A Review of the Land Control Board (LCB) Consents

 

1.0Introduction/Background

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

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

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

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

a.    Consent of the Land Control Board

2.0 Consent of the Land Control Board

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that is not within a municipality, township, market, or an area that was a township or trading center under the now-repealed Township or Trading Centers Ordinance.

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

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

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

2.1 Transactions that require the Land Control Board Consents

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

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

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

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

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

2.2 Transactions that do not require the Land Control Board consents

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

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

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

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

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

2.3 Situations where the land control board be denied

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

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

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

(c) Already has sufficient agricultural land.

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

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

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

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

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

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

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

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

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

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

 

2.5 Appealing the Decision of the land Control Board

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

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

 

CONCLUSION 

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

Sale Agreement and Its Salient Features

 IMPORTANCE OF SALE AGREEMENT

The agreement acts to protect both of the purchaser and seller’s interests and to ensure that both get what they rightfully deserve without getting duped. The sales agreement fully protects the rights and interests of the buyer and the seller because if one party fails to adhere to the contract the other party can take legal action to recover the damages caused.

The sales agreement is filled in triplicate one for the vendor, one for the purchaser, one for the lawyer/ legal advisor overseeing the transaction.

Having a sale agreement also conforms to The Law of Contract that provides for written agreements in disposition of land hence it ensures legal compliance and validity to bind the parties.

It ensures enforceability in the event of fraud, default in payment, breach of terms among other reasons for failure of an agreement. Without having a written sale agreement it would be difficult to prove to the court that an agreement regarding the sale of land existed or took place.

CONTENTS TO INCLUDE IN A SALE AGREEMENT

A sale agreement unlike any other contract must provide the following to be valid:

• The contract must provide that the vendor is vested with capacity to sell as the beneficial owner of the property;
• The price at which the property is sold at is very important and must be stated;
• The deposit payable at the signing of the contract i.e. 10% of the purchase price for most contracts;
• In some contracts the deposit payable may be higher i.e. 20% or more;
• That the deposit will be held by the vendor’s advocate pending completion as a stakeholder pending completion;
• The contract completion date i.e. when the completion documents change hands vis a vis payment of the balance of the purchase price;
• The contract completion clause may also stipulate how the balance of the purchase sum will paid. Is it by banker’s cheque or by means of professional undertaking by the purchaser’s financiers directed at the vendor’s advocates;
• If interest is payable on the balance of the purchase sum should there be delay in completion and the rate of such interest this should also be stipulated in the contract;
• The rate of interest should be specified;
• The conditions of sale must be included. Most contracts for the sale of land in Kenya are subject to the Law Society Conditions of Sale (1989) Edition so long as the conditions do not contradict the terms of the contract. Alternatively if necessary the conditions may be varied accordingly to be in conformity with the terms of the contract.

A land sale agreement should include but not limited to:

• Identity of both the buyer and the purchaser. This will include full names, Identity card number, phone numbers, and the address code. In most cases, these are also the details to be included in the title deed after the transfer
• The cost of purchase, this defines the agreed amount to be paid, how it is to be paid (Instalment/cash), and when the amount is to be paid.
• The description of the property being sold. This will include the size of the land, the title number, where the land is located, and the condition of the land.
• Distribution of costs involved. This define who pays for the different cost involved in the process of transferring the land to the purchaser from the vendor. Some of the common costs will include stamp duty, legal fees, and title transfer costs.
• The obligation of each party involved in the transaction. This will help outline all that is to be done by both the purchaser and the vendor.
• Remedies for breach of the contract. To help ensure that the interest of each party is protected a sale agreement will also outline how non-performance of the agreed terms of the agreement are to be handled.

COMMON CLAUSES TO INCLUDE IN SALE AGREEMENTS IN KENYA INCLUDE:

• Date and Parties to the contract
• Recital of the property
• Definitions and Interpretation
• Law Society Conditions of Sale 1989 (General Conditions)
• Agreement for Sale and interest sold
• Purchase Price and Deposit
• Interest on late payment
• Completion
• Encumbrance
• Special Condition(s)
• Capacity
• Possession and Movables
• Matters affecting the Property
• Outgoings and Income of the property
• Warranty
• Survival
• Time is of the essence
• Assignment
• Default
• Non-merger
• Stamp duty and related costs
• Disclaimer
• Guarantee of title
• Arbitration
• Termination
• Legal and other costs
• General
• Intention to be bound
• Schedules
• Execution

UNDERSTANDING PERSONAL INJURY CLAIMS IN KENYA

 Introduction

If you suffer injury in an accident caused by someone else’s negligence (carelessness) you may want to seek recompense from them. You will therefore bring a personal injury claim against them.
Personal injury claims aim to make the party who caused the accident and your injury, pay you compensation for the harm they have caused you.

Types of Claims

These claims include;
🚑Road Traffic Accident Claims
📝Accident at Work Claims
🚳Accidents in Public Places
⚕️Clinical (Medical) Negligence

A claim for personal injury will include:
✒️A claim for the pain of the injury itself,
✒️The suffering it causes and
✒️The manner in which it affects your day-to-day life.

- Calculating the Personal Injury Claim -
The claim for compensation may be settled in or out of court to decide who was at fault and/or how much compensation you will receive.

A Kenyan Lawyer (personal injury lawyer) can help you get the most out of your injury claim or lawsuit;

If your accident left you with any of the conditions below, you should definitely seek professional legal representation.

👉🏾Pain and Suffering
👉🏾Temporary Disability
👉🏾Permanent Disability
👉🏾Severe Injury

Disclaimer: This is a guide for general informational purposes only and does not constitute legal advice.

Annulment of Marriage and its legal grounds

 Definition of an Annulment

An annulment is a declaration by a court that a marriage was never validly established, that is, the marriage never occurred or existed in the first place. This can be because the parties, at the time of making the union, lacked the capacity to do so.

It can also be described as a court decree that a marriage is null and void and has been since the marriage was celebrated. A marriage shall be annulled within one year of the marriage and the Petitioner must show they were ignorant of the facts necessitating the annulment and further the parties must not have consummated their marriage.

Notably, the annulment and dissolution of a marriage (or divorce) are fundamentally different. An annulment renders a marriage invalid from the beginning while the dissolution of a marriage terminates the marriage as of the date of the judgment of dissolution.  

The Grounds for an Annulment

Section 73 (1) of the Marriage Act, 2014 provides that a party to a marriage may petition the court to annul the marriage on any of the following grounds: -

1.      The marriage has not been consummated since its celebration

2.      In the case of a monogamous marriage (Civil and Christian marriages), at the time of the marriage, one of the parties was married to another person

3.      The petitioner’s consent was not freely given

4.      A party to the marriage was absent at the time of the celebration of the marriage

5.      At the time of the marriage and without the knowledge of the husband, the wife is pregnant and the husband is not responsible for the pregnancy; or at the time of the marriage and without the knowledge of the petitioner, the other party suffer recurrent bouts of insanity 

6.      At the time of the marriage, and without the knowledge of either party, the parties were in a prohibited relationship

7.      At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

Further Section 73 (2) of the Marriage Act 2014 restricted the filing of such application to before the lapse of one year from the date of marriage. Accordingly, annulments have been a preserve of marriages under 1 year despite the existence of legitimate grounds to have the marriage annulled.

Analysis of Prohibited relationships

What are these prohibited relationships that can warrant the annulment of a marriage? According to Section 10 of the Marriage Act, these are relationships where a person has married:

1.  

1. Their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew
2. The grandparent, parent, child or grandchild of their spouse or former spouse
3. A person whom they have adopted or who has adopted them
4. Any other person where such marriages are prohibited under customary law
5. A person with whom they have a half-blood relationship with

 

However, if a person marries their cousin, that marriage is not a prohibited relationship if they profess the Islamic faith.

The Process of Annulment

In Kenya, a party seeking an annulment of their marriage must file a petition for annulment in the Chief Magistrate’s Court. The other spouse may respond, if they wish, by filing an Answer to Petition. The case will be set for hearing when the Petitioner will have to testify. 

Afterwards, the magistrate will issue a judgment. If the magistrate is satisfied that the marriage should be annulled, they will issue a decree of annulment and provide for a period of usually 30 days before the decree of annulment can be made absolute. If no one challenges the annulment within the 30–day period, the decree of annulment will be made absolute and a certificate of making the decree of annulment absolute will be issued. 

Requirements for a court to grant an annulment

A court will only grant an annulment if the following conditions are met:

1.  It has not been more than one year since the celebration of the marriage,
2.   The Petitioner was not aware that their spouse was in a prohibited relationship or they were already married to someone else, if they are relying on those grounds, and
3.   The marriage has not been consummated since the petition was made to the court

Effects of an annulment

The parties to a marriage which has been annulled by the decree absolute of the court shall be deemed never to have been married.

Difference between an annulment of marriage and a divorce

A divorce recognizes that a valid marriage existed but the same is dissolved/ terminated in law due to various challenges faced by the parties in the marriage. An annulment on the other hand means that in the eyes of the law, the marriage never took place or existed.

DISTINCTION BETWEEN DIVORCE AND ANNULMENT OF MARRIAGES

Many people fail to distinguish between divorce and annulment of marriage. 

Thus, annulment proceedings are brought to challenge the validity of a marriage as opposed to divorce proceedings which presume a valid marriage that is now subject to dissolution. 

Therefore, in annulment proceedings, once a court gives an order annulling the marriage, the court simply says that the marriage did not exist in the first place.

 

Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

 

(a) Where the marriage has not been consummated since celebration.

 

(b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

 

(c) In the case of monogamous marriages, one of the parties was married to another person.

 

(d) The Petitioner’s consent was not freely given

 

(e) A party to the marriage was absent at the time of celebration of the marriage.

 

(f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

 

(g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

 

A petition for annulment of marriage can only be filed within 1 year of marriage.