accuracy or certainty or conclusiveness that entries in the
register in as far as the true status of the title are concerned. Whatever is found in the

register is taken as accurate and conclusive on what it purports to inform us about. In it we

expect to get all material details including true position of ownership, the interests or other

rights to which such ownership could be subject, the history of how this property has

changed hands if at all the first time and at any time changing hands might have taken

place. Mirror principle stands for transparency in shading light about what the position is

and once we have accepted the principle there is the element of confidence and assurance

that we are not having any hidden factors or interests that may be adverse to the interests of

the parties concerned.

d) INDEFEASIBILITY

This is to the effect that once registered as the owner of an interest and such interest duly

disclosed or entered in the register the rights acquired cannot be defeated by any adverse

claims which are not disclosed in the register. The register is a public document and open

for inspection by the public so that the presumptive position is that everyone will be

deemed to know. Discoveries can be made of material details which would affect a person

in one way or another and it is good public policy that the openness allows you to know

any adverse interest before one goes very far with the transaction one can seek

explanations. Once weve got all these guarantees, we shouldnt allow them to be defeated

by any hidden claims and the registers should be open for anyone to see. The idea of public

notice provided for by keeping a policy of an open register should work towards

strengthening the rights of an individual with an interest.


References

1. The Constitution of Kenya 2010 by the National Council for Law Reporting with the Authority of

the Attorney General

2. Land Registration Act No 3 of 2012

3. Ruoff and Roper on The Law of Registered Conveyancing by Theodore Ruoff and Robert

Roper (4thedition), Stevens and Sons, London, 1979, p 8-10

4. Principles of conveyancing in Kenya TOM O Ogenda (A practical approach)