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 or Certificate of Title in Kenya: Procedure, Requirements and Legal Considerations

Losing a title deed or certificate of title can be a stressful experience for a landowner. A certificate of title is an important document evidencing a registered interest in land and is ordinarily required when dealing with transactions affecting registered land.

The loss of the physical certificate, however, does not in itself extinguish the proprietor's registered interest in the land. Kenyan law provides a statutory procedure through which a registered proprietor may apply for a replacement certificate where the original has been lost or destroyed.

The principal legal framework governing the process is the Land Registration Act, 2012 and the Land Registration (General) Regulations, 2017.

What happens when a title deed is lost?

Section 33 of the Land Registration Act, 2012 provides for the replacement of a certificate of title or certificate of lease that has been lost or destroyed.

A registered proprietor may apply to the Land Registrar for a replacement certificate and must provide evidence sufficient to satisfy the Registrar that the original certificate has been lost or destroyed.

The Registrar is required to obtain a statutory declaration from the registered proprietor or proprietors. Where the property is charged, the statutory framework also makes provision for the chargee.

If satisfied with the evidence of loss or destruction, the Registrar is required to facilitate publication of a notice in the Kenya Gazette and in two local newspapers of nationwide circulation. The replacement certificate may be issued after the expiry of sixty days from the relevant publication, subject to the statutory requirements and absence of an objection.

Legal authority: Section 33(1)–(3), Land Registration Act, 2012.

Step-by-step procedure for replacing a lost title deed

1. Confirm the registered ownership of the property

Before commencing the replacement process, it is prudent to obtain an official search of the property.

An official search can establish the current entries in the land register, including:

• The registered proprietor or proprietors;
• The title or parcel number;
• The nature of the registered interest;
• Charges or mortgages;
• Cautions;
• Restrictions; and
• Other registered encumbrances.

This is particularly important where the title was lost some time ago or where the proprietor is uncertain about the current status of the land register.

Section 34 of the Land Registration Act recognises the right of a person requiring an official search to obtain particulars of subsisting entries in the register upon payment of the prescribed fee.

Legal authority: Section 34, Land Registration Act, 2012.

2. Report the loss to the police

The loss of the certificate should be reported to the police and a Police Abstract obtained.

The Police Abstract forms part of the supporting documentation contemplated under the Land Registration (General) Regulations, 2017 for an application for replacement of a lost or destroyed certificate.

Legal authority: Form LRA 12, Sixth Schedule, Land Registration (General) Regulations, 2017.

3. Make a statutory declaration

The registered proprietor is required to provide a statutory declaration explaining the circumstances surrounding the loss or destruction of the certificate.

The declaration should provide a clear and truthful account of the circumstances in which the document was lost or destroyed.

Where there are several registered proprietors, the statutory requirements may require declarations from all the registered proprietors. Where the registered proprietor is a company, the Regulations make provision for the relevant director or authorised officials.

Legal authority: Section 33(2), Land Registration Act, 2012; Form LRA 12, Sixth Schedule, Land Registration (General) Regulations, 2017.

4. Complete the prescribed application

An application for replacement of a lost or destroyed certificate is made using Form LRA 12.

The application requires the proprietor to state whether the certificate has been lost or destroyed and to undertake to deliver the original certificate to the Registrar for cancellation if it is subsequently found.

The prescribed supporting documents include:

• Statutory declaration;
• Police Abstract;
• Certified copies of the National Identity Card or passport of the registered proprietor(s);
• Coloured passport-size photographs;
• In the case of a registered entity, certified copies of the certificate of registration or incorporation;
• Identification documents of the relevant directors, partners or officials;
• A certified extract of the entity's resolution authorising the application, where applicable;
• An official search relating to the property; and
• Other evidence of ownership where applicable.

Legal authority: Form LRA 12, Sixth Schedule, Land Registration (General) Regulations, 2017.

The State Department for Lands currently lists Form LRA 12 among the prescribed land registration forms.

5. Lodge the application with the Land Registrar

The completed application and supporting documents are lodged with the relevant Land Registry.

The Registrar will consider the evidence provided and determine whether it sufficiently establishes the loss or destruction of the certificate.

This is an important safeguard because replacement of a title document should not facilitate competing claims, fraudulent dealings or the creation of duplicate instruments capable of being used improperly.

Legal authority: Section 33(1) and (3), Land Registration Act, 2012.

6. Publication of the statutory notice

Once satisfied with the evidence, the Registrar proceeds with the statutory notice process.

Section 33(3) of the Land Registration Act requires publication of the notice in:

1.      The Kenya Gazette; and

2.      Any two local newspapers of nationwide circulation.

The Registrar may issue the replacement certificate after the expiry of sixty days from the date of publication in the Gazette or circulation of the newspapers, whichever is first, provided the statutory requirements have been satisfied.

Legal authority: Section 33(3), Land Registration Act, 2012; Form LRA 13, Sixth Schedule, Land Registration (General) Regulations, 2017.

Why is there a 60-day notice period?

The notice period is intended to provide an opportunity for persons with a legitimate interest in the property to raise an objection before a replacement certificate is issued.

The replacement of a title document is therefore not simply an administrative exercise of printing another copy of the certificate. The Registrar must first be satisfied that the original has genuinely been lost or destroyed and that the statutory safeguards have been observed.

The prescribed notice itself states that a replacement title may be issued after the expiry of sixty days, provided no objection has been received within that period.

Legal authority: Section 33(3), Land Registration Act, 2012; Form LRA 13, Sixth Schedule, Land Registration (General) Regulations, 2017.

What happens if someone objects to the replacement?

Where an objection is raised, the Registrar may need to investigate the circumstances surrounding the property and the alleged interest of the objector before proceeding.

The nature of the objection is important. An objection arising from a genuine competing interest in the land may require substantially more investigation than an objection based merely on an administrative discrepancy.

Where the dispute concerns ownership, fraud, competing interests or other substantive questions of law, the matter may require further legal proceedings.

A proprietor who becomes aware of a competing claim should therefore obtain legal advice promptly and should not assume that the matter can be resolved merely by producing a copy of the lost certificate.

What happens if the original title is subsequently found?

If the lost certificate is subsequently found, it should not be used for further dealings with the property.

Section 33(4) of the Land Registration Act provides that a lost certificate that is subsequently found must be delivered to the Registrar for cancellation.

Further, once a replacement certificate has been issued, the replaced certificate cannot be used for further dealings.

Legal authority: Section 33(4) and (6), Land Registration Act, 2012.

This means that a proprietor should immediately surrender a subsequently recovered original certificate to the Land Registrar rather than retaining or using it in a sale, transfer, charge or other transaction.

What if the land register itself has been lost?

It is important to distinguish between a lost title certificate and a lost or destroyed land register.

The title certificate is the document issued to the proprietor. The land register is the official record maintained by the Land Registrar.

Where the land register itself has been lost or destroyed, the applicable procedure is reconstruction of the land register, rather than merely replacement of the proprietor's certificate.

Section 33(5) of the Land Registration Act gives the Registrar power to reconstruct a lost or destroyed land register after making the necessary inquiries and giving the required notice.

The Land Registration (General) Regulations, 2017 also prescribe Form LRA 14 for an application for reconstruction of a land register and Form LRA 18 for the relevant notice.

Legal authority: Section 33(5), Land Registration Act, 2012; Forms LRA 14 and LRA 18, Sixth Schedule, Land Registration (General) Regulations, 2017.

The distinction is significant because reconstruction of the register may involve examination of historical records and other evidence relating to the ownership and transactions affecting the property.

What documents should a proprietor prepare?

The precise requirements may vary depending on the circumstances of the proprietor and the property. However, the prescribed application framework contemplates documents including:

• Form LRA 12;
• Statutory declaration;
• Police Abstract;
• Certified identification documents;
• Passport-size photographs;
• Official search relating to the property;
• Evidence of ownership;
• Corporate registration documents where the proprietor is an entity;
• Certified corporate resolution where applicable; and
• Other documents required by the Land Registrar in the particular circumstances.

Legal authority: Form LRA 12, Sixth Schedule, Land Registration (General) Regulations, 2017.

The State Department for Lands also identifies an application, indemnity form, Police Abstract, statutory declaration, newspaper and Kenya Gazette notices, identification documents, PIN certificate and passport photographs among the requirements for its replacement-of-lost-title service.

Administrative source: State Department for Lands, “Replacement of Lost Title/ Reconstruction of Land Register.”

Because administrative requirements and government charges may change, applicants should confirm the current requirements with the relevant Land Registry before lodging an application.

How long does replacement take?

The statutory notice period is sixty days.

This period runs from the date of publication in the Kenya Gazette or circulation of the relevant newspapers, whichever is first, subject to the wording of section 33(3) of the Land Registration Act.

The actual time required to obtain a replacement may therefore be longer depending on the completeness of the application, the Registry's processing time, any objection, discrepancies in the land records, or the need for further investigations.

Legal authority: Section 33(3), Land Registration Act, 2012.

What are the government charges?

Government charges applicable to land registration services can change from time to time.

The State Department for Lands currently publishes charges for replacement of a lost title and reconstruction of a land register. Applicants should verify the applicable fee at the relevant Land Registry or through the current official government payment process before making payment.

This is particularly important because administrative information published through different government channels may not always be updated simultaneously.

Administrative source: State Department for Lands, “Replacement of Lost Title/ Reconstruction of Land Register.”

Can you sell or transfer land without the original title?

The loss of the original certificate can create practical and legal difficulties where the proprietor intends to sell, transfer, charge or otherwise deal with the property.

Section 30 of the Land Registration Act provides for production of the certificate when registering a disposition, subject to the circumstances contemplated by the Act.

Accordingly, a proprietor who has lost the certificate and intends to undertake a transaction should ordinarily address the lost-title issue before attempting to complete the transaction.

A purchaser or lender should also undertake independent due diligence, including an official search, rather than relying solely on a photocopy of a supposedly lost title.

Legal authority: Section 30, Land Registration Act, 2012.

What if the title is held by a bank or another third party?

Not every title that is unavailable to the proprietor has been lost.

For example, the original certificate may be held by:

• A bank or other financial institution;
• An advocate;
• A court;
• A government institution; or
• Another person or entity holding the document pursuant to a legitimate transaction.

Where the property is charged, section 33(2) specifically recognises the role of the chargee in the statutory declaration process.

The proprietor should therefore establish the whereabouts of the original certificate before reporting it as lost. Treating a title held by a legitimate third party as a lost document could unnecessarily complicate the matter.

Legal authority: Section 33(2), Land Registration Act, 2012.

What if the registered proprietor is deceased?

Where the registered proprietor has died, replacement of a lost title may involve succession law in addition to land-registration requirements.

The person seeking to deal with the property must have the appropriate legal authority to act on behalf of the deceased's estate.

Depending on the circumstances, this may require a grant of representation and, where necessary, confirmation of the grant before dealings with the property can properly proceed.

A lost title therefore does not eliminate the requirement to comply with the applicable succession process.

Legal framework: Law of Succession Act, Cap. 160; Land Registration Act, 2012.

Where succession proceedings and replacement of a lost certificate arise together, professional advice is advisable to ensure that the two processes are properly coordinated.

What if the registered proprietor is a company?

Where land is registered in the name of a company or another legal entity, additional documentation may be required.

Form LRA 12 contemplates production of:

• The entity's certificate of registration or incorporation;
• Identification documents of relevant directors, partners or officials;
• A certified extract of the entity's resolution authorising the application; and
• Other prescribed supporting documentation.

Legal authority: Form LRA 12, Sixth Schedule, Land Registration (General) Regulations, 2017.

The company should also ensure that the person making the statutory declaration has proper authority to do so.

Risks associated with fraudulent replacement applications

An application to replace a lost title is a legal process and not merely an administrative request for another copy of a document.

The information provided to the Land Registrar must therefore be accurate and truthful.

Fraudulent dealings with registered land and fraudulent procurement of registration or title documents may attract criminal and civil consequences under Kenyan law.

A person who has possession of the original title or knows its whereabouts should not falsely represent that the document has been lost.

Similarly, a person who discovers a title that has already been replaced should not attempt to use the old certificate to conduct another transaction.

Legal authority: Land Registration Act, 2012, including the provisions relating to fraudulent dealings and offences under the Act.

Practical advice for landowners

A landowner who discovers that a title deed has been lost should consider taking the following steps:

1.      Conduct an official search to establish the current status of the land register.

2.      Confirm that the original certificate is genuinely lost and is not being held by a bank, advocate, court or another legitimate custodian.

3.      Report the loss to the police and obtain a Police Abstract.

4.      Prepare the required statutory declaration.

5.      Gather the proprietor's identification and other supporting documents.

6.      Complete Form LRA 12.

7.      Lodge the application with the relevant Land Registry.

8.      Comply with the Gazette and newspaper publication requirements.

9.      Monitor the statutory notice period and address any objection that may arise.

10.    If the original certificate is subsequently found, surrender it to the Registrar for cancellation.

11.    Where there is suspected fraud, a competing claim, a succession issue, a charge or a missing land register, obtain legal advice before proceeding.

Conclusion

The loss of a title deed does not, by itself, terminate a registered proprietor's interest in land. Kenyan law provides a formal mechanism for replacing a certificate of title or certificate of lease that has been lost or destroyed.

The process involves demonstrating the loss to the satisfaction of the Land Registrar, making the prescribed statutory declaration, providing the required supporting documents, lodging the application in the prescribed form and complying with the statutory publication and notice requirements.

Importantly, section 33 of the Land Registration Act requires a 60-day notice period before a replacement certificate may be issued, subject to the statutory requirements and any objection that may arise.

Where the circumstances involve a deceased proprietor, a company, a charge, competing claims, suspected fraud or loss of the underlying land register, additional legal procedures may apply.

For landowners, the safest approach is therefore to verify the status of the land register first and ensure that the replacement process is undertaken strictly in accordance with the law.

Key Legal Authorities

• Land Registration Act, No. 3 of 2012, sections 30, 33 and 34.
• Land Registration (General) Regulations, 2017, Legal Notice No. 278 of 2017, particularly Regulations 27 and 31 and the Sixth Schedule.
• Form LRA 12 – Application for Replacement Certificate of Title/Lease on Loss/Destruction of a Previous Title.
• Form LRA 13 – Notice for Issue of a Replacement Title.
• Form LRA 14 – Application for Reconstruction of a Land Register.
• Form LRA 18 – Notice for Reconstruction of a Lost or Destroyed Land Register.
• State Department for Lands, Replacement of Lost Title/ Reconstruction of Land Register.