Farmers plant potatoes in Mt Elgon. New land laws will protect those under 18 years and incapacitated persons. Photo/File

Farmers plant potatoes in Mt Elgon. New land laws will protect those under 18 years and incapacitated persons. Photo/File

Kenya’s land laws have been officially overhauled by the coming into force of the new laws one of them being the Land Registration Act No. 3 of 2012.

From May 2, 2012, the Act came into force, repealing most of the existing legislation on land. These include the Registration of Lands Act, Registration of Titles Act, The Indian Transfer of Property Act, The Government Lands Act and the Land Titles Act.

All these statues regulated dealings on various parcels of land, for example the Land Titles Act regulated the registration of land in the Coastal region.

The Acts provided for different procedures and dealing according to which regime the particular parcel of land fell under.

This made land procedures and dealings very complicated and most people did not properly understand what the differences in the regimes were.

For example, what was the difference in land due to value of the land or its location?

The Land Registration Act brings all these laws under one regulation with the aim of consolidating all registrations of land in Kenya.

The new Act contains conflicts of laws clause that in the event of a clash, then the new law would take precedence.

The effect of this legislation will be felt everywhere especially in the real estate industry. The Ministry of Lands will also feel the effects as these new laws will change the systems and procedures.

Some of the provisions that may have far-reaching effects include the provision on the definition of what an overriding interest is. In the definitions, an overriding interest includes spousal rights over matrimonial property.

This means that in the event of matrimonial proceedings, the affected spouse can register a caution to stop any dealings in the shared property.

While this could be done before in exceptional circumstances, legislating it as an overriding interest will affect land dealings where there is a matrimonial dispute without having to go to court for injunctions and other orders.

Another notable issue is that a minor’s interests in land can be noted against the register provided that the title is held by the guardian.

This provision is applicable in family law and succession matters. The right of a minor can be noted against the title to pre-empt any fraud by the legal guardians.

In cases where the title is held by a guardian without noting the minor’s interest, it is difficult for any third parties to note the minors ‘interest to the property.

A new provision that has been included is dealing with land in the event the registered proprietor is legally incapacitated.

According to the Act, a legally incapacitated person is one of unsound mind or a minor.

The Act provides that the legal guardian of such a person may represent the incapacitated person and do whatever is required under the Act.

High profile case

In a high profile case, a son sought orders as his father was incapacitated to manage his assets including land.

He sought orders from the High Court to manage the father’s estate on these grounds.

According to the Act, if one is appointed as a legal guardian then his authority is noted by the Registrar in so far as land dealings are concerned.

However, a scenario that has perhaps not been legislated is where one is incapacitated to deal with their property due to medical reasons.

For example, in the case of Terri Schiavo who remained in a vegetative state for many years…. how would her property be dealt with supposing she was a Kenyan citizen?

In a legal instrument called a living will, persons are allowed to appoint guardians to their estates in the event they are incapacitated by medical reasons or other reasons like kidnapping and others.

A living will is a will that is made appointing an executor to your estate should anything happen to you that would make you incapable of dealing with your estate. The new land law has a great impact on family law and succession matters.

Creditors and banks also have a reason to smile under the new law. A creditor may apply to the court to set aside any disposition in land they find to be unfavourable.

For banks, this is an additional security as the debtor remains liable under the Act for any prejudicial dealings with his land.

The Act contains provisions on how leases, charges, transmissions, caveats and many other land dealings shall be dealt with.

The Act also makes the land dealings uniform across the divide and doesn’t classify land into different regimes.

Mputhia is an Advocate with Muthoga Gaturu.