Notary Public in Kenya

Who is a notary public?

A Notary Public is an Advocate who is appointed to perform within Kenya the functions and duties commonly performed by a notary public of the United Kingdom. The main function is the certification and authentication of documents so that they can be relied on by contracting parties, public authorities, and others abroad.

The law governing Notary Public

The appointment and practice by Notaries Public is governed by the Notaries Public Act, Cap 17 Laws of Kenya and the Notaries Public Rules 1958.

 To become a Notary Public in Kenya, an individual must be a practicing Advocate (lawyer) with a minimum of five years of legal practice in Kenya and hold a valid practicing certificate; essentially, they need to be a qualified lawyer with at least five years of experience to be eligible for a Notary Public appointment.

Key considerations for qualification:

 
Key points about Notary Public qualifications in Kenya:

Section 3 of the Notaries Public Act provides that “No advocate shall be appointed under this Act unless he has practised as an advocate in Kenya for not less than five years immediately preceding his application to be appointed as a notary public.”

 
Must be an Advocate:
Only practicing lawyers (Advocates) can become Notaries Public in Kenya.

Five years of practice:
An Advocate must have practiced law in Kenya for at least five years before applying for a Notary Public position.

Valid practicing certificate:
The individual needs to hold a current and valid practicing certificate as an Advocate.

The Application process:
To become a Notary Public, an eligible Advocate needs to make an application by Submitting duplicate applications and six (6) concurrent Practising Certificates to the Registrar. Currently, the application is submitted and processed exclusively online via the Judiciary Advocates Management System (JAMS). 

The documents uploaded include:

1. Petition addressed to the Chief Justice confirming that the Applicant has at least 5 years of practice
2. Statutory Declaration on fitness for appointment
3. Certificates by 2 advocates accompanied by copies of their Practicing Certificates

Upon appointment, the Advocate signs the Roll of Notaries Public and is issued with a Certificate of Enrolment as a Notary Public which expires on the 31st of December in the year it is issued. Subsequently, the Notary Public must renew their appointment on an annual basis.

Process of Administration of the Estate in Kenya

 The process starts as follows:

A Petition is filed in Court by surviving dependants of the deceased such as a spouse or child in order to obtain letters of administration over the property of a deceased person.

The Petition filed in Court is accompanied by the following documents:

I. A letter from the local area administration such as Area Chief giving particulars of the deceased dependants.

II. An affidavit giving sufficient details to identify the assets and liabilities of the deceased together with particulars of the deceased dependants, their relation to the deceased and their ages.

III. An affidavit of justification of proposed administrator(s) which states the net worth of the proposed administrators.

IV. An affidavit of justification of proposed sureties sworn by two people acting as sureties of the proposed administrator(s) with the sureties executing a guarantee that they will make good any loss which the estate of the deceased may suffer if the administrator breaches his/ her duties in the administration of the estate to a set limit.

V. A Consent by all persons that are also legally entitled to obtain the grant of letters of administration indicating that they have agreed to the Petition.

• Once filed in court, a Petition is published in the Kenya Gazette as notice to members of the public of an application for grant of letters of administration.
• A 30-day period is provided during which an objection may be made to the grant of the letters of administration to the Petitioner.
• Such grant gives the administrator power to manage the assets of the deceased but not the power to distribute the assets.
• To get the power to distribute the assets, the letters of administration have to be confirmed by the Court. Such confirmation is done after the lapse of a period of six months from the date of issue.
• However, the courts will in compelling cases (depending on the circumstances of the case) confirm a grant before the lapse of six months.

Courtsey of : AIP

Consent of the Land Control Board

 Introduction

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. Additionally, 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.
 

Transactions requiring 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.

Registration and Withdrawal of Caution in Land

What is a caution?

A caution is primarily used to protect a specific interest or claim in a piece of land. It serves as a warning to potential buyers, lenders, and others that there is a claim or interest in the property.

Grounds for Lodging a Caution

Under Section 71 of the Land Registration Act, 2012, a person may lodge a caution if:

·       They claim an interest in the land: This could include a buyer who has paid a deposit, a beneficiary under a will, or someone with a legal right to use the land.

·       They are a legal representative: Acting on behalf of a deceased person’s estate, particularly during inheritance disputes or unresolved succession matters.

·       There is a government or public interest: In some cases, government entities may lodge a caution to prevent dealings on land earmarked for public use or other governmental purposes.

Process of Lodging a Caution in Kenya

The process of lodging a caution involves:

·       Application: The applicant (cautioner) must fill out a prescribed form and provide evidence supporting their claim to an interest in the land. The form must be submitted to the local land registry where the property is registered.

·       Verification: The land registrar will examine the application and supporting documents to determine whether the caution is valid and should be registered.

·       Registration: If approved, the caution is entered into the land register, and the cautioner is notified in writing.

Effects of a land Caution in Kenya

Once a caution is registered:

·       The land registrar cannot register any transaction (sale, lease, mortgage, transfer) on the land without notifying the cautioner.

·       It acts as a temporary restriction until the caution is lifted or the underlying issue is resolved.

·       Removal of a Caution On Land in Kenya

Removing a land caution in Kenya

A caution can be removed in the following ways:

·       Withdrawal by the Cautioner: If the interest in the land has been satisfied or the dispute resolved, the cautioner can voluntarily withdraw the caution.

·       Order of the Registrar: The land registrar may remove a caution if it is deemed frivolous or unjustifiable. This usually follows a notice to the cautioner, giving them time (typically 30 days) to respond.

·       Court Order: An aggrieved party can apply to the court to remove the caution if it is preventing lawful dealings on the land.

Replacing a Lost Title Deed/Document in Kenya

Here we have provided a step by step guidance on how to navigate when one has lost a title deed in Kenya as follows:

To be continued ...

The Process Of Conversion Of Titles

Background

On 31st December 2020, the Lands and Physical Planning Ministry (“Ministry”) announced that all title deeds issued under the Indian Transfer of Property Act, the Registered Land Act (RLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA), and the Government Lands Act (GLA) shall be cancelled and replaced with new ones under the Land Registration Act, 2012 (“Act”).

Through Gazette Notices, the Ministry has published the conversion list in respect to parcels within Nairobi area. The conversion process involves migrating land parcels registered within Nairobi from the Repealed Statutes to the Act. This is in compliance with the Land Registration (Registrations Unit) Order 2017.

Conversion of Titles

With the Act and the Land Registration (Registrations Unit) Order 2017, the Registrar of Lands shall cancel and replace the old titles with the new ones while retaining the ownership, size and the other interests registered against the respective titles.

The conversion entails the Ministry of Lands preparing cadastral maps, together with a conversion list which will show the old land reference number and the new one.

The process involved

The above statutes have since been repealed and the Ministry of Land and Physical Planning has embarked on the process of registration of these titles under the newly enacted Land Registration Act, 2012. In order to effect the provisions of the Land Registration Act 2012, all titles issued under the repealed laws shall be cancelled and replaced with titles under the Land Registration Act, 2012.

Essentially, the process of conversion begins with the preparation of cadastral maps which serve as a unified survey document together with a conversion list showing the old parcel numbers of land within a registration unit and their corresponding sizes.

Upon receipt of the cadastral maps and the conversion list from the registrar, the Cabinet Secretary in charge of the ministry of Land and Physical Planning shall in line with regulation 4 (4) of the Land Registration (Registration Units) Order, 2017, notify the Public through the Kenya Gazette and two daily newspapers of nationwide circulation of the list of old parcel numbers and new parcel numbers after conversion. The Gazette notice shall specify the date after which the land registry shall be open to the public for transactions or dealings within the registration unit.

Any complaints relating to information in the conversion list or cadastral maps shall file be filed within ninety (90) days from the date of publication of the notice. The complaints shall be made, in writing in Form LRA 96 set out in the Second Schedule to the Land Registration (Registration Units) Order, 2017 or Form LRA 67 set out in the Sixth Schedule to the Land Registration (General) Regulations, 2017 for the registration of a caution pending the clarification or resolution of any complaint. The complaints shall thereafter be resolved within ninety (90) after receipt.

At the commencement date, all registers maintained in any other registry previously dealing with the parcels within the registration unit shall be closed for any subsequent dealings and all transactions carried out in the new register.

The registrar will then issue a notice inviting registered owners to make an application for replacement of title documents from the closed registers. The application shall be accompanied by the original title and the owner’s identification documents. The registrar will then replace the title deeds with new ones and retain the old title documents for records and safe custody.

However, it is important to note that this conversion does not interfere with the ownership, size and other interests registered against the respective title. When it comes to titles in the possession of third parties such as banks, hospitals and courts, the process of conversion shall commence on application by the proprietor.

Ardhisasa | The Process of Enumeration

In the Ardhisasa portal, "enumeration" refers to the process of digitally recording and adding land parcel details onto the system, essentially creating a comprehensive record of a property's ownership and characteristics, including its boundaries, size, and legal status, allowing for easy access and management of land information within the platform. 

Key steps involved in the enumeration process on Ardhisasa:
 

Login to Ardhisasa:
Access the portal using your registered account credentials.
 

Navigate to the "Enumeration" section:
Once logged in, locate the option to begin the enumeration process, usually within your "My Properties" section.
 

Enter land parcel details:
Input information about the property, such as plot number, block number, location, area, and owner details.
 

Boundary demarcation:
Use digital mapping tools to accurately define the property boundaries on the platform, often by utilizing GPS coordinates.
 

Document upload:
Attach relevant supporting documents like title deeds, survey plans, and ownership certificates to verify the land information.
 

Data verification:
Review and confirm the entered data for accuracy before submitting the enumeration request.
 

Approval process:
The submitted information will undergo review and approval by relevant authorities within the land registry.
 

Important points to remember about enumeration on Ardhisasa:
Professional expertise:
For complex land parcels, it may be advisable to involve a licensed surveyor to ensure accurate boundary delineation.

How to Register of Caution Application on the Ardhisasa Platform

1. A caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice. This application is initiated by an advocate on behalf of the applicant. In this article we will guide you on step by step on registration of caution application.

2. Log in enter your Ardhisasa ID or national ID number and password. Click on Continue. A one-time password (OTP) will be sent to the phone number associated with your Ardhisasa account. Enter the OTP in the provided box and click on "Login." You will be redirected to the dashboard.

3. On the dashboard, you will find various services listed under different departments in the Ministry of Lands and Physical Planning. By default, you are logged in with your private account.

To initiate the caution application process, switch to your advocate account. Click on the profile icon, and a dropdown menu will appear. Select the professional account that has been approved for you as an advocate.

4. Navigate to the Land Registrationsection and click on View More. Under the land registration section, you will find several services. Locate the Caution option and click on it. This refers to the registration of a caution. You will be directed to the applications page, where various tabs are provided.

5. On the applications page, you will see five tabs: Pending, Ongoing, Completed, Rejected, and Cancelled. Each tab represents the different stages of your caution application. The Pending tab lists the applications you have initiated but have not completed, requiring action from you or the involved parties. The Ongoing tab displays completed applications awaiting processing by ministry officials. The Approved tab shows applications that have been validated by ministry officials. The Rejected tab lists applications that were rejected, with reasons communicated to the applicant. The Cancelled tab is for applications that have been cancelled by parties involved.

6. Click on the New Application button. This will navigate you to a page with frequently asked questions (FAQs) specific to the caution application. Explore the FAQs to gain a better understanding of the application requirements and process. Once satisfied, click on Next to proceed.

7. In the proprietorship Details section, enter the parcel number in the format registry/block/parcel number. Fill in the proprietor's details, including identification type (ID or passport number), name, contact number, and identification number. Click on add to automatically populate and display the entered details on the right side. Use the Remove button to correct any entered details if needed. Once the details are correct, click on Next.

8. In the caution details section, select the extent or scope of the caution. It can be either Subject to the Interest of the caution or Absolute. The Subject to the Interest of thecaution to prevent another person from compromising the sale interest, while the Absolute forbids all dealings with the specified parcel. Enter the interest claimed, such as a purchaser's interest, and click on Add. The interest claimed will be displayed on the right.


9. Enter the Ardhisasa ID of the cautioner and search for it. Select the category of person executing as the cautioner (either the cautioner themselves or an attorney). If choosing the attorney option, enter the power of attorney entry number. Save the details and proceed.

10. Enter any additional details relevant to the caution application. If applicable, provide the details of the law firm you are acting under. You can either tie the application to a registered law firm on the Ardhisasa platform or manually enter the law firm details.

11. Upload supporting documents for the caution application, such as a sale agreement. Ensure the documents are in PDF, PNG, or JPEG format. Enter the document name and choose the file to upload from your device. Review the submitted documents and click Next to proceed.

12. Carefully review all the details provided in the confirmation step. If everything is accurate, click Submit to proceed with the application. You can go back to make any necessary edits if required. Upon submission, a confirmation message will appear, and both the cautioner and advocate will receive notifications via SMS and email.

13. Once submitted, the cautioner will receive a notification to verify the application and append their signature. The advocate will also need to accept or reject the representation request during this stage.

Both the advocate and the cautioner will receive a confirmation message that the application has been successfully submitted. If the caution application is approved, an entry will be made on the register, indicating the relevant details. All parties involved will be notified about the placement of the caution on the specified parcel of land.