Can An Advocate appoint administrators in a succession process?

No, an advocate cannot appoint administrators of an estate, but they can assist with the estate administration process:

·       Identifying beneficiaries: An advocate can help identify the beneficiaries and next of kin who may be entitled to share in the estate.

·       Preparing documents: An advocate can prepare and file the documents required to apply for probate or administration.

·       Advising on claims: An advocate can advise on claims made against an estate.

·       Advising on tax: An advocate can advise on tax compliance matters and post mortem planning.

·       Preparing estate accounting: An advocate can assist with the preparation of the estate accounting.

The Succession Process in Kenya

The process for instituting a succession in Kenya involves filing a petition in court, paying fees, and publishing a notice in the Kenya Gazette. The process is more complex if there is no valid will.

Here are the steps for instituting a succession in Kenya:

1. File a petition

A surviving dependent, such as a child or spouse, files a petition in court to obtain letters of administration.

2. Gather documents

The petition must include the following documents:

·       A letter from the local area chief with details of the deceased's dependents

·       A certified copy of the death certificate

·       IDs of the beneficiaries and the people petitioning the court

·       Affidavits to identify the deceased's assets and liabilities, and to justify the proposed administrators

·       A guarantee from sureties to cover any losses if the administrator breaches their duties

3. Pay fees

The court will issue an invoice for fees, which include court filing and gazettement fees.

4. Publish a notice

The petition is published in the Kenya Gazette to notify the public of the application and allow for objections.

5. Get letters of administration

If there are no objections within 30 days, the petitioner will receive the grant of letters of administration.

6. Identify beneficiaries

The administrator, with guidance from the court, identifies the beneficiaries who are entitled to inherit.

7. Distribute the estate

The administrator distributes the estate assets after settling taxes and debts.

The Law of Succession in Kenya, also known as the law of inheritance, determines what happens to a person's estate after their death.

The process of compulsory land acquisition

Compulsory acquisition is the process that is stipulated within the Land Act 2012 and is broken down into three stages; pre-inquiry stage, inquiry stage and payment stage.

Sections 107 to 133 of the Land Act 2012 provides for the essential steps involved when undertaking compulsory land acquisition.

The process involves;

1.0   The formal request made to the commission by a competent office that indicates the purpose for which the land is being acquired. The request should provide a substantive purpose or reason as what the land is needed for.

2.0   The second step involves the consideration by the commission and its approval if it meets the core constitutional and statutory threshold, that is, public purpose.

3.0   The third step is the publication of notice of intention to acquire land being published in the Kenya gazette. The commission undertakes public sensitization and participation by holding meetings, workshops and other related appropriate forums aimed at informing the public about the purposed project and the matters involving the procedure thereof, the expectations and responsibilities of various stakeholders in the process of land acquisition.

4.0   The fourth step involves ground inspection and valuation processes to record the improvements that are likely to affect the proposed public project.

5.0   The fifth step involves the publication of the notice of inquiry in Kenya Gazette, service of notice and holding of inquiry. This step allows for the submission of claims by the person who might be interested in the subject land.

6.0   The next step involves issuance of the award of compensation to the persons identified as having interest in the identified land; the landlord, leaseholder (if buildings) or sublease holders (for loss of profit) as applicable.

7.0   The next step involves the payment upon receipt of the requisite funds.

8.0   The next step involves issuance of the notice of taking possession.

9.0   The final step involves final survey and vesting of the land that has been acquired.

Conversion process of Land Titles in Kenya

 1.0 What is conversion?

Conversion is the process of migrating all parcels from the repealed land registration statutes to a unitary regime under the Land Registration Act, 2012.

Basically, Conversion is a statutory process that refers to the process of changing the title numbers issued under the various repealed land registration statutes to a unitary regime, following the creation of new land registration units as provided in Section 6 of the LRA. Therefore, a landowner in possession of a title issued under any of the old legal regimes i.e. ( the Government Land’s Act, the Registration of Titles Act, the Land Titles Act and the Registered Land Act), is required to make an application for replacement of the said title, surrender the old title to the land registrar upon which they will be issued with a title document reflecting a new title number in the format NAIROBI/BLOCKxx/xxx (if the land is located within Nairobi County).

2.0 What is the process of conversion?

It entails the following:

(i)                  Preparation of cadastral maps together with a conversion list,

(ii)                 Publication of the cadastral maps together with a conversion list,

(iii)               Lodgment and consideration of complaints,

(iv)               Closure of old registers and commencement of transactions in the new register

(v)                 Application for replacement of title documents from the old registers.

3.0 Will the conversion process interfere with my boundaries?

No. Deed plans shall be replaced by RIMs (Registry Index Maps) as registration instruments. Boundaries will thus not be affected because RIMs are generated from existing survey plans.

4.0 Rationale of conversion of Titles

There are three main objectives in the conversion of titles:

To create a uniform system of identification of all land parcels as envisaged in the Land Registration Act (align registration system).

To sieve out titles that were irregularly acquired and that had been registered under the old system.

To allow all transaction to be carried out through the National Land Information Management System, otherwise known as ‘Ardhi sasa’. (New platform whose aim is to consolidate all land information and enable citizens transact on their properties with ease).

5.0 Application for Replacement- Checklist

(i)                  Form LRA 97

(ii)                 Original title document to be replaced

(iii)               Certified copies of National Identity Card/Passport of the registered Proprietor(s)

(iv)               Certified copies of certificate of registration/incorporation as well as copies of National Identity Cards/Passport of the directors/partners/officials of the registered Proprietor(s)

6.0 What the conversion process means for you

(i)                  Your title (if issued under the previous regimes) will be cancelled and replaced with a title under the current regime.

(ii)                 You will now comply with a centralised land registration process under one regime in line with the Constitution.

(iii)               Registry Index Maps (RIMs) will replace deed plans as registration instruments with the aim of minimising land fraud.

(iv)               The size and the ownership of your property will not be affected by the conversion process.

(v)                 You will be allowed to apply for a conversion of your title where you have used your title as security.

(vi)               The conversion of land titles will benefit the public in ensuring uniformity of land ownership in Kenya and minimising fraud.

7.0 Steps in the conversion process

(i)                  Preparation of cadastral maps and the conversion list indicating new and old numbers for parcels of land within a registration unit or registration section/block and their corresponding acreages.

(ii)                 Gazettement of the conversion list by the Cabinet Secretary within 30 days of receipt.

(iii)               The registrar will issue a Notice to the Public to apply for replacement titles.

(iv)               Owners will then make applications for replacement/new titles.

(v)                 The registry will then replace old titles with the new titles.

 

The comprehensive discussion of the conversion process can be explained as follows:

(i)                  Preparation and approval of cadastral maps and conversion lists, indicating new and old numbers for parcels of land within a registration unit or registration section/block and their corresponding acreages. This process is undertaken by the Survey of Kenya.

(ii)                 Publication by the Cabinet Secretary of the Ministry of Lands of the approved conversion lists and cadastral maps through a notice in the Kenya Gazette and two national daily newspapers indicating that the old registers for the old parcel numbers will be closed and new land registers for the new parcel numbers opened after the expiry of ninety (90) days;

(iii)               Within 90 days from the date of publication of the conversion list, land owners of the listed properties are required to lodge their grievances with the land registrar for review and consideration;

(iv)               In case any complaint is lodged, the Land Registrar is required to register a caution on the affected property pending the resolution of the complaint;

(v)                 Upon expiration of the ninety (90) days and no complaint is lodged, the old land registers for affected properties are closed and a new land register under the LRA are opened;

(vi)               Thereafter, the Land Registrar issues a notice to the public inviting the owners of the affected properties to apply for the replacement of titles of the old titles. The notice is published in two national daily newspapers and announced on radio stations of nationwide coverage;

(vii)             Landowners then submit applications for replacement of title in accordance with the notice within the timelines stated in the notice by the Land Registrar.

8.0 Get in touch with us today for a discussion on the following:

(i)                  Creation of an Ardhisasa account for both residents and foreigners;

(ii)                 Undertaking the conversion process on your behalf;

(iii)               Comprehensive advisory with respect to the conversion process and any other land-related issues.

A Review of the Land Control Board (LCB) Consents

 

1.0Introduction/Background

Transactions and dealings with agricultural land are primarily governed under the Land Control Act, Cap 302 and its subsidiary legislation. This is an Act of Parliament to provide for controlling transactions in Agricultural Land, it therefore imposes a mandatory condition of obtaining consent from the Land Control Board for a transaction in agricultural land to be valid.  

Understanding and securing these consents and clearance certificates are crucial steps in ensuring the legality and smooth execution of land transactions in Kenya.

Generally, Land transactions in Kenya are intricate processes governed by legal regulations, and securing specific consent and clearance certificates is imperative for the successful registration of related documents.

This article reviews the various consents required and clearance certificates necessary for different types of land transactions in Kenya.

a.    Consent of the Land Control Board

2.0 Consent of the Land Control Board

Regulated by the Land Control Act (Cap 302), this consent is essential for transactions involving agricultural land. Section 2 of the Act defines agricultural land as any land that is not within a municipality, township, market, or an area that was a township or trading center under the now-repealed Township or Trading Centers Ordinance.

More so, any land that is in the Nairobi area or any municipality, township, or urban centre declared as agricultural land by the Cabinet Secretary falls under this definition.

However, the definition of agricultural land provided in Section 2 comes with a proviso that excludes any land restricted by its title’s conditions or covenants or any limitation imposed by law from being used for agriculture or required to be used for non-agricultural purposes.

Land Control Boards, established at different levels, play a crucial role in controlling transactions. The Act specifies transactions requiring consent, such as the sale, transfer, lease, mortgage, or partition of agricultural land. The Act aims to ensure proper land use, equitable distribution, and prevent speculative acquisitions.

2.1 Transactions that require the Land Control Board Consents

S.6 (1) of the Land Control Act lists transactions which require LCB consent.  Failure to obtain LCB consent renders that transaction null and void. The transactions listed are as follows:

a) Sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing in any agricultural land situated within a land control area;

b) Division of agricultural land into two or more parcels to be held under separate  titles;

c) Issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which owns agricultural land.

Under S.6 (2), the declaration of a trust of agricultural land situated within a land control area also requires LCB consent.

2.2 Transactions that do not require the Land Control Board consents

Under S.6 (3), LCB consent is not required in respect of the following transactions:

a) Transmissions of agricultural land (whether by testate or instate succession) unless that transmission would result in the division of the land into two or more parcels to be held under separate titles;

b) Transactions to which the Government is a party or transactions which involve trust land. (Under the Constitution of Kenya 2010, trust land is classified as community land.)

S.8 (1)  of the Land Control Act  states the procedure for obtaining LCB consent.  Applications are to be made to the LCB through the appropriate lands office, using prescribed forms (See Form 1 of the Schedule).  Form 2 of the Schedule contains the format of the Letter of Consent. The application must be made within six months of the making of the agreement for the controlled transaction. The Proviso to Section 8(1) of the Land Control Act, however, states that the High Court may grant an extension of that period if there is sufficient reason to do so and upon such conditions as it may think fit. (The application is usually made by way of Originating Summons.)

 Provincial Land Control Appeals Board from which a higher appeal lies to the Central Land Control Appeals Board. See Sections 11 and 12 of the Land Control Act  provides.  Under S. 13(2), the decision of the Central Land Control Appeals Board shall be final and shall not be questioned in any court. But note: Judicial Review applies.

2.3 Situations where the land control board be denied

Section 9 (1) (b) of the Land Control Act provides that the Land Control Board consent ought to be refused in the following situations:

(i) Where the person to whom the land is to be disposed of-

1. Is unlikely to farm the land well or to develop it adequately; or
2. Is unlikely to be able to use the land profitably for the intended purpose owing to its nature; or

(c) Already has sufficient agricultural land.

(ii) Where the person to whom the share to be disposed of- 

(a)Already has sufficient shares in a private company or co-operative society that owns agricultural land; or

(b)Would, by acquiring the share, be likely to bring about the transfer of the control of the company or society from one person to another and the transfer would be likely to lower the standards of good husbandry on the land; or

(iii) Where the terms and conditions of the transaction (including the price to be paid) are markedly unfair or disadvantageous to one of the parties to the transaction; or

(iv) Where, in the case of the division of the land into two or more parcels, the division would be likely to reduce the productivity of the land.

Under Section 9 (1) (c), where the person intending to acquire the land is a non-citizen, consent shall not be given.  However, under S.24, the President has power to exempt any transaction or person from the provisions of the Land Control Act.  Such exemption is granted by way of notice in the Gazette. Note: Article 65 (1) of the Constitution 2010 states that a person who is not a citizen may hold land based on leasehold tenure only and the lease when granted shall not exceed 99 years. See also Section 107(3) of the Land Registration Act which states that for the avoidance of doubt, any lease granted to a non-citizen shall not exceed 99 years.

2.4 What happens when a land control board consent is not given

Section 9(2),  of the Land Control Act provides  that where an application for the consent of a Land Control Board has been refused, then the agreement for a land-controlled transaction shall become void-

1. on the expiry of the time limit for an appeal to the Provincial Land Control Appeals Board; 
2.  where an appeal is made to the Provincial Land Control Appeals Board and dismissed, on the expiry of the time limit for an appeal to the Central Land Control Appeals Board; or
3.  where a further appeal is made to the Central Land Control Appeals Board and dismissed.

The court  the case of Caroline Cherono Kirui v Liner Cherono Towett [2018] eKLR in making its decision cited Section 8 (1) of the Land Control Act and the cases of David Kinisu Sifuna –vs- Marriane Eyaase Kisanji & 2 others [2015] eKLR and Joyce Mukami –vs- Cypriano Kimathi Mwongo [2016] eKLR, where the courts held that a  transaction becomes void if consent is denied or not the necessary party has failed to apply for consent within the time provide and without a valuable reason as why they failed to apply for the consent.  

 

2.5 Appealing the Decision of the land Control Board

If a party is dissatisfied with the decision, they may appeal to the Provincial Land Control Appeals Board, and make a second appeal to the Central Land Control Appeals Board. An appeal should be made within 30 days of receiving the decisions. 

The judiciary has been very strict with the provisions of this act, and in many instances have held that the provisions are mandatory, it is therefore very imperative that parties seek consent of the Land Control Board when dealing with agricultural land, or else, the transaction will be rendered void.

 

CONCLUSION 

Adherence to the regulatory requirements not only facilitates registration but also aligns with the broader objectives of equitable land distribution and preventing speculative land acquisitions.