TYPES OF INTELLECTUAL PROPERTY AND REGISTRATION PROCESS (Legal Framework)

 Author: Kevin Nam

TYPES OF INTELLECTUAL PROPERTY & REGISTRATION PROCESS

Understanding the registration process of Intellectual Property in Kenya, there is a need to outline the types of intellectual property. There are four types, which include copyrights, patents, trademarks, and trade secrets.[1] A layman needs to familiarise and educate him or herself with these types to have information on protecting their ideas and inventions.
2.1 Copyright

Copyright is a type of intellectual property right. A creator of original work is granted such as sound recording, broadcasts, musical works, audio-visual works, literal works and artistic works to have exclusive use and distribution.[2] The previous original works are provided for in the Kenya Copyright Act, 2001.[3] As long as the concepts of these original works are tangible, their authentic expressions are automatically protected through copyright. It is essentially the expression of an idea in a tangible form that is protected instead of the idea or concept. In essence, it is all about the ownership of a work.
2.11Elements And Duration For Protection Of Copyright

To protect the author, one must ensure that the work has an original character through enough effort and development. The author must have the work reduced to a more material form.[4] With these two elements in place, the duration for protection would vary with the type of work.

First, the copyright will take fifty years from the end of the year that the broadcast was aired for broadcast-related materials.[5] Secondly, the term will start running for fifty years from the year's end upon publication or public availability for photographs and audio-visuals.[6] Thirdly, when it comes to sound recordings, it will take fifty years after the end of the year in which the recording was publicly available.[7] Lastly, for artistic, musical, and literary works, the duration would last fifty years after the owner's death.[8]
2.12 Kenyan Laws Applicable in Copyright protection

i. The Berne Convention

The applicable laws in copyright include The Berne Convention that internationally protects the authors' works and rights. The Convention upholds the following principles, i.e. the principle of national treatment, the principle of automatic protection, and the principle of independence of protection.[9] The nation treatment principle entails protecting work from any contracting states in other states by giving equal protection.[10] The principle of automatic protection entails according same protection without imposing formal conditions.[11] Lastly, the principle of independence of protection means that the country of origin's protection will not deter independent protection from member states.[12]

ii. The WIPO Copyright Treaty

The World Intellectual Property Organization (WIPO) Copyright Treaty is also known as the WCT. It protects the author's literary and artistic works by ensuring there is enough maintenance and development.[13] There has always been a division between the public and the authors. The treaty aims to bring balance between them, especially the research, education and information access.

iii. The Constitution of Kenya, 2010

When it was promulgated, the Constitution of Kenya, 2010, protected the rights and works of authors. Article 2 (6) of the Constitution states that "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution."[14] Notably, Kenya has ratified both the Berne Convention and the WIPO Copyright Treaty. Additionally, Article 11 of the Constitution states that:

1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation.

2) The State shall—

a. promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage;

b. recognise the role of science and indigenous technologies in the development of the nation; and

c. promote the intellectual property rights of the people of Kenya.

3) Parliament shall enact legislation to—

a. ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and

b. recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.[15]

The above Article has been well articulated to promote intellectual property rights and protect the authors.

iv. Copyright Act, 2001

The Copyright Act protects literary, musical, artistic, audio-visual works, sound recordings, and broadcasts. Section 3 of the Act establishes KECOBO to administer and enforce copyright laws and rights.[16] KECOBO ensures that there are criminal sanctions and civil remedies. The body is also supposed to provide border control measures and conservatory measures like Anton Pillar injunctions.[17] Regarding technical devices, the body ensures penalties and remedies when such devices are abused or breached.[18] Therefore, the Act oversees that works are eligible for copyright; it enumerates the owners' rights, ensures that copyright is implemented, and provides available remedies. Fair use of an author's work may not require any permission.


2.13 Requirements For Registration Of A Copyright

For KECOBO to register a copyright, some requirements need to be attained. They include:

i. Having original authorship,

ii. Presenting a tangible material

iii. The application form is submitted with two copies of the original work

iv. A commissioner of oaths must file and commission the application forms

v. Payment of prescribed fee when submitting the application form

vi. Issuance of the certificate of registration by kecobo after verification of the application
2.2 Patents

In the field of technology, there is a lot involved due to globalisation and changes in innovations. In technology, there are always solutions brought through inventions hence the need to patent them. These inventions are applicable in trade or industry and can be in the form of composition of matter, machinery, the process or any helpful improvement that would not be obvious.[19] Kenyan nationals need to be creative; hence their creativity and inventions cannot go unprotected as patents would act as incentives for innovations and aggressiveness in promoting trade nationally, regionally and internationally. In essence, there is room for more development and research as inventors' creations are monopolised for specific periods. It benefits the Kenyan society and promotes the culture such as the kiondo and other livestock vaccines. As new products enter the market, there is an economical boot as the market becomes continuously accommodative.
2.21 Types of Patents

Patents have different descriptions in terms of the technological aspect that has been brought to light. It means that they provide both clarity and specifications on words for the public to read as they promote knowledge sharing. In essence, patents fuel knowledge and progress as essential resources in different fields such as academics, entrepreneurs, researchers and inventors.[20] Therefore, there are different types of patents, as highlighted below.

i. Plant Patent

when new breeds of plants are produced, patents need to protect them in their nonsexual means of cuttings.[21] This kind of patent only focuses on conventional horticulture as opposed to genetically modified plants. However, the Industrial Property Act, 2001 does not patent plant varieties. The Act can patent parts and products that come from biotechnological processes.

ii. Industrial Design Patent

Valuable items have ornamental designs. It means that the design patent ought to protect them, such as the shape of a bottle. The patent document comprises a few words, and it primarily consists of drawings and pictures or graphics interpretations.[22] With such few words, the design patents are hard to search for. However, such a patent has been revolutionised in some industries, such as software companies that protect their user interfaces in specific elements and the shape of touch screen devices. It is well defined in sections 84 to 93 of the Industrial Property Act, 2001.[23]

iii. Utility Patent

It is the most common patent in the universe. However, it has formal and technical documentation that is available for public knowledge. It provides more information as to the process, system and how to use new machines.[24] This patent has had challenges regarding the types of inventions that can be protected during the development and research of new technologies and internet-delivered software. It is well defined in sections 81, 82 and 83 of the Industrial Property Act, 2001. [25]

iv. Provincial Patent

It is a type of patent that requires the inventor to have less proof and formality as they only have to show that he had the invention; hence the invention patent will be pending once it is in the file. However, if the investor fails to file a formal utility patent within a year, the filing date will be lost.
2.22 Kenyan Laws Applicable in Patent protection

i. Paris Convention

The Convention was aimed at the protection of Industrial Property. It has specific provisions that promote national treatment. The Act domesticates such a right and includes the right of priority.[26]

ii. Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement

The general agreements in tariffs and trade (GATT Agreement) creates the TRIPS as a multilateral trade agreement. [27] TRIPS covers intellectual property aspects as it provides guidelines for each World Trade Organisation (WTO) member State.[28] Members are supposed to adhere to the minimum standards of protection.

iii. Patent Co-operation Treaty (PCT)

WIPO administers this system. It is a system for filing international patent applications. [29] Through a single application in any Member State, an applicant can file the same with ease.

iv. Harare Protocol

The African Regional Intellectual Property Organization (ARIPO) administers this protocol.[30] On behalf of the member States, ARIPO can register industrial designs grant patents. Also, it can register utility models on behalf of the contracting states.

v. The Constitution of Kenya, 2010

As per the Kenyan Constitution, "The State shall support, promote and protect the intellectual property rights of the people of Kenya."[31] It protects the owners of the patents. It goes further to enable the government to acquire the same at an incentive compulsorily. The Article reads:

(3) The State shall not deprive a person of property of any description, or any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.[32]

The Constitution being a grundnorm in protecting intellectual property rights, would then try to align the Industrial Property Act, 2001's definitions.

vi. Kenya Industrial Property Act, 2001

The Industrial Property Act (Number 3 of 2001) in its preamble states that it is:

"An Act of Parliament to provide for the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, technovations and industrial designs, to provide for the establishment, powers and functions of the Kenya Industrial Property Institute and for purposes incidental thereto and connected therewith"[33]

The Act establishes the Kenya Industrial property Institutes that previously existed as Kenya Industrial Property Office (KIPO).[34] The Institute protects industrial property rights and aims at fostering innovation for sustainable development in Kenya.

vii. The Kenya Industrial Property Regulations, 2002

These Regulations were enforced through the powers conferred by the Industrial Property Act, 2001.[35] It is for carrying out the objects and purpose of the Act. The Minister for Trade and Industry may make such regulations as they may deem fit to protect intellectual property rights.[36]

viii. Industrial Property Tribunal Rules, 2002

It is subsidiary legislation of the Kenya Industrial Property Act, 2001. Therefore, it establishes the Tribunal and the rules that would govern requests, appeals, and licensing. It also provides for the forms that ought to be used in such processes.
2.23 Requirements For Registration Of A Patent

In Kenya, beginning at applying, the owner would be given 20 years for its expiry. The procedure would thus entail:



i. Filing

In this step, there is a request form (IP Form 3) that an applicant fills containing the document specification, the invention's title and the background information.[37] The Applicant is supposed to fill in the detailed description of the patent. Also, if there are necessary drawings, the application should include the claims and abstract.[38] The Applicant is allowed 14 days to correct any errors.

ii. Examination

According to the Industrial Property Act, 2001, there should be an examination to determine if the application can be granted or refused.[39] It states that:

(1) An application for a patent shall be filed with the Managing Director and shall contain—

(a) a request;

(b) a description;

(c) one or more claims;

(d) one or more drawings (where necessary); and

(e) an abstract.

(2) Where the Applicant's ordinary residence or principal place of business is outside Kenya, he shall be represented by an agent who shall be a citizen of Kenya admitted to practice before the Institute.

(3) The request shall state the name of, and prescribed data concerning the Applicant, the inventor and the agent, if any, and the title of the invention; and where the Applicant is not the inventor the request shall be accompanied by a statement justifying the Applicant's right to the patent.

(4) The appointment of an agent shall be indicated by the designation of the agent in the request or by furnishing a power of attorney signed by the Applicant and, where subsection (2) applies, the agent shall be designated in the request.

(5) The description shall disclose the invention and at least one mode for carrying out the invention, in such full, clear, concise and exact terms as to enable any person having ordinary skills in the art to make use and to evaluate the invention and that description shall include any drawing and relevant deposits as in the case of micro-organisms and self-replicable material which are essential for the understanding of the invention.

(6) The claim or claims shall define the matter for which protection is sought and shall be clear and concise and fully supported by the description.

(7) The abstract shall merely serve the purpose of technical information; in particular, it shall not be taken into account for the purpose of interpreting the scope of the protection sought.

(8) The details of the requirements with which the application must comply shall be prescribed by the regulations made under this Act.[40]

iii. Publication of a Patent Application

The publication will be conducted after 18 months of the earliest date that has been prioritised. If an applicant decides, they can request an express publication. However, the Patent Cooperation Treaty (PCT) is an exemption since their publications are done in the international phase.

On the other side, PCT has its registration processes, which include:

i. The National Phase

It entails essentials such as form IP 13, publication of the patent specification document under PCT, and the bibliographic page. [41]All this ought to be done within 30 months from the international filing date. However, if there is any priority claim, the priority date supersedes.[42]

ii. Examination

Upon examination, f the Industrial Property Act 2001 states that the application would be deemed as that which was nationally filed.[43] It shall be submitted in form IP8. The application will be considered abandoned if not filed within three years from the date of filing.[44] However not binding, the examiner's opinion and an international search report are usually taken, and other IP offices would follow up on the inventive steps and novelty.[45] The examiner would compare prior art documents and assess if they are mere background information. Where there is a lack of local examiners, WIPO would be used to assist.[46]

iii. Grant, registration and publication of a patent

According to the Industrial Property Act 2001, the patent shall be granted and registered if there is no rejection.[47] A patent certificate is issued if everything is in order. If an applicant wants to do amendments and corrections, they would be given 90 days within the notice days, which can be extended for 60 days. If Applicant is dissatisfied with the office's decision, they can request for invalidation. From the date of post-grant, the invalidation should be filed within nine months.
2.3 Trademarks

A Trade Mark is a sign that distinguishes enterprises' goods in commercial and industrial States in a marketplace. The sign can consist of colours, monograms, numbers, letters or more distinctive works or their combinations.[48] The Trademarks Act describes a mark as "includes a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof whether rendered in two-dimensional or three-dimensional form."[49] Therefore, there is exclusive ownership in Kenya on a specific mark that may keep infringers and protects the owner's rights in case of a dispute.[50] It is a unique mark that makes one's products stand from the rest and avoid any resemblance that may dupe the public.
2.31 Types of Trade Marks

i. Service Mark

A commercial or industrial enterprise may choose to input a Service Mark to distinguish its services from others.[51] Such a sign may bear characteristics that are described above concerning trademarks. A good example is UCHUMI, which was a service mark of Uchumi Supermarkets Limited.

ii. Certification Mark

Certification marks can identify goods and services that have met a specifically defined standard. Such a mark can be licensed to others, but it is owned by an individual to identify specific goods and services that have met the standard.[52] A good example is the Kenya Bureau of Standards certification mark.

iii. Distinguishing Guise

Some products and packages are identified with unique shapes.[53] They use a distinguishing guise. For example, a rabbit shape can be used and moulded in a kids' candy; thus, registration of that shape would follow as a trademark as a distinguishing guise.

iv. Well Known Marks

These marks benefit from stronger protections since they are well known in the market space, and there is no need for registration even when they have not been used in a given territory.[54] When certain conditions are met, the protection can be forwarded to unrelated goods and services. A country's competent authority must know such a mark, and Kenya amended the Trademark Act in August to capture "well-known marks".[55] A good example is the use of soft drinks' marks that are well known for an apparel company with permission. These marls are used against confusingly similar marks on the same line of products or when certain conditions are met on unrelated products. They serve to prevent companies from joy-riding on the reputations and goodwill of existing companies.

v. Collective Marks

Associations or cooperatives own such marks that help them to market their products. They establish criteria such as quality standards.[56] It is upon such collaboration and complying with measures that individual companies use the mark.
2.33 Registration

Through Common-law, the registration of a Trade Mark is not mandatory after using the same mark for a certain period. However, it is advisable to register a trademark to ease the protection of a person's rights in case of challenges. The burden is usually on the challenger. If a business would need to start a franchise, a registered trademark comes in handy as it ensures expansion having a valuable asset such as Coca-Cola Company's logo. The registration process is envisioned in the Trademark Act Cap 506.[57] A search can be conducted upon requesting the Registrar by filing trademark form TM 27.[58] After all, these are met, and a duly completed trademark application form (TM 2)[59] is on record, the following steps are taken:

i. Formality Examination

According to the Trademark Act Cap 506, a person may file an application, which the Registrar can allow or reject, and an appeal can follow if left.[60] An examination is conducted on the application to confirm that all necessary fees have been paid and met formality requirements.

ii. Substantive Examination

Another examination is conducted to know the type of category that the trademark belongs in. it determines if there are any conflicts with other existing brands. It also determines which products are excluded from the Act.

iii. Publication

If there are no disputes or refusals, the Trade Mark will be published in the Industrial Property Journal or the Kenya Gazette. According to Trademark Act Cap 506, a person will be allowed to oppose the registration in written form within a specific timeline from the date of the advertisement and state the grounds of opposition.[61] A grace period of 60 days is allowed to give notice of any opposition.

iv. Registration

When there is no opposition or the opposition period has expired, and when the opposition has been ruled in favour of the proprietor, the trademark will be registered unless there are any errors.

The Trademark Act Cap 506 states that the registration will be completed when the application is not opposed, and if resisted, the same has been decided in the Applicant's favour.[62] The application will be treated as abandoned within 12 months if the Applicant defaults in registering. Also, the Trademark Act Cap 506 states that a proprietor can register a part of a trademark or trademarks as a series.[63] It is as long as each brand satisfies all the conditions necessary to register an independent trademark.

v. Renewal

The Trademark Act Cap 506 states that a registered trade mark shall expire after ten years and can be renewed from time to time and published in the Journal or in the Kenya Gazette. The renewal is indefinite upon payment of the requisite fee. If the proprietor does not pay such a fee, the Trade Mark will be removed from the register.[64]




PDF version available at Academia Link






[1] Waruingi, Joseph Karanja. Intellectual property rights and their influence on ICT innovations in Kenya. The University of Liverpool (United Kingdom), 2019.


[2] Otike, Japhet. "Copyright Law in Kenya." Nairobi: KLISC Workshop. 2011.


[3] Copyright Act 2001, S.22


[4] Supra n 2


[5] Supra n 2


[6] Supra n 2


[7] Supra n 2


[8] Supra n 2


[9] Deepanshi, J. I. M. S., and Kunal Marwah. "Influence of Berne Convention On Copyright Laws In India." Indian Journal of Law and Legal Research 2.1 (2021): 170-175.


[10] ibid


[11] ibid


[12] ibid


[13] Sihanya, Ben. "Copyright law, teaching and research in Kenya." E. Afr. LJ (2005): 28.


[14] Constitution of Kenya 2010, Art 2 (6)


[15] Constitution of Kenya 2010, Art 11


[16] Copyright Act 2001, S 3


[17] Nankuiharrison, Janet. Evaluation of Copyright Awareness among Undergraduate Students: A Case study of Africa Nazarene University, Kenya. Diss. Moi University, 2015.


[18] ibid


[19] Muma, Andrew. "Intellectual Property and Innovation Law in Kenya and Africa." (2018): 165.


[20] Nyakundi, Joshua, and Nathan Mnjama. "The management of patent information in Kenya." (2007).


[21] Liu, Qing, et al. "Import competition and firm innovation: Evidence from China." Journal of Development Economics 151 (2021): 102650.


[22] ibid


[23] Industrial Property Act 2001, s 84 – s 93


[24] Supra n 21


[25] Industrial Property Act 2001, s81 – s 83


[26] Galvez-Behar, Gabriel. "The 1883 Paris Convention and the Impossible Unification of Industrial Property." (2020): 38-68.


[27] Correa, Carlos. Trade related aspects of intellectual property rights: a commentary on the TRIPS agreement. Oxford University Press, 2020.


[28] Supra n 27


[29] Caffrey, Colm, and Cristina Valentini. "Applications of technology in the Patent Cooperation Treaty (PCT) Translation Division of the World Intellectual Property Organization (WIPO)." The Routledge Handbook of Translation and Technology. Routledge, 2019. 127-147.


[30] Alves, Ines Monteiro, and Joao Pereira Cabral. "ARIPO Contributes to Development of Industrial Property in Africa." Managing Intell. Prop. 278 (2018): 85.


[31] Constitution of Kenya, Art, 40 (5).


[32] Constitution of Kenya Article 40 (3)


[33] Industrial Property Act 2001


[34] Gacuhi, Alexander R. "Science and Technology Policy in Kenya." Science and Technology Policy in East Africa: 33.


[35] Industrial Property Act, 2001, S 119


[36] Ibid


[37] Kenya Industrial Property Institute. How to apply for a patent. 2017. https://www.kipi.go.ke/index.php/how-to-apply-for-a-patent. 28 August 2021.


[38] ibid


[39] Industrial Property Act 2001, s 34


[40] Supra n 39


[41] Kenya Industrial Property Institute. PATENT CO-OPERATION TREATY. 2017. https://www.kipi.go.ke/index.php/pct. 29 August 2021.


[42] ibid


[43] Industrial Property Rights Act 2001, S 44


[44] Supra n 41


[45] Supra n 41


[46] Supra n 41


[47] Industrial Property Rights Act 2001, S 45


[48] Kameri-Mbote, Patricia. "Intellectual property protection in Africa: assessment of the status of law, research and policy analysis on intellectual property rights in Kenya." (2005).


[49] Trademark Act Cap 506


[50] ibid


[51] Kamaitha. Types of trademarks we have in Kenya. 28 December 2017. https://www.herbusiness.co.ke/types-of-trademarks-we-have-in-kenya/. 30 August 2021.


[52] Supra n 51


[53] Supra n 51


[54] Kenya Industrial Property Institute. Requirements for Registration of Trade marks. 2017. https://www.kipi.go.ke/index.php/requirements-for-registration-of-trademarks. 31 August 2021.


[55] ibid


[56] Kenya Industrial Property Institute (KIPI). TRADE MARKS An introduction to Trade marks for Small and Medium -size enterprises. Nairobi: Kenya industrial Property institute, n.d. PDF.




[57] Trademark Act Cap 506, s 20, s 21, s 22, s 23 & s 24


[58] Kenya Industrial Property Institute. Trademark Registration Procedure. 2017. https://www.kipi.go.ke/index.php/trademark-registration-procedure. 1 September 2021.


[59] ibid


[60] Trademark Act Cap 506, s 20


[61] Trademark Act Cap 506, s 21


[62] Trademark Act Cap 506, s 22


[63] Trademark Act Cap 506, s 24


[64] Trademark Act Cap 506, s 23

A Review of the Salient Features of the Sectional Properties Act, 2020 and the Sectional Properties Regulations, 2021

 1.0 Introduction

The Sectional Properties Act, 2020 laws of Kenya (the “new law”) has effectively repealed the Sectional Properties Act of 1987, laws of Kenya (the “repealed law”).

The sectional properties law seeks to sub-divide buildings into units to be owned by individual proprietors and common property to be owned jointly by the proprietors as tenants in common.

The new law seeks to simplify the process of registration of sectional properties and create an enabling environment for investors and property owners. It seeks to guarantee the rights of property owners by conferring absolute rights to individual unit owners over their units and vest in them the reversionary interests thereto.

This will give the unit owners greater power and liberty to deal with their units as they please and it is anticipated that their transactional ability to access financing and dispose their units will be dramatically expanded. This will also motivate lenders and financiers to offer credit facilities to the individual unit owners as they may now charge the individual units directly without requiring the consent of the developer and or the manager.

We highlight the salient features of the Sectional Properties Act, 2020 as below: -

1.1. Leasehold Tenure

The sectional properties law applies to land held on a freehold tenure or on land held on leasehold tenure where the intention is to confer ownership. The new law has reduced the leasehold period to twenty-one years from the forty-five years required under the repealed law. This enlarges the purview of the sectional properties laws to extend to proprietors of all long term leaseholds which are defined in law as leases for a period of twenty-one years and above.

1.2. Nexus Between The Sectional Properties Act 2020 And The Land Registration Act, 2012

The efforts of the Ministry of Lands and Planning (the “Ministry”) in the recent past have been geared towards phasing out the different land registration regimes that have existed and give effect to the Land Registration Act, 2012 (the “LRA”); such that all dealings in or dispositions of land shall be registered under the LRA. The new law makes express reference to this by providing that the title to a sectional property shall be deemed to be issued under the LRA and all dealings and dispositions regarding the sectional property shall be in accordance with the LRA.

1.3. Registration And Mandate Of The Management Corporation

Upon registration of a sectional property, the individual owners are constituted in a Corporation which is responsible for management of the common property. The new law provides that upon registration of the sectional plan, the registrar shall issue a Certificate of Registration in respect of the Corporation. This was not the case under the repealed law.

The new law mandates the Corporation to do all things to ensure the common property is well managed and may engage the services of a property manager or any other person to this end. The new law further mandates the Corporation to establish an internal dispute resolution mechanism through the Committee established under the Act to hear and determine any disputes. It also empowers the Corporation to execute any of its duties by the use of technology. These provisions were not in the repealed law and reflect the dynamics of the current world.

The new law has repealed section 29 of the old law which provided for the compulsory appointment of an institutional manager and extensively set out the qualifications and duties of the said institutional manager who would be responsible for management of the units, any property of the Corporation as well as the common property. As discussed above, section 20(1) of the new law provides that the Corporation may, if it deems it necessary appoint a property manager to manage the common property.

1.4. Conversion of Sub-Leases

The new law further provides that all long term sub-leases intended to confer ownership on a mansionette, apartment, flat, town house or office that were registered before the new law shall be reviewed to conform with section 54(5) of the LRA and the proprietors thereto shall be issued with certificates of lease. The import of this provision is to transition all buildings to sectional status and guarantee the absolute rights of the owners of such units to deal with the same without being subject to the power and direction of the developer and or the management company.

This said review and transition of sub-leases shall be done within a period of two years from the date of commencement of the new law. This will not entail a transaction from scratch and an owner who has already paid stamp duty in respect of the said sub-leases shall not be required to pay stamp duty during the revision.

The process of conversion may be commenced by the developers, the management company or the individual unit owner. If the developer is unwilling to surrender the mother title for purposes of the conversion, the registrar may register a restriction against the title to prevent any further dealings on it.

The review process anticipated in the new law must be read and understood alongside the provisions of the Gazette Notice Number 11348 of 31st December, 2020 providing for conversion of land titles. It would appear that the efforts of the Ministry are geared towards bringing all land dealings in Kenya under the purview of the LRA as earlier discussed. The surrendered sub-leases would be subject to the new land registration units established under the said Gazette Notice depending on where the property is situated. Noting the timelines set out for conversion of the land titles commencing from the month of April, 2021, a diligent unit owner should peruse the Gazette Notice to confirm whether the mother title is part of the phase one of the conversion of land titles. It is not clear which of the two between the conversion and the surrender and revision of the sub-leases should precede the other or whether they can be undertaken at the same time.

1.5. Registration And Removal Of Caution In Respect Of Unpaid Amounts

The Corporation may register a caution against the title to an owner’s unit for any amounts due and unpaid by the owner, provided that upon payment of the amounts due, the Corporation shall within thirty days of payment withdraw the caution. The new law has prescribed the period within which the caution should be withdrawn. The repealed law was silent on this.

1.6. Renting Of Residential Units

Under the repealed law, an owner renting out their unit was required to disclose to the Corporation the amount of rent chargeable to the unit as well as pay a deposit to the Corporation for maintenance, repair and or replacement of the common property. This is not a requirement under the new law which recognizes the autonomy of an individual unit owner to deal with their individual unit as they please independent of the common property and the mandate of the Corporation.

1.7. Termination Of The Sectional Status Of A Building

Under the new law, the sectional status of a building may be terminated by unanimous resolution of the unit owners, the substantial all total destruction of the building or pursuant to an order for compulsory acquisition and the Corporation shall stand dissolved upon the termination of the said sectional property status. Under the repealed law, the sectional status would only be terminated by unanimous resolution or by an order of the Court. The Corporation was also required to apply to court for an order winding up the affairs of the Corporation.

1.8. Dispute Resolution

Under the repealed law, any disputes relating to the contravention of the by-laws of the Corporation were referred to a tribunal established under the Landlords and Tenants Act which was mandated to recover from an errant owner or tenant a penalty not exceeding Kenya shillings twenty-five thousands. Under the new law, disputes in relation to contravention of the by-laws are referred to the Committee which is an internal dispute resolution mechanism of the Corporation and without any prescribed limit as to the penalties to be levied.

Under the new law, in the event of non-compliance with an order of the Committee or if a party is disgruntled with the decision of the Committee, both may apply to the Environment and Land Court for enforcement of the order or in the case of an appeal from the decision of the Committee as the case may be. The repealed law provided that enforcement of an order of the tribunal in the event of non-compliance would lie with the Resident Magistrate Court and any right of appeal would be exercised at the High Court of Kenya.

The Sectional Properties Regulations, 2021

Introduction

The Cabinet Secretary for Lands and Physical Planning has gazetted the Sectional Properties Regulations, 2021 (“the Regulations”). Their objective is to operationalise the Sectional Properties Act, 2020 (“the Act”). The Act covers ownership of units in a building such as offices, apartments, flats, and townhouses. We summarize below the key provisions of the Regulations.

Salient features of the Regulations

A key aspect of the Act is that ownership of the unit is devolved to the unit owners and held exclusively by them. This is illustrated by the below:

Sub-division and Consolidation

Owner may sub-divide or consolidate their unit by registering a sectional plan of sub-division, or consolidation respectively. 

Where the subdivision or consolidation is likely to affect the incidental rights of other unit owners, their consent will be required. If the property is charged, the chargee’s consent will be required, as well. 

Apportionment of Rent and Rates 

The obligations to pay rent and rates is now on the unit owners. 

Rates Apportionment is determined by the County Government of the area the parcel is located. 

The Unit factor attributable to the unit, as computed below is one of the factors taken into account in determining rates or rent payable. 

Unit factors 

Each registered unit shall be allocated a unit factor/unit entitlement. The unit factor is critical in determining the ownership of Common Property held by all the unit owners as tenants in common and the number of votes that a person may cast in a poll. 

The unit factor may be determined in reference to any of these 3 factors or a combination: 

❖ by the unit floor area; or 

❖ by the selling/ value of the unit; or 

❖ by location/position of the unit e.g. a penthouse or a riverfront unit as opposed to the other units.

The recommended basis under the Regulations is the use of unit floor area, which is the simplest. The total of the unit factors for all units in the parcel is assumed to be 10,000, for ease in determining unit factors in whole numbers. 

Note: The size of the Common area is not factored in when determining the total area. 

Conversion 

Documents supporting a conversion application are the: sectional plan, sub-lease/ long term lease and the Title or a Copy of the Title of the parcel. Where the original title is unavailable, the applicant shall apply for a replacement title. 

After conversion, the Registrar shall issue the unitowner with a Certificate of Title/Lease. 

 Upon conversion, the management company should transfer all its assets and liabilities to the corporation within a period of one year from the date of registration of the corporation. 

If the property is charged, the application for conversion may be prepared by the developer, Management Company or unit owners but submitted by the chargee or its appointed representative for processing at the Lands Registry. Failure to make an application for conversion shall not invalidate a charge over a Unit meant to secure the unit owner’s obligations to a chargee. A charge may as well exercise its statutory power of sale and the Registrar shall issue a new sectional title in the name of the transferee upon registration of transfer by the chargee.

Conclusion 

The Regulations are a positive step towards the implementation of the Act, which seems to have a lot of confidence from the end purchasers.  

The Act requires conversion of long term leases within 2 years from its commencement i.e. December 28, 2020. With almost a year having lapsed before the publishing of the Regulations and considering any operational delays, it may be prudent that the Act is amended to allow the CS by gazette notice provide for the period within which conversion must be complete. 

Additionally, conversion where the Property is charged as security may be problematic for example where only a portion of the units have been sold. There would need to be co-operation between the developer and the buyers who were issued with long term leases, pursuant to a Partial Discharge. If these individual buyers had then used their units as security to other financial institutions, it presents another hurdle. Even where transfer of all units is complete to individual buyers, noting that securities are noted against the individual leases and not the Head Title, the accuracy of data to ensure no gaps in transition should be ensured. 

More so, a transparent and phased approach such as the one for Conversion of Land parcels, where a gazette notice is published identifying parcels that will be converted may be of some utility, as well as any records by Management Companies for any consents to charge also presented with the application.  

THE LAW ON CAUTIONS AND CAVEATS IN LAND TRANSACTIONS IN KENYA

1.0 INTRODUCTION

Land is the most important and valuable factor of production in Kenya. 80% of the total population relies on agricultural produce, and it is considered as a source of personal wealth and power. This is why quite a number of times people protect and fight for it as it is the major source of livelihood.

One method in which people protect their interest in property is through making use of Caveats and Cautions. This article explores the law on caveats and cautions in Kenya.

 

2.0  DEFINITIONS

2.1 MEANING OF CAVEAT

The word caveat means a warning or proviso (something said as a warning, caution, or qualification). The lodging of a caveat over a property is a way of telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority. Therefore if there is a caveat on the property, whoever wants to perform any kind of dealing like buy, sell, lease out or anything is made aware of the fact that someone else already has interest in that land.

 

2.2 MEANING OF A CAUTION

This 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.

 

3.0 WHO CAN PLACE A CAUTION OR CAVEAT

Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registrable instrument, for example a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his or her interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice that the same has to be done. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.

 

4.0 HOW TO PLACE A CAUTION

A caution is registered by a person who has an interest on a certain parcel of land to prevent any other person from dealing with the land in a way that prejudices the said interest. The effect of a caution is to forbid, to a certain extent, the registration of dealings and the making of entries in the register relating to the land without the cautioner’s consent or until the caution has been withdrawn by;

1.  The cautioner or;
2. Removed by order of the Court or;
3. The Registrar.

The registrar then gives notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.

 

Section 71(1) of the Land Registration Act outlines the qualifications of a lodger. However, this is not an absolute right and the Registrar pursuant to Section 71 (4) of the Land Registration Act may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument.

 

5.0 REGISTRATION PROCESS OF A CAUTION/CAVEAT

One requires the following documents:

1. The prescribed form (Form R.L. 22)
2. An affidavit explaining the interest the cautioner has in the land
3. A copy of the title (or the title number)
4. The prescribed fees

It is important to note that no notice is required to be given to the proprietor of the land before one lodges a caution. The documents are filed with the Registrar of Lands who then gives notice, in writing, of the caution to the proprietor whose land, lease or charge is affected by the caution.

 

6.0 WITHDRAWAL AND REMOVAL OF CAUTION

A caution can be removed by the person lodging the same, or by order of the court, or subject to Section 73 (2) of the LRA, by order of the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.

 

According to Subsection 2 the registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.

 

However, if the cautioner objects to the removal of the caution, they shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs.

 

7.0 EFFECTS OF LODGING A CAUTION OR CAVEAT WITHOUT CAUSE

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage and to pay compensation to such person

 

This is because placing a wrongful caution that may lead a registered owner losing prospective clients would attract high damages and compensation. Cautions or caveats are temporary restraints that are lodged with the Registrar of Lands by people forbidding the transactions. Cautioners must prove that they are entitled to interests in the disputed property whose transfer they seek to forbid.

 

Section 75 of the LRA states that ‘Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such person.’

 

8.0 SECOND CAUTION IN RESPECT TO THE SAME MATTER

The registrar may refuse to accept a further caution by the same person or anyone on his behalf in relation to the same matter as a previous caution.

 

9.0 CONCLUSION

Caveats and Cautions play a very important role in protecting property. It is however important that everyone understands when to use them and when not to use them, in order to avoid incurring legal liability.

The process of Land Title transfer and Registration in Kenya

1.0 Overview 

In Kenya, land ownership before the colonial period was completely different from now. The land was owned communally and reigned over by customary law. No specific person owned the land and anyone could do whatever they wanted as long as it was acceptable by the community. This method created no incentives for investment hence an obstacle towards creating a free market.

The colonization and post-colonization period developed diverse land registration regimes in Kenya. This meant the end of the traditional land ownership method and gave birth to individual land ownership of land.

Although the process might be long, knowing the process in detail and the documents needed makes it easy and fast. This process should take a maximum of 90 days. The following are the necessary steps for land registration and some of the things that you need:

What you need:

1. The original copy of valuation report
2. Both original copies of stamp duty assessment form and payment receipt
3. Rates clearance certificate
4. National ID and PIN for all parties
5. Coloured passport size photographs of all parties
6. Clearance From commissioner of lands or land control board
7. Original title deed
8. Land Rent clearance certificate

2.0 The process of Title Transfer 

2.1 Applications for land rent clearance certificates
This is the first step of land registration which takes up to 9 days at the commissioner of lands office. The owner of the land should obtain this certificate through his or her lawyer. During this process, proof of land ownership will be required which will include an official search.

2.2 Rates clearance certificate
This process is also done by the lawyer at the county office where the certificate is applied. This will take approximately 5 days costing you an additional 5 days. This certificate is very important since it clears them from any outstanding land rates fees to be paid to the county government.

Note that there will be lawyer’s fees which will depend on the land’s value.

2.3 Application for search on the title
A land search costs 500 and can take up to 3 days. Your full names, your national id and the title deed number will be needed during this process. This step is very important since it shows if someone else owns the land or it has been registered before.


2.4 Applying and obtaining transfer consent
During this step, a fee of 1000 Ksh is charged for the transfer consent done at the county commissioner of lands. This will take up to 9 days. The document must be approved by the seller’s price before it is filled for assessment of stamp duty. A copy of the title deed, current search document and an application form will be needed during this process.


2.5 Valuation report
After obtaining the transfer consent, you will receive a site inspection by the government’s valuer. The work of the inspector is to verify the state of the land and compile a valuation report to be signed during transfer. The valuation report determines the value of a property based on data like amenities,location,condition , recent sales within the locality and opinion from a professional. This may happen any day within a month.


2.6 Assessment of stamp duty
In Kenya, stamp duty is assessed at 2% of the value of the property in the rural area and 4% of the property value in the urban areas. This will be then the tax you will be levied for the land. A stamp duty officer will assess the stamp duty payable and indicate on the forms. This takes up to 3 days.


2.7 Stamp duty payment
After stamp assessment, you may proceed to the nearest national bank and pay the stamp duty. Carry with you a land rent demand notice and 3 copies of original stamp duty. you will then receive a receipt of payment which may take up to 4 days to confirm.

2.8 Registration
This is the final step of land registration. All the stamped documents are set for registration at the lands office. These stamped documents include an original title deed, rates clearance certificate, land rent clearance certificate and the consent transfer. This registration may take up to 12 days to finalize. After this, the land will successfully have a new owner.

3.0 Conclusion 

The government of Kenya is in the process of digitizing most aspects with the aim of making work easy for its service provision. The process will now be easier since you will be able to do most of the steps online. This means that there will be a new process that will be fast and easy.

Review of the Basic Elements of Adverse Possession

 As an attorney who practices extensively in the area of real property litigation, I am frequently called upon to prosecute or defend cases involving a claim of adverse possession, and   am   approached by individuals who either have only a basic understanding of what adverse possession is, or who have formed misconceptions about what it means and how the doctrine is applied.     This article is intended as a primer for non-attorneys — individuals who are interested in learning the basic contours of the doctrine of adverse possession as it applies in the state of Washington (although the law of adverse possession is similar if not identical in most states).

What is Adverse Possession?

In its most basic sense, “adverse possession” is a legal doctrine that allows a person to acquire legal ownership of property that he treats as his own, if he does so for a long enough period of time, even though the property is not his own.   In other words, a person who uses another person’s property, without permission, for a long enough period of time, can acquire legal ownership of that property.   As an   example,   if   a fence   separates two properties — Parcel A and Parcel B — but   does not run along the actual property line,   a portion of Parcel B might be   located on Parcel A’s side of the fence.

If the owner of Parcel A mows and tends to all areas of his property right up to the fence (and is therefore maintaining parts of Parcel B), and does so for the requisite length of time, the owner of Parcel A might be able to acquire legal title to that portion of Parcel B that he has maintained.

Most people are familiar with statutes of limitation.   A statute of limitation sets forth a time period within which one must sue to enforce a right, failing which the person loses the right to sue.   The statute of limitation for a trespass action in Washington is ten (10) years.         If an owner allows another person to continue trespassing on his property and does nothing about it for ten years, the trespasser can acquire legal title to the complacent owner’s land.   Thus, adverse possession is nothing more than a statute of limitation for bringing a trespass action.   After ten years of trespassing, the trespasser can go to court to seek a declaration that the owner has allowed the statute of limitation to pass, and that the claimant     has therefore acquired title to that property.

The Elements of Adverse Possession

A person claiming title to land by adverse possession (I shall refer to such a person as the “claimant”) must prove four basic elements.   The claimant must show that she or he used property belonging to another in a way that was (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.[1]

Possession (i.e. use)  of the property that includes  each of the necessary elements must exist for ten years,[2] following which the claimant can go to court and acquire legal title to the property.   As stated above, adverse possession is merely a statute of limitation for trespass.   Thus,   if the title owner of land has knowledge that another person is using his land openly and without his permission, he can sue that person for trespass.   However, if the title owner allows the trespass to continue for ten years, he loses his right   to sue the claimant.   Each of the four elements stated above exists to protect the diligent owner, and also to reward those who productively use land.

Sneaking onto another’s property in the dead of night and ‘using the property’ until the break of dawn is not “open and notorious,” because the true owner would not reasonably be aware of the clandestine use of his property.   For this reason, such surreptitious use of another’s land will never ripen into an adverse possession claim no matter how long it goes on.

Likewise, using another’s property openly and exclusively for one year, but then vacating for some period of time, then occupying it for another year, then vacating (and so on) is not “actual and uninterrupted.”   Thus, even if such intermittent use continues over the course of fifty years such that cumulatively the land has been used and occupied for ten years, such use would not give rise to an adverse possession claim, since the claimant would be unable to establish   an uninterrupted use.

The requirement that the claimant use the land “exclusively” protects a title owner of land who decides to let everyone use his property.

Finally, the “hostile” element does not have the normal definition of ‘hostile;’ it does not mean enmity or ill will.   Rather, ‘hostile’ in the adverse possession context merely means ‘without the owner’s permission.’   Thus, a landowner can explicitly give his permission to allow another to use his land for 100 years and not be subject to a claim of adverse possession.   Think of a landlord who rents to a tenant for more than ten years:   the tenant is there pursuant to an agreement with the owner, and does not adversely possess the property.

Common Defenses

Like all legal doctrines, there are exceptions to the general rules regarding adverse possession, as well as several defenses.   For example, public land can never be adversely possessed.   Open, continuous, exclusive and non-permissive use of land, where the land is owned by the city, county or state, cannot form the basis of an adverse possession claim.

Most “defenses” to an adverse possession claim involve simply proving the non-existence of one or more of the required elements.   The word ‘defense’ in the preceding sentence is put in quotation marks because asserting that   a statute of limitation bars the action, or that another element necessary to an adverse possession claim is absent,   is itself generally considered a defense. Since adverse possession is itself essentially the assertion of a statute of limitation defense to a trespass action, labeling efforts to resist such an assertion a “defense” seemingly puts the terms “claim” and “defense” on their heads.

“Neighborly accommodation” is one of the most common defenses to an adverse possession claim when dealing with developed residential property.   Suppose two houses share a common boundary comprised of a lawn, with no fence separating the two properties.   Allowing your neighbor to walk on, use, or maintain portions of your property may merely be a neighborly accommodation on your part.   Obviously, it would make bad public policy to require neighbors to constantly insist upon asserting their property rights vis-à-vis their neighbor, and accordingly the “neighborly accommodation” defense arose to lessen the tension between encouraging the productive use of land, on the one hand, and avoiding neighbor-on-neighbor acrimony, on the other.

For example, suppose “Bill” and “John” own the neighboring properties described above (sharing a common boundary comprised of a lawn, with no fence separating the two parcels).   Suppose Bill routinely mows the front lawn, including portions of the lawn on John’s side of the property line.   Suppose also that throughout the year, Bill sits on lawn chairs placed in the vicinity of the boundary line, occasionally setting up his chair on John’s side of the line, and occasionally on his own side of the line.   The neighborly accommodation defense would protect John from losing part of his property were Bill to bring a claim for adverse possession.   Bill might be able to prove that he openly, continuously, and exclusively used portions of John’s property and never once sought or received permission from John.   John, however, could defend against such a claim by demonstrating that he was merely extending a neighborly accommodation by not protesting Bill’s use of the property or suing Bill for trespass.   The ‘neighborly accommodation’ defense has its limits, such as where Bill unilaterally decides to build a fence between the two properties, does not consult with John prior to erecting the fence, and it is later determined that the fence encroaches upon John’s property.    Generally, however, courts have stuck to the rule that true owners often do (and should) permit third persons to use their property on an occasional, transitory manner, and that not all use is adverse in this sense.

Some defenses, while common, apply only to certain types of land.   The so-called “vacant land doctrine” applies (as its name suggests) to open, vacant, undeveloped land.   The vacant land doctrine applies a presumption that the use of vacant, undeveloped land is done with the permission of the owner.   If that presumption applies, the claimant must then put forth evidence to rebut that presumption.   In such cases, use which might have been sufficient to establish adverse possession if done on developed property is insufficient when done on vacant land.

One of the most common circumstances giving rise to adverse possession claims occurs when the owner (who I shall call “Owner A”) of property obtains a survey (usually for some reason other than in connection with a boundary dispute), and the survey reveals a disparity between the legal/surveyed property line and a boundary fence.   Owner A realizes that the fence separating his property from his neighbor’s property — a fence that was present when Owner A bought the property and which Owner A always assumed marked the true legal boundary — is five feet closer to Owner A’s house than the true property line.   Owner A understandably asks: “Can I move the fence so that it coincides with the surveyed/legal property line, since that will give me five more feet of yard running the entire length of the fence?”   Unfortunately, the answer to that question is “It depends.”

Adverse possession cases often proceed to trial (rather than being resolved based on a summary judgment motion or other pre-trial disposition) precisely because the questions are so fact-specific.   Often, one or both of the parties has not personally owned the property   for the entire ten year period, in which case it is necessary to investigate how the prior owner(s) used the property, and whether there were any explicit agreements between the prior owners (generally, the prior owner’s use “counts” toward the current owner’s claim).

Conclusion

Adverse Possession is, quite literally, a doctrine that legalizes the theft of land under certain circumstances.   It is a very unintuitive rule in this sense.

However, the elements of adverse possession, as well as the most common defenses to it, along with the extraordinarily long period of time required to establish the claim, together operate to deprive an owner of his property only when the owner unreasonably sits on his rights for an extended period of time.

Hopefully the foregoing article explains the basics of this doctrine.

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[1] Chaplin v. Sanders,  100 Wn.2d 853, 857, 676 P.2d 431 (1984).

[2] RCW 4.16.020.