CONVERSION OF PUBLIC LAND TO PRIVATE LAND

 

 Introduction

Article 61 (2) of the Constitution of Kenya, 2010 classifies land into 3 categories:-

1.     Public land

2.     Private land

3.     Community land

 

What is Public Land?

Generally, public land is land owned and managed by the government for the benefit of the public. The land may be managed for multiple uses such as recreation, mineral extraction, national forests, national parks, and other protected areas.

Article 62 (1) CoK defines public land as

(a) land which at the effective date was unalienated government land

(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;

(c) land transferred to the State by way of sale, reversion or surrender;

(d) land in respect of which no individual or community ownership can be established by any legal process;

(e) land in respect of which no heir can be identified by any legal process;

(f) all minerals and mineral oils as defined by law;

(g) government forests other than forests to which Article 63(2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;

(h) all roads and thoroughfares provided for by an Act of Parliament;

(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;

(j) the territorial sea, the exclusive economic zone and the sea bed;

(k) the continental shelf;

(l) all land between the high and low water marks;

(m) any land not classified as private or community land under this Constitution; and

(n) any other land declared to be public land by an Act of Parliament—

(i) in force at the effective date; or

(ii) enacted after the effective date.

 

Where Public Land vests

Pursuant to Article 62 (2), Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under—

(a) clause (1)(a), (c), (d) or (e); and

(b) clause (1)(b), other than land held, used or occupied by a national State organ

Under Article 62 (3), Public land classified under clause (1)(f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.

 

 

Use and disposal of public land

Pursuant to Article 62 (4), Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.

 

What is Private Land?

Article 64 defines Private land to consists of —

(a) registered land held by any person under any freehold tenure;

(b) land held by any person under leasehold tenure; and

(c) any other land declared private land under an Act of Parliament.

 

Conversion of Public Land to Private Land

Conversion means converting land from one category to another.

Public Land is converted to private land through allocation.  Allocation is one of the ways in which title to land may be acquired under Section 7 of the Land Act.

Under Section 9 (3) of the Land Act, any substantial transaction involving the conversion of public land to private land shall require approval by the National Assembly or county assembly as the case may be.

 

Allocation of public land

1.     Step 1: - Identification of Land to be converted

Under Regulation 3 (1) of The Land (Conversion of Land) Rules 2017, the national or county government may, on its own motion or upon a request, identify the land and notify the Commission, in Form LA 1 set out in the Schedule, of its intention to convert the land from one category to another.

 

The notification in paragraph (1) shall be accompanied with a base map showing the location of the land. (See Regulation 3 (2)).

The request for allocation is made by the Cabinet Secretary or the County Executive Committee Member responsible for mattress relating to land to the National Land Commission - (Section 12 of the Land Act).

 

2.     Step 2 - Consideration of the Notification

Upon receipt of the notification under regulation 3 to convert public land to private land, the Commission consider the notification and shall satisfy itself that—

(a) the land is, at the time of the intended conversion, public land;

(b) the purposes for which it is intended to be used are compatible with land use planning for the respective area;

(c) the land is not part of an ecologically sensitive area;

(d) the conversion complies with any other provisions of the Act or any other law; and

(e) the land is not controlled land as defined in section 12A (1) of the Act

N/B:-

Under Section 12 A (1):-

"controlled land" means land in Kenya which is- \

(a) within a zone of twenty-five kilometres from the inland national boundary of Kenya;

(b) within the first and second row from high water mark of the Indian Ocean;

(c) any other land as may be declared controlled land under any law or statute.

 

 

3.     Step 3 - Submission to the County or National Assembly for Approval/Invitation of public consultation

Pursuant to Regulation 4 (2), Where the Commission is satisfied that the land meets the criteria set, the Commission shall—

(a) in the case of a substantial transaction refer the matter to the National Assembly or County Assembly for approval as the case may be;

(b) in all other cases, invite public consultations.

Meaning of a substantial transaction - (Sec 2 of the Land Act)

"Substantial transaction" means a transaction that involves the transfer, leasing or licensing of land to a local or foreign investor either alone or in a joint venture to carry out developments in agriculture and other approved ventures with direct developmental benefits for Kenya through-

(a) a commitment for improving food security for Kenya through technology transfer leading to innovation, productivity increase and the requirement for a certain minimum percentage of the crops produced to be sold on local markets;

(b) infrastructural developments from which the public can benefit;

(c) demonstrable strong backward and forward linkages to other industries in Kenya;'

(d) generation of substantial foreign exchange through import substitution and exports;

(e) sustainable agricultural practices and sustainable forest management which can contribute to addressing climate change concerns;

(f) emphasis is on reference to Kenya and the application of Kenyan law without waiver of any rights of Kenya.

 

4.     Step 4 - Invitation of public consultation

Pursuant to Regulation 5, the Commission shall invite comments on or objections on the intended conversion of public land into private land by—

(a) placing a notice in Form LA 2 set out in the Schedule, in at least two daily newspapers of nation-wide circulation and one newspaper of county-wide circulation;

(b) affixing a notice at the County and Sub-County headquarters, wards and other strategic places within the vicinity of the land;

(c) announcing the notice in both official and local languages in a radio with nationwide coverage; and

(d) announcing in public barazas and places of worship.

 

The notice shall—

(a) contain a description of the land in issue;

(b) provide the nature of conversion including particulars of the person or persons to whom the land is intended to be converted;

(c) specify the date, venue and time of the public consultations; and

(d) allow for representations to be received within fifteen days.

N/B:-

The Commission may receive verbal and written representations.

 

5.     Decision making

Upon receipt of the representations from the public on the intended conversion, the Commission shall—

(a) analyze the representations and ascertain the general opinion of the public;

(b) consider all other matters required under this Act or any other law; and

(c) determine, based on the considerations received, whether the conversion ought to be approved

Upon receipt of approval from the National Assembly or County Assembly, the Commission shall allocate the land and enter the particulars in the register.

Pursuant to Regulation 6, The Commission shall require the national or county government to plan, survey, georeference and service the land before commencement of the conversion.

 

Methods of land allocation

Provided for under Sec 12 (1) of the Land Act, and Rule 3 (1) of The Land (Allocation of Public Land Public Land) Regulations 2017.  :-

(a) public auction to the highest bidder at prevailing market value subject to and not less than the reserved price;

In cases where the allocation is done through a public auction, the Commission will follow certain procedures. First, they will:

 

(i) give notice in accordance with section 14 of the Land Act and appoint a licensed auctioneer as their agent for each available parcel of land.

 

(ii) The Commission will then publish a notice in newspapers and affix it at various government offices, providing details such as the auction date (at least one month from the notice publication), land description, reserve price (stand premium), auction date, time, and venue, and the terms and conditions of the allocation.

(iii) During the auction, the appointed auctioneer will conduct the proceedings in the presence of an authorized Commission officer.

(iv) If a bid surpasses the reserve price, the auctioneer will declare the highest bidder as the winner.

(v) The winning bidder must immediately pay the full amount or a specified percentage, as stated in the notice, to the Commission. This payment, known as the amount to be paid at the fall of the hammer, should be at least twenty-five percent of the stand premium.

(vi) Subsequently, the auctioneer will issue a certificate of sale (Form LA 4) to both the winner and the Commission as evidence of the transaction.

(vii) The winner of the bid is required to present the issued certificate to the Commission to obtain the letter of allotment (Form LA 5) and settle the outstanding balance within ninety days.

(viii) If none of the bidders meet the reserve price, the auction agent will declare this and repeat the auction on subsequent occasions until a successful bidder is found.

 

N/B:-

It’s important to note that the Commission must ensure compliance with the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015) during the entire process.

 

(b) Application Confined to a Targeted Group Of Persons Or Groups In Order To Ameliorate Their Disadvantaged Position;

(i) When the national or county government determines the need to allocate land to a specific disadvantaged group in accordance with section 12(1)(b) of the Land Act, first, the government must provide notice in accordance with section 14 of the Land Act.

(ii) Subsequently, they will evaluate and assess the nature of the disadvantaged position of the targeted group. To determine the disadvantaged position of the group, the national or county government will take various factors into account, including gender and equity considerations, individuals with disabilities within the group, social imbalances and injustices faced by the group, historical injustices against the group, as well as economic and cultural marginalization experienced by the group.

(iii) Based on the findings, the national or county government will prepare a report outlining the disadvantaged nature of the group and recommend the allocation of identified land to mitigate their disadvantaged position.

(iv) The Commission will review the report and, if satisfied, will reserve the recommended land for implementation under section 134 of the Land Act (on establishment of settlement scheme).

 

(C) Public Notice of Tenders as It May Prescribe;

Regulation 10: Commission to invite Bids.

Commission after giving notice according to sec 14 of the land Act, invite bids for tenders by publishing a notice in form LA 6 at the county, sub-county and ward offices and in two daily newspapers of nationwide circulation and one local newspaper at least 2 months before the date of opening of bids.

Regulation 11sets out the details of the notice inviting bids.

The sale number

Bidding information including:

•       The particulars of the parcel or parcels on offer.

•       Date and time for submission of the bid registration form.

•       The bid submission closing date and time.

•       The bid opening time.

•       The reserve price.

•       A schedule of the list of properties with the item number for bidder reference.

•       Place and time to inspect land.

•       Bidder registration requirement as well as contact person(s) or place(s) and times at which bidders can register and obtain bid forms.

•       Any other specific terms and conditions for sale.

Regulation 12 states that every bid shall be submitted in a sealed envelope.

The sealed envelope containing the bid shall be placed in a closed and sealed box provided for that purpose.

Upon closing of bids, the bids shall be opened in the presence of the bidders.

The commission shall meet within two official working days of the date of the opening of the bids to select the winning bid.

Regulation 16: Notification of the successful bidder.

Within seven days of the meeting of the commission, the secretary shall notify the successful bidder of their success and shall also notify every unsuccessful bidder of the rejection of their bids and details of the successful bid.

The commission shall issue a letter of allotment in Form LA 5 to the successful bidder.

Regulation 17: Payment of the purchase price.

The successful bidder shall pay to the commission in the stand premium within (90) days of receipt of the commission’s letter of notification under regulation 16(1).

 

d)Public drawing of lots as may be prescribed.

Regulation 22: the commission shall after giving notice in accordance with section 14, and send notices inviting applications for allocation by public drawing of lots.

Regulation 23: on receipt of applications, the commission shall review the applications and short list the applicants based on:

In cases of industrial and commercial parcels, evidence of capacity to develop the parcel i.e., Citizenship, Proof or prior of possession of land where applicable and in case of residential parcels, preference will be given to residents of the particular urban area who have no other residential property and Any other criteria by the commission.

Regulation 24(2) provides that the lots to be used in the draw shall be in form LA 7 and shall state:

Parcel number of the subject land for the affirmative lots, or the words “not successful” for negative lots. Blank spaces to fill in Name, ID number or passport number of successful applicants. Name and signature of the presiding officer.

Upon completion of the allocation process the commission shall issue letters of allotment to successful applicants in form LA 5 and publish a notice in two newspapers of nationwide circulation, one locally circulating newspaper where applicable setting out:

·       List of the beneficiaries

·       A requirement of the beneficiaries to physically collect their letters of allotment from the commission’s county offices.

·       The date and place where the allocation was done.

 

Regulation 26 letters of allotment.

The letters of allotment shall contain the details of the offer including

·       The name, identification number and details of the allotee.

·       Particulars of the parcel of land on offer including the parcel number, size, location and term of lease.

·       The stand premium and any other fees payable

·       The time within which to pay the stand premium and the fees.

·       Applicable special conditions.

 (e) public request for proposals as may be prescribed; or

According to regulation 33: upon a request from national or county government, where private land is required for public purpose. The commission shall negotiate and enter into agreement with the registered owner of the land for the purpose of exchanging the private land with another public land of equal value. The commission shall execute a deed of exchange or transfer on behalf of the national or county government, on one part and the registered proprietor on the other part.

Upon execution of the deed of exchange, the commission shall forward it to the land Registrar. The commission shall facilitate the issuance of the respective titles and the conveyance fees shall be borne by the benefitting institution.

The proprietor shall surrender the original title in exchange of the title of the parcel of land received in exchange.

The national or county government shall not take possession of the exchanged land until the title has been issued to the proprietor. 

N/B:-

The Commission has the power to allocate the whole or part of a specific public land requested. (See Regulation 3 (1)).

In determining the method of allocation the Commission shall, in consultation with the national government or respective county Government as the case may be, take into consideration all prevailing circumstances including the purpose for the allocation. (See Regulation 3 (2)).

Pursuant to Section 12 (2), The Commission shall ensure that any public land that has been identified for allocation does not fall within any of the following categories—

(a) public land that is subject to erosion, floods, earth slips or water logging;

(b) public land that falls within forest and wildlife reserves, mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas;

(c) public land that is along watersheds, river and stream catchments, public water reservoirs, lakes, beaches, fish landing areas riparian and the territorial sea as may be prescribed;

(d) public land that has been reserved for security, education, research and other strategic public uses as may be prescribed; and

(e) natural, cultural, and historical features of exceptional national value falling within public lands;

(f) reserved land; or

(g) any other land categorized as such, by the Commission, by an order published in the Gazette.

In an allocation of public land, the Commission may impose any terms, covenants, stipulations and reservations that the Commission considers advisable, including—

(a) that the applicant shall personally occupy and reside on the land for a period set by the Commission;

(b) the applicant shall do such work and spend such money for permanent improvement of the public land within the period specified by the Commission; or

(c) the consideration that must be paid for a disposition of public land.

Reversion

Pursuant to Section 12 (6) at the expiry, termination or extinction of a lease granted to a non-citizen, reversion of interests or rights in and over the land shall vest in the national or county government as the case may be.

 

Principles guiding allocation of public land

1.     Public land shall not be allocated unless it has been planned, surveyed and serviced and guidelines for its development prepared in accordance with section 17 of this Act - Sec 12 (7).

2.     Public land allocated under this section shall not be sold, disposed off, subleased, or subdivided unless it is developed for the purpose for which it was allocated - Sec 12 (8).

3.     Where the land allocated under subsection (8) is not developed in accordance with the terms and conditions stipulated in the lease, that land shall automatically revert back to the national or county government, as the case may be and the Commission shall include in its annual report the status of implementation of this subsection - Sec 12 (9).

The Commission may impose certain terms and covenants upon allocation of public land. They may include: -

i. that the applicant shall personally occupy and reside on the land for a period set by the Commission

ii. the applicant shall do such work and spend such money for permanent improvement of the public land within the period specified by the Commission; or

iii. the consideration that must be paid for a disposition of public land.

4.     Allocation is also a form of compensation after a person’s land has been compulsorily acquired. Section 111 (B) of the Land Act in relevant part states that: -

Compensation for compulsorily acquired land may take any one or more of the following forms—

(a) allocation of alternative parcel of land of equivalent value and comparable geographical location and land use to the land compulsorily acquired;

 

Prerequisites for Allocation of Public Land

(1)  When the national or county government is satisfied that it is necessary to allocate whole or part of specific land, the cabinet secretary or county executive committee member responsible for matters of land, as the case may be shall submit a request to the commission for necessary action.

 

(2)  The Commission, if satisfied that the land in question is indeed public land and that it does not fall in ecologically sensitive areas and that it is not controlled land outlined in section 12(A), it shall request the national or county government to undertake essential activities such as land planning, surveying, dereferencing, and ensuring the necessary services are provided to the land.

 

(3)   It shall then publish or send a notice of action, to the public and interested parties, at least thirty days before, offering public land for allocation. The notice shall include

the terms, covenants, conditions and reservations which are to be included in the conveyance document and the method of allocation.

 

(4)  The notice above shall provide a period of fifteen days from the date of its issuance, within which the public and interested parties may comment.

 

(5)  At least thirty days prior to the allocation of public land, the Commission shall send a notice to the governor in whose county the public land proposed for allocation is located and to the head of the governing body of any administrative subdivision having development control or other land use regulatory responsibility in the geographic area within which the public lands are located and to the head of any administrative subdivision having administrative or public services responsibility in the geographic area within which the lands are located.

 

This notice shall be published in the Gazette and at least once a week for a period of three weeks and thereafter shall be published in a newspaper of general circulation in the general vicinity of the public land being proposed for allocation.

A notice under this section above shall specify

⮚     the place, date, and time of allocation,

⮚     the appraised value of the land,

⮚     describe with particularity each parcel of land to be allocated

⮚     specify that the terms of allocation shall be available in the Commission’s offices in Nairobi and the Commission office nearest the land being proposed for allocation.

 

(6)  This notice should also be sent to other known interested parties including, but not limited to,

⮚     adjoining landowners,

⮚     persons in actual occupation of the land including

⮚     marginalised communities and groups living in the general vicinity of the public lands being proposed for allocation; and

⮚     boards of cities and municipalities and town administrators, in the geographic vicinity within which the public lands proposed for allocation are located.

(7)   Failure to provide notice of proposed allocations as required shall serve as grounds for the Commission to—

(i)             require that the notification procedures outlined in this subsection be repeated

(ii)           void the allocation on grounds that the notification requirements of this Act were not properly conducted.

The first proprietor noted in the register of any parcel or first registration of interest in land pursuant to an allocation process shall be the registered proprietor and the Registrar shall note in the land register such restrictions or conditions as may be necessary.

 

SUCCESSION AND INHERITANCE

 

 1.0 Defining Succession Process

• Succession is the right and transmission of the rights and obligations of the deceased to his heirs. The Kenya law of succession prescribes the rules which determine what ought to happen to a person's estate after his or her death. It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living.
• The rules of succession identify the beneficiaries entitled to succeed to the deceased's estate and the extent of the benefits they are to receive. The Kenya law of succession determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased's estate.

2.0 Significance of Succession
 

The main function of succession is to provide mechanisms for the transmission of property from the deceased to those who survive him. It involves: 

• Identifying the legal/rightful claimants of the deceased’s property. 
• The procedures of which is to be taken by the claimants to enable them acquire the  property of the deceased. 
• Tools for dispute resolution are provided to resolve any encounters between persons who claim to be rightful claimants.

3.0 Rightful people who can legally inherit the deceased person’s property

The Law of Succession Act Cap 160 provides for persons that can inherit the property of a

deceased person under section 29 as dependants which include:
 

• the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; 
• such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
• where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

4.0 Is a woman allowed to inherit property?

Yes. Both men and women have equal rights to inherit property. Reference to children does not

distinguish between sons and daughters, neither is there distinction between married and

unmarried daughters

5.0 Can parents inherit the property of their deceased child?

Yes. Parents can inherit their deceased children’s property if: 

• The child included them in a will as beneficiaries and/or dependants; 
• Where there is no will, if the parents prove that they were dependants of their child prior to his/her death; 
• Where the deceased has no surviving wife or children and no will, then they (parents) will
• be given the first priority.

6.0 Intestate Succession

Intestate succession is where a person dies without having made a will or the will is invalidated.

6.1 How is intestate succession done?

There are various things that are considered when one dies intestate. Below is what is considered. 

6.1.1 If you're married and have children

 
Your surviving spouse shall be entitled to personal and household effects absolutely. Further, to

a life interest in the remaining property of the deceased person. The spouse will also have

an interest in property which will terminate upon his/ her death. If the surviving spouse is a

widow, that interest shall come to an end if she marries another person. The children will get the

entire estate upon the termination of the life interest of the surviving spouse.
 

6.1.2 If you're married with no children

Your surviving spouse will receive all personal and household effects absolutely up to the first

Kshs.10, 000/- or 20% of the residue estate whichever is greater. The spouse will also have

an interest in property which will end if she gets married to another person.
 

6.1.3 If you’re not married and have children

In such a case, your children will receive the proceeds of your entire estate at age 18. 

6.1.4 If you're not married have no children

Here, your entire estate will go to the following family members, in this order:

• Father, if dead;
• Mother, if dead; 
• Brothers and sisters and children of deceased brothers and sisters in equal shares, if dead; 
• Step-brothers and sisters, if deceased their children in equal shares, if dead;
• Relatives who are closely related to you.
• If you have no living relatives and die intestate, your estate will go to the state.

7.0 Significance of a Will

A will enables you to have control over your property even after you are deceased. For instance,

how your estate should be distributed. If you die without a will, your estate will be distributed to

your relatives according to a certain legal formula. This can be very different from what you

wanted or intended to happen. It can also cause complications, delays and extra costs for those

you leave behind. If you die without having written a will and you don’t have any relatives, your

estate will go to the government.

7.1 How can I write a will? Do I need a lawyer for me to write a will?

Any person can write a will. One does not need to have a lawyer to write it, but the lawyer can be present for purposes of witnessing it However, to write a valid will, you must be in a good state of mind to understand the nature of your actions.

• A will can be oral or written.
• For an oral will to be valid, it has to be made before two or more witnesses of sound mind and full age);
• A written will is valid only if it is signed and witnessed by two or more competent witnesses.

8.0 I am a Muslim. Is my succession process any different?

Yes, the succession process is slightly different as it is in accordance with Muslim law. The power of Kadhis’ courts is limited to decide on issues of Muslim law relating to personal status, marriage, divorce or inheritance where all the parties are of the Muslim faith. However, Muslims can still choose to go to the High Court since the High court can entertain any dispute relating to a deceased Muslim. The law applicable will still be Muslim law and not the Law of Succession Act.

9.0 My father had two wives. Will they both get equal shares?

In determining the shares by each wife, one will need to determine at what point the marital property was acquired. Property acquired before the second marriage is owned equally by the husband and first wife. Property acquired after the second marriage is considered owned by the husband and both wives (taking into account each wife’s contribution).

10. What can I do if our relatives deny us the right to inherit our parents’ property?

There are 3 ways of handling this depending on the situation as follows: 

• If the property in question is land and there is no case that has been filed in court, you  can place a caution/caveat at the Land Registrar’s office so as to prevent further dealing on the land. 
• For any other property, you can go to court to seek for an injunction to stop any transfer, sale, lease or any transaction on the property until the dispute is resolved in court.

If a succession matter has already been filed in court, you can institute objection proceedings in court to oppose the application and state the grounds of your objection, which in this case include being excluded from the list of beneficiaries. You need to file P & A Form 61 in the High Court registry. The matter will be heard first by the Judge handling the case.

11.0 Initiating the Succession Process

Starting the succession process depends on whether succession is testate & intestate. 

In testate succession, you need to file the following documents

• Form P.A 78 (petition) Form P & A 3 (affidavit) 
• the original will plus 2 photocopies of the will & 
• original death certificate.

a. In intestate succession, there are various things that should be considered. This includes whether there are beneficiaries and the value of the deceased’s property. 

For property less than Kshs. 300,000/- file the matter in the magistrate court and if more than Kshs. 300,000/- file the matter in the high court. You need to file the following documents A search on the property;

b. A letter from the chief stating the surviving beneficiaries;

c. The death certificate (original)

 

• After obtaining the above stated documents, the applicant is to file four forms in the court:

• One, to identify proposed administrators and at least three witnesses;
• Two, to list of the deceased person’s property (shares in a company, money held in account, moveable property and immovable property (land), liability);
• Three, list of beneficiaries and dependants;

• P & A 80 - The main petition that is accompanied by the above stated forms. It contains the prayers, if one wants to be an executor or administrator.

• The cost of filling the succession petition is three to four thousand.

• After the filling, the petition will need to be gazetted which one is required to pay for it Kshs.2700/-. Thereafter, you need to wait until it is printed in the gazette within three (3) months form the date of filling the matter. 
• Once printed, you will need to have a copy of the gazette notice. Therefore, you can print it or buy it at fifty Kenya shillings (Kshs.50/-). You are required to attach the gazette notice to an application for a hearing date of the petition. This will be a hearing for letters of administration. 
• After you are granted the letters of administration, you will wait for six months then file an application for confirmation of grant. Here, you can also file a schedule of the sub-division among the beneficiaries and/or dependants.
• After that, you get a confirmation of letters of administration from the court. The confirmation is a monitoring mechanism of the court that confirms that the personal representatives have been administering the estate and empowers the personal representative to distribute any capital assets, including land.

For land, you take the certificate of confirmation to the land registry and file an application for transmission of the land. Details that will be required in the transmission form include:

The details of the parcel of land;

• How much you are transferring and to who;
• Photos (three (3) passport size) of the administrator and beneficiary;
• One form for each beneficiary.

Other things that can be inherited besides Land:

Apart from land, one can inherit Mpesa Account, shares, bank accounts, sacco savings, Pension,

life insurance etc.

In the case of transfer of shares from the Estate of a deceased shareholder to a beneficiary, the following would be required:

• A certified copy of the Confirmation of Grant of Probate / Grant of Letters of Administration.
• Share Transfer form duly signed by both the Executor / Administrator of the Estate of the deceased and beneficiary, in the presence of an advocate (Commissioner for Oaths)
• A certified copy of the Death Certificate
• Original Share Certificates
• A certified copy of the Executor’s / Administrator’s passport
• A certified copy of the beneficiary’s passport (if not the same as the executor/administrator)

Courtesy of: TIK

Obligations of Parties to an Off-plan transaction

 

1.0 Duties of the Developer

The duties of a developer can be drawn out as follows;

1. Adherence to Contractual Obligations on Financing Agreements

Developers must ensure that they carry out their end of the bargain with investors/lenders. This includes adhering to set timelines for completion of the project, making payments at the agreed timings to their lenders and generally acting responsibly with regards to their contractual obligations.

When dealing with a property that is Charged, the Chargee's consent must be obtained for any dealings involving the property, such as selling or leasing it. The consent protects the Chargee's interests and the interest of the person acquiring the interest. Failure to secure this consent constitutes a breach of the Charge agreement, potentially leading to legal action, foreclosure or forced sale of the property.

Section 59 of the Land Registration Act and Section 87 of the Land Act provide that it is the duly of the Chargor to obtain the written consent of the Chargee prior to dealing with any property. This includes properties in an off-plan development. Once the consent of the Chargee is obtained, a partial discharge of the charge can be procured for purposes of transferring the property, free of encumbrances.

2. Stakeholder Engagement

It is essential to engage and communicate effectively with all parties involved when carrying out land dealings. If any overriding interests exist on the property or material conditions that affect dealings with the title of the property, it is important to notify all relevant parties to the transaction and especially those seeking to acquire the interest in the property.

3. Financial Management

Effective finance management is crucial for every development project to succeed. Developers are responsible for making sure that money is spent wisely and financial commitments are fulfilled. Financial irregularities or poor management may result in default proceedings such as auctions which cause irreparable damage to stakeholders.

2.0 Duties of a Purchaser

2.1 Conduct due diligence

When purchasing an off-plan property, the Purchaser is expected to conduct due diligence for purposes of verifying the validity of the title and the legality of the transaction. This includes confirming its ownership, the physical status of the property, reviewing the legal approvals and determining financial encumbrances associated with the property.

Part of the due diligence would require assessing the credibility of the developer. The track record and credibility of the developer is crucial in assessing whether the developer is likely to fulfill their obligations. The purchaser must probe the history of the developer and determine whether there are patterns that would indicate potential risks such as stalled projects or litigation disputes that arose from their projects.

2.2 Recognizing the provisions of the Sale Agreement

A crucial stage in off-plan purchases is contract exchange. It binds you legally to purchase the property at the asking price, even if the market rates change in the future. It is the duty of the purchaser to examine all the details thoroughly before executing the contract. It is crucial to read the provisions on the anticipated completion date, interest on late payments and key terms such as default provisions to make sure that they understand the expectations from every party to the Sale Agreement which on the part of the purchaser would mainly entail payment of the purchase price.

The Key Aspects of Sectional Properties Act (2020)

Kenya's Sectional Properties Act (SPA) of 2020 regulates the ownership and management of apartments, townhouses, flats, maisonettes, and offices. The SPA was passed to simplify the process of acquiring and managing sectional units, and to give owners more autonomy.

The Sectional Properties Act (SPA) of Kenya allows for the division of buildings into units that are owned by separate individuals. The SPA also establishes common areas, such as gyms, lobbies, and playgrounds, that are owned by the unit owners as tenants in common.

The SPA applies to both Kenyan citizens and foreign nationals, but there are some differences in what each can own:

·       Kenyan citizens: Can hold both leasehold and freehold sectional titles

·       Foreign nationals: Can only hold leasehold sectional titles for up to 99 years

Generally, the SPA allows owners to acquire an independent title deed for their unit, as opposed to a lease where the owner's interest is registered against the main title. The SPA also establishes a Corporation to manage the property, including maintaining it, enforcing bylaws, and paying insurance premiums.

Here are some key aspects of the SPA:

Sectional units

A sectional unit is a space within a building that's defined by its walls, floors, and ceilings. Sectional units come with a distinct share of the building's common areas.

Titles

The SPA allows owners to acquire an independent title deed for their unit, rather than having their interest registered against the main title for the land. Kenyan citizens can hold either freehold or leasehold sectional titles, and can hold the title for more than 99 years.

Dispute resolution

Disputes related to by-law violations are handled by an internal dispute resolution committee. The committee can make decisions without limit on penalties. Decisions made by the committee can be appealed to the Environment and Land Court.

Conversion of long-term leases

To convert a long-term lease to a sectional title, an applicant needs to provide a sectional plan, sub-lease or long-term lease, and a copy of the title. After conversion, the registrar will issue a certificate of title or lease to the unit owner.

The SPA replaced the Sectional Properties Act of 1987. The new law was created in response to challenges with the previous act, as well as the Constitution of Kenya, 2010, and advancements in the banking and building industries.

Conclusion

The SPA includes penal sanctions for non-compliance, such as fines of up to KES 20,000,000 or one year in prison

Official search and a Registry Index Map (RIM) in land transactions in Kenya

An official search and a Registry Index Map (RIM) are both important documents in land transactions in Kenya:

Official search
A search of the land registry for the property being sold. This is often done before drafting a sale agreement. The search can be done electronically for land in Nairobi or other digitally-enabled registries, or physically for up-country registries.

Registry Index Map (RIM)
A map that shows the location, boundaries, and shape of a piece of land. It also shows the general region around the land. The RIM is often more informative than the title deed because it visually confirms the land's existence and location. 

The RIM is obtained from the Survey of Kenya after the official search. It's an essential document that provides proof that the land is legally owned and accurately mapped. The RIM is updated with any changes to the land, such as subdivisions or amalgamations.