The Process of Land Adjudication in Kenya
December 4, 2018Affordable Tools for Demarcation of Land are Widely Available
January 8, 2019
This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: The Process of Land Adjudication in Kenya.
The Land Registration Act 2012[1] aimed to ‘revise, consolidate and rationalize the registration of titles to land [and] to give effect to the principles and objects of devolved government in land registration.[2] Unlike the former regime where each legislation created its own registry thus making the land registries distinct and confusing,[3] this Act provided for the creation of land registration units by the National Land Commission in consultation with the national and county governments.[4] In each of the created land registration units, a land registry was maintained[5] comprising of:
- the land register;
- the cadastral map;
- parcel files containing the documents that support existing entries in the land register;
- any plans which will, after a date appointed by the Commission, be geo-referenced;
- the presentation book with a record of all applications numbered consecutively in the order in which they are presented to the registry;
- an index, in alphabetical order, of the names of the proprietors; and
- a register and file of powers of attorney.[6]
The aim was to improve efficiency and reduce the time required for conducting historical searches. The other register to be maintained is the Community Land Register but this is subject to the provisions of the intended legislation on Community Land.[7] Accessibility was also enhanced using electronic means.[8]
The Community Land Act[9] was signed into law by the president of Kenya on 31st August 2016 and it commenced operation on 21st September 2016. The Act specifically provides for the recognition, protection, and registration of community land rights; management and administration of community land; and the role of county governments in relation to unregistered community land.
In addition, the Act gave communities the opportunity to collectively use and manage land communally owned by forming community assemblies and Community Land Management Committees.
Although regulations under this Act are yet to be issued, this was another step to safeguard community interests through legislation. Communities can now freely enter agreements with investors to enable environmental, social and economic impact assessment; rehabilitation of land; capacity building; and transfer of technology.
Below is a summary of the process and requirements for the registration of community land in Kenya:
| PROCESS | RELEVANT OFFICE |
| A community[10] claiming an interest in or right over community land shall register its rights[11] under the Land Registration Act. They must also have a plausible justification for why they are registering the community land as a collective, e.g. common ancestry, similar culture, etc. | |
| The community land in Kenya shall vest in the Community. Members of this community must be listed during the registration process.The community shall elect representatives to manage and administer the registered community land on behalf of the respective community. | |
| Before submission of the community formation and registration documents to the registrar of societies, the local chief must authenticate these documents by applying an official stamp to the application documents and letter. | Chief’s Office |
| The elected community representatives must then present these authenticated documents at the Registrar of Societies. The Registrar of Societies then provides the community with a registration certificate after due diligence. This means the community is officially registered, but their interest in the land has not been documented. | Registrar of Societies/ Registrar Community Land |
| The registered community identifies a surveyor, who is duly licensed to practice as a land surveyor. The surveyor provides an index map of the country and dials down to the specific area of land of interest on the official map of the area. The surveyor gets a general map of the area from Survey of Kenya, Folio Register (FR) which is represented by the FR number. | Survey of Kenya – Registered Surveyor(Department of Survey/independent surveyor)
|
| With the FR map, the Survey of Kenya indicates the reference points for the parcel, these guide the surveyor in placing new coordinates on the ground relative to the official control points. Once the points are marked, beacons are planted to mark the new points. A list of coordinates demarcating the boundaries is then established in relation to these points. | Survey of Kenya |
| There is an official template called the deed plan that shows the reference point, the new points, and the resultant maps. The deed plan is taken to the land control board for scrutiny and verification. The board may invite any other interested parties or neighbors to authenticate a claim to ensure no claimants are ignored in the process. | Land Control Board |
| If no complaints are raised and the whole process is verified, the board verifies and authenticates the maps. The licensed surveyor then takes the map to the Survey of Kenya. Once confirmed, the parcel is given a new number (parcel number). This number is taken by the Survey of Kenya to the land registrar. The registrar registers the ownership of the land and the community receives a title for the land. At this point, the land is legally owned by the community. | Ministry of Lands |
The next blog post in a series: Affordable Tools for Demarcation of Land are Widely Available.
Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher, Alan Mills
[1] No. 3 of 2012.
[2] Preamble.
[3]For instance, the Government Lands Act (GLA) created registries only in Nairobi and Mombasa while the former Land Titles Act (LTA) created one only in Mombasa. Only the Registered Land Act (RLA) had registries in administrative districts.
[4] Section 6 of the Land Registration Act.
[5] Section 7 of the Land Registration Act.
[6] Ibid.
[7] Article 63.
[8] Section 10 of the Land Registration Act requires that each of the Registrars to make the register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe. This is in line with Article 35 of the Constitution on the right of access to information held by the State.
[9] Article 63 (5) of the Constitution.
[10] The community is a consciously distinct and organized group of users of community land who are citizens of Kenya and share common attributes.
[11] Unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.
