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SPECIAL ISSUE

Kenya Gazette Supplement No. 149 (Acts No. 28)

REPUBLIC OF KENYA

KENYA GAZETTE SU PPLEM ENT

ACTS,201 6

NAIROBI, 7th September, 2A16

CONTENT

Act-PAGE

The Land Laws (Amendment) Act,2016.... ...........555

GOUHCIL TOR LAIT REPORTIflG

REC EIVED:I5ffiP ffi

P. O. Box 'ifi443- 00100NAIRCBI, KENYA

TEL: 2-/1 t]231 FAX : 2712694

It_

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

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55s

THE LAND LAWS (AMENDMENT) ACT, 2016

No. 28 of 2016

Date of Assent: 3lst August, 2016

Date of Commencement: 2lst September, 2016

AN ACT of Parliament to amend the laws relating toIand to align them with the Constitution, to giveeffect to Articles 68(c)(i) and 67(2)(e) of theConstitution, to provide for procedures onevictions from land, and for connected purposes

ENACTED by the Parliament of Kenya, as follows-L. This Act may be cited as the Land Laws

(Amendment) Act, 2016.

2. Section 2 of the Land Registration Act is amendedin section 2-

(a) by deleting the definition of "assignee" andsubstituting therefor the following newdefinition-

"assignee" has the meaning assigned to it under theLand Act, 2012;

(b) in the definition of "boffower" by deleting thewords "land or lease" and substifuting thereforthe words "interest in land or lease";

(c) in the definition of "caution" by deleting theword "means" and substituting therefor theword "includes";

(d) deleting the definition of "charge" andsubstituting therefor the following newdefinition-

"charge" has the meaning assigned to it under theLand Act, 2012;

(e) deleting the definition of "Court" andsubstituting therefor the following newdefinition-

Short title.

Amendment tosection 2 of No.3 of2012.

No.6 of 2012

No. 6 of 2012

'oCourt" means the Environment and Land Court No.reorzou

established by the Environment and Land Court Act, 2011,and other courts having jurisdiction on matters relating toland;

No. 28

"disposition" hasthe Land Act, 2012;

(e) by deletingsubstitutingdefinition-

the meaning assigned to it under

the definition of "register" andtherefor the following new

5s6

Land Laws (Amendment)

(0 deleting the definition of the word "disposition"and substituting therefor the followit g newdefinition-

2016

No. 6 of 2012

"register means the register maintained under section7 of the Act";

(h) in the definition of "Registrar" by inserting thewords "the Deputy Land'Registrar" immediatelyafter the words "Chief Land Registrar";

(D inserting the following new definitions in theirproper alphabetical sequence-

"allocation of land" means the legal process ofgranting the right to public land;

"cadastral plan" means a geo-referenced planapproved by the statutory body responsible for survey ofland;

"certificate" means a certificate of lease or a

certificate of title;

"community land register" means a register compiledin accordance with section 8 of the Act and the lawrelating to community land;

"condominium" means housing consisting of acomplex of dwelling units in which each unit isindividually owned;

"copy of a document" in respect to a prescribeddocument or other document required by law means a copyof that document certified as a true copy of the original byan authorized person; No 6 or2or2

"easement" has the same meaning assigned in theLand Act, 2012;

"encumbrance" means any charge, lease, or otherinterest noted or required to be noted in the encumbranceSection of the Land Register;

"eviction" means the act of depriving or removing aperson from the possession of land or property which they

2016

557


hold unlawfully either executed upon a successful law suitor otherwise;

"fees" means money payable for any land transactionor service as prescribed by the Cabinet Secretary underregulations;

"licensee" has the same meanirrg assigned to it underthe Land Act.

"matrimonial home" means any interest in land that isowned or leased by one or both spouses and occupied bythe spouses as their family home;

"matrimonial property" means any interest in land orlease that is acquired by a spouse or spouses during thesubsistence of a marri age;

"registration" means bringing of an interest in land orlease under the provisions of the Act and includes makingof an entry, note or record in the land register;

"sectional plan" means a geo-referenced plan of unitsor a part of land as the case may be prepared by asurveyor and approved by the statutory body responsiblesurvey of land;

"sectional unit" means a space that is situated within abuilding and described in a sectional plan by reference tofloors, walls and ceilings within the buildings;

"spouse" means either a husband or a wife marriedunder any recognized law in Kenya;

"Rules Committee" means the rules committee of theHigh Court;

"transfer" means passing of an estate or interest inland or lease under this Act, whether for valuableconsideration or otherwise;

3. Section 6 of the Land Registration Act is amendedby-

(a) in subsection ( 1), by deleting the words"Commission in consultation with national andcounty governments may" and substitutingtherefor the words "Cabinet Secretary inconsultation with the Commission and thecounty governments shall";

No.28

Amendment ofsection6No.3of2012.

tBE

t"

E

hE.

hf\r,

H

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558


(b) in subsection (5) by deleting the word"Commission" appearing immediately after thewords "by the" and substituting therefor with theword "Cabinet Secretary" ;

(c) in subsection (6) insertirg the following newsubsection immediately after subsection (6)-

(7) For pu{poses of administration and effective landmanagement, the county governments shall have access toall documents maintained in the registration units.


(a) in subsection ( 1) by deleting the wordCommission wherever it appears andsubstituting therefor the word "CabinetSecretary";

(b) in subsection (3) by deleting the words "PublicService Commission and";

(c) insertirrg the following new subsectionsimmediately after subsection (3)-

(4) The land register shall include the followit gfeatures-

(a) the property section;

(b) the proprietorship section;

(c) the encumbrance section;

(d) the user of the land; and

(e) any other feature required under arly law orotherwise considered necessary by the CabinetSecretary.

(5) Registration shall be effected by an entry in theregister in such form as may from time to time beprescribed by the Cabinet Secretary, and by cancellation ofthe entry, if any, which it replaces.

(6) Subject to the provisions of this Act, the Registrarmay at any time, open a new edition of a register showingonly the subsisting entries and omitting therefrom allentries that have ceased to have effect.

(7) The Registrar may cancel any entry in the registerwhich have ceased to have effect.

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Amendment ofsection 7 of No.3of 2012.

20t6

s59


5. Section 9 of the Land Registration Act is amendedby inserting the following new paragraph in subsection (2)immediately after parugraph (d)-

(da) passport number, telephone number and emailaddress, where applicable.

6. Section 12 of the Land Registration Act is amendedin subsection (l) by-

(a) deleting the marginal note and substitutingtherefor the following marginal note-

Appointment of Land Registrars and other fficers.(b) inserting the words "a Deputy Chief Land

Registrar, County Land Registrars, LandRegistrars" immediately after the words "ChiefLand Registrar".

7. The Land Registration Act is amended by insertingthe following new section immediately after section 13-

No. 28

Amendment ofsection 9 of No. 3

of 2012.


of 2012.

Insertion of newsection l3,A. in No.3 of 2012.

Qualifications forappointment of other

land Registrars.

13A. ( 1) A person shall not qualify forappointment as Deputy Chief Land Registrarunless such a person is an Advocate of theHigh Court of Kenya of not less than tenyears' standing, a land surveyor, a landeconomist or an expert in any other relevantfield.

(2) A person shall not qualify forappointment as a County Land Registrarunless such a person is an Advocate of theHigh Court of Kenya of not less than fiveyears' standing or an Advocate of the HighCourt with at least five years' experience inland administratior, a land surveyor, a landeconomist or an expert in any other relevantfield.

(3) A person shall not qualify forappointment as a Land Registrar unless sucha person is an Advocate of the High Court ofKenya, a land surveyor, a land economist oran expert in any other relevant field.

(4) Upon appointment, the Registrarshall take an oath of office in the prescribedform.

No. 28


(a) renumbering the existing section 14 as Ia 0);(b) insertirg the following new subsections

immediately after subsection (1)-(2) In addition to the powers conferred by section L4

(1) the Chief Land Registrar shall-(a) formulate practice instructions and guidelines for

implementation of the land registration policiesand strategies;

set standards for the registries;

supervise the registries;

prepare and submit an annual report on the state ofland registration to the Commission and theCabinet Secrctary,

(e) hear and determine appeals from the registries;

(0 approve the format of any instrument which is notin accordance with the prescribed form; and

(g) perform such other functions or duties as may beprovided under any written law.

(3) The Deputy Chief Land Registrar shall be theprincipal assistant of the Chief Land Registrar in theexecution of the functions of the Chief Land Registrar.

(4) The County Land Registrar shall be responsiblefor administering the registries within the respective countyand in the implementation of policies, guidelines andstrategies in accordance with this Act.

(5) The Registrar shall not be held personally liablefor lawful acts discharged by the Registrar under this Actin good faith.

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Land Laws (Amendment) 2016

(5) Upon the commencement of thisAct, any person holding the position ofChief Land Registrar, and Land Registrarswho do not meet the qualificationsprescribed in this Act shall be redeployed toother positions and duties within the publicservice.


(b)

(c)

(d)

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9. Section 16 of the Land Registration Act isamended-

(a) in subsection ( 1) by deleting the words "and suchcorrection shall not be effected except on theinstruction of the Registrar, in writing," appearingimmediately after the words "subdivision plan"and substituting therefor the words "approvedcombination plan or any other approved plannecessitating the alteration of the boundary";

(b) l;, subsection (2) by deleting the wordsNotwithstanding subsection ( 1), ooy alteration

and shall be made public and"

(c) by inserting the following new subsectionimmediately after subsection (3) -

(4) Any rectification to the cadastral map inaccordance with this section shall be notified to theRegistrar by the submission of the rectified cadastral mapand all the approvals that necessitated the amendments.

10. The Land Registration Act is amended in section17 by deleting subsection (3) and substituting therefor thefollowing-

(3) The office or authority responsible for the surveyof land shall submit to the Commission a copy of thecadastral maps relating to public land and the Commissionshall be a depository of the maps.

11. Section 28 of the Land Registration Act isamended by-

(a) deleting paragraph (a);

(b) deleting paragraph (0;(c) inserting the following new proviso to the

section -Provided that the Registrar may direct the registration

of any of the liabilities, rights and interests hereinbeforedefined in such manner as the Registrar deems necessary.


(a) in subsection (1) by deleting the words "or alease" and substituting therefor the words "whosename appears in the register or a leas e";

No.28

Amendment ofsection l6 of No. 3

of2012.


of 2012.


of2012.

Amendment tosection 30 of No. 3

of 2012.

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562


(b) in subsection (2Xb) by deleting the expression"twenty-five" and substituting therefor theexpression "twenty-one".


(a) in subsection ( 1) by deleting the word "duplicate"appearing immediately after the word "issue of a"and substituting therefor with the word"replacement";

(b) in subsection (3) by deleting the word "duplicate"appearing immediately after the word "issue a"and substituting therefor the word "replacement";

(c) by inserting the following new subsection (6) -(6) Upon the issue of a replacement

certifi cate no further dealings shall be carried outusing the replaced certificate.


(a) by deleting subsection (4) and substituting thereforthe following subsection-

(4) Where an instrument presented forregistration later than three months from the dateof the instrument, then, as well as registrationfee, and additional fee equal to the registrationfee shall be payable for each of the three monthswhich have elapsed since that date:

Provided that in no such case shall the sumof the additional fees, exceed two times theoriginal registration fees payable;

(b) by inserting the following new subsectionsimmediately after subsection (4) -

(5) Interests appearing in the register shallhave priority according to the order in which theinstruments which led to their registration werepresented to the registry, irrespective of the datesof the instruments and notwithstanding that theactual entry in the register may be delayed:

Provided that where an instrument isprepared in the registry, it shall be deemed to

2016


of2012


of 2012.

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1

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l,and Laws ( Amendment)

have been presented on the date which thcapplication was made to the Registrar.

(6) Instruments sent by post or under coverand received during the hours of business shallbe deemed to be presented simultaneouslyimmediately before the closing of office that day,and instruments so sent but received between thetime of closing and the next opening of the officefor business shall be deemed to be presentedsimultaneously immediately after such opening.

(7) Where more than one instrument orapplication are presented on the same day suchthat in the opinion of the Registrar there is doubtas to their order of priority, the Registrar shallreject the registration and shall inform theapplicants of such rejection.

(8) Where any person proposing to dealwith registered land has, with the consent inwriting of the proprietor, applied for ofticialsearch and has stated in his application theparticulars of the proposed dealing, theregistration of any instrument affecting the landto be comprised in or affected by the proposeddealing shall be stayed for a period (hereinafterreferred to as the suspension period) of fourteendays from the time at which application for thesearch was made, and a note shall be made in theregister accordingly.

(9) If a properly executed instrumentaffecting the proposed dealing is presented forregistration, within the suspension period, theinstrument shall have priority over any otherinstrument which may be presented forregistration during the suspension period, andshall be registered notwithstanding any cautionor any other entry for which application forregistration may have been made during thesuspension period

Provided that upon commencement of theAct, any instrument that shall not have beenregistered will be required to be so regiStered

No. 28

No.28

(c) the proprietor of a parcel which isburdened with an easement, a prorit orrestrictive agreement and the proprietorof a parcel which benefits from theeasement, profit and agreement, vests inthe same proprietor,

the interests shall not merge unless a surrender or dischargeis registered or the parcels are combined or there is a

declaration of merger, which may be contained in theinstrument evidencing the disposition.


(a) 1n subsection ( 1) by deleting the words

tfl:[:,,{,:fr'3r,$",'#' J;,d'* ;H:;*:X?'? Tlisubstituting therefor with the words "transferringor vesting";

(b) in subsection (2) by deleting paragraph (b).

16. Section 39 of the Land Registration Act isamended in subsection (2) by deleting the words "relevantCounty Land Management Board" and substituting thereforthe words "national or county government".

17. Section 43(2) of the Land Registration Act isamended by deleting the word "private land" appearingimmediately after the word "disposition of ' andsubstituting therefor with the words "an interest in land".

1,8. Section 44 of the Land Registration Act isamended-

(a) deleting subsection (3) and substituting thereforthe following subsection-

(3) The execution of any instrument referredto in section ( 1) by a corporate body, association,

564


within three months.

(10) Where on the registration of aninstrument relating to a disposition under thisAct, the interests of-

(a) a lessor and lessee;

(b) chargor and chargee, or

i


of2012.

Amendment ofsection 39 of No. 3of 2012.


Amendment ofSection 44 of No. 3

of 2012.

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2016 Land Laws (Amendment)

cooperative society or other organisation shall beeffected in accordance with the provisions of therelevant applicable law and in the absence ofprovisions on execution of instruments, theexecution shall be effected in the presence ofeither an advocate of the High Court of Kenya, amagistrate, a Judge or a notary public.

(b) deleting subsection (4) and substituting thereforthe following subsection-

(4) An instrument executed outside Kenyashall not be registered unless it has beenendorsed or is accompanied by a certificate in theprescribed form completed by a notary public orsuch other person as the Cabinet Secretary mayprescribe.

(c) in subsection (5) by inserting the followingparagraph (e) immediately after paragraph (d) -

(d) a copy of the certifi cate of incorporation, in thecase of a corporate entity; or

19. Section 54 of the Land Registration Act isamended by-

(a) in subsection (1) by deleting the word "leased'appearing immediately after the word "leasedland";

(b) in subsection (2) by inserting the following newparagraph immediately after paragraph (b) -

(c) on any of the grounds set out under section 39(4).

(c) inserting the following new subsectionimmediately after subsection (5) -

(6) The Cabinet Secretary may prescriberegulations for the registration of long term-leases.

20. Section 55 of the Land Registration Act isamended by deleting the words "lessee that the lessee"appearing immediately after the words "by the" andsubstituting therefor the phrase "lessor that the lessor";


No.28


of 2012.

Amendment ofSection 55 ofno. 3

of 2012.

Amendment ofSection 56 ofNo.3of 2012.

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566


(a) by deleting subsection (4) and substituting thereforthe following new subsection-

(4) The Registrar shall not register a charge,unless a land rent clearance certiti cate, certifyingthat no rent is owing in respect of the land, and theconsent to charge has been presented, or unless theland is freehold.

(b) by inserting the following new subsectionimmediately after subsection (5) -

(5A) No certificate shall be required undersubsection (4) if the charge relates to -

(a) a unit in a condominium;

(b) an office in a building; or

(c) a sub-lease where the lease is by virtueof any law subject to the full paymentof the rent by the head-lessor.

(c) in subsection (6) by deleting the words "chargeeof his or her" appearing in subsection (6)immediately after the word "exercise of the" andsubstituting therefor the word "chargee's".

22. Section 57 (2) of the Land Registration Act isamended in section by deleting the word "charge"appearing immediately after the word "first" andsubstituting therefor the word "chargee's.

23. Section 7 6 of the Land Registration Act isamended-

(a) in subsection (2) by deleting the words "themaking" appearing in paragraph (c);

(b) by inserting the following new subsectionimmediately after subsection (2)-

(24) A restriction shall be registered in theregister and may prohibit or restrict either alldealings in the land or only those dealings whichdo not comply with specified conditions."

24. Section 77 (2) of the Land Registration Act isamended by deleting the word ..it)) appearing immediatelyafter the word "with" and substituting therefor with thewords "a restriction".

2016

Amendment ofsection 57 ofNo.3of2012.


of2012.

Amendment ofSection 77of No. 3

of2012.

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561


25. Section 78( 1) of the Land Registration Act isamended in by deleting the word "that" appearingimmediately after the word "order".


(a) in subsection ( 1) -(i) by inserting the word "mistakes" immediately

after the word "errors" appearing in paragraph(a);

(ii) inserting the following new paragraphsimmediately after paragraph (c)-(d) for purposes of updating the register;

(e) for purposes of correcting the name,address or other particulars of theproprietor upon the written applicationby the proprietor in a prescribed form.

(b) by deleting subsection (2) and substitutingtherefor the following subsection-

(2) No alteration affecting the title of the proprietormay be made pursuant to sub-section ( 1) without theproprietor' s consent unless -

(a) the proprietor has by fraud or lack of proper carecaused or substantially contributed to the error,mistake or omission; or

(b) it would for any other reason be unjust for thealteration not to be made.

Provided that a written notice of ninety days shall begiven to the proprietor of such intention to make thealteration.

(c) by inserting the following new subsectionimmediately after subsection (3) -

(3A) A person aggrieved by the decision ofthe Registrar under this section may apply to theCourt for any necessary orders.

(d) by deleting the introductory statement insubsection (4) and substituting therefor thefollowing new introductory statement-

No. 28

Amendment ofSection 78 of No.3of2012.

Amendment ofSection 79 of No. 3of2012.

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568


(4) The Cabinet Secretary may byregulations prescribe the guidelines that theRegisffar shall follow before rectifying ordirecting rectification under this section andwithout prejudice to the generality of theforegoing, the regulations may provide for-

27. Section 80 of the Land Registration Act isamended in subsection (2) by deleting the phrase "who isin possession and had acquired the land, lease or charge forvaluable consideration" appearing immediately after theword "proprietor".

28. Section 83 of the Land Registration Act isamended by deleting the word "may" appearingimmediately after the word "party".

29. Section 9l of the Land Registration Act isamended-

(a) in subsection( 1) by deleting the words "inundivided shares" appearing immediately after theword "persons";

(b) deleting subsection (2) and substituting thereforthe following subsection -

(2) Except as otherwise provided in any written law,where the instrument of transfer of an interest of land totwo or more persons does not specify the nature of theirrights there shall be a presumption that they hold theinterest as tenants in common in equal shares.

(c) in subsection (4) by deleting the word "or"appearing at the end of paragraph (b) andsubstituting therefor the word "and";

(d) deleting subsection (8) and substituting thereforthe following new subsection-

(8) The Registrar may upon receipt ofadequ ate proof dispense with the consent undersubsection (6) if the Registrar considers that theconsent cannot be obtained or is being withheldunreasonably and the Registrar shall note on theregister and on the instrument the reasons fordispensing with the consent.

(e) inserting the following newimmediately after subsection (8) -

2016


of2012.


of2012.

Amendment ofsection 9l ofNo. 3

of2012.

I

)

subsection

2016

s69


(9) A person who is aggrieved by thedecision of the Registrar may apply to the Courtfor the necessary orders.

30. Section 92 of the Land Registration Act isamended by inserting the following new proviso to thesection -

Provided that a designated co-tenant shall be providedwith the original title to the land.

31. Section 93 of the Land Registration Act is deletedand replaced by the following new section 93-

93. Subject to any written law to the contrary, if aspouse obtains an interest in land during the subsistence ofa marriage for the co-ownership and use of both spouses orall spouses, such property shall be deemed to bematrimonial property and shall be dealt with under theMatrimonial Property Act.


(a) in subsection ( 1), by deleting the words"certificate of land" and substituting therefor thewords "certificate of title or certificate of lease";

(b) by inserting the following new subsectionimmediately after subsection (4)-

(5) Any co-tenant aggrieved by the decisionof the Registrar may apply to the Court for areview of that decision.

33. Section I02 of the Land Registration Act isamended in subsection (3) by deleting the words "or that ithas been agreed between the payer and the payee that thefee may be paid in installments" appearing at the end of thesubsection.


(a) in subsection ( 1) -(i) by deleting the word "ownership" appearing

immediately after the words "certificate of inparagraph (c) subparagraph (i) and substitutingtherefor the words "title or certificate oflease";

No. 28

Amendment ofsection 92 ofNo. 3

of2012.


of 2012.


of 2012.



of2012

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s70


(ii) by deleting the word c(a)) appearingimmediately after word "of in paragraph (c)subparagraph (ii) and substituting therefor theword "an";

(iii) by inserting the following new subparagraphimmediately after subparagraph (iii) ofparagraph (c)-

(iv) a dealing or a transaction using any of thereplaced register, certifi cate of title orcertiticate of lease;

(iv) by deleting the word "form" appearing inparagraph (d) immediately after the word"conceals" and substituting therefor the wordfrom";

(b) in subsection (2) by deleting the word "public"appearing immediately after the word "unlawfullyoccupies".

35. Section 105 of the Land Registrationamended-

(a) in subsection (1) by deleting paragraphsubstituting therefor the followingparagraph-

(a) in the case of an interest in land previously underthe repealed Government Lands Act and therepealed Land Titles Act then-(i) the register or folio maintained under the

repealed Government Lands Act and therepealed Land Titles Act in respect of theinterest in land shall be deemed to be theregister under this Act;

(ii) the last conveyance or assignment noted in theregister or folio maintained under the repealedGovernment Lands Act and the repealed LandTitles Act in respect of the interest in landshall be deemed to be evidence of ownershipof the interest in land for pu{poses of issuing acertificate of title or a certificate of lease underthis Act:

Provided that the Registrar may at any time prepare a

register under this Act showing all subsisting particulars

2016


Act is

(c) andnew

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57r


contained in the register or folio maintained under thcrepealed Government Lands Act and the repealed LandTitles Act and issue to the proprietor a certificate of title ora certificate of lease in the prescribed form.

(b) by deleting subsection (2) and substituting thereforthe followirg subsection -

(2) In compiling the land register, the Registrarshall -

(a) register the relevant public land in the name of thecounty or national government in trust for thepeople resident in the county or nationalgovernment;

(b) comply the direction of the Commission as

contained in any Gazette notice made undersection 15 of the Land Act; and

(c) include any special provisions relevant to thepublic land.

36. Section 2 of the National Land Commission Act isamended in section2 by deleting the detinition of "Board".

37. Section 5 of the National Land Commission Act isamended by-

(a) in subsection (2) by-(i) deleting pa ragraph (c) and substituting therefor

the following paragraph-

(c) ensure that public land under themanagement of the designated stateagencies is sustainably managed for theintended purposes;

(ii) deleting paragraph (d) and substitutingtherefor the following paragraph-

(d) may develop and maintain an effectiveland information system for themanagement of public land;

(iii) deleting paragraph (e);

(iv) deleting paragraph (0;

deleting subsection (3).


No. 28

No.6 of 2012.

Amendment ofsection 2 of No. 5 of2012.


(b)

(c)

Historical landinjustices.

Cap.22.

No. 28

572


38. Section 15 of the National Land Commission Act Amendmentorsection l5 ofNo.5

is deleted and substituted by the following new section- or20t2.

I 5. ( 1) Pursuant to Article 67 (3) of theConstitution, the Commission shall receive,admit and investigate all historical landinjustice complaints and recommendappropriate redress.

(2) For the pu{poses of this section, ahistorical land injustice means a grievancewhich-

(a) was occasioned by a violation ofright in land on the basis of anylaw, policy, declaration,administrative practice, treaty oragreement;

(b) resulted in displacement fromtheir habitual place of residence;

(c) occurred between l5th June 1895when Kenya became aprotectorate under the British EastAfrican Protectorate and 27thAugust, 2010 when theConstitution of Kenya waspromulgated;

(d) has not been sufficiently resolvedand subsists up to the periodspecified under paragraph (c); and

(e) meets the criteria set out undersubsection 3 of this section.

(3) A historical land claim may only beadmitted, registered and processed by theCommission if it meets the followingcriteria-

(a) it is verifiable that the actcomplained of resulted indisplacement of the claimant orother form of historical landinjustice;

(b) the claim has not or is not capableof being addressed through theordinary court system on the basis

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Land l-aws (Amendment)

that-(i) the claim contradicts a law

that was in force at thetime when the injusticebegan; or

(ii) the claim is debarred undersection 7 of the Limitationof Actions Act or anyother law;

(c) the claimant was either aproprietor or occupant of the landupon which the claim is based;

(d) no action or omission on the partof the claimant amounts tosurrender or renouncement of theright to the land in question; and

(e) it is brought within five yearsfrom the date of commencementof this Act.

(4) A claim alleging historical landinjustice shall be permissible if it wasoccasioned by-

(a) colonial occupation;

(b) independence struggle;

(c) pre-independence treaty oragreement between a communityand the government;

(d) development-induceddisplacement for which noadequate compensation or otherform of remedy was provided,including conversion of non-public land into public land;

(e) inequitable land adjudicationprocess or resettlement scheme;

(0 politically motivated or conflictbased eviction;

(g) colruption or other form of

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No. 28

514


illegality;

(h) natural disaster; or

(i) other cause approved by theCommission.

(5) When conducting investigationsunder subsection ( 1) into historical landinjustices the Commission may-

(a) request from any personincludirrg any governmentdepartment such particulars,documents and informationregardirrg any investigation, as

may be necessary; or

(b) by notice in writing, addressedand delivered by a staff of theCommission to any person,direct such person, in relation toany investigation, to appearbefore the Commission at suchtime and place as may bespecified in the notice, and toproduce such documents orobjects in the possession,custody or under the control ofsuch person and which arerelevant to that investigation.

(6) Where a complainant is unable toprovide all the information necessary for theadequate submission or investigation of acomplaint, the Commission shall takereasonable steps to have this informationrnade available.

(7) lf at any stage during the course ofan investigation, the Commission is of theopinion that the resources of theCommission may be more effectivelyutilized if all claims within a given area ortownship were to be investigated at the sametime, the Commission shall cause to bepublished in the Gazette or in such othermanner as the Commission may deemappropriate, a notice advising potential

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575


complainants of the decision and invitingthem to lodge claims within a periodspecified in such notice.

(8) A claim in respect of a mattercontemplated in subsection (7) shall not belodged after the expiry of the periodspecified in the said notice.

(9) The Commission ? afterinvestigating any case of historical landinjustice referred to it, shall recommend anyof the following remedies-

(a) restitution;

(b) compensation, if it is impossibleto restore the land;

(c) resettlement on an alternativeland;

(d) rehabilitation through provisionof social infrastructure;

(e) affirmative action programmesfor marginahzed groups andcommunities;

(0 creation of wayleaves andeasements;

(g) order for revocation andreallocation of the land;

(h) order for revocation of an officialdeclaration in respect of anypublic land and reallocation;

(i) sale and sharing of the proceeds;

0) refund to bona fid, third partypurchasers after valuation; or

(k) declaratory and preservationorders including injunctions.

( l0) Upon determination of a historicalland injustice claim by the Commission, dnyauthority mandated to act under the redress

No. 28

No. 28

576


recommended shall be required to do so

within three years.

( I I ) The provisions of this section shallstand repealed within ten years.

39. The National Land Commission Act is amendedby repealing section 18.

40. The First Schedule of the National LandCommission Act is amended-

(a) in paragraph (1)-

(i) by deleting the words "in consultation withthe Prime Minister" appearing in theopening sentence;

(ii) by deleting sub-parugraph (b); and

(iii) by deleting the proviso;

(b) by inserting the words "within seven days"immediately after the word "shall" appearing inparagraph (7).

(c) insertirrg the following new paragraph (8A)immediately after paragraph (8)-(8A) If the President does not appoint thechairperson or members of the Commission as

prescribed under paragraph (8), the approvednominees shall be taken to have been appointedupon the lapse of twenty one days.

(d) by deleting paragraph (1a);

41. Section 2 of the Land Act is amended-

(a) deleting the definition of "allocation of land" andsubstituting therefor the following definition-

"allocation of land" means the legal process ofgranting rights to public land;

(b) in the definitioninserting the wordword "relating";

of Cabinet Secretary by"to" immediately after the

(c) by inserting the following new definitions intheir proper alphabetical sequence-

"agrrculture or agricultural" has the meaning assigned

2016

Repeal of section 18

ofNo. 5 of 2012.

Amendment of FirstSchedule to No. 5 of2012.

Amendment tosection 2 of No.6 of20t2.

20L6

577

l^and Laws (Amendment)

to it by the Agriculture, Fisheries and Food Authority Act,2013;

"customary land" means private land on which one ormore members of the family have customary rights ofownership;

"Land Preservation Order" ban order served under the

Agriculture, Fisheries and Food Authority, 2013;

"lawful improvements" means improvements whichincrease or improve the value of land which have beenquantified by a qualified valuer in accordance with allapplicable law and includes-

(a) any permanent infrastructural developmentsincluding dams, reservoirs, water treatmentplants;

any buildings;

any growing commercial trees or shnrbs;

any water points, fences and other pastoralinfrastructure that may be on the land.

"national spatial data infrastructure" means thecombination of technology, data" institutionalarrafigements and people that enables the discovery,evaluation and use of geographical data for users from allsectors of the economy and the general citizenry1'

"substantial transaction" means a transaction thatinvolves the transfer, leasing or licensing of land to a localor foreign investor either alone or in a joint venfure tocarry out developments in agriculture and other approvedventures with direct developmental benefits for Kenyathrough-

(a) a commitment for improving food security forKenya through technology transfer leading toinnovation, productivity increase and therequirement for a certain minimum percentage ofthe crops produced to be sold on local markets;

(b) infrastructural developments from which thepublic can benefit;

(c) demonstrable strong backward and forwardlinkages to other industries in Kenya;'

(d) generation of substantial foreign exchange

No.28

No, l3 of 2013

No. l3 of 2013

(b)

(c)

(d)

578

No. 28 Land Laws (Amendment) 2016

through import substitution and exports;

(e) sustainable agricultural practices and sustainableforest management which can contribute toaddressing climate change concerns;

(0 emphasis is on reference to Kenya and theapplication of Kenyan law without waiver of anyrights of Kenya.

"state corporation" has the same meaningassigned to it by the State Corporations Act. cap.446

42. Section 5 of the Land Act is amended by inserting f,,"l,o?lll,l'".u*the following new subsection immediately after subsection zot2.

(2)-(3) Save as provided for in the Constitution, a

registered proprietor shall not, for the purposes ofobtaining planning permission, be obliged tosurrender the freehold interest in exchange forleasehold.

43. Section 6 of the principle Act is amended by- Hilf?:}';:"".,of2012.

(a) deleting the marginal note and substitutingtherefor the following new marginal note-

Powers andfunctions of the Cabinet Secretary in landmanagement.

(b) inserting the following new paragraphsimmediately after paragraph (f)-(g) provide policy direction regarding all classes

of land in consultation with the Commissionwhere appropriate;

(h) coordinate the development andimplementation of a National LandInformation System in collaboration with theCommission;

(i) administer and undertake all dealingsincluding registration of private land interestssubject to Part VIII of this Act.

44. Section 8 of the Land Act is amended by- Hil,lf""1l,ij.u",2012.

(a) re-numbering the existing provision as

579


subsection ( 1);

(b) by inserting the following new subsectionimmediately after subsection ( 1)-

(2) The Commission shall establish andmaintain a register containing-

(a) the particulars of all public landconverted to priv ate land by allocation;

(b) the names and addresses of all personswhose land has converted to publicthrough compulsory acquisition orreversion of leasehold;

(c) particulars of community landconverted into public; and

(d) such other details as the Commissionmay consider necessary.

Section 9 of the Land Act is amended by-

in subsection (2) by deleting the word"alienation" appearing in paragraph (a) andsubstituting therefor the word "allocation";


Section 12 of the Land Act is amended-

in subsection ( I ) by deleting the introductorypart and substituting therefor the following-

( I ) Whenever the national or countygovernment is satisfied that it may benecessary to allocate the whole or part of a

specific public land, the Cabinet Secretary orthe County Executive Committee memberresponsible for matters relating to land shallsubmit a request to the Commission for thenecessary action by way of-

(b) in subsection (3) by inserting the words "uponthe request of the national or a countygovernment" immediately after the word "shall';

(c) in subsection (7) by deleting the expression"( I 6)" and substituting therefor the expression"( 1 7)";

(d) in subsection (9) by inserting the words "and the

45.

(a)

(b)

46.

(a)

No. 28


Amendment ofsection l2 ofNo.6of 2012.

No.28

580


Commission shall include in its annual report thestatus of implementation of this subsection"immediately after the words "as the case maybe".

47. The Land Act is amended by inserting thefollowing new section immediately after section 12-Controlled land. l2A. (l) In this part

"controlled land" means land in Kenyawhich is-

(a) within a zone of twenty-fivekilometres from the inland nationalboundary of Kenya;

(b) within the first and second rowfrom high water mark of the IndianOcean;

(c) any other land as may be declaredcontrolled land under any law orstatute.

"ineligible person" means-

(i) an individual who is not aKenyan citizen;

(ii) the government of a countryother than Kenya or a politicalsubdivision of a country otherthan Kenya, or any agency ofsuch govemment or politicalsubdivision, or

(iii) a body corporate which hasnon-citizens as shareholdersshall be deemed to be a non-citizen."

"interest" has the meaning assigned toit in the Act and interest in land shallinclude transfer, lease, licence, charge,exchange, partition or other disposal of ordealing with any controlled land.

"corporation" means a bodyincorporated with or without a share capital

2016

Insertion of newsection l2,A. in No. 6of 2012.

581


under any written law in Kenya and theexpression includes a limited liabilitypartnership;

(2) No transaction in controlled land,includirrg a transfer for a consideration or byway of trusts, gift inter vivos or otherwise toan ineligible person, shall be dealt withwithout the prior written approval of theCabinet Secretary.

(3) In decidirrg whether to approve ornot approve an application, the CabinetSecretary shall seek the approval of therelevant authorities

48. Section l3 of the principle Act is amended by-(a) deleting subsection (l) and substituting therefor

the following new subsection-

(1) Before the expiry of the leaseholdtenure, the Commission shall-

(a) within five years, notiff the lessee, byregistered mail, of the date of expiry ofthe lease and inform the lessee of his orher pre-emptive right to allocation of theland upon application, provided thatsuch lessee is a Kenyan citizen and thatthe land is not required by the nationalor county goveflrment for publicpurposes; and

(b) if within one year the lessee shall nothave responded to the notification,publish the notification in onenewspaper of nationwide circulation.

(b) inserting the following new subsectionimmediately after subsection (1)-

(lA) Where a lease is not granted after anapplication under subsection (l), theCommission shall give the lessee the reasons fornot granting the lease, in writing.

49. Section 15 of the Land Act is amended- *ffff#ifi..of2012.

No. 28

Amendment ofsection 13 ofNo.6of 2012.

t,

i

II

i

No. 28

582


(a) by deleting the marginal note and substitutingtherefor the following new marginal note-Reservation and development of public land.

(b) by deleting the words "may, in consultation withthe national government and the countygovernments" appearit g in subsection ( 1) andsubstituting therefor the words "shall, uponrequest by the national or county government".

(c) in subsection (2) by deleting the phrase "and

ItXt,"rHJ,,,,o'*r::ifif u,'o,n."'."ii"""? d:subsection.

50. Section 16 of the Land Act is amended insubsection ( I ) by deleting the opening sentence andsubstituting therefor the followirg-

( 1) Upon request by the national or countygovernment, the Commission frdy, by order in theGazette-

51. Section23 of the Land Act is amended-

(a)

Bt]I#J[lv*;'iil;T:TH::T;occurs;

(iii) deleting the word "grantee" appearing inparagraph (b);

(b) ffJttt;Tl;T:;i"fLlf;:ii

stituting thereror

(2) A lease or licence for public land shallbe issued by the Commission and shall beregistered by the Chief Lands Registrar.

52. Section 24 of the Land Act is amended by-(a) deleting the word 'ograrrt" appearing immediately

after the word "every";

(b) deleting the word "grantee" wherever it occurs.


(a) in subsection ( 1) by deleting the word"determination" appearing in paragraph (a) and

2016

Amendment ofsection l6 of No. 6of 2012.

Amendment ofsection 23 of No.6of2012.



583


substituting therefor the word "termination";

(b) in subsection (2) by deleting the word"arbrtration" and substituting therefor the phrase"reference to an independent professional valuerwho shall be appointed by the Commissionthrough an open, transparent and competitiveprocess as per the public procurement law".

54. Section 34 of the Land Act is amended byinserting the following new subsection immediately aftersubsection (5)-

(6) If the office or authority responsible for surveyproposes to survey the boundaries of any land that issubject to any interests or cautions, for pu{poses of geo-referencing, the office will give reasonable notice to theholders of the interests or to the relevant cautioners andwill make adjustments on the cadastral ffi&p, cadastral planand the acreage without any obligation to paycompensatioll.


(a) by deleting the marginal note and substitutingtherefor the following marginal note-

Validity of contracts in sale of land.

(b) in subsection ( I )-(i) by insertirg the words "Other than as

provided by this Act or by any other writtenlaw" at the beginning of the provision.

(ii) by deleting the word "unless" appearingimmediately after the word "land".

(c) by deleting subsection (2) and substituting thereforthe following new subsection-

(2) Subsection ( I ) shall not apply to-(a) a contract made in the course of a public

action;

(b) the creation or operation of a resulting,implied or a constructive trust; or

(c) any agreement or contract made orentered into before the commencementof this Act, provided that-(i) the verbal contracts shall be reduced

to writing within two years from the

No.28

Amendment ofsection of 34 ofNo.6 of 2012.

Amendments tosection 38 of No.6of 2012.

No.28

newspapercirculation."

of nationwide

56. Section 42(lXb) is amended by deleting the article'(a)' appearing between the words "in" and "proceedings".

57 . Section 63 of the Land Act is amended by-(a) deleting the word "longer" appearing in the

marginal note and substituting therefor the word"shorter"

(b) deleting subsection (3) and substituting thereforthe following new subsection-

"(3) The term of a sublease shall not belonger than the term of the head lease."


(a) in subsection (l) by deleting the word "extend"appearing in paragraph (e) and substitutingtherefor the word "extent";

(b) in subsection(2) by inserting the words "andupon giving a seven days' notice to the lessee"immediately after the words "reasonable time"appearing in paragraph (a).

59. Section 72 of the Land Act is amended insubsection ( 1) by deleting the word "not" appearingimmediately after the words "and shall".


(a) in subsection ( 1) by deleting the words"including any charge made before the cominginto effect of this Act and in effect at that time,any other charges of land which are specificallyreferred to in this Part";

(b) by inserting the following proviso immediatelyafter subsection (l)-Provided that-(a) the provisions of this Part shall not be

construed so as to affect the validity of any

584

I-and Laws (Amendment) 2016

date of enactment of this Act; and

(ii) the Cabinet Secretary shall put anotice of the requirement to reducethe contracts in writing, in a

Amendment ofsection 42 of No. 6of2012.




Amendment ofsection 78 of no.6 of2012.

585


entry in the register or any charge, mortgageother security instrument which was validimmediately before the commencement ofthis Act and the entries in the register andthe charges, mortgages or other instrumentsshall continue to be valid in accordancewith their terms not withstanding theirinconsistency with the provisions of thisPart;

(b) the provisions relating to the realization ofany charge, mortgage or other instrumentcreated before the commencement of thisAct shall apply save for the requirement toserve notice to spouses and other personswho were not required to be served underthe repealed Acts of Parliament.

61. SectionT9 of the Land Act is amended-

(a) in subsection (5) by deleting the words"prescribed in the register" in subsection (5) andsubstituting therefor the words "land registef';

(b) in paragraph (a) of subsection (6) by insertingthe words "plus interest as agreed by the chargorand the chargee" immediately after the words"obtained from the charge";

(c) by deleting subsection (9) and substitutingtherefor the following subsection-

(9) A chargor shall not possess or sell landwhose title documents have been deposited by achargee under an informal charge without anorder of the court;


(a) in subsection (l) by inserting the words "Unlessotherwise provided in the charge instrument," atthe beginning of subsection (1);

(b) deleting subsection (4) and substituting thereforthe following-

(4) Unless otherwise provided in the chargeinstrument, if the chargee, holding a charge createdsubsequent in time to one in favour of a prior chargee,lends money or money's worth on the security of a charge

No. 28

Amendment ofsection 79 of No.6 of2012.


No.28

586

Land l,aws (Amendment)

to a chargor and it later transpires that a prior chargee orthe chargor himself acted dishonestly or fraudulently inprocuring the charge, the prior chargee's right torepayment under the charge shall be postponed to therights of the subsequent chargee.


(a) in subsection ( 1) by deleting the words cc a

chargor" appearing immediately after the word"Act" and substituting therefor the word"char9ee";

(b) in subsection (2) by deleting the word "chargor"appearing in paragraph (b) and substitutingtherefor the word "chargee".


(a) by deleting the marginal note and substitutingtherefor the following marginal note-

Variation of charge.

(b) In subsection (5) by inserting the words "on theregister" immediately after the words "endorsedon" appearing in paragraph (a).

65. The Land Act is amended by deleting section 87and substituting therefor the following section-

87.If a charge contains a condition, express orimplied that chargee prohibits the chargor from,transferring, assignirg, leasing, or in the case of alease, subleasing the land, without the consent ofthe chargee, no transfer, assignment, lease orsublease shall be registered until the writtenconsent of the chargee has been produced to theRegistrar.

66. Section 88 of the Land Act is amended insubsection ( I ) by deleting the word "at" appearingimmediately after the word "improvements" in paragraph(c).

67 . Section 90 of the Land Act is amended-

(a) in subsection ( 1) by inserting the word "in"immediately after the words "continues to be";

(b) in subsection (3) by deleting the words "twomonths" appearing immediately after the word

2016


Amendments ofsection 84 ofNo.6of 2012.



Amendment ofsection 90 of No. 60f 2012.

20L6

587


"within" and substituting therefor the words"ninety days".

68. Section 91 of the Land Act is amended by deletingthe words "this section" and substituting therefor the words"subsection ( l Xc) of this section.

69. Section 92 of the Land Act is amended insubsection (7) by inserting the word "the" immediatelyafter the words "incurred by".


(a) in subsection ( 1) by deleting the words "unlessthe charge instrument expressly provides to thecontrary" appearing immediately after the wordo'shall";

(b) 11 :*:,::tion (3) by deleting the words "inpossession" appearing in paragraph (a);

(c) by deleting subsection (5) and substitutingtherefor the following subsection-

(5) The provisions of this section shall only applyto a receiver of income appointed under this sectionand not to receivers appointed under any otherinstrument to which the chargor may be subject.


(a) in subsection (2) by deleting the words "and any

lilf,r:rjr3jf:i[1,fu#,$#;H:l:(b) in subsection (2) by inserting the following new

proviso at the end of the subsection-

'oProvided that this power of entry shall onlybe exercised after obtaining a court order."

(c) in subsection (7) by deleting the words "apply to"appearing immediately after the words "order as"and substituting therefor the words "applies to".


(a) in subsection (3) by deleting the word "withdraw"appearing in paragraph (cXii) and substituting

No.28

Amendment ofsection 9l ofNo.6 of 2012.

Amendment ofsection 92 ofNo. 6 of 2012.




I

I

No.28

s88


therefor the word "withdrawal";

(b) in subsection (4) by deleting the expression"sections 102 and 104" appearing immediatelyafter the words "provisions of' and substitutingtherefor the expression "secti on 94" ;

73. Section 96 of the Land Act is amended insubsection (3) by inserting the word "of immediately afterthe word "out" appearing in paragraph (b).


(a) in subsection ( I ) by inserting the word "or"immediately after the word "whole" appearit g inparagraph (a);

(b) in subsection (3) by deleting the words (c A saleof' appearing at the beginning of the provisionand substifuting therefor the words "A transferof ';

(c) by inserting the following new subsectionsimmediately after subsection (4)-

(5) In a sale by a private contract, the chargeeshall be entitled to rely on a valuation carried outby a valuer who is registered with the institute ofSurveyors of Kenya and the report shall in theabsence of a manifest error, be conclusive inrelation to the market price:

Provided that the valuation report shall at thetime of sale be not more than six months old.

(6) A transfer by charge shall have priorityover all entries made after the transfer of thecharge undertaking the sale and the chargee shallstand discharged upon the registration of thetransfer.

(7) Where it is noted in the register that a

second charge by the chargor ranks pari passu tothe charge submitting the transfer, the instrumentof transfer by the charge shall include a dulyexecuted consent of the charge with a pari passucharge consenting to the sale.

(8) For the pu{poses of this section, land, a

2016



589


lease, or a charge shall be deemed to have beensold when a bid has been accepted at the auctionsale.

(9) If at any time the charger is entitled to andwishes to repay the money secured by the charge,and the charge is absent, cannot be found or if theregistrar is satisfied that the charge cannot bedischarged otherwise, the chargor may deposit theamount due with the Court, in trust, for the personentitled to the money, and after which theobligations of the charger under the charge shallcease.

( l0) Upon the deposit referred to in subsection(9), the Registrar shall cancel the registration ofthe charge and the Court shall pay the amountdeposited to the chargee if the charge applies for itwithin six years of the deposit, and where thechargee does not apply for the amount within thestated period, it shall be deposited with theUnclaimed Financial Assets Authority as anunclaimed asset.

No. 28

75. Section 103

subsection ( 1) by-of the Land Act is amended in lffifffl'"?Ir" u

of 2012.


(i) deleting the expression "85(3Xa) and (b)"appearing immediately after the words "insection" and substituting therefor theexpression "90 (3)";

(ii) inserting the words 'oto the extent that thespouse was required to give consent to thecreation of the charge but did not giveconsent" immediately after the word"chargor" appearing in paragraph (c); and

(iii) deleting paragraph (d);


(a) in subsection ( 1) by deleting the word"available" appearing immediately after thewords "available remedies" in sub-paragraph (i)of paragraph (b);

(b) in subsection (2) by deleting the words"authorize an order" appearing immediately after

No. 28

s90


the words "refuse to" and substituting thereforthe words "grant an order under subsection (1)";

(c) in subsection (4) by deleting word "must" andsubstituting therefor the words "may at any timebefore the charged property is sold".


(a) in subsection (1) by deleting the word "publtc"

]pRearing immediately after the words"acquisition of';

(b) lil,.ti'1il:-.,',:*,'#':.lo,5ilJg

sub stituting

cc (4) In the event that the Commission hasnot undertaken the acquisition in accordancewith subsection (3) for the reasons stated insubsection (3) within thirty days, it shall give tothe acquiring authority the reasons for the

(c) fft[#l#HTJ'::,'.:fl T:' j:#1;:. ((

sections 1 10 to 143" appearing after the words"purposes of ' and substituting therefor theexpression "sections L07 to 133".

78. Section 11 1 by inserting a new subsectionimmediately after subsection ( 1)-

(1A) The acquiring body shall deposit withthe Commission the compensation funds in

3ffJx :3J: ;:il:I,ff :. ff ::[3x :3 fi::;t*t*79. Section ll7 of the Land Act is amended-(a) by deleting the marginal note and substituting

therefor the followirrg marginal note-" Payment of interest. "

(b) in subsection ( 1) by deleting the words "rateprevailing bank rates" and substituting thereforthe words "base lending rate set by the CentralBank of Kenya and prevailing atthattime;

(c) by deleting subsection (2) and substitutingtherefor the following new subsection-

"(2) If additional compensation is payableunder section I 19 there shall be added to the

2016


Amendment ofsection lll ofNo.6of 2012.

Amendment ofsections I l7 ofNo.6of2012.

2016

s91


amount of the additional compensation interestthereon at the base lending rate set by theCentral Bank of Kenya and prevailing at thattime, from the time when possession wastaken or compensation was paid, whichever isearlier."

80. Section 1 18 of the Land Act is amended bydeleting the marginal note and substituting therefor thefollowing marginal note-

"Final survey."

81. Section ll9 of the Land Act is amended by-(a) deleting the marginal note and substituting

therefor the following marginal note-" Condition for payment of compensation. "

(b) inserting the following new paragraphimmediately after paragraph (a)-

"(b) by deleting section 1 19 and substitutingwith the following new section-

No. 28

Amendment ofsections I l8 of No. 6of 2012.

Amendment ofsections I l9 of No.6of2012.

Condition for payment ofcompensation

119. Payment of compensation shallbe made only upon the exercise of duediligence which shall include final surveyand the determination of acreage,boundaries, ownership and value.

82. Section I20 of the Land Act is amended bydeleting the marginal note and substituting therefor thefollowing marginal note-

" Formal taking of possession."

83. Section LZI of the Land Act is amended bydeleting the marginal note and substituting therefor thefollowing marginal note-

" Surrender of documents of title."

84. Section I22 of the Land Act is amendeddeleting the marginal note and substituting thereforfollowing marginal note-

" Acquisition of other land on account of severance.

85. Section 123 of the Land Act is amendeddeleting the marginal note and substituting therefor

bythe

,,

bythe

Amendment ofsections 120 of No. 6of 2012.

Amendment ofsections 121 ofNo.6of 2012.

Amendment ofsections 122 of No.6of 2012.

Amendment ofsections 123 of No. 6of2012.

s92

No. 28 Land Laws (Amendment)

fullowing marginal note-

2016

Amendment ofsections 124 ofNo.6of2012.

Amendment ofsections l25of No. 6of 2012.

Amendment ofsections 126 ofNo.6of 2012.


86.

(a)

(b)

" Withdrawal of acquisition. "

Section I24 of the Land Act is amended-

by deleting the marginal note and substitutingtherefor the following new marginal note-

" Power to obtain temporary occupation of land."

in subsection (3) by deleting the words "the firstoffer ofl' appearing immediately aftq the words"may after paying" and substituting therefor theword "full".

87. Section 125 of the Land Act is amended by

(a) deleting the marginal note and substitutingtherefor the following marginal note-

" Payment of compensation."

(b) by deleting subsection (2).

88. Section 126 of the Land Act is amended by-(a) deleting the marginal note and substituting

therefor the following marginal note-" Compensation for damage s. "

(b) deleting the expression "L20" appearing inparagraph (b) and substituting therefor theexpression "I24 (3)".


(a) by deleting subsection ( 1) and substitutingtherefor the following subsection-

"(1) The National Government shallimplement settlement programmes to provideaccess to land for shelter and livelihood."

(b) in subsection (3) by deleting it to read "Thenational government shall administer thesettlement programmes in consultation with theCommission and the respective countygovernments"

(c) by deleting subsection (4) and substitutingtherefor the following new subsection-

it

2016

593

Land Laws ( Amendment)

"(4) Identification of beneficiaries shall becarried out and verified by a sub-countyselection committee appointed by the CabinetSecretary comprising of the followingpersons-

(a) the deputy county commissioner;

(b) the sub-county administrator;

(c) a representative of the Commission;

(d) a national government representative,who shall be the secretary;

(e) a representative of persons with specialneeds;

(0 a representative of women;

(g) a youth representative; and

(h) a representative of elders'

Provided that-(i) the persons appointed under paragraphs

(e), (0, (g) and (h) shall be nominatedby the area member of the NationalAssembly; and

(ii) a chairperson shall be appointed at thefirst sitting of the committee from thepersons appointed under paragraphs(e), (0, (g) and (h).

(d) in subsection (5) delete and insert (( theCommission shall reserve public and for theestablishment of approved settlementprogrammes, and where public land is notavailable, the board of trustees shall purchase oracquire land for such purposes"

(e) in subsection 6 by inserting the words "of theConstitution" immediately after the expression"Article 10";

(0 by deleting subsection (7) and substitutingtherefor the following subsection -

(7) Any land acquired in a settlementscheme established under this Act or any other

No. 28

No. 28

594


law shall be subdivided and a transfer shall onlybe allowed through a process of succession".

(g) in subsection (8) by deleting the words "theCommission and" appearing immediately afterthe words "from time to time."

90. Section 135 of the Land Act is amended- #,ilfff[?i".,of2012

(a) in subsection (1) by deleting the words""administered by the National LandCommission" appearing in subsection (1) andsubstituting therefor the words "administered bya board of Trustees known as the LandSettlement Fund Board of Trustees";

(b) by inserting the following new subsectionsimmediately after subsection (1)-

(1A) The Board of Trustees shall be a bodycorporate with perpetual succession and acorlmon seal, and which shall in its corporatename, be capable of-

(a) suing and being sued;

(b) taking, purchasing or otherwise acquiring,holding, charging or disposing ofmovable and immovable property;

(c) borrowing money or making investments;

(d) doing or performing such other things oracts necessary for the properperformance of the functions of theAgency under this Act and which maylawfully be done or performed by a bodycorporate.

(1B) The Board of Trustees shall consist of-(a) the Cabinet Secretary

land matters whochairperson;

(b) the Cabinet SecretaryNational Treasury;

responsible forshall be the

responsible for

(c) the Cabinet Secretary responsiblefor agriculture;

(d) the Cabinet Secretary responsible forthe environment and natural

2016

59s


resources;

(e) the Cabinet Secretary responsible forInternal Security; and

(0 a representative of the Commission.

(lC) The Board of Trustees shall-(a) be responsible for the provision of

access to land -(i) to squatters;

(ii) to displaced persons;

(iii) for development projects;

(iv) for conservation; or

(v) such other causes that may lead tomovement and displacement ofpersons;

(b) purchase private land for settlementprogrammes;

(c) coordinate the provision of shelter anda livelihood to persons in need ofsettlement programmes; and

(d) perform any other function that mayenhance the development andpromotion of settlement programmes.

(c) in subsection (2) by deleting the word"Commission" wherever it occurs andsubstituting therefor the words o'Board

of the Land Settlement Fund Trustees";

(d) in subsection (3) by deleting paragraph(c);

(e) by deleting subsection (5) andsubstituting therefor the following newsubsection-

"(5) In ca:rying out its functionsunder Part IX of this Act, the Board ofthe Land Settlement Fund Trusteesshall consult the relevant countygovernment where applicable."

91. Sectionl39 of the Land Act is amended-

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(a)

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in subsection (2) by deleting the words "localauthority having jurisdiction in the area were"appearing in paragraph (b) and substitutingtherefor the words "county government havingjurisdiction in the area where";

by renumbering the subsections as appropriate.

Section 140 of the Land Act is amended-

in subsection (2) by deleting the words "localauthority having jurisdiction in the area were"appearing in paragraph (b) and substitutingtherefor the words "county government havingjurisdiction in the area where";

by inserting the word "an" immediately after thewords "may make" appearing in subsection (3).

93. Section l4l ( I ) of the Land Act is amended bydeleting the word 'oand" appearing in paragraph (a)immediately after the word permit and substitutingtherefor the word "any".

94. The Land Act is amended by repealing section142.

95. Section 146 of the Land Act is amended insubsection (3) by deleting the words "to create" appearingimmediately after the term "to create".

96. Section 147 of the Land Act is amended insubsection (2) by deleting the words "certificate ofoccup ancy" and substituting therefor the words "certificateof title or certificate of lease" in paragraph (a).

97 . The Land Act is amended in section 151 bydeleting the words "effected and" appearing immediatelyafter the word "notice".

98. The Land Act is amended by inserting thefollowing new sections immediately after section I52.

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Amendment ofsection 141 of No. 6of2012

Repeal of section [42of No. 6 of 2012.



Amendment ofsection l5l of No. 6of 2012.

Insertion of newsection 152A tol52G into No. 6 of2012.

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(b)

92.

(a)

(b)

:::il.#;f,Hf*'r lszL. Aoccupy priv ate,

Eviction Notice tounlawful occupiersofpublic land. Shall

Evictions to be 152R. An unlawful occupant of private,;li"'i:*:: ll,,n,n. Act eeffimunity or public land shall be evicted in

accordance with this Act.

person shall not unlawfullycommunity or public land.

I52C. The National Land Commissioncause a decision relating to an eviction

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Eviction Notice tounlawful occupiers ofcommunity land.

Eviction Notice tounlawful occupiers ofprivate land.

Application to Court fbrrelief.

597


from public land to be notified to allaffected persons, in writing, by notice in theGazette and in one newspaper withnationwide circulation and by radioannouncement, in a local langu age, whereappropriate , zt least three months before theeviction.

152D. (1) The County ExecutiveCommittee Member responsible for landmatters shall cause a decision relating to an

eviction from unregistered community landto be notified to all affected persons, inwriting, by notice in the Gazette and in onenewspaper with nationwide circulation andby radio announcement, in a local langu age,where appropriate, ?t least three monthsbefore the evictiorl.

(2) In the case of registered communityland, the procedure prescribed in sectionI52E shall apply.

1528 (1) if, with respect to private landthe owner or the person in charge is of theopinion that a person is in occupation of hisor her land without consent, the owner orthe person in charge may serve on thatperson a notice, of not less than threemonths before the date of the intendedeviction.

(2) the notice under subsection ( 1)

shall -(a) be in writing and in a national and

official language;

(b) in the case of a large group ofpersonS, be published in at leasttwo daily newspapers ofnationwide circulation and bedisplayed in not less than fivestrategic locations within theoccupied land;

(c) specify any terms and conditions as

to the removal of buildings, the

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Mandatory proceduresduring eviction.

s98


reaping of growing crops and anyother matters as the case mayrequire; and

(d) be served on the deputy countycommissioner in charge of the areaas well as the officer commandingthe police division of the area

152F. ( 1) Any person or persons servedwith a notice in terms of sections I52C,L52D and l52E may apply to Court forrelief against the notice.

(2) The Court, after considering thematters set out in sections I52C, l52D and1528, may-

(a) confirm the notice and order theperson to vacate;

(b) cancel, v&t!, alter or makeadditions to the notice on suchterms as it deems equitable andjust;

(c) suspend the operation of the noticefor any period which the court shalldetermine; or

(d) order for compensation.

152G. (1) Notwithstanding anyprovisions to the contrary in this Act or inany other written law, all evictions shall becarried out in strict accordance with thefollowing procedures-

(a) be preceded by the properidentification of those taking part inthe eviction or demolitions;

(b) be preceded by the presentation ofthe formal authorizations for theaction;

(c) where groups of people areinvolved, government officials ortheir representatives to be present

2016

2016

Disposal of property leftafter eviction.

Demolition ofunauthorized structures.

599


during an eviction;

(d) be carried out in a manner thatrespects the dignity, right to lifeand security of those affected;

(e) include special measures to ensureeffective protection to groups andpeople who are vulnerable such as

women, children, the elderly, andpersons with disabilities;

(0 include special measures to ensurethat there is no arbitrarydeprivation of property orpossessions as a result of theeviction;

(g) include mechanisms to protectproperty and possessions leftbehind involuntarily fromdestruction;

(h) respect the principles of necessityand proportionality during the useof force; and

(i) give the affected persons the firstpriority to demolish and salvagetheir property.

(2) The Cabinet Secretary shallprescribe regulations to give effect to thissection.

152H. The competent officer of theCommission or County Government,community owning a registered communityland or owner of private land shall at leastseven days from the date of the evictior,remove or cause to be removed or disposedby public auction, any unclaimed propertythat was left behind after an eviction fromprivate, community or public land.

1521. Where the erection of anybuilding or execution of any works hascommenced or been completed on any landwithout authority, the competent officer

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153.99. The Land Act is amended by repealing section


(a) in subsection (3) by deleting the word "if 'appearing immediately after the word "that" andsubstituting therefor the words "the persorf';

(b) in subsection (4) by deleting the word "if'appearing immediately after the word"environment" appearing in paragraph (h) andsubstituting therefor the word "of'.

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101. The Land Act is amended by deleting section 159andsubstitutingthereforethefollowingnewsectio

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shall order the person in whose instance theerection or work began or was carried, todemolish the building or works, within suchperiod as may be specified in the order,

Repeal of sections153 ofNo.6 of 2012.



Minimum andmaximum land holdingacreages.

159. ( 1) Subject to Article 40 of theConstitution-

(a) the minimum land holding acreageshall be subject to the provisions ofArticle 66(1) of the Constitution andthe legislation envisaged therein.

(b) the maximum land holding acreageshall be subject to Article 60( 1) (a)and (c) of the Constitution.

(2) The Cabinet Secretary shall publishguidelines on the penalties for non-compliance with the provisions of thissection.

Documents

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