Land Act
This Act may be cited as the Land Act.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 280
- Version
- 31 Dec 2022
- Language
- en
- Official source
- View official record ↗
Source attribution: Source: Kenya Law
Statute overview
About this statute
This Act may be cited as the Land Act. Section 2 is titled "Interpretation" and contains the word "roads". Applies to public land under Article 62 of the Constitution. Section 4 lists guiding values and principles such as equitable access to land, security of land rights, sustainable management of land resources, transparent administration, conservation of sensitive areas, elimination of gender discrimination in land matters, encouragement of local dispute settlement, participation and accountability, technical and financial sustainability, equal opportunities, non-discrimination, democracy and alternative dispute resolution mechanisms. Lists recognised forms of tenure (freehold, leasehold, partial interests including easements, and customary land rights consistent with the Constitution); requires equal recognition of land rights across tenure systems; and provides that a registered proprietor shall not be obliged to surrender a freehold for leasehold to obtain planning permission, subject to the Constitution.
Search within this statute
Search all stored provisions in this version.
Legal text
Provisions of Land Act
Showing 179 of 179
Part I
PRELIMINARY PROVISIONS
- 1 Verify source ↗
PRELIMINARY PROVISIONS - 1. Short title
This Act may be cited as the Land Act.
Section 1. Short title Section This Act may be cited as the Land Act. - 2 Verify source ↗
PRELIMINARY PROVISIONS - 2. Interpretation
Section 2 is titled "Interpretation" and contains the word "roads".
Section 2. Interpretation Section roads; - 3 Verify source ↗
PRELIMINARY PROVISIONS - 3. Application
Applies to public land under Article 62 of the Constitution.
Section 3. Application Section public land under Article 62 of the Constitution; - 4 Verify source ↗
PRELIMINARY PROVISIONS - 4. Guiding values and principles
Section 4 lists guiding values and principles such as equitable access to land, security of land rights, sustainable management of land resources, transparent administration, conservation of sensitive areas, elimination of gender discrimination in land matters, encouragement of local dispute settlement, participation and accountability, technical and financial sustainability, equal opportunities, non-discrimination, democracy and alternative dispute resolution mechanisms.
Section 4. Guiding values and principles Section 4(1)(a) enacts, applies or interprets any provisions of this Act; and Section 4(1)(b) makes or implements public policy decisions. Section 4(2)(a) equitable access to land; security of land rights; Section 4(2)(b) security of land rights; Section 4(2)(c) sustainable and productive management of land resources; Section 4(2)(d) transparent and cost effective administration of land; Section 4(2)(e) conservation and protection of ecologically sensitive areas; Section 4(2)(f) elimination of gender discrimination in law, customs and practices related to land and property in land; Section 4(2)(g) encouragement of communities to settle land disputes through recognized local community initiatives; Section 4(2)(h) participation, accountability and democratic decision making within communities, the public and the Government; Section 4(2)(i) technical and financial sustainability; Section 4(2)(j) affording equal opportunities to members of all ethnic groups; Section 4(2)(k) non-discrimination and protection of the marginalized; and Section 4(2)(l) democracy, inclusiveness and participation of the people; and Section 4(2)(m) alternative dispute resolution mechanisms in land dispute handling and management. - 5 Verify source ↗
PRELIMINARY PROVISIONS - 5. Forms of tenure
Lists recognised forms of tenure (freehold, leasehold, partial interests including easements, and customary land rights consistent with the Constitution); requires equal recognition of land rights across tenure systems; and provides that a registered proprietor shall not be obliged to surrender a freehold for leasehold to obtain planning permission, subject to the Constitution.
Section 5. Forms of tenure Section 5(1)(a) freehold; Section 5(1)(b) leasehold; Section 5(1)(c) such forms of partial interest as may be defined under this Act and other law, including but not limited to easements; and Section 5(1)(d) customary land rights, where consistent with the Constitution. Section 5(2) There shall be equal recognition and enforcement of land rights arising under all tenure systems and non-discrimination in ownership of, and access to land under all tenure systems. Section 5(3) 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. [Act No. 28 of 2016 , s. 42.] - 6 Verify source ↗
PRELIMINARY PROVISIONS - 6. Powers and functions of the Cabinet Secretary in land management
The Cabinet Secretary has the power to develop policies on land when recommended by the Commission.
Section 6. Powers and functions of the Cabinet Secretary in land management Section develop policies on land, upon the recommendation of the Commission; - 7 Verify source ↗
PRELIMINARY PROVISIONS - 7. Methods of acquisition of title to land
Section 7: Methods of acquisition of title to land.
Section 7. Methods of acquisition of title to land Section allocation;
Part II
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND
- 10 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 10. Guidelines on the management of public land
The Commission must prescribe guidelines for the management of public land by public agencies, statutory bodies and state corporations occupying or using public land.
Section 10. Guidelines on the management of public land Section 10(1) The Commission shall prescribe guidelines for the management of public land by all public agencies, statutory bodies and state corporations in actual occupation or use of public land. Section 10(2) The guidelines prescribed under subsection (1) shall indicate management priorities and operational principles for the management of public land resources for identified uses. Section 10(3) The Commission shall, in the development of the guidelines under subsection (1), comply with Article 10(2) of the Constitution - 11 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 11. Conservation of ecologically sensitive public land
The Commission must maintain public land with endangered or endemic species, identify and demarcate ecologically sensitive areas within public lands and take actions to prevent environmental degradation and climate change, and (notwithstanding subsection (2)) consult existing conservation institutions.
Section 11. Conservation of ecologically sensitive public land Section 11(1) The Commission shall take appropriate action to maintain public land that has endangered or endemic species of flora and fauna, critical habitats or protected areas. Section 11(2) The Commission shall identify ecologically sensitive areas that are within public lands and demarcate or take any other justified action on those areas and act to prevent environmental degradation and climate change. Section 11(3) Notwithstanding subsection (2) the Commission shall consult existing institutions dealing with conservation. - 12 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 12. Allocation of public land
The Commission handles allocation of public land and must set aside land for investment on request, ensure investments benefit local communities, make regulations on allocation, and may allocate land to foreign governments subject to consultation and law.
Section 12. Allocation of public land Section 12(1)(a) public auction to the highest bidder at prevailing market value subject to and not less than the reserved price; Section 12(1)(b) application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position; Section 12(1)(c) public notice of tenders as it may prescribe; Section 12(1)(d) public drawing of lots as may be prescribed; Section 12(1)(e) public request for proposals as may be prescribed; or Section 12(1)(f) public exchanges of equal value as may be prescribed. Section 12(2)(a) public land that is subject to erosion, floods, earth slips or water logging; Section 12(2)(b) public land that falls within forest and wild life reserves, mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas; Section 12(2)(c) public land that is along watersheds, river and stream catchments, public water reservoirs, lakes, beaches, fish landing areas riparian and the territorial sea as may be prescribed; Section 12(2)(d) public land that has been reserved for security, education, research and other strategic public uses as may be prescribed; and Section 12(2)(e) natural, cultural, and historical features of exceptional national value falling within public lands; Section 12(2)(f) reserved land; or Section 12(2)(g) any other land categorized as such, by the Commission, by an order published in the Gazette . Section 12(3) Subject to Article 65 of the Constitution, the Commission shall upon the request of the national or a county government set aside land for investment purposes. Section 12(4) In fulfilling the requirements of subsection (3), the Commission shall ensure that the investments in the land benefit local communities and their economies. Section 12(5) Subject to the Constitution and any other law, the Commission may, in consultation with the National and county governments, allocate land to foreign governments on a reciprocal basis in accordance with the Vienna Convention on Diplomatic Relations. Section 12(6) At the expiry, termination or extinction of a lease granted to a non-citizen, reversion of interests or rights in and over the land shall vest in the national or county government as the case may be. Section 12(7) Public land shall not be allocated unless it has been planned, surveyed and serviced and guidelines for its development prepared in accordance with section 17 of this Act. Section 12(8) Public land allocated under this section shall not be sold, disposed off, subleased, or subdivided unless it is developed for the purpose for which it was allocated. Section 12(9) Where the land allocated under subsection (8) is not developed in accordance with the terms and conditions stipulated in the lease, that land shall automatically revert back to the national or county government, as the case may be and the Commission shall include in its annual report the status of implementation of this subsection. Section 12(10)(a) that the applicant shall personally occupy and reside on the land for a period set by the Commission; Section 12(10)(b) the applicant shall do such work and spend such money for permanent improvement of the public land within the period specified by the Commission; or Section 12(10)(c) the consideration that must be paid for a disposition of public land. Section 12(11) The Commission shall make regulations prescribing the criteria for allocation and for connected matters. Section 12(12)(a) forms of ownership and access to land under all tenure systems; Section 12(12)(b) the procedure and manner of setting aside land for investments; Section 12(12)(c) procedures to be followed with respect to auction and disposition of land; Section 12(12)(d) appropriate mechanisms for repossession of land given to citizens at the expiry of a lease; and Section 12(12)(e) mechanisms of benefit sharing with local communities whose land have been set aside for investment. - 12A Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 12A. Controlled land
No transaction in controlled land shall be dealt with without the prior written approval of the Cabinet Secretary.
Section 12A. Controlled land Section 12A(1)(a) within a zone of twenty-five kilometres from the inland national boundary of Kenya; Section 12A(1)(b) within the first and second row from high water mark of the Indian Ocean; Section 12A(1)(c) any other land as may be declared controlled land under any law or statute. Section 12A(1)(i) an individual who is not a Kenyan citizen; Section 12A(1)(ii) the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such govemment or political subdivision; or Section 12A(1)(iii) a body corporate which has non-citizens as shareholders shall be deemed to be a non-citizen. Section 12A(2) No transaction in controlled land, including a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary. Section 12A(3) In deciding whether to approve or not approve an application, the Cabinet Secretary shall seek the approval of the relevant authorities [Act No. 28 of 2016 , s. 47.] - 13 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 13. Lessee pre-emptive rights to allocation
Lessees who are Kenyan citizens and whose land is not required for public purposes have a pre-emptive right to allocation upon application; the Commission must provide written reasons when a lease is not granted after such an application and must consider specified factors when deciding on extensions or re-allocation.
Section 13. Lessee pre-emptive rights to allocation Section 13(1)(a) within five years, notify the lessee, 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, provided that such lessee is a Kenyan citizen and that the land is not required by the national or county government for public purposes; and Section 13(1)(b) if within one year the lessee shall not have responded to the notification, publish the notification in one newspaper of nationwide circulation. Section 13(1A) Where a lease is not granted after an application under subsection (1), the Commission shall give the lessee the reasons for granting the lease, in writing. Section 13(2)(a) prescribing the procedures for applying for extension of leases before their expiry; Section 13(2)(b) prescribing the factors to be considered by the Commission in determining whether to extend the tenure of the lease or re-allocate the land to the lessee; Section 13(2)(c) the stand premium and or the annual rent to be paid by the lessee in consideration of extension of the lease or re-allocation of the land; Section 13(2)(d) other covenants and conditions to be observed by the lessee. - 14 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 14. Notification requirements applicable to allocation of public land
The Commission must notify the public and interested parties at least thirty days before offering public land for allocation; it must also send notice at least thirty days before allocation to the county governor and specified local administrative heads.
Section 14. Notification requirements applicable to allocation of public land Section 14(1) The Commission shall, before allocating any public land under this Act, issue, publish or send a notice of action, to the public and interested parties, at least thirty days before, offering for allocation, a tract or tracts of public land. Section 14(2) The notice under subsection (1) shall include the terms, covenants, conditions and reservations which are to be included in the conveyance document and the method of allocation. Section 14(3) The notice under subsection (1) shall provide a period of fifteen days from the date of its issuance, within which the public and interested parties may comment. Section 14(4) At least thirty days prior to the allocation of public land, the Commission shall send a notice to the governor in whose county the public land proposed for allocation is located and to the head of the governing body of any administrative subdivision having development control or other land use regulatory responsibility in the geographic area within which the public lands are located and to the head of any administrative subdivision having administrative or public services responsibility in the geographic area within which the lands are located. Section 14(5)(a) marginalised communities and groups living in the general vicinity of the public lands being proposed for allocation; and Section 14(5)(b) boards of cities and municipalities and town administrators, created under sections 12, 13 and 31 of the Urban Areas and Cities Act (Cap. 275), in the geographic vicinity within which the public lands proposed for allocation are located. Section 14(6) The notice under subsection (4) shall be published in the Gazette and at least once a week for a period of three weeks and thereafter shall be published in a newspaper of general circulation in the general vicinity of the public land being proposed to be offered for allocation. Section 14(7) A notice under this section above shall specify the place, date, and time of allocation, the appraised value of the land, describe with particularity each parcel of land to be allocated, and specify that the terms of allocation shall be available in the Commission’s offices in Nairobi and the Commission office nearest the land being proposed for allocation. Section 14(8)(i) require that the notification procedures outlined in this subsection be repeated; or Section 14(8)(ii) void the allocation on grounds that the notification requirements of this Act were not properly conducted. - 15 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 15. Reservation and development of public land.
When this Act comes into force, the Commission must undertake an inventory of all land-based natural resources.
Section 15. Reservation and development of public land. Section 15(1)(a) the surface of the earth and the subsurface rock; Section 15(1)(b) any body of water on or under the surface; Section 15(1)(c) marine waters in the territorial sea and exclusive economic zone; Section 15(1)(d) natural resources completely contained on or under the surface; and Section 15(1)(e) the air space above the surface, Section 15(2) Land that has been reserved by the Commission shall only be used for the purpose set out by the Commission in the order designating the reservation. Section 15(3) Upon coming into force of this Act, the Commission shall undertake an inventory of all land based natural resources. [Act No. 28 of 2016 , s. 49.] - 16 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 16. Placing of care, control and management of reserved public land
Section 16 places care, control and management of reserved public land with a statutory body, public corporation or public agency, allows the Commission to specify conditions and to vary those conditions by Gazette order, requires the Commission to notify affected third parties before varying conditions, prohibits lessees/sub-lessees from restricting public access to recreation reserves unless the management order or lease allows it, and prevents a management body from acting if another enactment bars it or authorises someone else.
Section 16. Placing of care, control and management of reserved public land Section 16(1)(a) vest the care, control and management of any reserved land with a statutory body, public corporation or a public agency for the same purpose as that for which the relevant public land is reserved under section 15 and for purposes ancillary or beneficial to that purpose; and Section 16(1)(b) subject that care, control and management to such conditions as the Commission specifies. Section 16(2) The Commission may by order in the Gazette , vary any condition to which the care, control and management of reserved land is subject. Section 16(3) Prior to the variation under subsection (2) and where the variation affects a third party the Commission shall notify the third party of such variation. Section 16(4) An order made under this section shall not create any interest in reserved public land in favour of the management body of that reserve. Section 16(5) Where public land reserved under this Act for the purpose of recreation is leased or subleased under a power conferred under subsection (3), the lessee or sub-lessee shall not restrict public access to the area leased unless the terms of the management order or the lease or sublease provide otherwise. Section 16(6)(a) the order; and Section 16(6)(b) any laws or regulations governing the management body or the specific land that has been placed in reserve. Section 16(7) Notwithstanding subsection (6), a management body shall not perform a function or exercise a power if another enactment expressly prevents the body from performing that function or exercising that power, or expressly authorises another person to perform that function or exercise that power. [Act No. 28 of 2016 , s. 50.] - 17 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 17. Placing of care, control and management of reserved public land.
A management body must submit to the Commission for approval a development, management and use plan for reserved public land (on its own motion or at the Commission's request); if the Commission approves and notifies, the management body may then develop, manage and use the land in accordance with the approved plan.
Section 17. Placing of care, control and management of reserved public land. Section 17(1) A management body shall, on its own motion or at the request of the Commission, submit to the Commission for approval a plan for the development, management and use of the reserved public land vested in the management body. Section 17(2)(a) consider any conservation, environmental or heritage issues relevant to the development, management or use of the public land in its managed reserve for the purpose of that managed reserve; and Section 17(2)(b) incorporate in the plan a statement that it has considered those issues in drawing up the plan; Section 17(2)(c) submit an environmental impact assessment plan pursuant to existing law on environment; and Section 17(2)(d) comply with the values and principles of the Constitution. Section 17(3) If a management body submits a plan to the Commission under subsection (1) and the Commission approves that plan and notifies the management body of that fact, the management body may develop, manage and use the public land concerned in accordance with the plan as approved or subsequently varied as the case may be. Section 17(4) Notwithstanding the provisions of this section, the Commission shall, in considering an application under this section, comply with the relevant law relating to development control. - 18 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 18. Revocation of management orders
The Commission may revoke a management order by order in the Gazette if a management body fails to comply with written guidelines or directions, fails to submit a requested development plan under section 17(2), or if the Commission considers revocation is in the public interest.
Section 18. Revocation of management orders Section 18(1) If a management body does not comply with guidelines or directions issued by the Commission in writing, or does not submit a development plan in compliance with a request made under section 17 (2), the Commission, by order in the Gazette , may revoke that management order. Section 18(2) If the Commission considers that it is in the public interest to revoke a management order, the Commission may, by order in the Gazette , revoke the management order. Section 18(3) The preparation and implementation of development plans under this Act shall be in accordance with the physical planning regulations and any other relevant law. - 19 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 19. Conservation of land based natural resources
The Commission must make rules and regulations for the sustainable conservation of land-based natural resources.
Section 19. Conservation of land based natural resources Section 19(1) The Commission shall make rules and regulations for the sustainable conservation of land based natural resources. Section 19(2)(a) measures to protect critical ecosystems and habitats; Section 19(2)(b) incentives for communities and individuals to invest in income generating natural resource conservation programmes; Section 19(2)(c) measures to facilitate the access, use and co-management of forests, water and other resources by communities who have customary rights to these recourses; Section 19(2)(d) procedures for the registration of natural resources in an appropriate register; Section 19(2)(e) procedures on the involvement of stakeholders in the management and utilization of land-based natural resources; and Section 19(2)(f) measures to ensure benefit sharing to the affected communities. - 8 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 8. Management of Public Land
The section requires identification and database creation for public land (geo-referenced and authenticated), evaluation of public land parcels based on land capability and resource data, sharing of data with the public and relevant institutions, and allows land to be required for specified purposes subject to conditions; it also lists particulars the Commission must record about land converted between public, private and community ownership.
Section 8. Management of Public Land Section 8(1)(a) shall identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey; Section 8(1)(b) shall evaluate all parcels of public land based on land capability classification, land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and Section 8(1)(c) shall share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or Section 8(1)(d) may require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument. Section 8(2)(a) the particulars of all public land converted to priv ate land by allocation; Section 8(2)(b) the names and addresses of all persons whose land has converted to public through compulsory acquisition or reversion of leasehold; Section 8(2)(c) particulars of community land converted into public; and Section 8(2)(d) such other details as the Commission may consider necessary. - 9 Verify source ↗
GENERAL CONDITIONS RELATING TO LEASES, LICENCES AND AGREEMENTS FOR LEASEHOLD LAND - 9. Conversion of land
The Commission must table any Rules made under subsection (5) before Parliament for approval.
Section 9. Conversion of land Section 9(1) Any land may be converted from one category to another in accordance with the provisions of this Act or any other written law. Section 9(2)(a) public land may be converted to private land by allocation; Section 9(2)(b) subject to public needs or in the interest of defence, public safety, public order, public morality, public health, or land use planning, public land may be converted to community land; Section 9(2)(c) compulsory acquisition; Section 9(2)(c)(i) compulsory acquisition; Section 9(2)(c)(ii) reversion of leasehold interest to Government after the expiry of a lease; and Section 9(2)(c)(iii) transfers; or Section 9(2)(c)(iv) surrender. Section 9(2)(d) Community land may be converted to either private or public land in accordance with the law relating to community land enacted pursuant to Article 63(5) of the Constitution. Section 9(3) Any substantial transaction involving the conversion of public land to private land shall require approval by the National Assembly or county assembly as the case may be. Section 9(4) Deleted by ActNo. 28 of 2016, s. 45. Section 9(5)(a) prescribing substantial transactions requiring approval of the National Assembly or the County Assembly as the case may be; Section 9(5)(b) prescribing anything required to be prescribed under this section; Section 9(5)(c) regulating and controlling the conversion of land from one category to another; Section 9(5)(d) prescribing the factors to be applied or taken into account in determining land that is to be converted. Section 9(6)(a) different provisions for different parts of Kenya; Section 9(6)(b) different provisions for different categories of conversion or kinds of transactions; or Section 9(6)(c) exemptions or conditional exemptions from the operation of any rule made under this section. Section 9(7) Any Rules made by the Commission under subsection (5) shall be tabled before Parliament for approval. [Act No. 28 of 2016 , s. 45.]
Part III
ADMINISTRATION OF PUBLIC LAND
- 20 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 20. Licence for temporary purposes
The Commission may grant licences to persons to use unalienated public land for up to five years, may serve notices to quit after nine months from the licence date, must prescribe licence fees, periods and conditions, and the licensee may transfer a licence with the Commission's consent.
Section 20. Licence for temporary purposes Section 20(1) The Commission may grant a person a licence to use unalienated public land for a period not exceeding five years subject to planning principles as it may prescribe. Section 20(2) The Commission may serve a notice to quit upon the licensee at any time after the expiration of nine months from the date of the licence. Section 20(3) The fee payable under a licence under this section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission. Section 20(4) The licensee may, with the consent of the Commission, transfer the benefit of a licence under this section, and the transfer and the consent thereto shall be endorsed on the licence. - 21 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 21. Removal of building under temporary Licence
An occupant of public land licensed under section 20 may, at any time before the licence expires, remove any structure or other building they erected.
Section 21. Removal of building under temporary Licence Section At any time before the licence expires, the occupant of any public land under a licence granted under section 20 may remove any structure or other building erected by the occupant. - 22 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 22. Penalty for unpaid fees,etc.
Section 22. Penalty for unpaid fees,etc.
Section 22. Penalty for unpaid fees,etc. - 23 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 23. Implied covenants and conditions by lessor
The lessor must have full power to the land or lease; the lessee, if paying rent and fulfilling lease conditions, is entitled to quiet possession except as permitted by law; leases or licences for private land under Article 64(b) must be issued by the Cabinet Secretary and registered by the Chief Land Registrar.
Section 23. Implied covenants and conditions by lessor Section 23(1)(a) that the lessor has full power to the land or lease; and Section 23(1)(b) that the lessee, paying the rent and fulfilling the conditions of the lease, shall enjoy quiet possession of the premises without interruption by the lessor or any person claiming under the lessor, except so far as the laws for the time being in force may permit. Section 23(2) A lease or licence for private land within the meaning of Article 64 (b) of the Constitution shall be issued by the Cabinet Secretary and registered by the Chief Land Registrar. [Act No. 28 of 2016 , s. 51, Act No. 18 of 2018 , Sch.] - 24 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 24. Implied covenant and conditions by lessee or licensee
Lessee or licensee must pay rent and royalties as reserved at the time and in the manner provided.
Section 24. Implied covenant and conditions by lessee or licensee Section pay rent and royalties thereby reserved at the time and in the manner therein provided; and - 25 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 25. Buildings on public lands
Lessees of leases not exceeding thirty years may remove buildings within three months after lease termination unless the Commission elects to purchase; if a purchase is elected and there is disagreement on price, the Commission must appoint an independent valuer by open, transparent and competitive process under the public procurement law.
Section 25. Buildings on public lands Section 25(1)(a) in the case of a lease for a term exceeding thirty years, shall pass to the national or county governments without payment of compensation, on the termination of the lease or license; or Section 25(1)(b) in the case of a lease for a term not exceeding thirty years, may be removed by the lessee within three months of the termination, otherwise than by forfeiture, of the lease unless the Commission elects to purchase those buildings. Section 25(2) If the Commission elects to purchase any buildings, as contemplated in subsection (1)(b), any disagreement as to the purchase price of the buildings, shall be resolved by reference to an independent professional valuer who shall be appointed by the Commission through an open, transparent and competitive process as per the public procurement law. [Act No. 28 of 2016 , s. 53, Act No. 18 of 2018 , Sch.] - 26 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 26. Covenants and conditions binding on persons claiming under grant, lease or licence
Covenants or conditions in a grant, lease or licence that bind a grantee, lessee or licensee are also binding on all persons claiming under that grantee, lessee or licensee unless the grant, lease or licence expressly provides otherwise.
Section 26. Covenants and conditions binding on persons claiming under grant, lease or licence Section Every covenant or condition, whether expressed or implied, in a grant, lease or licence under this Act which is binding on a grantee, lessee or licensee shall, unless otherwise expressly provided in the grant, lease or licence, be binding upon all persons claiming an interest in the land that is the subject of the grant, lease or licence, and whose title is derived through or under the grantee, lessee or licensee. - 27 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 27. Obligations of children
A child may hold title to land through a trustee and has the same liabilities and obligations regarding that land as an adult.
Section 27. Obligations of children Section A child shall be capable of holding title to land through a trustee and such child shall be in the same position as an adult with regard to the child’s liability and obligations to the land. - 28 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 28. Rents and other payments
Lessees or licensees must pay rents, royalties and payments owed under a lease or licence to the national or county government at the government office or another prescribed place; annual rent is payable in advance on 1 January each year; respective governments must submit records of payments under subsection (2) to the Commission.
Section 28. Rents and other payments Section 28(1) The rent, royalties and payments reserved under any lease or licence shall be a debt owed to the national or county government, as the case may be, and shall be paid by the lessee or licensee at the office of the respective government or at such place as such government may prescribe. Section 28(2) The annual rent reserved under any lease or licence shall be payable in advance on the first day of January in each year of the term. Section 28(3) The records of the payments made under subsection (2) shall be submitted to the Commission by the respective government. [Act No. 18 of 2018 , Sch.] - 29 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 29. Unpaid rents and other payments
Late payment interest is charged on unpaid rents, installments, royalties or other payments at two percent per month (or another rate specified by the national or county government); governments may waive interest and must publish waivers annually; governments must serve debtors notice of interest due.
Section 29. Unpaid rents and other payments Section 29(1) If any funds due in respect of any rent, principal installment, royalty or other payment (in this section referred to as “the principal debt”) under any agreement lease or license under this Act, or under any Act repealed by this Act, remain unpaid after the due date, a late payment interest at the rate of two percent per month or part thereof, or at such other rate as may from time to time be specified by the national government or county government, as the case may be in the Gazette , shall be charged on the amount remaining unpaid for more than one month after the due date until the full amount is recovered. Section 29(2) Any payment made under subsection (1) shall first be attributed to the payment of outstanding interest and thereafter only when such interest has been paid in full shall any payment be attributed to the reduction of the principal debt. Section 29(3) If any interest becomes payable under subsection (1) the national government or county government, as the case may be shall serve on the debtor a notice demanding payment of that interest in addition to the other money then due. Section 29(4) Notwithstanding the foregoing provisions of this section, the respective governments may waive the whole or part of any late payment of interest provided for by this section, if the debtor has provided the respective government a good and sufficient reason for the late payment. Section 29(5) The respective governments shall publish and publicize annually, any remission or waiver made under subsection (4). Section 29(6) Notwithstanding the provisions of this section, the law relating to public financial management shall apply. [Act No. 18 of 2018 , Sch.] - 30 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 30. Commission may sue for rent, etc., in arrears
The Commission and the government may sue in court to recover arrears of rent, payments or penalties under this Act (including penalties under section 29).
Section 30. Commission may sue for rent, etc., in arrears Section Without prejudice to the right of the respective government to recover a debt in any other way, such governnient may sue in Court for any rent, principal, installment, royalty or other payment, payable under any agreement, lease or license under this Act, that is in arrears, or for any penalty payable under section 29 . [Act No. 18 of 2018 , Sch.] - 31 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 31. Forfeiture of lease if rent unpaid or for breach of covenant
A court may declare a lease forfeited on proof, governments may re-enter if forfeited, and the Court must be guided by equity when granting relief.
Section 31. Forfeiture of lease if rent unpaid or for breach of covenant Section 31(1)(a) serve a notice upon the lessee, specifying the rent or royalties in arrears or the covenant of which a breach has been committed; and Section 31(1)(b) commence an action in Court for the recovery of the land at any time at least one month after serving the notice contemplated in paragraph (a). Section 31(2) In an action commenced under subsection (1)(b) on proof of the facts, the Court shall declare the lease forfeited, subject to relief upon such terms as may appear just. Section 31(3) If the Court has declared a lease to be forfeited under subsection (2), the national government or county government, as the case maybe may re-enter upon the land. Section 31(4) In exercising the power of granting relief against forfeiture under this subsection (1) the Court shall be guided by the principles of the doctrines of equity. [Act No. 18 of 2018 , Sch.] - 32 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 32. Forfeiture of licence
If rent is unpaid for thirty days or a license condition is breached, the Commission may apply to Court to forfeit the licence; the Court must notify the licensee at least fourteen days before the hearing and, if satisfied at the hearing that rent is in arrears or a breach occurred, shall declare the licence forfeited subject to possible relief for non-payment of rent.
Section 32. Forfeiture of licence Section 32(1) Subject to any other provision of this Act, where the rent or any part thereof payable under a license issued under this Act is at any time unpaid for a period of thirty days after the same has become due, or if the licensee fails to comply with, or commits any breach of, the conditions, whether express or implied, of the license, the Commission may make an application in Court to declare the license forfeited. Section 32(2) Upon receipt of an application under subsection (1), together with a statement specifying the rent in arrears or the condition which has not been complied with or of which a breach has been committed, the Court shall cause to be served upon the licensee, a copy of the statement together with a notice of the date, not being less than fourteen days from the date of the notice, when the application will be heard. Section 32(3) If upon the date fixed for the hearing of the application or to which the hearing is adjourned it is proved to the satisfaction of the court that rent is in arrears or that the licensee has failed to comply with or has committed a breach of any of the conditions of the license, the Court shall, subject to such relief against forfeiture for non-payment of rent as may seem just, declare the license forfeited. - 33 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 33. Debt owed to national government or county government, as the case maybe not extinguished by forfeiture
A forfeiture does not extinguish any debt owed to the national or county government for rent, royalty or other payments due from a lessee or licensee under a forfeited lease or license.
Section 33. Debt owed to national government or county government, as the case maybe not extinguished by forfeiture Section A forfeiture shall not extinguish any debt owed to the national government or county government, as the case maybe in respect of any rent, royalty or other payment to be made by a lessee or licensee under a lease or license forfeited. [Act No. 18 of 2018 , Sch.] - 34 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 34. Subdivision, etc., of leasehold land subject to continuing interests, etc
The national or county government must notify interest holders and caveators of boundary adjustments and ensure adjustments conform to planning principles; the survey authority must give reasonable notice when georeferencing and may adjust cadastral records without paying compensation.
Section 34. Subdivision, etc., of leasehold land subject to continuing interests, etc Section 34(1)(a) the national government or county government as the case maybe considers necessary; and Section 34(1)(b) according to any proposed plan of subdivision approved under the law relating to physical planning, Section 34(2) The national government or county government as the case maybe shall notify all interest holders and relevant caveators of the boundaries adjustments made under subsection (1). Section 34(3)(a) despite the existence of any interests registered or cautions lodged in respect of that public land; and Section 34(3)(b) with or without the consent of the holders of those interests or of the relevant cautioners. Section 34(4) The national government or county government as the case maybe shall ensure that an adjustment made under subsection (3) is made in conformity with sound planning and land management principles so as to cause as little detriment as possible to any interest or caveat affected by that adjustment. Section 34(5) On the adjustment under subsection (3) of the internal or external boundaries of land held under leasehold tenure subject to interests or caveats, the interests or caveats apply to the relevant locations or lots within those boundaries and not to the public land referred to in the instruments which created those interests or caveats . Section 34(6) If the office or authority responsible for survey proposes to survey the boundaries of any land that is subject to any interests or cautions, for purposes of georeferencing, the office will give reasonable notice to the holders of the interests or to the relevant cautioners and will make adjustments on the cadastral map, cadastral plan and the acreage without any obligation to pay compensation. [Act No. 28 of 2016 , s. 54, Act No. 18 of 2018 , Sch., Act No. 18 of 2018 , Sch.] - 35 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 35. Acceptance of purchase money or rent not to operate as waiver of forfeiture
Acceptance by or on behalf of the national government or county government of purchase money, rent or other payment under a lease or licence shall not be treated as a waiver by the national or county government of any forfeiture arising from breach of covenants or conditions attached to sales, leases or licences of public land.
Section 35. Acceptance of purchase money or rent not to operate as waiver of forfeiture Section The acceptance by or on behalf of the national government or county government as the case maybe of any purchase money or any rent or other payment under any lease or licence shall not be held to operate as a waiver by the national government or county government as the case maybe of any forfeiture accruing by reason of the breach of any covenant or condition annexed to any sale, lease or license of or respecting public land, whether the sale, lease or licence is under this Act or under any other Act relating to the disposal of public land. [Act No. 18 of 2018 , Sch.] - 36 Verify source ↗
ADMINISTRATION OF PUBLIC LAND - 36. Notice of lease, license or agreement action on public land
When a determination is made that public land is available for a particular use, a notice indicating availability for lease, licence, or agreement must be published in the Gazette and in at least two daily newspapers of nationwide circulation.
Section 36. Notice of lease, license or agreement action on public land Section 36(1) A notice of action indicating the availability of public land for use through lease, licence, or agreement shall be published in the Gazette and in at least two daily newspapers of nationwide circulation when a determination has been made that such public land is available for a particular use. Section 36(2) The notice under subsection (1) shall indicate the use proposed for the public land and shall notify the public that applications for a lease, licence or agreement shall be considered, and specify the form of negotiation, whether by competitive or non-competitive bidding, under which the land use authorization shall be issued.
Part IV
COMMUNITY LAND
- 37 Verify source ↗
COMMUNITY LAND - 37. Community land
Community land shall be managed in accordance with the law relating to community land enacted pursuant to Article 63 of the Constitution.
Section 37. Community land Section Community land shall be managed in accordance with the law relating to community land enacted pursuant to Article 63 of the Constitution.
Part IX
SETTLEMENT PROGRAMMES
- 134 Verify source ↗
SETTLEMENT PROGRAMMES - 134. Establishment of settlement scheme
The National Government must implement settlement programmes to provide access to land for shelter and livelihood.
Section 134. Establishment of settlement scheme Section 134(1) The National Government shall implement settlement programmes to provide access to land for shelter and livelihood. Section 134(2) Settlement programmes shall, for the purposes of this Act, include, but not be limited to provision of access to land to squatters, persons displaced by natural causes, development projects, conservation, internal conflicts or other such causes that may lead to movement and displacement. Section 134(3) The national government shall administer the settlement programmes in consultation with the Commission and the respective county governments. Section 134(4)(a) the deputy county commissioner; Section 134(4)(b) the sub-county administrator; Section 134(4)(c) a representative of the Commission; Section 134(4)(d) a national government representative, who shall be the secretary; Section 134(4)(e) a representative of persons with special needs; Section 134(4)(f) a representative of women; Section 134(4)(g) a youth representative; and Section 134(4)(h) a representative of elders; Section 134(4)(i) the persons appointed under paragraphs (e), (f), (g) and (h) shall be nominated by the area member of the National Assembly; and Section 134(4)(ii) a Chairperson shall be appointed at the first sitting of the committee from the persons appointed under paragraphs (e), (f), (g) and (h). Section 134(5) The Commission shall reserve public and for the establishment of approved settlement programmes, and where public land is not available, the board of trustees shall purchase or acquire land for such purposes. Section 134(6) Upon planning and survey, land in settlement schemes shall be allocated to households in accordance with national values and principles of governance provided in Article 10 of the Constitution and the principles of land policy provided in Article 60(1) of the Constitution and any other requirements of natural justice. Section 134(7) Any land acquired in a settlement scheme established under this Act or any other law shall be subdivided and a transfer shall only be allowed through a process of succession. Section 134(8) Beneficiaries of land in settlement schemes shall pay a sum of money as may be determined from time to time by the body of trustees responsible for settlement matters. Section 134(9) The funds provided by the national government and county governments for the purposes of the settlement programmes shall be administered in accordance with the law be relating to public finance management. [Act No. 28 of 2016 , s. 89.] - 135 Verify source ↗
SETTLEMENT PROGRAMMES - 135. Land Settlement Fund
Establishes the Land Settlement Fund and provides that it shall be administered by a Board of Trustees (the Land Settlement Fund Board of Trustees); sets out powers of the Board and requires the Board to consult relevant county governments when carrying out Part IX functions.
Section 135. Land Settlement Fund Section 135(1) There is established a Fund to be known as the Land Settlement Fund which shall be administered by a board of Trustees known as the Land Settlement Fund Board of Trustees. Section 135(1A)(a) suing and being sued; Section 135(1A)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 135(1A)(c) borrowing money or making investments; Section 135(1A)(d) doing or performing such other things or acts necessary for the proper performance of the functions of the Agency under this Act and which may lawfully be done or performed by a body corporate. Section 135(1B)(a) the Cabinet Secretary responsible for land matters who shall be the Chairperson; Section 135(1B)(b) the Cabinet Secretary responsible for National Treasury; Section 135(1B)(c) the Cabinet Secretary responsible for agriculture; Section 135(1B)(d) the Cabinet Secretary responsible for the environment and natural resources; Section 135(1B)(e) the Cabinet Secretary responsible for Internal Security; and Section 135(1B)(f) a representative of the Commission. Section 135(1C)(a) to squatters; Section 135(1C)(a)(i) to squatters; Section 135(1C)(a)(ii) to displaced persons; Section 135(1C)(a)(iii) for development projects; Section 135(1C)(a)(iv) for conservation; or Section 135(1C)(a)(v) such other causes that may lead to movement and displacement of persons; Section 135(1C)(b) purchase private land for settlement programmes; Section 135(1C)(c) coordinate the provision of shelter and a livelihood to persons in need of settlement programmes; and Section 135(1C)(d) perform any other function that may enhance the development and promotion of settlement programmes. Section 135(2)(a) any monies appropriated by Parliament for the purposes of the Fund; Section 135(2)(b) any funds provided by bilateral or multilateral donors, for the purpose of the Fund; Section 135(2)(c) gifts, grants, donations or endowments as may be given to the Board of the Land Settlement Fund Trustees for the purpose of the Fund; Section 135(2)(d) monies that may be borrowed by the Board of the Land Settlement Fund Trustees for the purposes of the Fund; Section 135(2)(e) the rates, charges, dues, or fees levied by the Board of the Land Settlement Fund Trustees under this Act; Section 135(2)(f) all monies derived from the payment made by beneficiaries of settlement schemes; and Section 135(2)(g) such sums as may be payable to the Board of the Land Settlement Fund Trustees pursuant to this Act or any other written law. Section 135(3)(a) to squatters; Section 135(3)(a)(i) to squatters; Section 135(3)(a)(ii) to displaced persons; Section 135(3)(a)(iii) for development projects; Section 135(3)(a)(iv) for conservation; or Section 135(3)(a)(v) such other causes that may lead to movement and displacement of persons; Section 135(3)(b) purchase of private land for settlement programmes; Section 135(3)(c) deleted by ActNo. 28 of 2016, s. 90 Section 135(3)(d) provision of shelter and a livelihood to persons in need of settlement programmes; Section 135(3)(e) research, documentation and dissemination of information on settlement programmes; and Section 135(3)(f) any other purpose that would enhance the development and promotion of settlement programmes that may be approved by the Commission. Section 135(4) The Fund shall be administered in accordance with the provisions relating to public Funds under the law relating to public finance management. Section 135(5) In carrying out its functions under Part IX of this Act, the Board of the Land Settlement Fund Trustees shall consult the relevant county government where applicable. [Act No. 28 of 2016 , s. 90.]
Part V
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND
- 38 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 38. Validity of contracts in sale of land
Certain formal requirements for validity of land sale contracts and a requirement to reduce some verbal contracts to writing within two years; the Cabinet Secretary must publish a nationwide notice about that requirement.
Section 38. Validity of contracts in sale of land Section 38(1)(a) is in writing; Section 38(1)(a)(i) is in writing; Section 38(1)(a)(ii) is signed by all the parties thereto; and Section 38(1)(b) the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party. Section 38(2)(a) a contract made in the course of a public action; Section 38(2)(b) the creation or operation of a resulting, implied or a constructive trust; or Section 38(2)(c) the verbal contracts shall be reduced to writing within two years from the date of enactment of this Act; and Section 38(2)(c)(i) the verbal contracts shall be reduced to writing within two years from the date of enactment of this Act; and Section 38(2)(c)(ii) the Cabinet Secretary shall put a notice of the requirement to reduce the contracts in writing, in a newspaper of nationwide circulation. - 39 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 39. Vendor’s right to regain possession
The vendor is entitled to regain possession of the land by resuming possession peaceably.
Section 39. Vendor’s right to regain possession Section resuming possession of the land peaceably; or - 40 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 40. Damages for breach of contract
Vendors may claim damages and mesne profits from purchasers for breach of a sale contract or other duties, and terms conflicting with this section are inoperative.
Section 40. Damages for breach of contract Section 40(1) Nothing in section 39 prevents a vendor from claiming damages and mesne profits from the purchaser for the breach of a contract for a sale, or for breach of any other duty to the vendor which the purchaser may be under independently of the contract, or affects the amount of damages that the vendor may claim. Section 40(2) Any term express or implied in a contract or other instrument that conflicts with this section shall be inoperative. - 41 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 41. Procedure for obtaining order for possession
Lists items a vendor's notice should state (nature and extent of breach; possible monetary remedy; actions or compensation and a time of not less than thirty days to remedy), and provides that the vendor may seek a court order to possess the land and rescind the contract if the breach is not remedied or not capable of remedy.
Section 41. Procedure for obtaining order for possession Section 41(1)(a) of the nature and extent of the breach complained of by the vendor; Section 41(1)(b) whether the vendor considers that the breach is capable of being remedied by the payment of a stated amount of money owing under the contract; Section 41(1)(c) whether the vendor considers that the breach is capable of being remedied by the purchaser doing or desisting from doing anything or paying reasonable compensation or both, and of the thing that the purchaser must do or desist from doing or the amount of compensation that shall be paid or both to remedy the breach and the time, being not less than thirty days, within which the actions referred to in this paragraph must be completed; Section 41(1)(d) of the period within which the purchaser must remedy the breach, if the vendor considers that the breach is capable of being remedied; and Section 41(1)(e) of the consequence where the purchaser fails to remedy the breach or if the vendor does not consider that the breach can be remedied, the vendor may seek an order from the court to possess the land and rescind the contract. Section 41(2)(a) render it invalid so long as the purport of the notice is clear; or Section 41(2)(b) absolve the purchaser from the consequences of not responding to the notice. - 42 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 42. Relief against rescission of contract for the sale of land
If the vendor peaceably enters the land the purchaser must apply for relief within ninety days; the court may grant relief on terms it considers appropriate; the vendor has a right to rescind the contract for breach.
Section 42. Relief against rescission of contract for the sale of land Section 42(1)(a) in the proceedings for an order for possession; or Section 42(1)(b) in proceedings brought by the purchaser. Section 42(2) If the vendor has peaceably entered on to the land the purchaser shall apply for relief within ninety days after the entry on to the land. Section 42(3) The court may grant relief on such terms as it considers appropriate, including relief for breach of any term or condition of the contract that is not capable of being remedied. Section 42(4)(a) there has been a breach of the contract by the purchaser; Section 42(4)(b) by reason of the breach, the vendor has the right to rescind the contract; Section 42(4)(c) a notice has been duly and properly served on the purchaser; or Section 42(4)(d) the time for remedying a breach or for paying an amount by way of compensation has expired, and the court may grant relief without determining any of those matters. Section 42(5) Any, express or implied, term in a contract or other instrument to which this section applies that conflicts with or purports to set aside or negate this section shall be inoperative. [Act No. 28 of 2016 , s. 56.] - 43 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 43. Transfer
A proprietor may transfer land, a lease or a charge to any person by an instrument in the prescribed form; the transferee of a charge may require the chargor to execute the transfer to acknowledge the amount due.
Section 43. Transfer Section 43(1) In this Part, “transfer” includes a conveyance, an assignment, a transfer of land, a transfer of lease or other instrument used in the disposition of an interest in land by way of transfer. Section 43(2) A proprietor may transfer land, a lease or a charge to any person (including himself or herself), with or without consideration, by an instrument in the prescribed form. Section 43(3) The transfer shall be completed by the registration of the transferee as proprietor of the land, lease or charge. Section 43(4) The transferee of a charge may require the chargor to execute the transfer for the purpose of acknowledging the amount due under the charge at the date of execution of the transfer. - 44 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 44. Transfer to take effect immediately
A transfer cannot be stated to take effect upon a future event, condition, or at any future time.
Section 44. Transfer to take effect immediately Section A transfer shall not be expressed to take effect on the happening of any event or on the fulfilment of any condition or at any future time. - 45 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 45. Transfer of leases
The transferor must warrant that the lessee's rent, agreements and conditions have been paid, performed and observed up to the date stated in the transfer or, if none, the date of transfer.
Section 45. Transfer of leases Section a warranty on the part of the transferor that the rent, agreements and conditions on the part of the lessee to be paid, performed and observed have been so paid, performed and observed up to the date specified in the transfer or, if no such date is specified, the date of the transfer; and - 46 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 46. Effect of transfer on agreement in leases
When a lease is transferred, the transferee takes on the rights and liabilities of the transferor under the lease and ceases to be under obligations or to possess rights under the lease, subject to subsection (2) which preserves rights or liabilities for breaches that occurred before the transfer.
Section 46. Effect of transfer on agreement in leases Section 46(1) A transfer from a lessor or from a lessee shall possess all the rights, and be subject to all the liabilities, of the lessor or lessee, as the case may be, expressed or implied in the lease, or arising or which have arisen thereunder, and the transferee shall cease to be under any obligation or possessed of any rights in respect of the lease subject to subsection (2). Section 46(2) Nothing in this section shall affect the rights or liabilities of the lessor or lessee, as the case may be, in respect of a breach of any of the agreements expressed or implied in a lease that occurred before the transfer. - 47 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 47. Transfer subject to charge
When land or a lease is transferred subject to a charge, the transferee is implied to agree to pay the interest secured by that charge where applicable.
Section 47. Transfer subject to charge Section In every transfer of land or a lease subject to a charge, there shall be an implied agreement by the transferee with the transferor to pay the interest, where applicable, secured by the charge. - 48 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 48. Transfer subject to lease
Section 48: Transfer subject to lease
Section 48. Transfer subject to lease - 49 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 49. Transmission on death of joint proprietor
If one of two or more joint proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death, delete the name of the deceased from the register by registration of the death certificate.
Section 49. Transmission on death of joint proprietor Section If one of two or more joint proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death, delete the name of the deceased from the register by registration of the death certificate. - 50 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 50. Transmission on death of a sole proprietor or proprietor in common
A deceased sole proprietor’s personal representative can be registered by transmission as proprietor if they apply to the Registrar in the prescribed form and produce the grant; the representative’s name must include wording indicating their role as executor or administrator.
Section 50. Transmission on death of a sole proprietor or proprietor in common Section 50(1) If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of (..............) [deceased]” or “as administrator of the estate of (................)[deceased]”, as the case may be. Section 50(2)(a) any transfer by the personal representative; and Section 50(2)(b) any surrender of a lease or discharge of a charge by the personal representative. Section 50(3) In this section, “grant” means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor. - 51 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 51. Effect of transmission on death
When a proprietor dies, their personal representative or the person beneficially entitled must hold the land, lease or charge subject to the deceased's unregistered liabilities, rights and interests; and for dealings they are to be treated as if registered as proprietor with the rights given to a proprietor who acquired for valuable consideration.
Section 51. Effect of transmission on death Section 51(1) Subject to any restriction on a person’s power of disposing of any land, lease or charge contained in an appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor, as the case may be, shall hold the land, lease or charge subject to any liabilities, rights or interests that are unregistered but are nevertheless enforceable and subject to which the deceased proprietor held the same, but for the purpose of any dealing the person shall be deemed to have been registered as proprietor thereof with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration. Section 51(2) The registration of any person as aforesaid shall relate back to and take effect from the date of the death of the proprietor. - 52 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 52. Transmission on bankruptcy
If a certified court order is produced showing a proprietor is bankrupt or the estate of a deceased proprietor is to be administered under section 375 of the Insolvency Act, the Registrar must register the bankruptcy trustee (or trustee appointed under section 375) as proprietor in place of that person.
Section 52. Transmission on bankruptcy Section 52(1) On production to the Registrar of a certified copy of the order of court adjudging a proprietor bankrupt, or directing the estate of a deceased proprietor to be administered in accordance with section 375 of the Insolvency Act (Cap. 53), the Registrar shall register the bankruptcy trustee, or the trustee appointed under that section, as proprietor of any land, lease or charge of which the bankrupt or the deceased proprietor is proprietor, in place of that bankrupt or proprietor. Section 52(2) In making an entry in the register for the purpose of subsection (1), the Registrar shall describe the bankruptcy trustee, or the trustee appointed under section 375 of the Insolvency Act (Cap. 53) as "trustee of the property of (.........................), a bankrupt. [Act No. 19 of 2015 , s. 176.] - 53 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 53. Transmission upon company’s liquidation
When a company is in liquidation the liquidator must provide the Registrar with the appointing resolution or order, comply with Insolvency Act Part VI requirements, record and register appointments affecting land/leases/charges, lodge vesting orders with the Registrar as soon as practicable after section 444 orders, and instruments delivered after appointment must be sealed or signed and verified; the Registrar must register the liquidator as proprietor on receiving a vesting order.
Section 53. Transmission upon company’s liquidation Section 53(1)(a) produce to the Registrar the resolution or order appointing the liquidator; and Section 53(1)(b) satisfy the Registrar that the person has complied with the requirements of Part VI of the Insolvency Act (Cap. 53) Section 53(1A)(a) record the appointment in respect of any land, lease or charge of which the company is registered as proprietor; and Section 53(1A)(b) register the copy of the resolution or order. Section 53(2) An instrument executed by or on behalf of a company in liquidation delivered for registration after the appointment of the liquidator has been entered under subsection (1) shall be sealed with the common seal of the company and attested to by the liquidator or, in the case of a company not required by law to have a common seal, shall be signed by the liquidator whose signature shall be verified in accordance with the relevant law. Section 53(3) As soon as practicable after a vesting order has been made under section 444 of the Insolvency Act (Cap. 53), the liquidator shall lodge a copy of the order with the Registrar for registration under this Act. Section 53(4) On receiving a copy of a vesting order inaccordance with subsection (1), the Registrar shall register the liquidator as proprietor of the land, lease or charge to which the order relates. [Act No. 19 of 2015 , s. 177.] - 54 Verify source ↗
ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND - 54. Transmission in other cases
When a person becomes entitled to land, lease or charge under law or by order/certificate of sale, the Registrar must, on application by an interested person supported by required evidence, register that person as the proprietor.
Section 54. Transmission in other cases Section If a person has become entitled to any land, lease or charge under any law or by virtue of any order or certificate of sale made or issued under any law, the Registrar, on the application of any interested person supported by such evidence as the person may require, shall register the person entitled, as the proprietor.
Part VI
GENERAL PROVISIONS ON LEASES
- 55 Verify source ↗
GENERAL PROVISIONS ON LEASES - 55. Application of this Part
Part applies to all leases except those governed by community land law; parties to pre-Act leases may in writing adopt provisions of this Part into their lease; references to a lease include a sublease.
Section 55. Application of this Part Section 55(1) Unless otherwise provided in a lease instrument, the provisions of this Part shall apply to all leases, other than leases governed by legislation relating to community land. Section 55(2) The parties to a lease made or coming into effect before the commencement of this Act may agree, in writing, to adopt or incorporate any of the provisions of this Part into that lease and any provisions adopted or incorporated shall, unless the agreement otherwise provides, become a part of the lease and shall be enforceable in every respect, with effect from the date of the agreement. Section 55(3) In this Part, unless the context expressly or by implication renders it unfeasible, references to a lease include a sublease. - 56 Verify source ↗
GENERAL PROVISIONS ON LEASES - 56. Power to lease land
Gives a power to lease land or part of it to any person for various types of periods (definite, for life of lessor or lessee, or an indefinite period terminable by either).
Section 56. Power to lease land Section ease that land or part of it to any person for a definite period or for the life of the lessor or of the lessee or for a period which though indefinite, may be terminated by the lessor or the lessee; and - 57 Verify source ↗
GENERAL PROVISIONS ON LEASES - 57. Periodic leases
Defines when a lease is treated as a periodic lease and provides rules for termination by notice.
Section 57. Periodic leases Section 57(1)(a) the term of the lease is not specified and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease; Section 57(1)(b) the term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease shall be for six months; Section 57(1)(c) unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and Section 57(1)(c)(i) unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and Section 57(1)(c)(ii) all the terms and conditions of the lease that are consistent with the provisions of subparagraph (i) shall continue in force until the lease is terminated in accordance with this section. Section 57(2) If the owner of land permits the exclusive occupation of the land or any part of it by any person at a rent but without any agreement in writing, that occupation shall be deemed to constitute a periodic tenancy. Section 57(3) The periodic tenancy contemplated in subsection (1)(a) shall be the period by reference to which the rent is payable. Section 57(4) A periodic tenancy may be terminated by either party giving notice to the other, the length of which shall be not less than the period of the tenancy and shall expire on one of the days on which rent is payable. - 58 Verify source ↗
GENERAL PROVISIONS ON LEASES - 58. Short-term leases
Short-term leases: (a) leases for two years or less without an option for renewal; (b) periodic leases; (c) leases to which section 57(2) applies. A short-term lease may be made orally or in writing. A short-term lease is not a registrable interest in land.
Section 58. Short-term leases Section 58(1)(a) made for a term of two years or less without an option for renewal; Section 58(1)(b) that is a periodic lease; and Section 58(1)(c) to which section 57 (2) applies. Section 58(2) A short term lease may be made orally or in writing. Section 58(3) A short term lease is not a registrable interest in land. - 59 Verify source ↗
GENERAL PROVISIONS ON LEASES - 59. Lease terminating on the occurrence of a future event
A lease that begins after this Act comes into force and which allows termination upon a future event is valid provided the future event is defined clearly enough in the lease to be identified when it occurs.
Section 59. Lease terminating on the occurrence of a future event Section A lease that comes into operation after the date on which this Act comes into operation and that provides for its termination or permits notice of its termination to be given on the occurrence of a future event shall not be invalid provided that the event is sufficiently defined in the lease so as to be identified when it occurs. - 60 Verify source ↗
GENERAL PROVISIONS ON LEASES - 60. Lessee remaining in possession after termination of lease without the consent of lessor
If a lessee remains in possession of land without the lessor's consent after the lease ends, the lessee's obligations under the lease continue until the lessee leaves; a lessor who accepts rent after termination is not thereby deemed to have consented, and if the lessor accepts rent for two months after termination a month-to-month periodic lease is deemed to have arisen.
Section 60. Lessee remaining in possession after termination of lease without the consent of lessor Section 60(1) If a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land. Section 60(2) A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force. - 61 Verify source ↗
GENERAL PROVISIONS ON LEASES - 61. Future leases
Leases of land may be made to begin on a future date up to twenty-one years after execution; a future lease for more than five years is not effective unless it is registered.
Section 61. Future leases Section 61(1) For the avoidance of doubt, a lease of land may be made for a term to begin on a future date, not being later than twenty-one years after the date on which the lease is executed. Section 61(2) A future lease, which is expressed to be for a period of more than five years, shall be of no effect unless and until it is, registered. - 62 Verify source ↗
GENERAL PROVISIONS ON LEASES - 62. Notice by co-owners
Section 62 — Notice by co-owners.
Section 62. Notice by co-owners Section two or more lessors as co-owners; or - 63 Verify source ↗
GENERAL PROVISIONS ON LEASES - 63. Sublease for a term that is the same as or shorter than the term of the head lease
A sublease that takes effect after this Act and that expires at the same time as or earlier than the head lease does not operate as an assignment of the head lease to the sublessee unless a contrary intention appears, and the term of a sublease must not be longer than the term of the head lease.
Section 63. Sublease for a term that is the same as or shorter than the term of the head lease Section 63(1) This section shall apply to a sublease that comes into operation after the date of the commencement of this Act under which, a lessee enters or purports to enter into a sublease for a term that is to expire at the same time as or not later than, the expiry of the term of the head lease. Section 63(2) A sublease to which this section applies shall not operate as an assignment of the head lease to the sublessee, unless a contrary intention appears from the sublease or from the circumstances surrounding the granting of the sublease. Section 63(3) The term of a sublease shall not be longer than the term of the head lease. [Act No. 28 of 2016 , s. 57.] - 64 Verify source ↗
GENERAL PROVISIONS ON LEASES - 64. Surrender to enable a new head lease to be entered into not to affect the sublease
Surrendering a head lease so a new head lease can be entered into does not affect the sublease: the sublease’s term or right of termination governs, and the sublease’s rights and obligations continue enforceable, except where entering the new head lease makes an obligation more onerous than before.
Section 64. Surrender to enable a new head lease to be entered into not to affect the sublease Section 64(1)(a) the term of the sublease is to expire; or Section 64(1)(b) in the case of a sublease that is a periodic tenancy, the sublease may be terminated by the giving of the specified period of notice of termination and the expiry of that period. Section 64(2)(a) shall continue in force as though it had been entered into in respect of the new head lease; and Section 64(2)(b) all rights and obligations under the sublease, including those which relate to any period before the surrender of the head lease, shall continue to be enforceable, except to the extent that any such obligation is, by reason of the fact that a new head lease has been entered into, more onerous than it would have been had the original head lease not been surrendered. Section 64(3) A sublease entered into in respect of a surrendered lease includes, for purposes of this section, any sublease entered into by a person deriving title through the lessee under the surrendered lease. - 65 Verify source ↗
GENERAL PROVISIONS ON LEASES - 65. Covenants implied in a lease on part of the lessor
Sets implied covenants in leases: lessee must pay rent and observe covenants; lessee entitled to quiet enjoyment while doing so; lessor must keep certain parts in repair, ensure habitability of dwellings, must not render premises unfit, and may enter for inspection after seven days' notice; lessee may terminate with one month’s notice if premises can no longer be lawfully used for specified purposes.
Section 65. Covenants implied in a lease on part of the lessor Section 65(1)(a) that so long as the lessee pays the rent and observes and performs the covenants and conditions contained or implied in the lease to be observed and performed on the lessee’s part, the lessee shall peaceably and quietly possess and enjoy the land leased during the term of the lease without any interruption from or by the lessor or any person rightfully claiming through the lessor; Section 65(1)(b) not to use or permit any adjoining or neighbouring land that the lessor owns or leases that would in any way render the leased land or any buildings on the leased land unfit or materially less fit for any purpose for which they may be used, consistent with the terms and conditions of the lease; Section 65(1)(c) if only part of a building is leased, to keep the roof, all external and main walls and main drains, and the common parts and common installations and facilities, including common passages and walkways in a proper state of repair; Section 65(1)(d) if any dwelling house, flat, or room is leased, that the house, flat or room is fit for human habitation at the commencement of the lease and shall be kept fit for human habitation during the lease; Section 65(1)(e) by fire, flood or explosion or other accident not attributable to the negligence of the lessee, or lessee’s invitees or employees; Section 65(1)(e)(i) by fire, flood or explosion or other accident not attributable to the negligence of the lessee, or lessee’s invitees or employees; Section 65(1)(e)(ii) by civil commotion; or Section 65(1)(e)(iii) by lightning, storm, earthquake, volcanic activity or other natural disaster, Section 65(1)(f) if it is an express or implied term of the lease that the leased land or a building on it may be used for any one specific purpose or purposes, the lessee may terminate the lease, on giving one month’s notice to the lessor, if the land or building cannot be, or can no longer lawfully be, used for any of those purposes; and Section 65(1)(g) to pay all rates, taxes, dues and other outgoings that are payable in respect of the leased land except to the extent otherwise specified in the lease. Section 65(2)(a) either personally or by agents, enter, the leased land or buildings at any reasonable time and upon giving a seven days' notice to the lessee for the purpose of inspecting the condition and repair of the premises, or for carrying out repairs and making good any defects that it is the lessor’s obligation so to do; but in the exercise of that power, the lessor shall not unreasonably interfere with the occupation and use of the land and buildings by the lessee; Section 65(2)(b) any rent is unpaid for one month after the due date for payment, whether or not a demand, in writing, for payment has been made by the lessor or an agent of the lessor; Section 65(2)(b)(i) any rent is unpaid for one month after the due date for payment, whether or not a demand, in writing, for payment has been made by the lessor or an agent of the lessor; Section 65(2)(b)(ii) the lessee has failed for a period of one month, to observe or perform any condition, covenant or other term, the observation or performance of which has been assumed by the lessee expressly or impliedly in the lease. - 66 Verify source ↗
GENERAL PROVISIONS ON LEASES - 66. Conditions implied on leases on part of the lessee
This section lists conditions implied on leases that the lessee must follow: pay the rent when and how the lease specifies; use the land sustainably and follow lease, written law or grant conditions; accept reasonable wear and tear and loss from listed events; keep boundary marks and buildings in repair.
Section 66. Conditions implied on leases on part of the lessee Section 66(1)(a) to pay the rent reserved by the lease at the times and in the manner specified in the lease; Section 66(1)(b) to use any land in a sustainable manner and in accordance with any conditions imposed on the use of that land by the lease, or any written law or any provisions in a grant of a public land out of which that lease Section 66(1)(c) reasonable wear and tear; Section 66(1)(c)(i) reasonable wear and tear; Section 66(1)(c)(ii) fire, flood or explosion or other accident not attributable to the negligence of the lessee, or the lessee’s invitees or employees; Section 66(1)(c)(iii) civil commotion; Section 66(1)(c)(iv) lightning, storm, earthquake, volcanic activity or other natural disaster; Section 66(1)(d) to keep all boundary marks in repair; and Section 66(1)(e) to keep all buildings comprised in the lease in a reasonable state of repair. - 67 Verify source ↗
GENERAL PROVISIONS ON LEASES - 67. Consent by lessor to application by lessee under lease
A lessor must not unreasonably withhold consent to certain lessee actions and must, if asked in writing, promptly give written reasons for refusal or conditions; lessee may recover money and damages caused by prohibited demands or conditions.
Section 67. Consent by lessor to application by lessee under lease Section 67(1) On and after the commencement of this Act, a covenant by the lessee not to take an action without the consent of the lessor shall be construed as requiring the lessor not unreasonably to withhold consent to the taking of that action by the lessee. Section 67(2)(a) transfer or assign the lease; Section 67(2)(b) enter into a sublease; Section 67(2)(c) part with possession of the leased land or buildings; Section 67(2)(d) change the use of the land or buildings from a use which is permitted under the lease; Section 67(2)(e) extend, improve, add on to or in any other way develop any building beyond what is permitted in the lease; Section 67(2)(f) create a charge over the lease; Section 67(2)(g) take any of the actions referred to in subparagraphs (a), (b), (c), (d), (e); or Section 67(2)(h) in relation to any part of the leased land or buildings, or for any part of the term of the lease, Section 67(3)(a) requires the lessee to pay any money, by way of additional rent, or a premium or a fine or other consideration for the consent, other than the payment of the lessor’s reasonable expenses incurred in connection with the giving of consent; Section 67(3)(b) imposes on the lessee any unreasonable condition or precondition; or Section 67(3)(c) the lessee has requested for consent to transfer or assign the lease or enter into a sublease, and the lessor objects to the gender or nationality or other personal characteristic of the transferee, assignee or sublessee, in circumstances that a reasonable person would consider those factors irrelevant to the granting of such consent. Section 67(4) If the lessor refuses to give consent or gives consent subject to a condition or pre-condition and the lessee so requests, in writing, the lessor shall promptly inform the lessee, in writing, of the reasons for the refusal or for the imposition of the condition or pre-condition, as the case maybe. Section 67(5) If the lessee or any person, to whom this section applies at the request of the lessee, has paid any money or suffered any loss in connection with subsection (3), that person may recover that money and seek damages for that loss from the lessor. Section 67(6) This section shall not prevent the inclusion, in a lease, of a covenant binding the lessee absolutely not to take any action of the kind referred to in subsection (2). - 68 Verify source ↗
GENERAL PROVISIONS ON LEASES - 68. Merger of lessor’s interest not to affect remedies
Merger of lessor’s interest does not affect remedies.
Section 68. Merger of lessor’s interest not to affect remedies - 69 Verify source ↗
GENERAL PROVISIONS ON LEASES - 69. Burden and benefit of covenants to run with the reversion
Covenants in a lease bind the lessor and lessee and the benefits and obligations run with the reversion, enforceable by the person entitled to the reversion; a person who later becomes entitled may still exercise accrued rights unless waived or released.
Section 69. Burden and benefit of covenants to run with the reversion Section 69(1)(a) the obligations imposed on the lessor by covenant of the lease run with the reversion and may be enforced by the person who is from time to time entitled to the reversion; Section 69(1)(b) the rights to the benefits of every covenant imposed on the lessee, that refers to the subject matter of the lease, may be exercised and enforced by the person who is from time to time entitled to the reversion against the person who is from time to time entitled to the lease. Section 69(2) A person who becomes entitled to exercise a right to which subsection (1)(b) refers may exercise the right even if it first became exercisable or accrued before the time at which that person became so entitled unless before that time, the right was waived or the lessee was released from the obligation to which the right relates. Section 69(3)(a) there has been a division of the reversion into different parts so that different persons are lessors of the different parts; or Section 69(3)(b) the lease has terminated in relation to the part of the land comprised in the lease, - 70 Verify source ↗
GENERAL PROVISIONS ON LEASES - 70. Effect of payment by lessee to assignor of reversion
If a lessor has transferred the reversion, a lessee who pays any rent or money due to the transferor or assignor is discharged to that extent, unless the lessee had actual notice of the transfer or assignment before paying.
Section 70. Effect of payment by lessee to assignor of reversion Section 70(1) If a lessor has transferred or assigned the reversion, any payment by the lessee of any part of the rent or of any other money due under the lease to the transferor or assignor shall discharge the lessee to the extent of that payment unless the lessee had actual notice of the transfer or assignment before making the payment. Section 70(2) Notwithstanding any other provision to the contrary in any other written law, the registration of a transfer of the reversion shall not, for purposes of subsection (1), in itself, be an actual notice to the lessee of the transfer. - 71 Verify source ↗
GENERAL PROVISIONS ON LEASES - 71. Transferor or assignor of lease released from liability to pay rent and observe covenants thereafter
A transferor or assignor of a lease is discharged from future liability to pay rent and observe covenants from the date of transfer, except while remaining in occupation or for obligations that accrued during their tenancy; a lessee who vacates with the lessor's agreement remains liable for rent and covenants for one year (unless shorter period in lease) and similar rules apply to part-transfers or part-vacatings.
Section 71. Transferor or assignor of lease released from liability to pay rent and observe covenants thereafter Section 71(1)(a) the rule of the common law that a transferor or assignor of a lease remains liable on the personal covenant to the lessor for payment of rent and for all breaches of covenants, notwithstanding that the transferor or assignor is no longer in possession or occupation of the leased land, shall cease to apply; and Section 71(1)(b) the effect of a transfer or assignment of a lease is, as from that date, to discharge absolutely and without more the transferor or assignor from any obligation to pay rent or to observe any covenants in respect of the land as from the date of the transfer or assignment, whether the person to whom the lease has been transferred or assigned is in or goes immediately into occupation or possession of the land so transferred or assigned. Section 71(2) As long as the transferor or assignor remains in occupation of the leased land and notwithstanding the transfer or assignment, that transferor or assignor shall remain liable to pay rent and comply with all the covenants as if the person were still the lessee for as long as the person shall remain in occupation. Section 71(3) Subsection (1) shall not absolve a transferor or assignor of a lease from any obligation to pay rent or remedy and breach of a covenant that accrued or arose during the term of the lease when that transferor or assignor was bound by all the covenants in that lease and the lessor may enforce all such obligations of that lease that have so accrued or arisen against that transferor or assignor notwithstanding that the lease has been transferred or assigned. Section 71(4)(a) the rule of common law that a lessee remains liable to pay rent and comply with all the covenants notwithstanding that the lessee has, with the agreement of the lessor, vacated the leased land before the date for the termination of the lease, shall cease to apply; and Section 71(4)(b) subsection (5) shall forthwith apply. Section 71(5) A lessee who, with the agreement of the lessor, vacates land before the termination of a lease shall remain liable to pay rent and observe all the covenants in the lease for one year from the date on which the lessee vacates the land or buildings, unless the lease provides expressly for a shorter period, and if the lessor leases that land or any buildings to another person before the end of one year, the provisions of subsection (1) shall apply, with effect from the date of the execution of that lease. Section 71(6) Subsection (1) shall not absolve a lessee to whom subsection (5) applies, from any obligation to pay rent or remedy a breach of a covenant that accrued or arose during the term of the lease when that lessee was bound by all the covenants in that lease and the lessor may enforce all such obligations of that lease that have accrued or arisen against that lessee notwithstanding the fact that the lessee has vacated the land. Section 71(7) The provisions of subsections (1) and (5) shall apply in a similar manner to the transfer, or assignment of a lease of a part of the leased land and to the vacating of a part of the leased land as they apply to the transfer of assignment of the lease of all the land and the vacating of all the land comprised in the lease. Section 71(8) Any term expressed or implied in a lease or in a condition or covenant in a lease that is in conflict with this section shall be void. - 72 Verify source ↗
GENERAL PROVISIONS ON LEASES - 72. Transferor or assignee as lessee
A transferor or assignee who becomes the lessee must pay rent and perform lessee covenants, may enforce covenants against the lessor, and is identified as the transferor or assignee acting as lessee.
Section 72. Transferor or assignee as lessee Section 72(1)(a) acknowledge the lessor as such; Section 72(1)(b) take possession of the land or building that is the subject of the lease. Section 72(2)(a) shall pay the lessor the rent payable under the lease; Section 72(2)(b) shall observe and perform all the covenants on the part of the lessee expressed or implied in the lease; and Section 72(2)(c) may enforce all covenants made by and binding on the lessor expressed or implied in the lease. - 73 Verify source ↗
GENERAL PROVISIONS ON LEASES - 73. Lessor’s right of forfeiture
The lessor has a right to forfeit the lease if the lessee breaches the lease, is adjudicated bankrupt, or (if a company) goes into liquidation; the right may be exercised by taking possession where the lessee is not in occupation or by court action; accepting rent after a notice of forfeiture does not waive the right unless the lessor by other positive act treats the lease as subsisting.
Section 73. Lessor’s right of forfeiture Section 73(1)(a) commits any breach of, or omits to perform, any agreement or condition on his part expressed or implied in the lease; or Section 73(1)(b) is adjudicated bankrupt; or Section 73(1)(c) being a company, goes into liquidation. Section 73(2)(a) exercised, where neither the lessee nor any person claiming through or under him is in occupation of the land, by entering upon and remaining in possession of the land; or Section 73(2)(b) enforced by action in the court. Section 73(3) The acceptance by the lessor of any rent after the service of a notice of forfeiture under section 75 does not operate as a waiver of the lessor’s right of forfeiture unless the lessor has by any other positive act shown an intention to treat the lease as subsisting. - 74 Verify source ↗
GENERAL PROVISIONS ON LEASES - 74. Effect of forfeiture on subleases
Section 74 addresses the effect of forfeiture on subleases where the forfeiture is set aside by the court on the grounds that it was procured by the lessor in fraud of the sublesee.
Section 74. Effect of forfeiture on subleases Section where the forfeiture is set aside by the court on the grounds that it was procured by the lessor in fraud of the sublesee; or - 75 Verify source ↗
GENERAL PROVISIONS ON LEASES - 75. Notice before forfeiture
Notice before forfeiture Section specifying the particular breach complained of; and
Section 75. Notice before forfeiture Section specifying the particular breach complained of; and - 76 Verify source ↗
GENERAL PROVISIONS ON LEASES - 76. Relief against forfeiture
A lessee served with a notice under section 75 or facing forfeiture may apply to the court for relief; the court may grant or refuse relief and may impose terms. The court may also, on application by a sublessee or chargee, order that the property be vested in that person, subject to conditions and excluding cases where the sublessee is party to the breach or where there is an express agreement against subletting or disposing of the property.
Section 76. Relief against forfeiture Section 76(1) A lessee upon whom a notice has been served under section 75 , or against whom the lessor is proceeding, by action or re-entry, to enforce his right of forfeiture, may apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and the conduct of the parties and the circumstances of the case, thinks fit, and, if it grants relief, may grant it on such terms as it thinks fit. Section 76(2) The court, on application by any person claiming as sublesee or chargee any interest in the property or part of the property comprised in the lease forfeited or sought to be forfeited, may make an order vesting the property or such part in such sublesee or chargee for the whole period of the lease or any less period, upon such conditions as the court in the circumstances of the case thinks fit: Provided that nothing in this subsection shall apply in the case of a forfeiture arising from a breach to which the sublesee is a party, or from the breach of an express agreement or condition against subleasing, parting with the possession of or disposing of the property leased. Section 76(3) This section shall have effect notwithstanding any stipulation or agreement to the contrary and whether the lease is registered or not. - 77 Verify source ↗
GENERAL PROVISIONS ON LEASES - 77. Unlawful eviction
If a lessee is evicted (in whole or in part) contrary to the lease, the lessee is immediately relieved of all obligation to pay rent or other monies and to perform lessee covenants in respect of the part evicted.
Section 77. Unlawful eviction Section 77(1) A lessee who is evicted from the whole or a part of the leased land or buildings, contrary to the express or implied terms and conditions of a lease, shall be immediately relieved of all obligation to pay any rent or other monies due under the lease or perform any of the covenants and conditions on the part of the lessee expressed or implied in the lease in respect of the land or buildings or part thereof from which the lessee has been so evicted. Section 77(2) For purposes of this section, a lessee shall be considered as having been evicted from the whole or part of the leased land or buildings, if, on the commencement of the lease, the lessee is unable to obtain possession of the land or buildings or part thereof, as a result of any action or non-action of the lessor or any of the lessor’s agents or employees, contrary to the express or implied terms of the lease: Provided that a lessee who is aggrieved as a result of unlawful eviction under this section may commence an action against the lessor for remedies.
Part VII
GENERAL PROVISIONS ON CHARGES
- 100 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 100. Purchase by chargee
A chargee exercising the power of sale may purchase the property with the Court's leave (except in circumstances in subsection (3)); the court will not grant leave unless the chargee satisfies the court that a sale to the chargee is the most advantageous; the Registrar may require evidence and is not obliged to register until satisfied.
Section 100. Purchase by chargee Section 100(1) Other than in the circumstances provided to in subsection (3), a chargee exercising the power of sale may, with leave of the Court, purchase the property. Section 100(2) A court shall not grant leave unless the chargee satisfies the court that a sale of the charged land to the chargee is the most advantageous way of selling the land so as to comply with the duty imposed on the chargee by section 97 (1). Section 100(3)(a) the highest price bid for that land at the auction; and Section 100(3)(b) an amount equal to or higher than the reserve price, if any, put upon the land before the auction, whichever amount is the greater. Section 100(4) If a chargee who has sold charged land to the chargee applies to the Registrar to be registered as the lawful owner of land under a land or lease, the Registrar may require that chargee to provide any evidence that the Registrar may specify showing that the provisions of this section have been complied with and the Registrar shall not be obliged to register any such land or lease until the chargee has so satisfied the Registrar. - 101 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 101. Application of proceeds of sale of charged land
Proceeds of sale of charged land are applied first to pay any rates, rents, taxes, charges or other sums owing and required to be paid on the charged land.
Section 101. Application of proceeds of sale of charged land Section first, in payment of any rates, rents, taxes, charges or other sums owing and required to be paid on the charged land; - 102 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 102. Right of chargor to discharge charge on payment of any sum due any time before sale
Before sale (or withdrawal from sale), the chargor or any person entitled to discharge the charge may discharge it in whole or in part by paying the money secured to the chargee.
Section 102. Right of chargor to discharge charge on payment of any sum due any time before sale Section 102(1) At any time before the charged land is sold, or withdrawn from sale, the chargor or any other person entitled to discharge the charge may discharge the charge in whole or in part by paying to the chargee all money secured by the charge at the time of payment. Section 102(2)(a) a discharge of the charge in the prescribed form over the whole or that part of the charged land to which the payment relates; and Section 102(2)(b) all instruments and documents of title held by the chargee in connection with the charged land. - 103 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 103. Application for relief by chargor
Certain persons (the chargor, joint chargors, a spouse in limited circumstances, and a bankruptcy trustee) may apply for relief in respect of a charge, subject to conditions about notices, breach and remedies.
Section 103. Application for relief by chargor Section 103(1)(a) the chargor; Section 103(1)(b) if two or more persons are joint chargors, by one or more of them on their own behalf; Section 103(1)(c) a spouse of the chargor to the extent that the spouse was required to give consent to the creation of the charge but did not give consent; or Section 103(1)(d) deleted by ActNo. 28 of 2016, s. 75; Section 103(1)(e) if the chargor has been adjudged bankrupt, the bankruptcy trustee of the estate of the charger. Section 103(2) If an application made in accordance subsection (1)(b) is not made by all the joint chargors, then, unless the court orders otherwise, it must be served on all the joint chargors. Section 103(3) An application for relief may be made at any time after the service of a notice under section 90 (1), section 91 (2), section 94 (1), section 95 (1), or during the exercise of any of the remedies contemplated in those sections. Section 103(4)(a) there has been a breach of a covenant of the charge by the chargor; Section 103(4)(b) by reason of such a breach, the chargee has the right to exercise the remedy in respect of which the application for relief has been made; Section 103(4)(c) all notices that were required to be served by the chargee were properly served; or Section 103(4)(d) the period for remedying the breach specified in the notice served under section 90 was reasonable or had expired, - 104 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 104. Power of the court in respect of remedies and reliefs
Section 104 sets out the court's powers to consider whether certain remedies are necessary and to cancel, vary, suspend or postpone orders; extend compliance periods; substitute remedies or timings; authorise or approve remedies on conditions; and to treat amounts as due for purposes of the charge.
Section 104. Power of the court in respect of remedies and reliefs Section 104(1)(a) shall, have regard to whether the remedy which the chargee proposes to exercise is reasonably necessary to prevent any or any further reduction in the value of the charged land or to reverse any such reduction as has already occurred if the charged land consists of agricultural land or commercial premises, and the remedy proposed is to appoint a receiver, or to take possession of or lease the land or a part thereof; Section 104(1)(b) the chargee has made all reasonable efforts, including the use of other available remedies, to induce the chargor to comply with the obligations under the charge; and Section 104(1)(b)(i) the chargee has made all reasonable efforts, including the use of other available remedies, to induce the chargor to comply with the obligations under the charge; and Section 104(1)(b)(ii) the chargor has persistently been in default of the obligations under the charge; and Section 104(1)(b)(iii) if the sale is of land held for a customary land, the chargee has had regard to the age, means, and circumstance including the health and number of dependants of the chargor, and in particular whether— Section 104(1)(A) the chargor will be rendered landless or homeless; Section 104(1)(B) it is necessary to sell the charged land in order to enable the chargee to recover the money owing under the charge; Section 104(1)(B)(iv) it is necessary to sell the charged land in order to enable the chargee to recover the money owing under the charge; Section 104(1)(B)(v) in all the circumstances, it is reasonable to approve, or as the case may be, to make the order to sell the charged land. Section 104(2)(a) cancel, vary, suspend or postpone the order for any period which the court thinks reasonable; Section 104(2)(b) extend the period of time for compliance by the chargor with a notice served under section 90 ; Section 104(2)(c) substitute a different remedy or the one applied for or proposed by the chargee or a different time for taking or desisting form taking any action specified by the lessor in a notice served under section 90 ; Section 104(2)(d) the chargor or other person applying for relief was made fully aware of the action required to be taken under or in connection with the remedy; and Section 104(2)(d)(i) the chargor or other person applying for relief was made fully aware of the action required to be taken under or in connection with the remedy; and Section 104(2)(d)(ii) no injustice will be done by authorising or approving the remedy, and may authorise or approve that remedy on any conditions as to expenses, damages, compensation or any other relevant matter as the court thinks fit. Section 104(3) If under the terms of a charge, the chargor is entitled or is to be permitted to pay the principal sum secured by the charge by installments or otherwise to defer payment of it in whole or in part but provision is also made in the charge instrument or any collateral agreement for earlier payment of the whole sum in the event of any default by the chargor or of a demand by the chargee or otherwise, then for purposes of this section the court may treat as due under the charge in respect of the principal sum secured and of interest on it only the amounts that the chargor would have expected to be required to pay if there had been no such provision for earlier payment. Section 104(4)(a) the default in issue has been remedied; Section 104(4)(b) the threat to the security has been removed; Section 104(4)(c) the chargor has taken the steps that the chargor was required to take by the notice served under section 90 ; and Section 104(4)(d) the chargee has taken or attempted to take some action against the chargor in contravention of section 90 (4). - 105 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 105. Power of the court to re-open certain charges and revise terms
The Court may reopen a charge secured on a matrimonial home to do justice between the parties.
Section 105. Power of the court to re-open certain charges and revise terms Section The Court may reopen a charge of whatever amount secured on a matrimonial home, in the interests of doing justice between the parties. - 106 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 106. Excrcise of power to re-open certain charges
The court may reopen certain charges and can order modifications, require repayment or compensation, and direct corporate chargees to stop discriminatory practices; corporate chargees running government-supported programmes for women are not treated as discriminatory if advances are only to women.
Section 106. Excrcise of power to re-open certain charges Section 106(1)(a) to enforce the charge; or Section 106(1)(a)(i) to enforce the charge; or Section 106(1)(a)(ii) to commence an action under section 90 ; or Section 106(1)(b) on an application by the chargor for relief against the exercise by the chargee of any remedy in connection with a default by the chargor under a charge; or Section 106(1)(c) charges provided by one or more specific chargees where there is prima facie evidence of a pattern of unfair dealing and practices by that chargee or those chargees; or Section 106(1)(c)(i) charges provided by one or more specific chargees where there is prima facie evidence of a pattern of unfair dealing and practices by that chargee or those chargees; or Section 106(1)(c)(ii) a chargee, being a corporate body, that appears to exercise discrimination against chargors on account of their gender, or by refusing to grant charges to persons on account of their gender except that a chargee, being a corporate body that is implementing any programme, approved or assisted by the national or county governments, designed to assist women to improve their economic and social position by providing them with advances secured by a charge of land shall not be taken to be acting in discriminatory manner if the advances under that programme are made only to women. Section 106(2)(a) direct that the charge shall have effect subject to modifications that the court shall order; Section 106(2)(b) require the chargee to repay the whole or part of any sum paid under the charge or any related or collateral agreement by the chargor or any guarantor or other person who assumed an obligation under the charge whether it was paid to the chargee or any other person; Section 106(2)(c) require the chargee to pay any compensation to the chargor which the court shall think fit; or Section 106(2)(d) direct the chargee, being a corporate body to cease acting in a discriminatory manner with respect to the granting of charges. Section 106(3)(a) the age, gender, experience, understanding of commercial transaction, and health of the chargor at the time when the charge was created, if the chargor is an individual; Section 106(3)(b) the financial standing and resources of the chargor relative to those of the chargee at the time of the creation of the charge; Section 106(3)(c) the degree to which, at the time of the creation of the charge, the chargor was under financial pressure and the nature of that pressure; Section 106(3)(d) the interest rates prevailing at the time of the creation of the charge and during the continuation of the charge and the relationship of those interest rates to the interest rate applying from time to time in the charge; Section 106(3)(e) the degree of risk accepted by the chargee, having regard to the value of the charged land and the financial standing and other resources of the chargor; Section 106(3)(f) the importance of not undermining the confidence of reputable chargees in the market for charges; and Section 106(3)(g) any other factors that the court considers relevant. - 78 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 78. Application of Part to charges
This section preserves the validity of entries in the register and charges, mortgages or other security instruments created before the Act, and states how references to charged land are to be interpreted.
Section 78. Application of Part to charges Section 78(1)(a) the provisions of this Part shall not be construed so as to affect the validity of any entry in the register or any charge, mortgage other security instrument which was valid immediately before the commencement of this Act and the entries in the register and the charges, mortgages or other instruments shall continue to be valid in accordance with their terms not withstanding their inconsistency with the provisions of this Part; Section 78(1)(b) the provisions relating to the realization of any charge, mortgage or other instrument created before the commencement of this Act shall apply save for the requirement to serve notice to spouses and other persons who were not required to be served under the repealed Acts of Parliament. Section 78(2) References in this Part to “the charged land” shall be taken to mean and include a charged land, a charged lease and sublease and a second or subsequent charge. [Act No. 28 of 2016 , s. 60.] - 79 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 79. Informal charges
Owners of private land or lessees may charge land interests by prescribed instrument; informal charges and liens by deposit are recognized but possession, sale or exercise of remedies are limited and usually require court orders or registration.
Section 79. Informal charges Section 79(1) An owner of private land or a lessee, by an instrument in the prescribed form, may charge the interest in the land or a part thereof for any purpose including but not limited to securing the payment of an existing or a future or a contingent debt or other money or money’s worth or the fulfillment of a condition. Section 79(2) The power conferred by subsection (1) shall include the power to create second and subsequent charges. Section 79(3) A charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons. Section 79(4)(a) any prohibition or limitation imposed by this Act or any written law; and Section 79(4)(b) any restriction contained in an instrument creating or affecting the interest in land that is to be the subject of a charge. Section 79(5) A formal charge shall take effect only when it is registered in a land register and a chargee shall not be entitled to exercise any of the remedies under that charge unless it is so registered. Section 79(6)(a) a chargee accepts a written and witnessed undertaking from a chargor, the clear intention of which is to charge the chargor’s land or interest in land, with the repayment of money or money’s worth, obtained from the chargee plus interest as agreed by the chargor and the chargee"; Section 79(6)(b) a certificate of title to the land; Section 79(6)(b)(i) a certificate of title to the land; Section 79(6)(b)(ii) a document of lease of land; Section 79(6)(b)(iii) any other document which it is agreed evidences ownership of land or a right to interest in land. Section 79(7) A chargee holding an informal charge may only take possession of or sell the land which is the subject of an informal charge, on obtaining an order of the court to that effect. Section 79(8) An arrangement contemplated in subsection (6)(a) may be referred to as an “informal charge” and a deposit of documents contemplated in subsection (6)(b) shall be known and referred to as a “ lien by deposit of documents.” Section 79(9) A chargor shall not possess or sell land whose title documents have been deposited by a chargee under an informal charge without an order of the court; [Act No. 28 of 2016 , s. 61.] - 80 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 80. Charge of land to take effect as security only
A charge only operates as security (not a transfer); the chargee has the powers and remedies on default and is subject to obligations like a transferee; in a lease charge the chargee's liability to the lessor is limited; the chargor is entitled to reliefs including a right of sale.
Section 80. Charge of land to take effect as security only Section 80(1) Upon the commencement of this Act, a charge shall have effect as a security only and shall not operate as a transfer of any interests or rights in the land from the chargor to the chargee but the chargee shall have, subject to the provisions of this Part, all the powers and remedies in case of default by the chargor and be subject to all the obligations that would be conferred or implied in a transfer of an interest in land subject to redemption. Section 80(2) In the case of the charge of a lease, the chargee shall not be liable to the lessor for rent or in respect of the covenants and conditions contained or implied in the lease to any greater extent than would have been the case if the charge had been by way of a sublease. Section 80(3)(a) the terms and conditions of sale; Section 80(3)(b) an explanation of the consequences of default; and Section 80(3)(c) the reliefs that the chargor is entitled to including the right of sale. - 81 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 81. Order of priority of charges
Charges rank by the order in which they are registered or, for informal charges, by the order in which they are made; registered informal charges take priority over unregistered informal charges; special rules apply if charges are made or registered on the same day and where dishonesty or fraud affects priority.
Section 81. Order of priority of charges Section 81(1) Unless otherwise provided in the charge instrument, charges shall rank according to the order in which they are registered. Section 81(2) Informal charges shall rank according to the order in which they are made provided that a registered informal charge shall take priority over any unregistered informal charge. Section 81(3) If two informal charges are made on the same day or are registered on the same day, the charge which was first in time to be made or registered shall have priority. Section 81(4) Unless otherwise provided in the charge instrument, if the chargee, holding a charge created subsequent in time to one in favour of a prior chargee, lends money or money's worth on the security of a charge to a chargor and it later transpires that a prior chargee or the chargor himself acted dishonestly or fraudulently in procuring the charge, the prior chargee's right to repayment under the charge shall be postponed to the rights of the subsequent chargee. Section 81(5) The rules of priority for informal charges shall apply as far as the circumstances shall permit liens by deposit of documents. [Act No. 28 of 2016 , s. 62.] - 82 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 82. Tacking
A chargee may include in the charge instrument a provision to give further advances or credit to the chargor on a current or continuing account, subject to the Act and specified conditions.
Section 82. Tacking Section 82(1) Subject to the provisions of this Act, chargee may make provision in the charge instrument to give further advances or credit to the chargor on a current or continuing account. Section 82(2)(a) the provision for further advances is noted in the register in which the charge is registered; or Section 82(2)(b) the subsequent chargee has consented in writing to the priority of the further advance. Section 82(3) Except as provided for in this section there is no right to tack. Section 82(4) Where a charge provides for the payment for a principal sum by way of installments, the payment of those installments shall not be taken to be a further advance. [Act No. 28 of 2016 , s. 63.] - 83 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 83. Consolidation
Chargors with multiple charges to the same chargee may discharge individual charges without redeeming all; chargees who consolidate must record that right in the register(s).
Section 83. Consolidation Section 83(1) Unless there is an express provision to the contrary clearly set out in the charge instrument, a chargor who has more than one charge with a single chargee on several securities may discharge any of the charges without having to redeem all charges. Section 83(2) A chargee who has made provision in accordance with subsection (1) for the consolidation of charges shall record that right in the register or registers against all the charges so consolidated that are registered. Section 83(3) Upon commencement of this Act, the rules of equity applicable to consolidation shall not apply to charges. - 84 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 84. Variation of charge
Sets requirements for variation of a charge including notice to the chargor, clear statement of the new interest rate, requirements for memoranda of reduction or variation, signatures, and that endorsements or annexures vary the charge as specified.
Section 84. Variation of charge Section 84(1)(a) giving the chargor at least thirty days notice of the reduction or increase in the rate of interest; and Section 84(1)(b) stating clearly and in a manner that can be readily understood, the new rate of interest to be paid in respect of the charge. Section 84(2)(a) comply with subsection (5); and Section 84(2)(b) in the case of a memorandum of reduction by the chargee; or Section 84(2)(b)(i) in the case of a memorandum of reduction by the chargee; or Section 84(2)(b)(ii) by the chargor; and Section 84(2)(c) state that the principal funds intended to be secured by the charge are reduced or increased as the case may be, to the amount or in the manner specified in the memorandum. Section 84(3)(a) complies with subsection (5); Section 84(3)(b) is signed by the chargor and the chargee; and Section 84(3)(c) states that the term of the charge has been reduced, extended or renewed, as the case may be, to the date or in the manner specified in the memorandum. Section 84(4) The covenants, conditions and powers expressed or implied in a charge are varied in the manner specified in the memorandum. Section 84(5)(a) be endorsed on the register or annexed to the charge instrument; and Section 84(5)(b) upon endorsement or being annexed to the charge instrument, vary the charge in accordance with the terms of the memorandum. - 85 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 85. Right to discharge
The chargor has the right to discharge a charge after paying all secured money and performing all other charge obligations, before the charged land is sold by the chargee or a receiver.
Section 85. Right to discharge Section 85(1) Subject to the provisions of this section, the chargor shall, upon payment of all money secured by a charge and the performance of all other conditions and obligations under the charge, be entitled to discharge the charge at any time before the charged land has been sold by the chargee or a receiver under the power of sale. Section 85(2)(a) purports to deprive the chargor of the right to discharge; Section 85(2)(b) seeks to fetter the exercise of this right; or Section 85(2)(c) stipulates for a collateral advantage that is unfair and unconscionable or inconsistent with the right to discharge. Section 85(3)(a) shall give one month’s notice of the intention to discharge; or Section 85(3)(b) shall pay not more than one month’s interest at the rate at which interest is payable on the principal sum secured by the charge or at any lesser rate which may be agreed, as well as paying all other money secured by the charge. Section 85(4) A discharge of the whole or a part of a charge shall be as prescribed under this Act or any other law. Section 85(5) For the avoidance of doubt, a discharge includes a re-conveyance and a re-assignment of charge or any other instrument used in extinguishing of interests in land conferred by charges. - 86 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 86. Transfer of charge
A chargor or specified persons may request in writing that the charge be transferred except while the chargee has possession; on a compliant written request and required payments and performance the charge shall transfer to the named person.
Section 86. Transfer of charge Section 86(1) A chargor or any person referred to in subsection (2) may, at any time, other than a time when the chargee is in possession of the charged land, in writing, request the chargee to transfer the charge to a person named in the request. Section 86(2)(a) any person who has an interest in the land, lease or land, that is the subject of the charge; Section 86(2)(b) any surety for the payment of the amount secured by the charge; and Section 86(2)(c) any creditor of the chargor who has obtained a decree for sale of the land, lease or charge, that is the subject of the charge. Section 86(3) The charge shall, on receiving a written request made under subsection (1) and on payment by the person or persons making the request of all money that would have been payable if discharge of the charge had been made under section 102 , and the performance of all other obligations secured by the charge, transfer the charge to the person named in the written request. - 87 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 87. Chargee’s consent to transfer
Section 87. Chargee’s consent to transfer
Section 87. Chargee’s consent to transfer - 88 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 88. Implied covenant by the chargor
Section 88 implies a set of covenants by the chargor: pay principal and interest, pay rates/taxes, keep buildings in repair and permit inspection after seven days' notice, insure buildings (jointly with chargee), use agricultural land sustainably, not lease or transfer without chargee's written consent (not to be unreasonably withheld), observe lease covenants and indemnify chargee, pay prior charges where applicable; and gives the chargee power to remedy certain breaches and add costs to the principal.
Section 88. Implied covenant by the chargor Section 88(1)(a) to pay the principal money on the day appointed in the charge agreement, and, so long as any of the principal money or any part thereof remains unpaid, to pay interest on the money thereon or on so much of the money that for the time being remains unpaid at the rate and on the days and in the manner specified in charge agreement; Section 88(1)(b) to pay all rates, charges, rent, taxes and other outgoings that are at all times payable in respect of the charged land; Section 88(1)(c) to repair and keep in repair all buildings and other improvements upon the charged land or to permit the chargee or chargee’s agent to enter the land and examine the state and condition of such buildings and improvements after a seven days notice to the chargor until the charge is discharged; Section 88(1)(d) to ensure by insurance or any other means that may be prescribed or which are appropriate, that resources will be available to make good any loss or damage caused by fire to any building on the land, and where insurance is taken out, it is done so in the joint names of the chargor and chargee with insurers approved by the chargee and to the full value of all the buildings; Section 88(1)(e) in the case of a charge of land used for agricultural purposes, to use the land in a sustainable manner in accordance with the principles and any conditions subject to which the land or lease under which the land is held, and in compliance with all written laws and lawful orders applicable to that use of the land; Section 88(1)(f) not to lease or sublease the charged land or any part of it for any period longer than a year without the previous consent in writing of the chargee, which consent shall not be unreasonably withheld; Section 88(1)(g) not to transfer or assign the land or lease or part of it without the previous consent in writing of the chargee which consent shall not be unreasonably withheld; Section 88(1)(h) in the case of a charge of a lease, during the continuance of the charge, to pay, perform and observe the rent, covenants and conditions contained in or implied by and in the lease contained and implied and on the part of the lessee to be paid, performed and observed and to keep the chargee indemnified against all proceedings, expenses and claims on account of non-payment any part of the rent or part of it or the breach or non-observance of any covenants and conditions referred to above, and, if the lessee has an enforceable right to renew the lease, to renew it; Section 88(1)(i) if the charge is a second or subsequent charge, that he chargor will pay the interest from time to time accruing on each prior charge when it becomes due and will at the proper time repay the principal money or part of it due on each prior charge at the proper time; Section 88(1)(j) if the chargor fails to comply with any of the covenants implied by paragraphs (b), (c), (d), (e) and (h) of this subsection, that the chargee may spend any money which is reasonably necessary to remedy the breach and may add the amount so spent to the principal money and that amount shall be deemed for all purposes to be a part of the principal money secured by the charge. Section 88(2) Reference to the obligation of the chargor in subsection (1)(b) to keep all buildings upon the charged land in repair shall be taken to be an obligation to keep such buildings in a reasonable state of repair as set out in section 65 . Section 88(3) The provisions of section 66 shall apply to an application by a chargor to a chargee for consent under paragraphs (f) and (g) of subsection (1). [Act No. 28 of 2016 , s. 66.] - 89 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 89. Equity redemption
Subsection (1) bans any rule allowing a chargee to foreclose the equity of redemption in charged land. Subsection (2) states a chargee is not entitled to take possession of charged land or a charged lease or to receive rents and profits solely because of a default, except as provided by this Act.
Section 89. Equity redemption Section 89(1) Any rule of law, written or unwritten, entitling a chargee (chargee) to foreclose the equity of redemption in charged land is prohibited. Section 89(2) Upon commencement of this Act, a chargee shall not be entitled to enter into possession of the charged land or a charged lease or to receive the rents and profits of that land or lease by reason only that default has been made in the payment of the principal sum or of any interest or other periodic payment or of any part thereof or in the performance or observance of any agreement expressed or implied in the charge, other than in accordance with the provisions of this Act. - 90 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 90. Remedies of a chargee
If a chargor defaults and remains in default for one month, the chargee may serve a written notice requiring payment or performance; the notice must specify details of the default, time to remedy (not less than three months for money defaults and not less than two months for covenant defaults), consequences if not rectified, and the chargor's right to apply to court. The chargee may then exercise remedies including suing for money, appointing a receiver, leasing or subleasing, entering possession, or selling the charged land. The Cabinet Secretary shall, in consultation with the Commission, prescribe the form and content of the notice.
Section 90. Remedies of a chargee Section 90(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be. Section 90(2)(a) the nature and extent of the default by the chargor; Section 90(2)(b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed; Section 90(2)(c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified; Section 90(2)(d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and Section 90(2)(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies. Section 90(3)(a) sue the chargor for any money due and owing under the charge; Section 90(3)(b) appoint a receiver of the income of the charged land; Section 90(3)(c) lease the charged land, or if the charge is of a lease, sublease the land; Section 90(3)(d) enter into possession of the charged land; or Section 90(3)(e) sell the charged land; Section 90(4)(a) appoint a receiver of the income of the charged land; Section 90(4)(b) lease the charged land or if the charge is of a lease, sublease the land or enter into possession of the charged land; Section 90(4)(b)(i) lease the charged land or if the charge is of a lease, sublease the land or enter into possession of the charged land; Section 90(4)(b)(ii) sell the charged land to any person or group of persons referred to in the law relating to community land. Section 90(5) The Cabinet Secretary shall, in consultation with the Commission, prescribe the form and content of a notice to be served under this section. [Act No. 28 of 2016 , s. 67.] - 91 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 91. Chargee’s action for money secured by charge
A chargee may bring action for money secured by charge when the chargor is personally bound to repay, when security is insufficient and chargor fails to provide additional security after reasonable opportunity, or when the chargee is deprived of security through the chargor's wrongful act; the court may postpone proceedings under (1)(c) until the chargee has exhausted other remedies unless the chargee agrees to discharge the charge.
Section 91. Chargee’s action for money secured by charge Section 91(1)(a) the chargor is personally bound to repay the money; Section 91(1)(b) by any cause other than the wrongful act of the chargor or chargee, the security is rendered insufficient and the chargee has given the chargor a reasonable opportunity to provide additional sufficient security and the chargor has failed to provide that additional security; or Section 91(1)(c) the chargee is deprived of the whole or part of the security through or in consequence of, a wrongful act or default of the chargor. Section 91(2) The court may order the postponement of any proceedings brought under subsection (1)(c) until the chargee has exhausted all other remedies relating to the charged land, unless the chargee agrees to discharge the charge. [Act No. 28 of 2016 , s. 68.] - 92 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 92. Appointment, powers, remuneration and duties of the receiver
Sets rules for appointing receivers: the chargee must serve a prescribed notice and wait thirty days before appointment; the chargee must appoint in writing and sign; the chargee may remove and appoint receivers in writing; the receiver has powers to collect income and is entitled to costs and commission (capped at 5% unless otherwise agreed or fixed by court); the chargor is generally responsible for the receiver's acts unless the charge instrument provides otherwise.
Section 92. Appointment, powers, remuneration and duties of the receiver Section 92(1) It shall be an implied condition in every charge that the chargee shall have the power to appoint a receiver of the income of the charged land. Section 92(2) Before appointing a receiver under this section, the chargee shall serve a notice in the prescribed form on the chargor and shall not proceed with the appointment until a period of thirty days, from the date of the service of that notice, has elapsed. Section 92(3) A chargee shall appoint a receiver, in writing, and the chargee shall sign the instrument of appointment. Section 92(4) A receiver may, at any time, be removed and a new receiver appointed, in writing, by the chargee. Section 92(5) A receiver appointed under this section shall be deemed to be the agent of the chargor for the purposes for which the receiver is appointed, and the chargor shall, unless the charge instrument provides otherwise, be solely responsible for the acts and defaults of the receiver. Section 92(6) The receiver shall have the power to demand and recover all the income of which the receiver is appointed, by action or otherwise, in the name of the chargor, and to give effectual receipts for the same. Section 92(7) The receiver shall be entitled to retain, out of any money received, all costs, charges and expenses incurred by the receiver and, for a commission at the rate specified in the appointment, but not exceeding five per centum of the gross amount of all money, received, or, if no rate is so specified at the rate of five per centum or any other rate as the chargor and chargee may agree or if the appointment of a receiver comes before the court, which the court considers fit. Section 92(8)(a) first, in the payment of all rents, rates, charges, taxes and other outgoings required to be paid in respect of the charged property; Section 92(8)(b) second, in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the charge of which the receiver is appointed; Section 92(8)(c) third, in payment of the receiver’s commission and expenses; Section 92(8)(d) the payment of any premiums on any insurance policy properly payable under the charge instrument; and Section 92(8)(d)(i) the payment of any premiums on any insurance policy properly payable under the charge instrument; and Section 92(8)(d)(ii) the costs of undertaking necessary and proper repairs to any buildings comprised in the charged land as directed in writing by the chargee. Section 92(8)(e) fifth, in the repayment of any money paid or advanced by the chargee to meet the reasonable expenses referred to in paragraphs (a), (b), (c) and (d) together with any interest on any amount so paid or advanced at the rate at which interest is payable on the principal sum secured by the charge; Section 92(8)(f) sixth, in payment of the interest accruing due in respect of any principal sum secured by the charge; Section 92(8)(g) seventh, in and towards the discharge of the principal sum secured by the charge, and payment of the residue, if any, to the chargor or other person entitled to the charged land. - 93 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 93. Chargee’s power of leasing
A chargee may grant leases or accept surrenders of leases over charged land, but before granting a lease must serve the chargor with a prescribed notice and wait thirty days; leases created must meet the requirements listed in subsection (3) (timing, rent, term, reasonable conditions, and a declaration of receiver appointment).
Section 93. Chargee’s power of leasing Section 93(1)(a) to grant leases in respect of the charged land or any part thereof; and Section 93(1)(b) to accept a surrender of any lease so granted and of any lease granted by the chargor, Section 93(2) Before granting a lease under this section, a chargee shall serve a notice on the chargor in the prescribed form and shall not proceed with the granting or execution of that lease until thirty days have elapsed from the service of that notice. Section 93(3)(a) be made to take effect not later than six months after its date; Section 93(3)(b) reserve the best rent that can reasonably be obtained in the circumstances; Section 93(3)(c) be for a term not exceeding fifteen years or the length of the term of the charge whichever is the shorter subject to the provisions of subsection (5)(a); Section 93(3)(d) contain any reasonable terms and conditions, having regard to the interests of the chargor and of any other persons having an interest in the charged land; and Section 93(3)(e) contain a declaration that the chargee has appointed a receiver, with the date of the appointment. Section 93(4) A lease created by a chargee under this section shall not be binding on any person holding, and shall not take priority over, any charge that has priority to the charge of the chargee who has granted the lease. Section 93(5) The provisions of this section shall only apply to a receiver of income appointed under this section and not to receivers appointed under any other instrument to which the chargor may be subject. [Act No. 28 of 2016 , s. 70.] - 94 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 94. Power of the chargee to take possession of the charged land
A chargee may, after the period in section 90(2)(b) and (c) has expired, serve notice and (after at least one month) enter into possession of the charged land; a chargee in possession may remain, manage the land, receive profits subject to duties to the chargor and is bound by specified covenants; the chargee may renew existing leases but may not grant new leases.
Section 94. Power of the chargee to take possession of the charged land Section 94(1) Upon expiry of the period specified in section 90 (2)(b) and (c), a chargee may serve on the chargor a notice of intention to enter, in the prescribed form, notifying the chargor that the chargee intends to enter into possession of the whole or a part of the charged land at a date that is at least one month from the date of the service of the notice. Section 94(2)(a) entering into and taking physical possession of the land or a part of it peaceably and without committing any forcible entry; or Section 94(2)(b) asserting management or control over the land by serving a notice in the prescribed form requiring any lessee of the chargor or any other owner of the land to pay to the chargee any rent or profits that would otherwise be payable to the chargor, Section 94(3)(a) on which the chargee enters into possession in accordance with of subsection (2)(a); or Section 94(3)(b) on which the chargee first receives any rent or profit from the land. Section 94(4) A chargee who has entered into possession may remain in possession. Section 94(5) A chargee in possession shall be bound by all those covenants set out in of section 88 (1)(a) to (e), (h), (i) and (j) as if that chargee were the chargor referred to in that subsection. Section 94(6)(a) by occupation, shall be entitled to manage the land and take all its profits, but shall be liable to the chargor for any act by which the value of the land, or any buildings on, or other permanent improvements to the land are impaired or the chargor otherwise suffers loss; Section 94(6)(b) whether by occupation or by receipt of rents and profits shall be accountable to the chargor not only for the sums actually received, but also for any additional sums that the chargee might reasonably have been expected to receive by the careful and business like exercise of the chargee’s powers; Section 94(6)(c) may renew a lease granted by the chargor on the same terms as the original lease but may not otherwise grant any lease out of the charged land. Section 94(7) A chargee in possession shall apply all money to the same payments and in the same order as applies to a receiver as set out in section 92 (8), except that a chargee in possession shall not be entitled to receive any payments under paragraph (c) of that subsection. Section 94(8)(a) a notice of withdrawal in the prescribed form is served on that person by the chargee in possession; or Section 94(8)(b) the chargee in possession withdraws from that possession; or Section 94(8)(c) a court orders the chargee in possession to withdraw from possession. - 95 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 95. Withdrawal of lender from possession
A chargee may withdraw from possession of charged land, but not sooner than one month after service of a notice of withdrawal; a chargee must not re-enter except by complying with section 94 if the chargor is in fresh default; withdrawal can also be triggered by court order, appointment of a receiver, rectification of the default, exercise of power of sale, or discharge of liabilities.
Section 95. Withdrawal of lender from possession Section 95(1) A chargee may, not sooner than one month after the service of a notice of withdrawal, serve in the prescribed form on the chargor and on all persons served with a notice under section 94 (1) and (2), withdraw from possession of the charged land. Section 95(2)(a) a court makes an order directing the chargee to withdraw; Section 95(2)(b) the chargee appoints a receiver under section 90 (3); Section 95(2)(c) the default which was the cause of the entry into possession has been rectified through the possession of the chargee; Section 95(2)(d) the chargee has exercised the power of sale under section 96 ; or Section 95(2)(e) the chargor has discharged all liabilities under the charge. Section 95(3)(a) by subsection (2)(a), when the order of the court is made; Section 95(3)(b) by subsection (2)(b), when the receiver has been appointed in accordance with section 104 ; Section 95(3)(c) has ceased to occupy the charged land; or Section 95(3)(c)(i) has ceased to occupy the charged land; or Section 95(3)(c)(ii) is not in occupation, and has served a notice of withdrawal on all persons served with a notice under section 96 (1) and (2) or section 97 ; Section 95(3)(d) by subsection (2)(d), when the purchaser of the charged land enters into occupation of that land; or Section 95(3)(e) by subsection (2)(e), when the chargor serves notice of cancellation of possession in the prescribed form. Section 95(4) A chargee who has withdrawn from possession of charged land may not again enter into possession of that land, otherwise than by complying with the provisions of section 94 if the chargor is in a fresh default under the charge. [Act No. 28 of 2016 , s. 72.] - 96 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 96. Chargee’s power of sale
If the chargor remains in default after the rectification period, a chargee may sell the charged land but must first serve a prescribed notice to the chargor and must wait at least forty days from service before completing any sale; the chargee must also notify and post notice to the listed persons in section 96(3).
Section 96. Chargee’s power of sale Section 96(1) Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90 (1), a chargee may exercise the power to sell the charged land. Section 96(2) Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell. Section 96(3)(a) the Commission, if the charged land is public land; Section 96(3)(b) the holder of the land out of which the lease has been granted, if the charged land is a lease; Section 96(3)(c) a spouse of the chargor who had given the consent; Section 96(3)(d) any lessee and sublessee of the charged land or of any buildings on the charged land; Section 96(3)(e) any person who is a co-owner with the chargor; Section 96(3)(f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice; Section 96(3)(g) any guarantor of the money advanced under the charge; Section 96(3)(h) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and Section 96(3)(i) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land. - 97 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 97. Duty of chargee exercising power of sale
Chargees who sell charged land owe a duty to obtain the best price; they must ensure a forced sale valuation before selling; there is a rebuttable presumption of breach in certain circumstances; chargors may apply to court to void a sale; chargees cannot claim compensation for liabilities from breach; prescribed chargees selling occupied community land must follow community land law and are exempt from Community Land Committee approval.
Section 97. Duty of chargee exercising power of sale Section 97(1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale. Section 97(2) A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer. Section 97(3)(a) there shall be a rebuttable presumption that the chargee is in breach of the duty imposed by subsection (1); and Section 97(3)(b) the chargor whose charged land is being sold for that price may apply to a court for an order that the sale be declared void, but the fact that a plot of charged land is sold by the chargee at an undervalue being less than twenty-five per centum below the market value shall not be taken to mean that the chargee has complied with the duty imposed by subsection (1). Section 97(4) It shall not be a defence to proceedings against a chargee for breach of the duty imposed by subsection (1) that the chargee was acting as agent of or under a power of attorney from the chargor or any former chargor. Section 97(5) A chargee shall not be entitled to any compensation or indemnity from the chargor, any former chargor or any guarantor in respect of any liability arising from a breach of the duty imposed by subsection (1). Section 97(6) The sale by a prescribed chargee of any community land occupied by a person shall conform to the law relating to community land save that such a sale shall not require any approval from a Community Land Committee. Section 97(7) Any attempt by a chargee to exclude all or any of the provisions of this section in any charge instrument or any agreement collateral to a charge or in any other way shall be void. - 98 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 98. Powers incidental to the power of sale
Section 98 sets rules for a chargee's power of sale, including sale methods, duties when selling at auction, form and registration of transfers, purchaser protections, reliance on valuations for private sales (valuation not older than six months), priority of transfers, consent requirements for pari passu charges, and procedures when the charge cannot be found including deposit with the Court and subsequent cancellation and payment rules.
Section 98. Powers incidental to the power of sale Section 98(1)(a) of the whole or part of the charged land; Section 98(1)(b) subject to or free of any charge or other encumbrance or charge having priority to the chargee’s charge; Section 98(1)(c) by way of subdivision or otherwise; Section 98(1)(d) by private contract at market value; Section 98(1)(e) public auction with reserve price; Section 98(1)(f) for a purchase price payable in one sum or by installments; or Section 98(1)(g) subject to any other conditions that the chargee shall think fit, having due regard to the duty imposed by section 97 (1). Section 98(2) If a sale is to proceed by public auction, it shall be the duty of the chargee to ensure that the sale is publicly advertised in such a manner and form as to bring it to the attention of persons likely to be interested in bidding for the charged land and that the provisions relating to auctions and tenders for land are, as near as may be, followed in respect of that sale. Section 98(3) A transfer of the charged land by a chargee in exercise of the power of sale shall be made in the prescribed form and the Registrar shall accept it as sufficient evidence that the power has been duly exercised. Section 98(4) Upon registration of the land or lease or other interest in land sold and transferred by the chargee the interest of the chargor as described therein shall pass to and vest in the purchaser free of all liability on account of the charge, or on account of any other charge or encumbrance to which the charge has priority, other than a lease easement to which the chargee had consented in writing. Section 98(5) In a sale by a private contract, the chargee shall be 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 months old. Section 98(6) A transfer by charge shall have priority over all entries made after the transfer of the charge undertaking the sale and the chargee shall stand discharged upon the registration of the transfer. Section 98(7) Where it is noted in the register that a second charge by the chargor ranks pari passu to the charge submitting the transfer, the instrument of transfer by the charge shall include a duly executed consent of the charge with a pari passu charge consenting to the sale. Section 98(8) For the purposes of this section, land, a lease, or a charge shall be deemed to have been sold when a bid has been accepted at the auction sale. Section 98(9) If at any time the charger is entitled to and wishes to repay the money secured by the charge, and the charge is absent, cannot be found or if the registrar is satisfied that the charge cannot be discharged otherwise, the chargor may deposit the amount due with the Court, in trust, for the person entitled to the money, and after which the obligations of the charger under the charge shall cease. Section 98(10) Upon the deposit referred to in subsection (9), the Registrar shall cancel the registration of the charge and the Court shall pay the amount deposited to the chargee if the charge applies for it within six years of the deposit, and where the chargee does not apply for the amount within the stated period, it shall be deposited with the Unclaimed Financial Assets Authority as an unclaimed asset. [Act No. 28 of 2016 , s. 74.] - 99 Verify source ↗
GENERAL PROVISIONS ON CHARGES - 99. Protection of purchaser
Buyers of charged land from the chargee or receiver (and persons claiming through them) are protected from liability and certain obligations in relation to the purchase money and need not make inquiries about defaults or notices; this protection applies even if they had notice before completion except where there is fraud or dishonest conduct by the chargee, and a person prejudiced by an unauthorised sale has a remedy in damages.
Section 99. Protection of purchaser Section 99(1)(a) a person who purchases charged land from the chargee or receiver, except where the chargee is the purchaser; or Section 99(1)(b) a person claiming the charged land through the person who purchases charged land from the chargee or receiver, including a person claiming through the chargee if the chargee and the person so claiming obtained the charged land in good faith and for value. Section 99(2)(a) is not answerable for the loss, misapplication or non-application of the purchase money paid for the charged land; Section 99(2)(b) is not obliged to see to the application of the purchase price; Section 99(2)(c) is not obliged to inquire whether there has been a default by the chargor or whether any notice required to be given in connection with the exercise of the power of sale has been duly given or whether the sale is otherwise necessary, proper or regular. Section 99(3) A person to whom this section applies is protected even if at any time before the completion of the sale, the person has actual notice that there has not been a default by the chargor, or that a notice has been duly served or that the sale is in some way, unnecessary, improper or irregular, except in the case of fraud, misrepresentation or other dishonest conduct on the part of the chargee, of which that person has actual or constructive notice. Section 99(4) A person prejudiced by an unauthorised, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power.
Part VIII
COMPULSORY ACQUISITION OF INTERESTS IN LAND
- 107 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 107. Preliminary notice
Sets out the procedure for preliminary notice when national or county government seeks compulsory acquisition of land, assigning roles to the Cabinet Secretary or County Executive Committee Member, the Commission and the Registrar, and requiring publication and registration steps.
Section 107. Preliminary notice Section 107(1) Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under section 110 , the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of land to the Commission to acquire the land on its behalf. Section 107(2) The Commission shall prescribe a criteria and guidelines to be adhered to by the acquiring authorities in the acquisition of land. Section 107(3) The Commission may reject a request of an acquiring authority, to undertake an acquisition if it establishes that the request does not meet the requirements prescribed under subsection (2) and Article 40(3) of the Constitution. Section 107(3A) Where the Commission rejects a request of an acquiring authority in accordance with subsection (3), the Commission shall inform the relevant acquiring authority within fourteen days of the decision to reject the request. Section 107(4)(a) cause the affected land to be mapped out and valued by the Commission using the valuation criteria set out under this Act; and Section 107(4)(b) establish that the acquiring authority has identified the number and maintains a register of persons in actual occupation of the land, confirming for each such occupation how much time they have been in uninterrupted occupation or ownership of interest in the land prior to the date of the request for acquisition of the land, and the improvements thereon. Section 107(5) Upon approval of a request under subsection (1), the Commission shall publish a notice to that effect in the Gazette and the county Gazette , and shall deliver a copy of the notice to the Registrar and every person who appears to the Commission to be interested in the land. Section 107(5A)(a) the purpose for which the land is to be compulsorily acquired; and Section 107(5A)(b) the location, general description and approximate area of the land. Section 107(5B) Upon receipt of the notice under subsection (5), the Registrar shall make an order, pursuant to section 76 (1) of the Land Registration Act (Cap. 300), prohibiting or restricting dealings with the affected portion of land thereof until it vests in the acquiring authority. Section 107(6) Upon service of the notice, the registrar shall make an entry in the register of the intended acquisition. Section 107(7) For the purposes of sections 107 to 133, interested persons shall include any person whose interests appear in the land registry and the spouse or spouses of any such person, as well as any person actually occupying the land and the spouse or spouses of such person. Section 107(8) All land to be compulsorily acquired shall be geo- referenced and authenticated by the office or authority responsible for survey at both the national and county government [Act No. 28 of 2016 , s. 77, Act No. 15 of 2019 , s. 3.] - 107A Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 107A. Criteria for assessing value for compulsorily acquired freehold land.
Valuation for compulsory acquisition must be based on a land value index developed by the Cabinet Secretary (in consultation with county governments) and approved by the National Assembly and the Senate; the index must be developed within six months of commencement of the Act.
Section 107A. Criteria for assessing value for compulsorily acquired freehold land. Section 107A(1) Valuation of freehold land and community land for purposes of compensation under this Act shall be based on the provisions of this Part and the land value index developed for that purpose by the Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Section 107A(2) The land value index under subsection (1) shall be developed within six months of the commencement of this Act. Section 107A(3) For purposes of this Part, "land value index" means an analytical representation showing the spatial distribution of land values in a given geographical area at a specific time. Section 107A(4) In addition to any other principle that may be employed in calculating the land value index, the declared value of the land for purposes of payment of rates, rents or stamp duty shall be taken into account. Section 107A(5)(a) the increase in the value of land is occasioned by the intended use or development of the land to be acquired; Section 107A(5)(b) the increase in the value of the land as at the date of publication of the notice of intention to acquire it is likely to accrue from the use to which the land will be put when acquired; Section 107A(5)(c) the improvement was made on the land within two years prior to the date of publication in the Gazette of the notice of intention to acquire the land, unless it is proved that the improvement was made bona fide and not in contemplation of proceedings for the acquisition of the land: Provided that where the national government or the county government makes changes in the use of the land compulsorily acquired to affect other land owners, these owners shall be excluded from the application of this provision. Section 107A(5)(c)(i) the improvement was made on the land within two years prior to the date of publication in the Gazette of the notice of intention to acquire the land, unless it is proved that the improvement was made bona fide and not in contemplation of proceedings for the acquisition of the land: Provided that where the national government or the county government makes changes in the use of the land compulsorily acquired to affect other land owners, these owners shall be excluded from the application of this provision. Section 107A(5)(c)(ii) the improvement was done after the date of publication in the Gazette of the notice of intention to acquire the land, unless the improvements were necessary for the maintenance of any building in a proper state of repair and are not capital improvements. Section 107A(5)(c)(iii) the improvement is contrary to any law or is detrimental to the health of the occupiers or to public health generally. Section 107A(6)(a) the degree of urgency which has led to the acquisition; Section 107A(6)(b) any inconvenience caused to a person interested in the land; or Section 107A(6)(c) damage which is likely to be caused to the land after the date of publication in the Gazette of the notice of intention to acquire the land or in consequence of the intended land use; Section 107A(7)(a) damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land by reason of severing the land from other land; Section 107A(7)(b) damage sustained or likely to be sustained by persons interested in the land at the time of the Commission's taking possession of the land injuriously affecting other property, whether movable or immovable or in any other manner affecting the person's actual earnings; Section 107A(7)(c) if, in consequence of the acquisition, any of the persons interested in the land is or will be compelled to change residence or place of business, the payment of reasonable expenses to be determined by the Commission; Section 107A(7)(d) damage genuinely resulting from diminution of the profits of the land between the date of publication in the Gazette of the notice of intention to acquire the land and the date the Commission takes possession of the land; and Section 107A(7)(e) the effect of any express or implied condition of title or law which restricts the intended land use. Section 107A(8) In determining the damage resulting from diminution of the profits of the land, the Commission shall require proof of existence of the profits including evidence of tax returns. Section 107A(9)(a) the number of persons in actual occupation of the land for an uninterrupted period of six years immediately before the publication of the notice of intention to acquire the land; Section 107A(9)(b) improvements done before the date of publication in the Gazette of the notice of intention to acquire the land; Section 107A(9)(c) damage sustained or likely to be sustained by the occupants of the land at the time of the Commission's taking possession of the land injuriously affecting other property, whether movable or immovable or in any other manner affecting the person's actual earnings; and Section 107A(9)(d) if, in consequence of the acquisition, any of the occupants in good faith of the land is or will be compelled to change residence or place of business, the payment of reasonable expenses to be determined by the Commission. Section 107A(10) An occupant in good faith does not include a person unlawfully occupying any land without the consent of the owner. Section 107A(11) The compensation payable under subsection (7) shall not in any case exceed the value of the structures and improvements on the land. Section 107A(12)(a) land lawfully held, managed or used by individuals or families as ancestral land; or Section 107A(12)(b) land traditionally occupied by individuals, families or entities pending adjudication. Section 107A(13) For the purposes of this section, "value" in relation to land means the value of the land, assessed in accordance with this section, at the date of publication in the Gazette of the notice of intention to acquire the land. [Act No. 15 of 2019 , s. 4.] - 107B Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 107B. Criteria for assessing value for compulsorily acquired leasehold land.
Where the lessee of public land breaches a term of the grant the land shall revert to the national or county government; criteria for valuing compulsory acquisition of leasehold land include the unexpired lease term using a land value index, value of developments or improvements and other costs, and any other criteria the Commission may prescribe in Regulations in consultation with the Cabinet Secretary and county governments and with approval of the National Assembly and the Senate.
Section 107B. Criteria for assessing value for compulsorily acquired leasehold land. Section 107B(1) Where the lessee of a public land is in breach of any term or condition of the grant, the land shall revert back to the national or county government as provided for under this Act. Section 107B(2)(a) the value of the land based on the unexpired term of the lease calculated on the basis of a land value index developed for that purpose by the Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate; Section 107B(2)(b) the value of developments or improvements on the land and any other cost incurred on the basis of the terms and conditions of the grant; and Section 107B(2)(c) any other criteria which the Commission may prescribe in Regulations in consultation with the Cabinet Secretary and county governments and with the approval of the National Assembly and the Senate. - 108 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 108. Power of entry to inspect land
The Commission may, in writing, authorize a person to enter land specified in a section 107 notice to inspect it and do what is reasonably necessary to determine suitability for the intended purpose.
Section 108. Power of entry to inspect land Section 108(1) The Commission may authorize, in writing, any person, to enter upon any land specified in a notice published under section 107 and inspect the land and to do all things that may be reasonably necessary to ascertain whether the land is suitable for the intended purpose. Section 108(2)(a) has first obtained the consent of the occupier; or Section 108(2)(b) has served on the occupier a not less than seven days written notice of the intention to enter. - 109 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 109. Payment for damage caused by entry for inspection
The Commission must promptly pay full just compensation for any damage caused by entry under section 108, as soon as practicable after the entry.
Section 109. Payment for damage caused by entry for inspection Section As soon as practicable after entry has been made under section 108 , the Commission shall promptly pay in full, just compensation for any damage resulting from the entry. - 110 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 110. Notice of acquisition and effect of acquisition on plant and machinery
The Commission must certify in writing that land is required for public purposes or in the public interest before land may be compulsorily acquired under this Part.
Section 110. Notice of acquisition and effect of acquisition on plant and machinery Section 110(1) Land may be acquired compulsorily under this Part if the Commission certifies, in writing, that the land is required for public purposes or in the public interest as related to and necessary for fulfilment of the stated public purpose. Section 110(2) If, after land has been compulsorily acquired the public purpose or interest justifying the compulsory acquisition fails or ceases, the Commission may offer the original owners or their successors in title pre-emptive rights to re-acquire the land, upon restitution to the acquiring authority the full amount paid as compensation. Section 110(3) If any plant or machinery is attached or permanently fastened to the land, the person interested in that plant or machinery may serve on the Commission a notice in writing that such person desires to sever and remove the plant or machinery, after receiving the notice of intention to acquire the land under section 107 (5), and not later than fifteen days before the inquiry appointed under section 112 (1). - 111 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 111. Compensation to be paid
When land is compulsorily acquired, compensation must be paid; the acquiring authority must deposit compensation funds (plus survey and registration fees and other costs) with the Commission before acquisition; owners may elect the form of compensation subject to listed options; the Commission must make rules for assessing just compensation.
Section 111. Compensation to be paid Section 111(1) If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined. Section 111(1A) The acquiring authority shall deposit with the Commission the compensation funds in addition to survey fees, registration fees, and any other costs before the acquisition is undertaken. Section 111(1B)(a) allocation of alternative parcel of land of equivalent value and comparable geographical location and land use to the land compulsorily acquired; Section 111(1B)(b) monetary payment either in lump sum or in instalments spread over a period of not more than one year; Section 111(1B)(c) issuance of government bond; Section 111(1B)(d) grant or transfer of development rights as may be prescribed; Section 111(1B)(e) equity shares in a government owned entity; or Section 111(1B)(f) any other lawful compensation Section 111(1C) Subject to subsection (1B), an owner of land compulsorily acquired shall elect the form of compensation. Section 111(1D) Compensation relating to compulsory acquisition shall not be paid to a public body unless there is a demonstrable inference that the land was purchased and developed by that public body. Section 111(2) The Commission shall make rules to regulate the assessment of just compensation. [Act No. 28 of 2016 , s. 78], Act No. 15 of 2019 , s. 5.] - 112 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 112. Inquiry as to compensation
The Commission must publish notice of inquiry at least fifteen days before the inquiry, serve copies on persons interested, call for written claims not later than the inquiry date, make inquiries into interested persons, receive written claims, may postpone or adjourn for sufficient cause, has Court-like powers for inquiries, and the public body and interested persons are entitled to be heard and present evidence.
Section 112. Inquiry as to compensation Section 112(1)(a) cause notice of the inquiry to be published in the Gazette or county Gazette at least fifteen days before the inquiry; and Section 112(1)(b) serve a copy of the notice on every person who appears to the Commission to be interested or who claims to be interested in the land. Section 112(2) The notice of inquiry shall call upon persons interested in the land to deliver a written claim of compensation to the Commission, not later than the date of the inquiry. Section 112(3)(a) make full inquiry into and determine who are the persons interested in the land; and Section 112(3)(b) receive written claims of compensation from those interested in the land. Section 112(4) The Commission may postpone an inquiry or adjourn the hearing of an inquiry from time to time for sufficient cause. Section 112(5) For the purposes of an inquiry, the Commission shall have all the powers of the Court to summon and examine witnesses, including the persons interested in the land, to administer oaths and affirmations and to compel the production and delivery to the Commission of documents of title to the land. Section 112(6) The public body for whose purposes the land is being acquired, and every person interested in the land, is entitled to be heard, to produce evidence and to call and to question witnesses at an inquiry. - 113 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 113. Award of compensation
The Commission must, upon conclusion of the inquiry, prepare a written award making a separate award of compensation for every person determined to have an interest in the land, state specified particulars (size, value, form, amount, shares) in the award, and file every award in the office of the Commission.
Section 113. Award of compensation Section 113(1) Upon the conclusion of the inquiry, the Commission shall prepare a written award, in which the Commission shall make a separate award of compensation for every person whom the Commission has determined to have an interest in the land. Section 113(2)(a) the size of the land to be acquired; Section 113(2)(a)(i) the size of the land to be acquired; Section 113(2)(a)(ii) the value, in the opinion of the Commission, of the land; Section 113(2)(a)(iii) the form of the compensation payable, whether the persons interested in the land have or have not appeared at the inquiry; and Section 113(2)(b) shall not be invalidated by reason only of a discrepancy which may thereafter be found to exist between the area specified in the award and the actual area of the land. Section 113(3)(a) the amount of compensation awarded in respect of that interest; and Section 113(3)(b) the shares in which it is payable to those persons. Section 113(4) Every award shall be filed in the office of the Commission. [Act No. 15 of 2019 , s. 6.] - 114 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 114. Notice of award
When the Commission makes an award it must serve each person it has determined to be interested in the land with a notice of the award and an offer of compensation.
Section 114. Notice of award Section 114(1) On making an award, the Commission shall serve on each person whom the Commission has determined to be interested in the land, a notice of the award and offer of compensation. Section 114(2) Deleted by Act No. 15 of 2019 , s. 7. Section 114(3) Deleted by Act No. 15 of 2019 , s. 7. [Act No. 15 of 2019 , s. 7.] - 115 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 115. Payment of compensation
The Commission may pay compensation into a special compensation account when there is no competent person to receive payment, the person entitled does not consent, or there is a dispute; and may hold title to alternative land in trust for beneficiaries when compensation is given as alternative land.
Section 115. Payment of compensation Section 115(1)(a) there is no person competent to receive payment; or Section 115(1)(b) the person entitled does not consent to receive the amount awarded; or Section 115(1)(c) there is a dispute as to the right of the persons entitled to receive the compensation or as to the shares in which the compensation is to be paid. Section 115(2) In any of the cases referred to in paragraphs (a), (b) and (c) of subsection (1), the Commission may at any time pay the amount of the compensation into a special compensation account held by the Commission, notifying any persons interested accordingly. Section 115(3) If the compensation payable in any of the cases referred to in paragraphs (a), (b) and (c) of subsection (1), is in the form of an alternative land, the Commission may hold the title to such land in trust for the beneficiaries. [Act No. 15 of 2019 , s. 8.] - 116 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 116. Payment in error
If a person has received compensation money by mistake or before the rightful claimant is determined, the Commission may serve written notice requiring that person to refund the amount, and that amount is a debt owed to the Commission.
Section 116. Payment in error Section If a person has received any money by way of compensation awarded for an interest in the land being acquired, either in error or before it has been established that some other person is rightfully entitled to the interest, the Commission may, by notice in writing served on that person, require that person to refund to the Commission the amount received, and the amount shall be a debt due from that person to the Commission. - 117 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 117. Payment of interest.
If compensation is unpaid, the Commission must open a special account before taking possession and pay interest at the Central Bank of Kenya base lending rate from possession until payment; interest is also added to additional compensation under section 119 from possession or payment, whichever is earlier.
Section 117. Payment of interest. Section 117(1) If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the base lending rate set by the Central Bank of Kenya and prevailing at that time from the time of taking possession until the time of payment. Section 117(2) If additional compensation is payable under section 119 there shall be added to the amount of the additional compensation interest thereon at the base lending rate set by the Central Bank of Kenya and prevailing at that time, from the time when possession was taken or compensation was paid, whichever is earlier. [Act No. 28 of 2016 , s. 79.] - 118 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 118. Final Survey
When part of title land has been acquired, the Commission must promptly carry out a final survey of all acquired land and, after that final survey is complete, must issue new title documents for each affected parcel.
Section 118. Final Survey Section 118(1) If part of the land comprised in documents of title has been acquired, the Commission shall, as soon as practicable, cause a final survey to be made of all the land acquired. Section 118(2) Upon completion of final survey under subsection (1), the Commission shall cause to be issued new title documents for every affected parcel. [Act No. 28 of 2016 , s. 80, Act No. 15 of 2019 , s. 9.] - 119 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 119. Condition for payment of compensation.
Compensation is payable only after due diligence, which includes a final survey and determination of acreage, boundaries, ownership and value.
Section 119. Condition for payment of compensation. Section Payment of compensation shall be made only upon the exercise of due diligence which shall include final survey and the determination of acreage, boundaries, ownership and value. [Act No. 28 of 2016 , s. 81.] - 120 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 120. Formal taking of possession.
The Commission may take possession of land after an award is made (so long as no one is rendered homeless), and in urgent cases may take possession after 15 days from publication of the notice of intention to acquire even if no award has been made; upon taking possession and payment of just compensation in full the land vests in the national or county governments free from encumbrances.
Section 120. Formal taking of possession. Section 120(1) After an award has been made, the Commission may take possession of the respective land by serving on every person interested in the land a notice that on a specified day possession of the land and the title to the land will vest in the national or county government as the case may be, provided that such taking of possession will not result in persons being rendered homeless. Section 120(2) In cases of where there is an urgent necessity for the acquisition of land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures of compulsory acquisition under this Act, the Commission may take possession of the land upon the expiration of fifteen days from the date of publication of the notice of intention to acquire, and on the expiration of that time the Commission shall, notwithstanding that no award has been made, take possession of that land in the manner prescribed by subsection (1). Section 120(3)(a) the registered proprietor of the land; and Section 120(3)(b) the Registrar, a notice that possession of the land has been taken and that the land has vested in the national or county governments as the case may be. Section 120(4) Upon taking possession and payment of just compensation in full, the land shall vest in the national or county governments absolutely free from encumbrances. [Act No. 28 of 2016 , s. 82, Act No. 15 of 2019 , s. 10.] - 121 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 121. Surrender of documents of title.
The Commission must in writing require anyone holding title documents to deliver them to the Registrar; that person must forthwith deliver them. If only part of the land is acquired the Registrar shall register resultant parcels and issue new title documents, and if documents are not forthcoming the Registrar will record the acquisition in the register.
Section 121. Surrender of documents of title. Section 121(1) If the documents evidencing title to the land acquired have not been previously delivered, the Commission shall, in writing, require the person having possession of the documents of title to deliver them to the Registrar, and thereupon that person shall forthwith deliver the documents to the Registrar. Section 121(2)(a) cancel the title documents if the whole of the land comprised in the documents has been acquired; Section 121(2)(b) if only part of the land comprised in the documents has been acquired, the Registrar shall register the resultant parcels and cause to be issued, to the parties, title documents in respect of the resultant parcels. Section 121(3) If the documents are not forthcoming, the Registrar will cause an entry to be made in the register recording the acquisition of the land under this Act. [Act No. 28 of 2016 , s. 83.] - 122 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 122. Acquisition of other land on account of severance.
Persons referred to in subsection (1)(b) may withdraw or modify their statement before the Commission makes an award; the Commission may instruct acquisition of remaining land if satisfied partial acquisition would make remaining land inadequate or disproportionately reduce its value; the Commission must refer disputes about whether parts of a building are reasonably required to the Court.
Section 122. Acquisition of other land on account of severance. Section 122(1)(a) that part is reasonably required for the full and unimpaired use of that building; and Section 122(1)(b) a person interested in the building desires that the whole of the building shall be acquired. Section 122(2) he person referred to under subsection (1)(b) may, at any time before the Commission has made an award, withdraw or modify the person’s statement by notice in writing served on the Commission. Section 122(3) If the Commission is satisfied that the partial compulsory acquisition originally intended will render the remaining land inadequate for its intended use or will severely and disproportionally reduce the value of the remaining land, it will instruct the acquiring authority to acquire the remaining land. Section 122(4) The remaining land referred to in subsection (3) shall be used for public purposes or be included in the Land Bank. Section 122(5) If a question arises as to whether or not any part of a building is reasonably required for the full and unimpaired use thereof, and the parties cannot agree thereon, the matter shall be referred by the Commission to the Court for determination. [Act No. 28 of 2016 , s. 84.] - 123 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 123. Withdrawal of acquisition.
The Commission may revoke a direction to acquire land before possession is taken, and must determine and pay compensation for damage and costs suffered by persons interested in the land due to acquisition proceedings.
Section 123. Withdrawal of acquisition. Section 123(1) At any time before possession is taken of any land acquired under this Act, the Commission may, revoke a direction to acquire the land, and, shall determine and pay compensation for all damage suffered and all costs and expenses reasonably incurred by persons interested in the land by reason of or in consequence of the proceedings for acquiring the land. Section 123(2) The principles relating to the determination of compensation set out in the rules shall apply, so far as they are relevant, to the determination of compensation payable under this section. [Act No. 28 of 2016 , s. 85.] - 124 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 124. Power to obtain temporary occupation of land.
The Commission may take temporary possession of land for public purposes if certain necessity conditions are met and, after serving notice and waiting seven days, may enter and post notice; the Commission must serve notices and a copy of the possession notice on the occupier.
Section 124. Power to obtain temporary occupation of land. Section 124(1)(a) the possession of the land is necessary for public purpose or public interest; Section 124(1)(b) the possession of the land is necessary in the interests of defence, public safety, public order, public morality, public health, urban and planning, or the development or utilization of any property in such manner as to promote the public benefit; and Section 124(1)(c) the necessity therefore is such as to afford reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property, and so certifies in writing, possession of such land may be taken for that period under this section. Section 124(2) The Commission shall then serve on every person interested or who claims to be interested in the land to be taken possession of under subsection (1), or on such of them as after reasonable inquiry are known to the Commission, a notice that the Commission is to take possession of the land for the period in question. Section 124(3) At the end of seven days after service of notices has been completed under subsection (2), the Commission may take possession of the land by entering, personally or by agents, on the land and positing on the land a notice in the prescribed form that possession has been taken of the land, and shall serve a copy of the notice on the occupier. Section 124(4) This section shall not apply where the use of land is likely to cause permanent damage to land. [Act No. 28 of 2016 , s. 86, Act No. 15 of 2019 , s. 11.] - 125 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 125. Payment of compensation.
The Commission must pay full and just compensation to all persons interested in the land as soon as is practicable.
Section 125. Payment of compensation. Section 125(1) The Commission shall, as soon as is practicable, pay full and just compensation to all persons interested in the land. Section 125(2) Deleted by Act No. 28 of 2016 , s. 87 [Act No. 28 of 2016 , s. 87, Act No. 15 of 2019 , s. 12.] - 126 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 126. Compensation for damages
The use of the land includes the passage of vehicles of all kinds, including heavy machinery, whether owned or operated by the public body occupying or using the land or by any contractor or servant employed by that body.
Section 126. Compensation for damages Section the use of the land shall extend to the passage of vehicles of all kinds, including heavy machinery, whether owned or operated by the public body occupying or using the land or by any contractor or servant employed by that body; and - 127 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 127. Reference of matters to the Court for determination by the Commission
Identifies matters that are for reference to the Court for determination by the Commission, and provides who must pay the costs of such references.
Section 127. Reference of matters to the Court for determination by the Commission Section 127(1)(a) the construction, validity or effect of any instrument; Section 127(1)(b) the persons who are interested in the land concerned; Section 127(1)(c) the extent or nature of their interest; Section 127(1)(d) the persons to whom compensation is payable; Section 127(1)(e) the shares in which compensation is to be paid to tenants in common; Section 127(1)(f) the question whether or not any part of a building is reasonably required for the full and unimpaired use of the building; or Section 127(1)(g) the condition of any land at the expiration of the term for which it is occupied or used. Section 127(2) Without prejudice to the powers of the Court under this Part, the costs of any reference to the Court under subsection (1) shall be paid by such person as the Court may direct or, where the Court does not give direction, by the Commission. - 128 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 128. Reference to the Environment and Land Court
Disputes arising under the Act may be referred to the Land and Environment Court for determination.
Section 128. Reference to the Environment and Land Court Section Any dispute arising out of any matter provided for under this Act may be referred to the Land and Environment Court for determination. - 129 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 129. Right of entry
The Commission and any officer or person authorized under section 108 have the right, upon notice and at all reasonable times, to enter any land to further the purposes of this Act.
Section 129. Right of entry Section The Commission and any officer or person authorized under section 108 shall, upon notice, have the right at all reasonable times to enter upon any land in furtherance of any of the purposes of this Act. - 130 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 130. Penalty for obstruction
A person who wilfully obstructs the Commission or related officers, or who wilfully fills up, destroys, damages or displaces marks made on land under this Act, commits an offence and is liable on conviction to up to five years' imprisonment or a fine not exceeding three million shillings, or both.
Section 130. Penalty for obstruction Section A person who wilfully hinders or obstructs the Commission or an officer or person mentioned in section 129 in doing any of the acts authorized or required by this Act, or who wilfully fills up, destroys, damages or displaces any trench, post or mark made or put on land under this Act, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding three million shillings, or to both. - 131 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 131. Service of notices
A notice is served by delivering it to the person personally.
Section 131. Service of notices Section by delivering it to the person personally; - 132 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 132. Exemption from stamp duty
Stamp duty shall not be chargeable for an award or agreement made under this Act, and no person claiming any such award or agreement shall be liable to pay a fee for a copy of the agreement.
Section 132. Exemption from stamp duty Section Stamp duty shall not be chargeable for an award or agreement made under this Act, and no person claiming any such award or agreement shall be liable to pay a fee for a copy of the agreement. - 133 Verify source ↗
COMPULSORY ACQUISITION OF INTERESTS IN LAND - 133. Rules
The Commission may make rules to carry out the purposes and provisions of this Part.
Section 133. Rules Section The Commission may make rules generally for carrying out the purposes and provisions of this Part.
Part VIIIA
THE LAND ACQUISITION TRIBUNAL
- 133A Verify source ↗
THE LAND ACQUISITION TRIBUNAL - 133A. Establishment of the Tribunal.
Establishes the Land Acquisition Tribunal of three persons appointed by the Cabinet Secretary; sets nominations, staffing, procedure and remuneration arrangements.
Section 133A. Establishment of the Tribunal. Section 133A(1) There is established a Tribunal to be known as the Land Acquisition Tribunal which shall consist of three persons appointed by the Cabinet Secretary through a notice in the Gazette . Section 133A(2)(a) one person nominated by the Judicial Service Commission, who shall serve as the Chairperson; Section 133A(2)(b) one person nominated by the Cabinet Secretary; and Section 133A(2)(c) one person nominated by the Attorney-General. Section 133A(3) The Judicial Service Commission shall second a Deputy Registrar and such other staff members as are necessary to assist the Tribunal in the performance of its functions under this Act. Section 133A(4) The Tribunal may, co-opt an expert to advise it on any matter before it and shall regulate its own procedure. Section 133A(5) Members of the Tribunal shall be paid such allowances or other remuneration as the Judicial Service Commission may, on the advice of the Salaries and Remuneration Commission, determine. [Act No. 15 of 2019 , s. 13.] - 133B Verify source ↗
THE LAND ACQUISITION TRIBUNAL - 133B. Term of office for members.
Sets terms of office: Chairperson appointed for four years (eligible for one further four-year term); members appointed for three years (eligible for one further three-year term); members serve part-time.
Section 133B. Term of office for members. Section 133B(1) The Chairperson of the Tribunal is appointed for a term of four years and is eligible for re-appointment for one more term of four years. Section 133B(2) A member of a Tribunal is appointed for a term of three years and is eligible for re-appointment for one more term of three years. Section 133B(3) A member of a Tribunal shall serve on part time basis. [Act No. 15 of 2019 , s. 13.] - 133C Verify source ↗
THE LAND ACQUISITION TRIBUNAL - 133C. Jurisdiction of the Tribunal
The Tribunal can hear appeals from the Commission on compulsory land acquisition; dissatisfied persons may apply within 30 days; the Tribunal must decide applications within 60 days and may extend time, award interest on excess compensation, and confirm, vary or quash Commission decisions.
Section 133C. Jurisdiction of the Tribunal Section 133C(1) The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land. Section 133C(2) A person dissatisfied with the decision of the Commission may, within thirty days, apply to the Tribunal in the prescribed manner. Section 133C(3) Within sixty days after the filing of an application under this Part, the Tribunal shall hear and determine the application. Section 133C(4) Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient. Section 133C(5) If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate. Section 133C(6) Despite the provisions of sections 127 , 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, ebe referred to the Tribunal. Section 133C(7) Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission. Section 133C(8) The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law. [Act No. 15 of 2019 , s. 13.] - 133D Verify source ↗
THE LAND ACQUISITION TRIBUNAL - 133D. Appeals
An appeal from the decision of the Tribunal may be made on a question of law only.
Section 133D. Appeals Section 133D(1)(a) the decision of the Tribunal was contrary to law or to some usage having the force of law; Section 133D(1)(b) the Tribunal failed to determine some material issue of law or usage having the force of law; or Section 133D(1)(c) a substantial error or defect in the procedure provided by or under this Act has produced error or defect in the decision of the case upon the merits. Section 133D(2) An appeal from the decision of the Tribunal may be made on a question of law only. [Act No. 15 of 2019 , s. 13.] - 133E Verify source ↗
THE LAND ACQUISITION TRIBUNAL - 133E. Limitation of liability for members of the Tribunal.
Members of the Tribunal are exempt from personal liability for acts or defaults done or committed in good faith while exercising powers conferred by the Act.
Section 133E. Limitation of liability for members of the Tribunal. Section Members of the Tribunal shall not be personally liable for any act or default done or committed in good faith in the course of exercising the powers conferred by this Act. [Act No. 15 of 2019 , s. 13.]
Part X
EASEMENTS AND ANALOGOUS RIGHTS General
- 136 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 136. Interpretation
Defines 'dominant land', 'servient land' and characterises how easements benefit or burden land; states when an easement can exist.
Section 136. Interpretation Section 136(1)(a) the land for the benefit of which any easement is created is referred to as the “dominant land” and the land of the person by whom an easement is created is referred to as “the servient land”; and Section 136(1)(b) an easement is, in relation to the dominant land referred to as “benefiting that land” and is, in relation to the servient land, referred to as “burdening that land’; Section 136(2) Subject to the provisions of this Part, an easement shall be capable of existing only during the subsistence of the land or lease out of which they were created the subsistence of the land on lease of which they were created or in any other manner provided by any other legislation. - 137 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 137. Application of this part
This Part applies to all easements made or coming into force on or after the commencement of this Act, but does not apply (unless specifically stated) to easements and similar restrictions that have effect only in customary law; and defines “analogous rights” as an access order made under section 140.
Section 137. Application of this part Section 137(1) This Part shall apply to all easements made or coming into force on or after the commencement of this Act. Section 137(2) Subsection (1) shall not, unless stated specifically otherwise, apply to easements, profits, restrictive agreements and all other like restrictions on the use of land having effect in customary law only. Section 137(3) In this Part, reference to “analogous rights” means an access order made under section 140 . - 138 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 138. Nature of easement
Defines the nature of easements by listing types of rights under Section 138(1)(a)–(d) and 138(2)(a)–(b), and sets a general rule on the duration of easements in Section 138(3)–(4).
Section 138. Nature of easement Section 138(1)(a) any rights to do something over, under or upon the servient land; or Section 138(1)(b) any right that something should not be so done; Section 138(1)(c) any right to require the owner of servient land to do something over, under or upon that land; Section 138(1)(d) any right to graze stock on the servient land. Section 138(2)(a) any right to take and carry away anything from the servient land; Section 138(2)(b) any right to the exclusive possession of any land. Section 138(3) Unless an easement has been created for specific period of time which will terminate at a fixed date in the future or on the happening of a specific event in the future or on the death of the grantor, the grantee or some other person named in the grant, an easement burdens the servient land and runs with the land for the same period of time as the land or lease held by the grantor who created that easement. Section 138(4) Subject to the provisions of this part an easement shall be capable of existing only during the subsistence of the land or lease out of which it was created. - 139 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 139. Entry on neighbouring land where easement is refused
Owners of dominant land may apply to court for an entry order authorising entry on servient land for specified works; they must notify the servient owner and county government; in emergencies a dominant owner may enter after at least 24 hours' written notice but the servient owner may still seek orders for damage and reimbursement.
Section 139. Entry on neighbouring land where easement is refused Section 139(1) An owner of any dominant land) may apply to a court on the prescribed form for an order, referred to as an entry order authorising his or her entry on or over any servient land for the purpose of erecting, repairing, adding to, painting or demolishing the whole or any part of any structure on the dominant land or doing any other necessary or desirable thing on that land. Section 139(2)(a) the owner of the servient land; and Section 139(2)(b) the county government having jurisdiction in the area where the dominant and servient land are located, of the intention to apply for an entry order under this section. Section 139(3)(a) to enter on or over the servient land, either personally or through the applicant’s employees, agents or contractors, for any purpose specified in the entry order; Section 139(3)(b) to use for that purpose on or over the servient land any vehicles and other means of transport and any plant machinery, cranes or other equipment as are specified in the entry order; Section 139(3)(c) to store on the servient land such materials as may be required for the purposes of the work and in any quantities that are specified in the entry order. Section 139(4)(a) the nature and conduct of the negotiations if any, between the owners of the dominant and servient land with respect to any attempt by the owner of the dominant land to obtain an easement for the purpose for which the entry order is applied for from the owner of the servient land; Section 139(4)(b) the urgency, importance and desirability of the work for which the entry order is being applied for; Section 139(4)(c) the scope of the work and the length of the time for which the entry order is being applied for; Section 139(4)(d) whether the applicant has applied for or obtained all permissions, license and consents required from all relevant public authorities to execute the works; Section 139(4)(e) any other matters that shall appear to the court to be relevant. Section 139(5)(a) the period of time during which the entry on or over the servient land is authorized; Section 139(5)(b) the hours of the day during which the work may be done; Section 139(5)(c) the preservation of the safety of persons or property on the servient land; Section 139(5)(d) the preservation, so far as is consistent with the work to be executed, of the natural features and condition of the servient land; Section 139(5)(e) the restoration of the servient land to its former state at the conclusion of the work; Section 139(5)(f) the maintenance of adequate access to the servient land; Section 139(5)(g) the performance of any conditions of the entry order; or Section 139(5)(g)(i) the performance of any conditions of the entry order; or Section 139(5)(g)(ii) the making good of any damage caused by entry on or over the servient land, or work on or over the land; or Section 139(5)(g)(iii) the reimbursement of the owner of the servient land for any costs, expenses or loss arising from the entry; and Section 139(5)(h) any other relevant matter. Section 139(6) If, as a result of fire, civil commotion or natural disaster, a structure on the dominant land has become a threat to public safety or public health, and there is an urgent need to effect repairs to or demolish that structure and such action may only be executed by entry on or over the servient land, the owner of the dominant land may enter the servient land and effect the repairs or demolition, after giving at least twenty-four hours’ notice in writing to the owner of the servient land, but the entry and execution of works shall not prevent the owner of the servient land from applying to the court for an order requiring the owner of the dominant land to make good any damage caused by the entry and works and to reimburse the owner of the servient land for any costs, expenses or loss arising from the entry and works. Section 139(7)(a) an owner of land includes an owner under a lease, a lessor and lessee; and Section 139(7)(b) neighbouring land means any land in respect of which an order is sought under this section, whether or not it adjoins the land occupied by the applicant for an entry order. - 140 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 140. Access order
Owners of landlocked land may apply to a court for an access order; the court may make an access order and may specify terms including payment of reasonable compensation by the applicant.
Section 140. Access order Section 140(1) An owner of landlocked land may apply in the prescribed form to a court for an access order, granting reasonable access to that land. Section 140(2)(a) the owners of each piece of land adjoining the landlocked land; Section 140(2)(b) any person claiming an interest in any such piece of land of whom the applicant has actual notice; Section 140(2)(c) the county government having jurisdiction in the area where the landlocked land is located; Section 140(2)(d) any other person occupying or having an interest in land which in the opinion of the court may be affected by the granting of the application. Section 140(3) The court, after hearing the applicant and any person served with an application under subsection (2) may make an access order in respect of any other piece of land, the owner of which was served with a copy of the application under subsection (2), for the benefit of the landlocked land. Section 140(4)(a) the nature and quality of the access, if any, to the landlocked land when the applicant first occupied the land; Section 140(4)(b) the circumstances in which the land became landlocked; Section 140(4)(c) the nature and conduct of the negotiations, if any, between the owners of the landlocked land and any adjoining or other land with respect to any attempt by the owner of the landlocked land to obtain an easement from one or more owners of the adjoining or other land; Section 140(4)(d) the hardship that may be caused to the applicant by the refusal of the access order, in comparison to the hardship that may be caused to any other person the making of the order; Section 140(4)(e) the purposes for which access is or may be required; and Section 140(4)(f) any other matter that appears to the court to be relevant. Section 140(5)(a) the period for which the access order is to be made; Section 140(5)(b) the payment of reasonable compensation by the applicant to any other person; Section 140(5)(c) the allocation of the costs of any work necessary to give effect to the order between the applicant and any other person; Section 140(5)(d) the fencing of any land and the upkeep and maintenance of any such fence; Section 140(5)(e) the upkeep and maintenance of any land over which the access order has been granted; Section 140(5)(f) the execution of any instrument or the completion of any prescribed form or the doing of any other thing necessary to give effect to the order; Section 140(5)(g) any conditions set out in subsection (4) which in the opinion of the court are applicable to an access order; and Section 140(5)(h) any other relevant matter. Section 140(6) An access order made under this section shall be deemed to have all the characteristics and incidents of an easement and the land over which it has been granted shall be deemed to be the servient land and landlocked land shall be deemed to be the dominant land in respect of that easement. [Act No. 28 of 2016 , s. 92.] - 141 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 141. Enjoyment of easement and analogous rights
Persons who are entitled under subsection (1)(a) or (1)(b) may bring proceedings in their own name to enforce the easement or analogous right.
Section 141. Enjoyment of easement and analogous rights Section 141(1)(a) any lessee of the dominant land, or so far as the nature of the easement, or analogous right permit, any part of it, and Section 141(1)(b) any lender on the security of a charge for the time being in possession of the dominant land, or so far as the nature of the easement or analogous right permit, any part of it. Section 141(2) Any person referred to in subsection (1)(a) and (b) who is entitled to the benefit of an easement or analogous right may take in the person’s own name any proceedings necessary to enforce that easement or those analogous rights. [Act No. 28 of 2016 , s. 93.] - 142 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 142.Repealed byActNo. 28 of 2016, s. 94
Section 142 was repealed by Act No. 28 of 2016, s. 94.
Section 142.Repealed byActNo. 28 of 2016, s. 94 - 143 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 143. Power of the Commission to create public rights of way
The Commission may create public rights of way (wayleaves for institutions or communal rights for the public); such rights attach to servient land and bind owners; wayleaves authorize certain workers and contractors to enter servient land; communal rights entitle the public to pass and use designated areas.
Section 143. Power of the Commission to create public rights of way Section 143(1) Subject to and in accordance with this section and section 146 , the Commission may, create a right of way which shall be known as public right of way. Section 143(2)(a) a right of way created for the benefit of the national or county government, a local authority, a public authority or any corporate body to enable all such institutions, organisations, authorities and bodies to carry out their functions, referred to in this Act as a wayleave; or Section 143(2)(b) a right of way created for the benefit of the public, referred to in section 145 of this Act as a communal right of way. Section 143(3) A public right of way shall attach to and run with the servient land in respect of which it has been created and shall be binding on all owners from time to time of the servient land, any manner they are occupying the land, whether under a land or a derivative right thereof, or under customary law or as a successor in title to any such owner or as a trespasser. Section 143(4) A wayleave shall authorize persons in the employment to or who are acting as agents of or contractors for any of the organizations, authorities and bodies to enter on the servient land for the purpose of executing works, building and maintain installations and structures and insetting all such works, installations and structures on the servient land and to pass and re-pass along that wayleave in connection with purposes of those organisations, authorities or bodies. Section 143(5) A communal right of way created for the benefit of the public shall entitle the public to pass and re-pass along that right of way and in areas designated for that purpose, to undertake recreational activities or other prescribed activity of the kind permitted in that designated area. - 144 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 144. Application for wayleave
Applications to create a wayleave must be made to the Commission by State departments, county governments, public authorities or corporate bodies (unless the Commission proposes on its own motion); applications must be in the prescribed form with required information, and the Commission must not begin creating a wayleave until all required information is submitted; the Commission itself must complete an application form when acting on its own motion; the Commission must bring the application to the notice of persons using affected land along the proposed route.
Section 144. Application for wayleave Section 144(1) Unless the Commission is proposing on its own motion to create a wayleave, an application, for the creation of a wayleave, shall be made by any State department, or the county government, or public authority or corporate body, to the Commission. Section 144(2) An application shall be made in the prescribed form and shall be accompanied by any prescribed information or other information that the Commission may, in writing require the applicant to supply and the Commission shall not begin the process of creating a wayleave until all prescribed or required information has been submitted to it. Section 144(3) In order to enable a proposed wayleave to be created by the Commission of its own motion to comply with the provisions of this section, the Commission shall complete an application form as if it were applying to create a wayleave and references to “the applicant” in this Sub-part in relation to an application to create a wayleave shall be taken to apply as well to the Commission. Section 144(4)(a) all persons occupying land over which the proposed wayleave is to be created, including persons occupying land in accordance with customary pastoral rights; Section 144(4)(b) The county government in whose area of jurisdiction land over which the proposed wayleave is to be created is located; Section 144(4)(c) all persons in actual occupation of land in an urban and per-urban area over which the proposed wayleave is to be created; and Section 144(4)(d) any other interested person. Section 144(5) along the route of the proposed wayleave calculated to bring the application clearly and in a comprehensible manner to the notice of all persons using land over which the proposed wayleave is likely to be created. - 145 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 145. Application for communal right of way
A county government, an association, or any group of persons may apply to the commission for a communal right of way.
Section 145. Application for communal right of way Section A county government, an association, or any group of persons may make an application to the commission for a communal right of way. - 146 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 146. Determination on creation of public right of way
Section 146 sets out how a public right of way may be created, including the Cabinet Secretary's power to create by order, the Commission's recommendation duty in certain cases, appeal rights within six weeks, and a requirement to refer back and wait at least thirty days if the Cabinet Secretary will not accept negotiated terms.
Section 146. Determination on creation of public right of way Section 146(1)(a) on receipt of all information prescribed or required under this Act; Section 146(1)(b) appoint a public inquiry to give further consideration to the representations and objections; or Section 146(1)(b)(i) appoint a public inquiry to give further consideration to the representations and objections; or Section 146(1)(b)(ii) refer the application to the County Government for its opinion on whether to approve the application; or Section 146(1)(b)(iii) initiate and facilitate negotiations between those persons who have made representations on the application and the applicant with a view to reaching a consensus on that application. Section 146(2) If the Commission has proposed the creation of a public right of way of its own motion and representations have been made on that proposal which are concerned with the matters other than the compensation payable for the use of the land for that public right of way, the Commission shall recommend to the Cabinet Secretary only that the Cabinet Secretary exercise the powers under subparagraphs (i) or (ii) of subsection (1). Section 146(3)(a) the recommendations of the Commission; or Section 146(3)(b) the advice of the county government; Section 146(3)(c) the outcome of any negotiations initiated under subsection (1)(b)(iii). Section 146(4) The Cabinet Secretary may, by order in the Gazette , create a public right of way under this section subject to any amendments, limitations and conditions, including conditions as to the costs of constructing and maintain a public right of way. Section 146(5) If an agreement has been reached between the parties to any negotiations initiated under subsection (1)(b)(iii) and if the Cabinet Secretary intends to create a public or right of way but not to accept any amendment, limitation or condition of that agreement, the Cabinet Secretary shall refer the matter back to the parties for reconsideration and take no decision on the creation of that right of way until at least than thirty days have elapsed from the date of the referral of the matter back to the parties or the parties have resubmitted their agreement, with or without amendments, to the Cabinet Secretary whichever is the shorter period. Section 146(6)(a) delineate the route of that public right of way; Section 146(6)(b) be published in the Gazette ; Section 146(6)(c) be notified to a county government having jurisdiction along the route of the public right of way; Section 146(6)(d) be publicized in any manner which is calculated to bring it to the attention of people occupying and using land along the route of the public right of way; and Section 146(6)(e) come into force thirty days after it has been published in the Gazette . Section 146(7) Any person who makes any representation or objection to an application to create a public right of way, within six weeks after the order has been made, may appeal to the Court on a point of law against an order made by the Cabinet Secretary under this section, but apart from such an appeal, an order of the Cabinet Secretary shall not be questioned by way of judicial review or otherwise in any court. [Act No. 28 of 2016 , s. 95, Act No. 15 of 2019 , s. 14.] - 147 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 147. Power of Registrar with respect to public right of way
If the Cabinet Secretary orders creation of a public right of way, the Commission must deliver all necessary documents, plans, demarcations and surveys of the route to the Registrar so the Registrar can exercise powers under this section; the Registrar may record the route of the public right of way on certificates of title, lease or other documents of title.
Section 147. Power of Registrar with respect to public right of way Section 147(1) If the Cabinet Secretary has made an order to create a public right of way the Commission shall cause all the necessary documents, plans, demarcations and surveys of the route of that public right of way to be delivered to the Registrar to enable the registrar to exercise the powers under this section. Section 147(2)(a) to cause to be recorded, in such forms as may be prescribed, the route of the public right of way on any certificate of title or certificate of lease or other document of title held in any office of the land registry having reference to land over which the public right of way has been created; and Section 147(2)(b) persons occupying such land under such right of occupying; or Section 147(2)(b)(i) persons occupying such land under such right of occupying; or Section 147(2)(b)(ii) by any lender of money secured by a charge or lien who is holding that certificate of occupancy as part of the security for that loan, so as to amend that certificate of occupancy by recording the route of the public right of way on that certificate of occupancy. - 148 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 148. Compensation in respect of public right of way
Persons in lawful or actual occupation of land used as a communal right of way or affected by a wayleave are entitled to compensation; the applicant (State Department, county government, public authority or corporate body) must pay compensation and the entitled person may apply to Court if unable to agree or dissatisfied with payment timing.
Section 148. Compensation in respect of public right of way Section 148(1) compensation shall be payable to any person for the use of land, of which the person is in lawful or actual occupation, as a communal right of way and, with respect to a wayleave, in addition to any compensation for the use of land for any damage suffered in respect of trees crops and buildings as shall, in cases of private land, be based on the value of the land as determined by a qualified valuer. Section 148(2) Compensation relating to a wayleave or communal right of way shall not be paid to a public body unless there is a demonstrable interference of the use of the land by that public body. Section 148(3) Damage caused as a result of the creation of a wayleave shall include any preliminary work undertaken in connection with surveying or determining the route of that wayleave, and whether the trees, crops or buildings so damaged were included in the route of the wayleave as delineated in the order of the Cabinet Secretary. Section 148(4) The duty to pay compensation payable under this section shall lie with the State Department, county government, public authority or corporate body that applied for the public right of way and that duty shall be complied with promptly. Section 148(5) If the person entitled to compensation under this section and the body under a duty to pay that compensation are unable to agree on the amount or method of payment of that compensation or if the person entitled to compensation is dissatisfied with the time taken to pay compensation, to make, negotiate or process an offer of compensation, that person may apply to the Court to determine the amount and method of payment of compensation and the Court in making any award may, make any additional costs and inconvenience incurred by the person entitled to compensation. Section 148(6) The Commission shall make Regulations prescribing the criteria to be applied in the payment of compensation under this section and to give effect to this section. - 149 Verify source ↗
EASEMENTS AND ANALOGOUS RIGHTS General - 149. Power of courts to enforce public rights of way
Courts have power to enforce public rights of way.
Section 149. Power of courts to enforce public rights of way Section the existence of a public right of way;
Part XI
MISCELLANEOUS
- 150 Verify source ↗
MISCELLANEOUS - 150. Jurisdiction of the Environment and Land Court
The Environment and Land Court and subordinate courts have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.
Section 150. Jurisdiction of the Environment and Land Court Section The Environment and Land Court established in the Environment and Land Court Act (Cap. 8D) and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act. [Act No. 25 of 2015 , Sch.] - 151 Verify source ↗
MISCELLANEOUS - 151. Substituted service
Service may be effected on or as near as possible to the land.
Section 151. Substituted service Section on or as near as may be to the land where possible; and - 152 Verify source ↗
MISCELLANEOUS - 152. Rights of entry
Commission‑authorised persons may enter and inspect public land (not private dwellings) between 6:00 a.m. and 6:00 p.m. after giving not less than 48 hours' notice; notices must specify the purpose and time; authorised persons must carry written Commission authorization and produce it on request; the Commission must appoint an assessor and pay compensation for any damage caused.
Section 152. Rights of entry Section 152(1) Any person authorised in that behalf by the Commission shall have power, on the giving of not less than forty eight hours notice, to enter and inspect at all reasonable times between the hours of 6.00 a.m. and 6.00 p.m. any public land, other than land occupied exclusively as a dwelling house, for any purpose connected with the implementation of this Act. Section 152(2) The notice required by subsection (1) to be given prior to any entry on to land shall specify clearly the purpose for which and the time at which the authorised person will enter the land. Section 152(3) Every person authorised to enter or inspect land under this section shall be furnished with a written authorization signed by the Commission and if so required by any person having an interest in or occupying the land to be entered and inspected, shall produce the same to that person. Section 152(4) If any person authorised under this section causes any damage to land or anything on the land during an entry and inspection, the Commission, shall forthwith appoint a person to assess the damage and pay promptly compensation based on that assessment to the person whose land or thing on the land have been damage. - 152A Verify source ↗
MISCELLANEOUS - 152A. Prohibition of unlawful occupation of land.
A person must not unlawfully occupy private, community or public land.
Section 152A. Prohibition of unlawful occupation of land. Section A person shall not unlawfully occupy private, community or public land. [Act No. 28 of 2016 , s. 98.] - 152B Verify source ↗
MISCELLANEOUS - 152B. Evictions to be undertaken in accordance wit the Act.
An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.
Section 152B. Evictions to be undertaken in accordance wit the Act. Section An unlawful occupant of private, community or public land shall be evicted in accordance with this Act. [Act No. 28 of 2016 , s. 98.] - 152C Verify source ↗
MISCELLANEOUS - 152C. Eviction Notice to unlawful occupiers of public land
The National Land Commission must notify all affected persons in writing, in the Gazette, in a nationwide newspaper and by radio (in a local language where appropriate) at least three months before evicting people from public land.
Section 152C. Eviction Notice to unlawful occupiers of public land Section The National Land Commission shall cause a decision relating to an eviction from public land to be notified to 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 months before the eviction. [Act No. 28 of 2016 , s. 98.] - 152D Verify source ↗
MISCELLANEOUS - 152D. Eviction Notice to unlawful occupiers of community land.
The County Executive Committee Member responsible for land matters must notify all affected persons in writing, in the Gazette, in a nationwide newspaper and by radio (where appropriate) at least three months before evicting unlawful occupiers of unregistered community land.
Section 152D. Eviction Notice to unlawful occupiers of community land. Section 152D(1) The County Executive Committee Member responsible for land matters shall cause a decision relating to an eviction from unregistered community land to be notified to 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 months before the eviction. Section 152D(2) In the case of registered community land, the procedure prescribed in section 152E shall apply. [Act No. 28 of 2016 , s. 98.] - 152E Verify source ↗
MISCELLANEOUS - 152E. Eviction Notice to unlawful occupiers of private land.
Owners or persons in charge may serve an eviction notice on unlawful occupiers; the notice must be given at least three months before eviction and must meet form, publication, content and service requirements.
Section 152E. Eviction Notice to unlawful occupiers of private land. Section 152E(1) If, with respect to private land 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 months before the date of the intended eviction. Section 152E(2)(a) be in writing and in a national and official language; Section 152E(2)(b) in the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land; Section 152E(2)(c) specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; and Section 152E(2)(d) be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area. - 152F Verify source ↗
MISCELLANEOUS - 152F. Application to Court for relief.
People served with notices under sections 152C, 152D or 152E may apply to Court for relief; the Court may confirm the notice and order vacation, cancel/vary or add to the notice on equitable terms, suspend it for a period it determines, or order compensation.
Section 152F. Application to Court for relief. Section 152F(1) Any person or persons served with a notice in terms of sections 152C , 152D and 152E may apply to Court for relief against the notice. Section 152F(2)(a) confirm the notice and order the person to vacate; Section 152F(2)(b) cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just; Section 152F(2)(c) suspend the operation of the notice for any period which the court shall determine; or Section 152F(2)(d) order for compensation. - 152G Verify source ↗
MISCELLANEOUS - 152G. Mandatory procedures during eviction.
The Cabinet Secretary must prescribe regulations to give effect to this section.
Section 152G. Mandatory procedures during eviction. Section 152G(1)(a) be preceded by the proper identification of those taking part in the eviction or demolitions; Section 152G(1)(b) be preceded by the presentation of the formal authorizations for the action; Section 152G(1)(c) where groups of people are involved, government officials or their representatives to be present during an eviction; Section 152G(1)(d) be carried out in a manner that respects the dignity, right to life and security of those affected; Section 152G(1)(e) include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly, and persons with disabilities; Section 152G(1)(f) include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction; Section 152G(1)(g) include mechanisms to protect property and possessions left behind involuntarily from destruction; Section 152G(1)(h) respect the principles of necessity and proportionality during the use of force; and Section 152G(1)(i) give the affected persons the first priority to demolish and salvage their property. Section 152G(2) The Cabinet Secretary shall prescribe regulations to give effect to this section. [Act No. 28 of 2016 , s. 98.] - 152H Verify source ↗
MISCELLANEOUS - 152H. Disposal of property left after eviction.
Competent officers of the Commission or County Government, communities owning registered community land, or private landowners must, at least seven days after eviction, remove or arrange removal or dispose by public auction any unclaimed property left after an eviction from private, community or public land.
Section 152H. Disposal of property left after eviction. Section The competent officer of the Commission or County Government, community owning a registered community land or owner of private land shall at least seven days from the date of the eviction, remove or cause to be removed or disposed by public auction, any unclaimed property that was left behind after an eviction from private, community or public land. [Act No. 28 of 2016 , s. 98.] - 152I Verify source ↗
MISCELLANEOUS - 152I. Demolition of unauthorized structures.
If a building or works were begun or completed without authority, the competent officer must order the responsible person to demolish them within a period specified in the order.
Section 152I. Demolition of unauthorized structures. Section Where the erection of any building or execution of any works has commenced or been completed on any land without authority, the competent officer shall order the person in whose instance the erection or work began or was carried, to demolish the building or works, within such period as may be specified in the order. [Act No. 28 of 2016 , s. 98.] - 153 Verify source ↗
MISCELLANEOUS - 153.Repealed by Act No. 28 of 2016, s. 99.
Section 153 was repealed by Act No. 28 of 2016, s. 99.
Section 153.Repealed by Act No. 28 of 2016, s. 99. - 154 Verify source ↗
MISCELLANEOUS - 154. Fees
The Cabinet Secretary must set and keep under review prescribed fee rates; the Registrar must refuse to register land-related entries where required fees have not been paid unless written evidence shows waiver or an installment agreement with no arrears.
Section 154. Fees Section 154(1) The Cabinet Secretary shall prescribe the rates of fees for all matters in respect of which, by this Act, prescribed fees are required to be paid by any person and shall keep such fees under continuous review. Section 154(2) Fees prescribed under this section shall be at a per centum rate of the value of the land the subject of the application or other matter in respect of which fees are required to be paid. Section 154(3) The Registrar shall refuse to make any entry on the register or register any document in respect of any grant of a land or any disposition of or arising in connection with a land in respect of which a fee has not been paid in whole or in part, unless the Registrar is satisfied on the basis of written evidence that the fee has been waived in whole or in part or that it has been agreed between the payer and payee that the fee may be paid in installments and there are no arrears in those installments. Section 154(4) Unpaid fees or expenses incurred by the Government in connection with any attempt to recover those unpaid fees shall constitute civil debt recoverable summarily. - 155 Verify source ↗
MISCELLANEOUS - 155. Unlawful occupation of land
The Commission may serve a notice or oral communication on a person it believes is unlawfully occupying public land requiring the person to show cause; the person must show cause within 60 days or be deemed to accept the notice and comply, and the person has a right to be heard; the court can grant relief or vary the notice.
Section 155. Unlawful occupation of land Section 155(1)(a) occupies, or erects any building on any public land; Section 155(1)(b) clears, digs, ploughs, cultivates, or grazes animals over, any public land or part of it; or Section 155(1)(c) cuts or removes any timber or other produce on or from any public land or part of it, Section 155(2) If, with respect to public land the Commission is of the opinion that a person is in unlawful occupation of public land, the Commission may serve on that person a notice in the prescribed form or give to that person an oral communication, in a language calculated to be understood by that person requiring that person to show cause as to why the person should not be required to vacate that land within any time and subject to any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters which the justice of the case may require, which may be specified in the notice or oral communication. Section 155(3) Any notice referred to in subsection (2) shall inform the person to whom it is addressed that the person has a right to be heard in connection with showing cause as to why the person should not vacate the land to which the notice relates. Section 155(4)(a) whether the person has reasonable belief that the person is in lawful occupation of land; Section 155(4)(b) the use which the person is making of the land, including any crops being grown by that person and when they may reasonably be expected to be ready to be harvested; Section 155(4)(c) the length of time that person has been on that land and the person’s age and general circumstances; Section 155(4)(d) whether that person is living with any dependants; Section 155(4)(e) whether that person or any dependants of that person are in employment near to that land; Section 155(4)(f) whether the occupation of the land took place peaceably or by force and whether the occupation is, as a consequence, depriving and person of the lawful occupation and use of that land which that person could take up immediately the land was vacated; Section 155(4)(g) whether the occupation of the land is preventing some necessary or desirable development or public works; Section 155(4)(h) the nature and environment of the land and where the land is land reserved for the primary use of wildlife, whether the occupation of the land is hindering or preventing the use of the land by wildlife or is in practice in harmony with that use; Section 155(4)(i) whether in all the circumstance, it would be reasonable to pay any sum of money to the person on account of being required to vacate the land; Section 155(4)(j) any other factors, which seem relevant include any matters that the person occupying the land brings to the attention of the Commission. Section 155(5) A person served with a notice or oral communication under this section shall, within not more than sixty days, show cause to the Commission as to why the person should not vacate the land to which the notice relates. Section 155(6) If a person does not show cause within sixty days as to why the land should not be vacated, and has no reasonable excuse for not so complying, the person shall be deemed to have accepted the notice and shall be under duty to comply with that notice. Section 155(7) Where after considering any representations made by the person attempting to show cause the Commission determines that the person has failed to show cause, the Commission shall inform that person by notice or oral communication to vacate the land within the time specified in the notice served under subsection (2). Section 155(8) A person who responded to the notice to show cause but who failed so to do in terms of subsection (5) may apply to the court for relief against the operation of that notice or oral communication, within thirty days of being notified of the failure has failed to show cause. Section 155(9)(a) the person is in unlawful occupation of the land; Section 155(9)(b) by reason of that unlawful occupation, the Commission has the right to require the person to vacate the land in respect of which the application for relief has been made; Section 155(9)(c) all notices and oral communications which were required to be served by the Commission were properly served; or Section 155(9)(d) the period by which the land must be vacated specified in the notice or oral communication was reasonable or had expired. Section 155(10)(a) cancel the notice or oral communication and declare that the person is entitled to remain on the land; Section 155(10)(b) postpone the operation of the notice or oral communication and grant the person a license to remain on the land until the notice or oral communication shall come into operation; Section 155(10)(c) vary the operation of the notice or oral communication by granting the person an easement of grazing of any terms and conditions which the court shall think fit, if the person is a pastoralist; Section 155(10)(d) vary any of the terms of the notice or oral communication or the period within which the person is required to vacate the land; or Section 155(10)(e) vary the amount of any payment to be paid, or where no payment has been offered, order that payment as the court shall think just be made to the person on vacating of the land. Section 155(11) If the court has confirmed the notice or oral communication, with or without any variations, alterations or additions in the exercise of its powers under subsection (10), the notice or oral communication, the person on whom has been served shall be under a duty to comply with that notice or oral communication as confirmed by the court. [Act No. 28 of 2016 , s. 100.] - 156 Verify source ↗
MISCELLANEOUS - 156. Obstruction of public right of way
The Commission can order the removal of wrongful obstructions or encroachments on public rights of way (order must give not less than 14 days), may take steps if not complied with, must serve notices in a manner the person understands, persons may request reconsideration or appeal and, if they do not pursue those remedies within the times specified, are under a duty to comply.
Section 156. Obstruction of public right of way Section 156(1) If the Commission is satisfied that there has been any wrongful obstruction of or encroachment on any public right of way, it may make an order requiring the person responsible for that obstruction or encroachment to remove that obstruction or encroachment within the time specified in the order, which shall be not less than fourteen days, and if that order is not complied with within the time specified, the Commission may take any steps which may be necessary for the purpose. Section 156(2) Any notice made by the Commission under subsection (1) shall be served on or otherwise communicated to the person alleged by the notice to be responsible for the obstruction or encroachment in such a manner as that person will understand that notice and what is required to be done under the notice. Section 156(3) A person served with a notice under subsection (1), may request the Commission to reconsider the notice within the time specified in the notice and on giving reasons. Section 156(4) A person who does not take action under subsection (3) shall be taken to have accepted the notice and shall be under a duty to comply with it. Section 156(5) If the Commission has reconsidered the notice in response to a request made in accordance with subsection (3), and determines to confirm the notice, it shall inform the person who made the request for a reconsideration that it has confirmed the notice. Section 156(6) A person whose request for a reconsideration of the notice has resulted in the notice being confirmed may appeal to a court against that confirmed notice, but if the person does not so appeal within the time specified in the notice for compliance with the notice, the person shall be deemed to have accepted the notice and shall be under a duty to comply with it. Section 156(7)(a) confirm the notice and order the person to desist from obstructing or encroaching on the public right of way; Section 156(7)(b) suspend the operation of the notice for any period which the court shall determine; or Section 156(7)(c) quash the notice, - 157 Verify source ↗
MISCELLANEOUS - 157. Offences
Section 157 lists offences relating to false statements, alteration or suppression of land documents, unlawful occupation of public land, obstruction or encroachment of public rights of way, and damage by authorised officers, and specifies fines and imprisonment for convictions.
Section 157. Offences Section 157(1)(a) knowingly makes any false statement, orally or in writing, in connection with any disposition or other transaction affecting land or any other matter arising under this Act; Section 157(1)(b) knowingly gives any false information or makes any false statement, either orally or in writing, in connection with any call for information made under this Act or in connection with any investigation into the commission of any offence under this Act; Section 157(1)(c) the registration or issue of any certificate of ownership, or any other document or instrument relating to the land; or Section 157(1)(c)(i) the registration or issue of any certificate of ownership, or any other document or instrument relating to the land; or Section 157(1)(c)(ii) the making of any entry or the endorsement of any matter on any document or instrument referred to in subparagraph (i); or Section 157(1)(c)(iii) the cancellation or amendment of any of the documents referred to in this paragraph instruments our entries or endorsements; or Section 157(1)(d) fraudulently alters, adds to, erases, defaces, mutilates or destroys any document or instrument relating to land or any entry on or endorsement of any such document or instrument; suppresses or conceals form the Commission, the Registrar, or any authorized officer exercising powers under this Act or assists or joins in so doing, any material document, fact or matter, commits an offence and on Section 157(2) Any person who unlawfully occupies public land commits an offence and upon conviction is liable to a fine not exceeding five hundred thousand shillings, and in the case of a continuing offence to an additional fine not exceeding ten thousand shillings for every day during which the offence shall have continued. Section 157(3) Any person who wrongfully obstructs or encroaches on to a public right of way and who does not within the time specified in any notice served on the person under section 112 or where the person has appealed against the notice, within the time specified in the notice after the hearing of the appeal where the court has rejected that appeal, remove that obstruction or cease that encroachment commits an offence and upon conviction is liable, on conviction to a fine not exceeding ten million shillings and in the case of a continuing offence to an additional fine not exceeding one hundred thousand shilling for every day during which the offence continues. Section 157(4)(a) delays; Section 157(4)(b) obstructs; Section 157(4)(c) hinders; Section 157(4)(d) intimidates; or Section 157(4)(e) assaults, Section 157(5) Any person who, being an authorized officer under this Act, whether generally or for a specific function, in the course of any official function or otherwise, unlawfully or with force enters on the land of any person or while on land, willfully commits any damage to the land or anything on the land, whether naturally on the land, or stock owned by any person using the land or crops planted or buildings erected on the land commits an offence and upon conviction is liable, to a fine not exceeding five hundred thousand shillings or to imprisonment not exceeding three months or to both the fine and imprisonment. Section 157(5A)(a) divulges any information on an intended land acquisition to any person before publication of the notice of the intention to acquire the land with an intention to influence any form of transaction for purposes of conferring any benefit as a result of the acquisition; or Section 157(5A)(b) assists, facilitates, or in way aids any transaction in such land contrary to any law, Section 157(6)(a) revoke the allocation; or Section 157(6)(a)(i) revoke the allocation; or Section 157(6)(a)(ii) terminate a lease. Section 157(6)(b) direct the Registrar to cancel any entry in any register which has been obtained by virtue or on account of the offence; Section 157(6)(c) require that person to make restitution to any person who has suffered loss by virtue or on account of the offence, including taking all necessary action to transfer to any such person any interest in land obtained, retained or regained by such offence from that person, and any such order may be made subject to any conditions which the court. Section 157(7) The Registrar shall not be personally liable in respect of any act done while exercising any powers under this Act and within the scope of official capacity, if the Registrar did that act in the honest belief that the Registrar was entitled to do it. [Act No. 15 of 2019 , s. 13, Act No. 15 of 2019 , s. 15.] - 158 Verify source ↗
MISCELLANEOUS - 158. Corrupt transactions
A transaction described in subsection (1) is illegal from its inception and void; persons occupying land obtained through such corrupt transactions must forfeit the land to the government without compensation and must comply with the transaction terms and remedies and may face penalties under this section.
Section 158. Corrupt transactions Section 158(1)(a) any grant of public land; Section 158(1)(b) any issue of a certificate of ownership of land; or Section 158(1)(c) any disposition, or any contract for any of the earlier mentioned transactions which was obtained or induced by corruption, on the part of any government official, county government official or employee of the Commission whether or not that government official, county government official or employee of the Commission was directly involved in that transaction. Section 158(2) Notwithstanding the provisions of any other written law, a transaction under subsection (1) shall be illegal from its inception and shall be void and of no legal effect. Section 158(3)(a) any party to or involved directly or indirectly in the transaction in respect of which it is alleged that an action was corrupt is convicted of corruption and all final appeals arising from that conviction have been concluded; or Section 158(3)(b) any employee of the Commission or other public official is interdicted, or is retired in the public interest, from the position on the grounds that the person has been engaged in corrupt actions and that these actions involved that transaction; or Section 158(3)(c) a court of competent jurisdiction so determines. Section 158(4) Any person occupying land obtained as a consequence of participating in any of the transactions under subsections (1) and (3) shall be liable to forfeit that land to the government without any entitlement to any compensation. Section 158(5) Notwithstanding that a transaction covered by this section is void, a person occupying land as a consequence of that transaction shall be obliged to comply with all the terms and conditions of the transaction as if it had been a valid transaction and shall be liable to all the remedies which may be applied to a person who fails to comply with the terms and conditions of a valid transaction in addition to any penalties which may be applied under this section. - 159 Verify source ↗
MISCELLANEOUS - 159. Minimum and maximum land holding acreages
The Cabinet Secretary must publish guidelines on penalties for noncompliance with this section.
Section 159. Minimum and maximum land holding acreages Section 159(1)(a) the minimum land holding acreage shall be subject to the provisions of Article 66(1) of the Constitution and the legislation envisaged therein. Section 159(1)(b) the maximum land holding acreage shall be subject to Article 60(1)(a) and (c) of the Constitution. Section 159(2) The Cabinet Secretary shall publish guidelines on the penalties for noncompliance with the provisions of this section. [Act No. 28 of 2016 , s. 101.] - 160 Verify source ↗
MISCELLANEOUS - 160. General power to make regulations
Grants a general power to make regulations on the listed matters (forms, Land Compensation Fund management, public rights of way, compensation procedures and payment, valuation of land interests, land holding acreages, and various measures related to minority communities, disasters, refugees, internal displacement and squatter settlements).
Section 160. General power to make regulations Section 160(1)(a) the forms to be used in connection with this Act; Section 160(1)(b) the management of the Land Compensation Fund; Section 160(1)(c) the use and management of public rights of way created under this Act; Section 160(1)(d) procedures to be followed with respect to the making of any claim for compensation and the payment of any compensation under this Act; Section 160(1)(e) the manner of assessing value of an interest in land; or Section 160(1)(f) the minimum and maximum land holding acreages in respect of private land. Section 160(2)(a) to secure the land rights of the minority communities to individually or collectively access and use land and land based resources following an inventory of the existing minority communities to obtain a clear assessment of their status and land rights; Section 160(2)(b) to prevent and manage land based disasters and to provide for settlement in the event of natural disasters; Section 160(2)(c) to establish, plan and manage refugee camps; Section 160(2)(d) to deal with issues that arise from internal displacement of persons and provide for the settlement of the internally displaced persons; and Section 160(2)(e) to establish appropriate mechanisms for their removal from unsuitable land and their settlement; Section 160(2)(e)(i) to establish appropriate mechanisms for their removal from unsuitable land and their settlement; Section 160(2)(e)(ii) to facilitate negotiation between private owners and squatters in cases of squatter settlements found on private land; Section 160(2)(e)(iii) to transfer unutilized land and land belonging to absentee land owners to squatters; and Section 160(2)(e)(iv) to facilitate the regularization of existing squatter settlements found on public and community land for purposes of upgrading or development. - 161 Verify source ↗
MISCELLANEOUS - 161. Repeals
The written laws set out in the Schedule to this Act are hereby repealed.
Section 161. Repeals Section 161(1) The written laws set out in the Schedule to this Act are hereby repealed. Section 161(2) All other law relating to land shall be construed with the alterations, adaptations, qualifications and exceptions necessary to give effect to this Act. - 162 Verify source ↗
MISCELLANEOUS - 162. Savings and transitional provisions with respect to rights, actions, dispositions etc.
Section 162 preserves pre‑existing rights, interests and dispositions under prior law and sets transitional rules on registration, injunctions and subsequent actions.
Section 162. Savings and transitional provisions with respect to rights, actions, dispositions etc. Section 162(1) Unless the contrary is specifically provided in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act. Section 162(2) Unless the contrary is specifically provided in this Act or the circumstances are such that the contrary must be presumed, if any step has been taken to create, acquire, assign, transfer, or otherwise execute a disposition, any such transaction shall be continued in accordance with the law applicable to it immediately prior to the commencement of this Act. Section 162(3)(a) the question whether any instrument so presented is to be registered shall be determined by the Registrar by reference to the law in force at the time of its execution; and Section 162(3)(b) Subject to the provisions of paragraph (a), the provisions of this Act shall apply to that instrument as if it had been executed after the commencement of this Act. Section 162(4) If a lessor or lender had initiated any steps to forfeit a lease or to foreclose a charge, as the case may be, before the commencement of this Act, a court may on the application of the lessee or the chargor issue an injunction to the lessor or, to the lender to stop the continuation of any such step. Section 162(5) If a court had issued an injunction under subsection (4), the lessor or lender to whom the injunction has been issued may commence any action under this Act to terminate that lease or bring that charge to an end.
Provision text is displayed from LexChat’s stored statute record. Use the official source links to verify amendments, commencement, and current legal force.
Ask AI about this statute
Land Act
Sign in to ask AI about this statute
Sign in to start authenticated, citation-grounded statute research.
Sign inLexChat organizes source-backed legal information for research. Verify amendments, commencement, and current legal force with the official publisher before relying on it.