CERTIFICATES AND CONSENTS BEFORE REGISTRATION OF A

CONVEYANCE.

Of Government Certificates and Statutory Consents

In the realm of Conveyancing and other land transactions, the notion of

regulation can never be overemphasized. Regulation can be in various forms and the

most common type in land transactions is where the various parties to a transaction are

required to acquire various consents and government certificates. The logic behind the

acquisition of these consents and certificates is varied; for instance, it could be stated

that payment of rates is a provides a revenue source to the local authority and or county

government while the payment of land rents avails some form of revenue to the national

government. On the other hand, the various consents are used to ensure that the

different authorities keep a tab on various developments in the real estate sector by

ensuring planned development.

The process of seeking these consents and certificates forms one of the

preliminaries of Conveyancing like execution and attestation of documents and the

verification of signatures. While most of the land laws have been repealed, the process of

acquiring these consents and certificates largely remains unchanged. This paper seeks

to provide a detailed discussion of the various certificates and consents required in

Conveyancing transactions and their statutory underpinnings, the discussion will also

seek to explain the issues that arise when such consents and certificates are not

obtained.

Government Certificates

There are two main types of clearance certificates sought in Conveyancing

transactions; these are land rent clearance certificates and rate clearance certificates.
Ordinarily, rates clearance certificates are issued by the local authority or county

government where the land is situate while the land rent clearance certificate is issued

centrally by the national government.

Rates Clearance Certificates

The Land Registration Act 1 provides for the regime of acquiring the requisite

rates clearance certificates from the relevant local and or county government. Section

38(1) of the Act provides thus:

The Registrar shall not register any instrument purporting to transfer or vest any
land, a lease or to vest any land, a lease of land, situated within the area of a rating
authority unless, a written statement, by the relevant government agency, certifying
that all outstanding rates and other charges payable to the agency in respect of the land
including rates and charges for the last twelve months and up to the date of the request
for transfer have been paid there is produced to the registrar.

This provision underscores the importance of acquiring these clearance

certificates; a rates clearance certificate is the instrument that the registrar uses to

certify that indeed the requisite rates have been paid to the relevant authority and that

there are no debts and or amounts owing on the same. The rates clearance certificate,

being one of the documents used in the completion process is crucial to the entire land

transaction and its availability or lack thereof could indicate an incomplete

conveyancing transaction.

The Rating Act2 and the Valuation of Rating Act3 provides the basis on which

rates get charged by the local or county authority. The Rating Act provides that it

provides for the imposition of rates on land and buildings in Kenya.4 It is important to

note that rates are payable for both freehold and leasehold properties.

1 Act No. 3 of 2012

2 Cap. 267.
3 Cap. 268.
4 Supra n. 2.
Land Rent Clearance Certificate

A Land Rent Clearance Certificate applies specifically to areas where the land is

a leasehold. Under the repealed land laws, land rent could not be levied for property

under the ambit of the Government Lands Act. Currently, section 39(1) of the Land

Registration Act provides that the registrar shall not register any instrument that seeks

to create any interest in land if land rents for that particular property are owing. A

Land Rent Clearance Certificate is the evidence of payment of such rents and it is issued

by the Registrar. Under the repealed land laws, the rent certificate was issued by the

Commissioner of Lands on behalf of the national government.5 Section 56(4) of the Land

Registration Act provides that the registrar shall not register any interest in land unless

there is evidence ascertaining that there are no rents owing to the National Land

Commission. The current Land Registration Act envisages that the role of collecting

land rents on behalf of the national government shall be undertaken by the National

Land Commission as elucidated under section 3 (a) of the Act.6

Statutory Consents

There are various consents required before the registration of an interest in land;

these consents may range from that given by the Commissioner of Lands to that granted

by the Land Control Board for agricultural property.

Consent of the Chargee

Lord Millet in Agnew v Commissioner of Inland Revenue7 opined that where a

fixed charge is being created, the chargee must and should give consent to that

transaction. The consent so given by the said chargee must be express without any hint

5 Registered Lands Act, Cap. 300 (Repealed).

6 The Commission has among other objectives the duty of management and administration of
land in accordance with the principle of land policy set out in Article 60 of the Constitution and
the National Land Policy.
7 [2001]. 2 AC 710
of duress; if an element of undue pressure being placed on the chargee is detected, then

that consent will be rendered void.

In furtherance of this position, the House of Lords in Re Spectrum Plus Ltd8

opined that due to the fact that the assets charged as security are usually appropriated

to the total amount charged, they give the chargee a proprietary interest in the assets.

This means that the only way the assets in an unredeemed charge may be appropriated

and or transferred is only with the written consent of the chargee.9

Under the new land laws, this position is cemented vide section 59 of the Land

Registration Act where it provides thus:

... the borrower will not, without the consent of the lender, transfer, assign or
lease the land… no transfer, assignment or lease of the land shall be registered
until the written consent of the lender has been produced to the registrar.

Consent of the Lessor

This applies to an individual who has obtained leasehold from Government (head

lessor) and subsequently has the intention to sub-lease it. This is found in sub-leases.

One will need the consent of the Landlord. The main object of this consent is to ensure

that agreements in the lease are honored as well as all rent being paid.10 Additionally,

the defunct local authorities could still issue consent where they served as the head

lessors.

Spousal Consent

The land laws enacted in 2012 have brought with them various reforms in the

land sector and especially in the manner in which various transactions get carried out.

One of these is the requirement for spousal consent when undertaking property

8 [2005] UKHL 41
9 H. Beale, M. Bridge, L. Gulliver, E. Lomnicka, The Law of Security and Title-Based Financing
(2nd, Oxford University Press, xford 2012) 2110
10 Ibid.
transactions involving matrimonial property as provided for under section 79 (3) of the

Land Act. Indeed section 28 of the Land Registration Act envisages spousal rights as one

of the overriding interests on land or property where such property can be classified as

matrimonial property. The two statutory provisions are complementary and they should

be read together.

Reforms on Spousal Consent

Property Owned Before Marriage

Under the Land Act, “matrimonial home” means any property that is owned or leased by

one or both spouses and occupied by the spouses as their family home;

Matrimonial Property Act under Section 611 defines Matrimonial Property is defined as

follows;

1) For the purposes of this Act, matrimonial property means—

(a)the matrimonial home or homes;
(b)household goods and effects in the matrimonial home or homes; or
(c)any other immovable and movable property jointly owned and acquired during
the subsistence of the marriage.

Section 5 of the same Act provides that Subject to section 6, the interest of any person in

any immovable or movable property acquired or inherited before marriage shall not

form part of the matrimonial property12.

Section 4 of Matrimonial Property Act provides that a married woman has the same

rights as a married man to acquire, administer, hold, control, use and dispose of

property whether movable or immovable13;

The need for spousal consent should apply to matrimonial property only and property

that is jointly owned between a husband and a wife as provided for under the Act.

Property that is acquired before marriage should not fall into this realm as that will

11 Matrimonial Propert Act 2014, Section 6

12 Ibid Section 5
13 Ibid Section 4(a)
curtail the right of women to dispose their property as provided for under Sections 4

and 5 of the Matrimonial Property Act 2014.

A Charge Over Matrimonial Home Only Valid If Spouse Has Given Consent

This is a provision of S.79 (3) of the Land Act. The provision of that section actually

requires the document or instrument use in applying for such a charge or used to grant

the charge be executed by the Chargor and any spouse of the Chargor living in that

home. It is not clear how this requirement would apply in polygamous marriages

although the Act contemplates polygamous marriages under the definition of marriages

in s.2 of the Act (marriage means a civil, customary or religious marriage). The question

is, should all the consents be obtained from all the spouses or shall the consent of one

spouse in a polygamous set-up suffice?

It is our opinion that, the provisions as regards such consents should clearly elaborate

on such marital arrangements.

Land Control Board Consent

Purpose of the Land Control Act (Cap 302) is therefore to control transactions in

Agricultural land. Land Control Areas and Land Control Boards have therefore been set

up under the Act for this purpose.

Section 6 of the LCA prohibits any dealing in agricultural land without obtaining

the consent of the relevant land control board. The restricted transactions include a sale,

lease, charge or sub-division of agricultural.

In addition, the issuance, transfer, charge or other dealing with any share in a

private company which owns agricultural land is also restricted. Such transactions are

void for all purposes unless the relevant land control board has given its consent in

respect of that transaction.

 Section 2 of The LCA defines "agricultural land" to mean land that is not within

a municipality or township. Land in the Nairobi Area or in any municipality, township

or urban centre that is declared by the Minister to be agricultural land, is considered so.

Under section 9(1) of Land Control Act, the land control board is obliged to refuse

consent in any case in which land is to be disposed of to a person who is not a citizen of

Kenya or a private company all of whose members are citizens of Kenya. This in effect

prohibits persons who are not Kenyan citizens from directly acquiring an interest in

agricultural land.

In addition, Land control boards are by law required to refuse consent in any

case in which the land or share is to be disposed of by way of sale, transfer, lease,

exchange or partition to, a person who is not either a citizen of Kenya, a corporative

society or private company all of whose members are citizens of Kenya, a group

representative incorporated under the Land (Group Representatives) Act or a state

corporation.

In BTB Insurance Agencies Limited v Kirti Bid and Kusini Investments Limited14

the case concerned a claim for sale of shares in a company which would have given the

plaintiff a right over agricultural property. The consent of the relevant land control

board was not obtained in relation to the sale of the shares. The defendant argued that

the contract was void from the start due to this reason. The High Court held that, "The

position is simple and clear. Section 6 of the Land Control Act is an express provision of

a statute. It is a mandatory provision, and no principle of equity can soften or change it.

The agreement between the parties became void for all purposes since no consent had

been obtained and nothing can revise or resurrect such an agreement. Failure to obtain

the necessary land control board consent automatically vitiates an agreement to be a

party to a controlled transaction."

14 KLR, 2001.
It is however possible to obtain Presidential exemption to the provisions of the LCA i.e.

where one is a non- citizen of Kenya; subject to the provisions of section 24 of The Land

Control Act.

The requirement for the LCB Consent has been heavily litigated as evidence in

the appeal case, Kariuki v Kariuki.15 In this case, the trial court stated that when an Act

of Parliament outlines that a consent has to be obtained for a specific transaction, then

that consent has to be acquired by all means failure to which that transaction will be

declared void. The Appellate court consisting of Justices of Appeal, Madan, Law and

Potter aligned themselves with the decision of the lower court asserting that

transactions falling under the ambit of controlled transactions in agricultural land and

lacking the necessary consents are void ab initio.16

A similar position was replicated in Richard Kamiri Gachwe Kahia v. Edward

Kamau Ng'ang'a17 with the court opining that the provisions of the Land Control Act

are couched in a mandatory form. As such, the failure of the parties to acquire the

requisite consent from the Land Board rendered the whole transaction void. Also, in

Jacob Gichuki Minjire v AFC, 18 the respondent sold Dagoretti/Riruta/1139 to the

appellant at a public auction where the appellant was the highest bidder. The appellant

paid 255 deposit but no agreement was signed as per s.3 of LCA. AFC refused to

complete despite payment of the balance of the bid price within the required 30 days.

The appellant sued for specific performance but AFC contended that the land was

agricultural and a controlled parcel leading to the auction being a controlled transaction

as per s.6(2) of the LCA and the sale was consequently void for all intents and purposes

as no LCB consent had been obtained or an application filed within 6 months.

Held: No specific performance would be granted because:

15 1983 KLR 225

16 Ibid.
17 Civil Appeal No. 16 of 2001
18 CA 61 of 1982
 a) Property had already been redeemed. Equity could not act in vain

b) No LCB consent was obtained

Bosire J said:

“The lack of statutory consent at the expiry of the 3 months makes the
transaction void for all purposes until then there is only a de facto agreement
which has no legal effect”

Consent of the Chief Engineer, Kenya Railways Corporation

It is usual that when acquiring line near a railway line or where a prospective

railway line would go through, consent from the Kenya Railways Corporation is

required. Although there is no such specific outline for such consent in the Kenya

Railways Act19, it is nonetheless mentioned in other areas.

The Mining Act20 for example requires that consent from the Kenya Railways

Corporation is required for prospecting and mining where s.7 (e) provides, ‘land reserved

for the purpose of any railway or situate within 100 metres of any railway, except with

the consent of the Kenya Railways Corporation.’

The Kenya Railways corporation has powers underlined in the Kenya Railways

Act, which includes the power to lease its land to interested parties for use and

development.21 S.23 of the Act highlights one of the roles of the Chief engineer which

includes furnishing a certificate for a railway line to be open for public carriage. Hence a

deed plan for prospective purchasers may also be furnished to show any railways or

future railway plans on the said land.

19
Cap 397, Laws of Kenya
20
Cap.306, Laws of Kenya
21
Republic v Permanent Ministry of Roads and 3 others Ex Parte Kingfisher Properties Limited [2009] eKLR
 The Chief engineer will thus usually approve the applicant’s plans for such use of

the land or lease and upon breach of the lease agreement give a notice for termination

and use lawful means to enter the property.22

It should be noted that aside from the Chief engineer’s consent, that of the

Commissioner of Lands and the Land Control Board should also be received alongside it.

Consent of the Commissioner of Lands

The new land laws have placed the role played by the Commissioner of Lands

within the realm of the National Land Commission. However, prior to this scenario,

there were instances where the consent of the Commissioner was required in various

real estate transactions. Ideally, the consent of the Commissioner of Lands was required

in all leasehold properties. The Government Lands Act (repealed) provided that the

Commissioner could cause land within townships, which land was not public land to be

subdivided for the erection of buildings or for any other private purpose. In most cases,

the consent of the Commissioner of Lands is given as a condition for grant. The

applications to the Commissioner of Lands were made in the using a prescribed form

with only the proprietor and or the advocate having the authority to make such

applications.

Presidential Consent

This developed as a matter of policy and practice, and not law, over time. The

issue of presidential consents applied mainly to those areas that could be labeled as

controlled transactions and to beachfront properties.23 Due to its nature, the consent

was processed through various offices like that of the Provincial Commissioner,

Commissioner of Lands or directly through the office of the President. The application

and grant for such consent was purely administrative and it did not have any legal

22
Quick Lubes E.A Ltd. V Kenya Railways Corporation [2012] eKLR
23
ground. The court in Attorney General and others v Mohamed Balala and others 24

effectively eliminated this requirement stating that the fact that there is no law to

govern the presidential fiat leaves it open where it may be subject to abuse and misuse.

The Court of Appeal in making a final determination which agreed with the decision of

the High Court asserted that the fiat was in contravention to Article 10 of the

Constitution on national values and the rule of law.25

The Consent of Trustees of National Parks

Properties adjoining or within parks require this consent prior to any conveyancing

transaction involving such land. The Kenya Wildlife Service is the Trustee of such

parks. This is to ensure there is no derogation of title.

1. These consents are required to complete any given transaction. In the absence of

these consents the conveyance e.g. lease, mortgage etc will not be registered

2. Condition 16 of the LSK provides that for purposes of completion, all necessary

consent must be obtained by the vendor/lessor (he who is parting with the

interest). In most agreements in practice, the person obtaining the interest is

given a duty to assist in obtaining the consent especially where both parties

presence is required.

3. If the consent is not availed or obtained one will be held to be in breach.

Unfortunately, the person who is aggrieved has remedies in damages only. There

is no room for specific performance because as long as the consent is not given

within the specified period, the agreement lapses

24 Civil Appeal No. 191 of 2012.

25 Ibid.
 CHALLENGES AND NECESSARY REFORMS

As it is common with many other government processes, numerous challenges

abound in the land sector. Top amongst these is the deep-seated corruption that

continues to manifest itself in the day to day and transactions. Cases of missing files

and are common and this works to undermine the inherent process of land

administration. In land transactions, the slow process of acquiring these vital

documents seem to weigh heavily on the vendors due to the fact that it is their duty to

obtain all requisite consents before a transaction can be registered.

The enactment of the land laws in 2012 may be a step in the right direction in an

attempt to ease the transactional period and also reduce a multiplication of roles. The

AG & others v Mohammed Balala & others case was instrumental eliminating one of

the major bottlenecks that has continuously plagued most transactions along the coastal

strip. On the element of Land Control Boards, lack of professionalism and poor record

keeping is a major issue. Most of the Board members do not appreciate the laws that

govern such transactions which leads to cases of abuse of office. Automation and

recruitment of professionals into such sensitive positions should be a priority in the land

sector. Additionally, with the devolution of various functions as envisaged in the

National Land Commission Act,26 there is need for operationalization of the various

County Land Boards to replace the District Land Control Boards.

26 Section 5 (2) (d).