Notary Public in Kenya

Who is a notary public?

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

The law governing Notary Public

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

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

Key considerations for qualification:

 
Key points about Notary Public qualifications in Kenya:

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

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

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

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

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

The documents uploaded include:

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

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

Process of Administration of the Estate in Kenya

 The process starts as follows:

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

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

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

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

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

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

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

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

Courtsey of : AIP

Consent of the Land Control Board

 Introduction

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

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

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

Transactions requiring the Land Control Board Consents

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

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

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

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

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

Registration and Withdrawal of Caution in Land

What is a caution?

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

Grounds for Lodging a Caution

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

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

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

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

Process of Lodging a Caution in Kenya

The process of lodging a caution involves:

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

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

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

Effects of a land Caution in Kenya

Once a caution is registered:

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

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

·       Removal of a Caution On Land in Kenya

Removing a land caution in Kenya

A caution can be removed in the following ways:

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

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

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

Replacing a Lost Title Deed/Document in Kenya

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

To be continued ...