Land Laws (Amendment) Act, 2016 (No. 28 of 2016)

SPECIAL ISSUE Kenya Gazette Supplement No. 149 (Acts No. 28) REPUBLIC OF KENYA KENYA GAZETTE SU PPLEM ENT ACTS,201 6 NAIROBI, 7th September, 2A16 CONTENT Act PAGE The Land Laws (Amendment) Act,2016.... ...........555 GOUHCIL TOR LAIT REPORTIflG REC EIVED :I5ffiP ffi P. O. Box 'ifi443- 00100 NAIRCBI, KENYA TEL: 2-/1 t]231 FAX : 2712694 I t PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI Il 55s THE LAND LAWS (AMENDMENT) ACT, 2016 No. 28 of 2016 Date of Assent: 3lst August, 2016 Date of Commencement: 2lst September, 2016 AN ACT of Parliament to amend the laws relating to Iand to align them with the Constitution, to give effect to Articles 68(c)(i) and 67(2)(e) of the Constitution, to provide for procedures on evictions from land, and for connected purposes ENACTED by the Parliament of Kenya, as follows L. This Act may be cited as the Land Laws (Amendment) Act, 2016. 2. Section 2 of the Land Registration Act is amended in section 2 (a) by deleting the definition of "assignee" and substituting therefor the following new definition "assignee" has the meaning assigned to it under the Land Act, 2012; (b) in the definition of "boffower" by deleting the words "land or lease" and substifuting therefor the words "interest in land or lease"; (c) in the definition of "caution" by deleting the word "means" and substituting therefor the word "includes"; (d) deleting the definition of "charge" and substituting therefor the following new definition "charge" has the meaning assigned to it under the Land Act, 2012; (e) deleting the definition of "Court" and substituting therefor the following new definition Short title. Amendment to section 2 of No.3 of 2012. No.6 of 2012 No. 6 of 2012 'oCourt" means the Environment and Land Court No.reorzou established by the Environment and Land Court Act, 2011, and other courts having jurisdiction on matters relating to land; No. 28 "disposition" has the Land Act, 2012; (e) by deleting substituting definition the meaning assigned to it under the definition of "register" and therefor the following new 5s6 Land Laws (Amendment) (0 deleting the definition of the word "disposition" and substituting therefor the followit g new definition 2016 No. 6 of 2012 "register means the register maintained under section 7 of the Act"; (h) in the definition of "Registrar" by inserting the words "the Deputy Land'Registrar" immediately after the words "Chief Land Registrar"; (D inserting the following new definitions in their proper alphabetical sequence "allocation of land" means the legal process of granting the right to public land; "cadastral plan" means a geo-referenced plan approved by the statutory body responsible for survey of land; "certificate" means a certificate of lease or a certificate of title; "community land register" means a register compiled in accordance with section 8 of the Act and the law relating to community land; "condominium" means housing consisting of a complex of dwelling units in which each unit is individually owned; "copy of a document" in respect to a prescribed document or other document required by law means a copy of that document certified as a true copy of the original by an authorized person; No 6 or2or2 "easement" has the same meaning assigned in the Land Act, 2012; "encumbrance" means any charge, lease, or other interest noted or required to be noted in the encumbrance Section of the Land Register; "eviction" means the act of depriving or removing a person from the possession of land or property which they 2016 557 Land Laws (Amendment) hold unlawfully either executed upon a successful law suit or otherwise; "fees" means money payable for any land transaction or service as prescribed by the Cabinet Secretary under regulations; "licensee" has the same meanirrg assigned to it under the Land Act. "matrimonial home" means any interest in land that is owned or leased by one or both spouses and occupied by the spouses as their family home; "matrimonial property" means any interest in land or lease that is acquired by a spouse or spouses during the subsistence of a marri age; "registration" means bringing of an interest in land or lease under the provisions of the Act and includes making of an entry, note or record in the land register; "sectional plan" means a geo-referenced plan of units or a part of land as the case may be prepared by a surveyor and approved by the statutory body responsible survey of land; "sectional unit" means a space that is situated within a building and described in a sectional plan by reference to floors, walls and ceilings within the buildings; "spouse" means either a husband or a wife married under any recognized law in Kenya; "Rules Committee" means the rules committee of the High Court; "transfer" means passing of an estate or interest in land or lease under this Act, whether for valuable consideration or otherwise; 3. Section 6 of the Land Registration Act is amended by (a) in subsection ( 1), by deleting the words "Commission in consultation with national and county governments may" and substituting therefor the words "Cabinet Secretary in consultation with the Commission and the county governments shall"; No.28 Amendment of section6No.3of 2012. t B E t" E h E. h f\ r, H No. 28 558 Land Laws (Amendment) (b) in subsection (5) by deleting the word "Commission" appearing immediately after the words "by the" and substituting therefor with the word "Cabinet Secretary" ; (c) in subsection (6) insertirg the following new subsection immediately after subsection (6) (7) For pu{poses of administration and effective land management, the county governments shall have access to all documents maintained in the registration units. 4. Section 7 of the Land Registration Act is amended by (a) in subsection ( 1) by deleting the word Commission wherever it appears and substituting therefor the word "Cabinet Secretary"; (b) in subsection (3) by deleting the words "Public Service Commission and"; (c) insertirrg the following new subsections immediately after subsection (3) (4) The land register shall include the followit g features (a) the property section; (b) the proprietorship section; (c) the encumbrance section; (d) the user of the land; and (e) any other feature required under arly law or otherwise considered necessary by the Cabinet Secretary. (5) Registration shall be effected by an entry in the register in such form as may from time to time be prescribed by the Cabinet Secretary, and by cancellation of the entry, if any, which it replaces. (6) Subject to the provisions of this Act, the Registrar may at any time, open a new edition of a register showing only the subsisting entries and omitting therefrom all entries that have ceased to have effect. (7) The Registrar may cancel any entry in the register which have ceased to have effect. 2016 Amendment of section 7 of No.3 of 2012. 20t6 s59 Land Laws (Amendment) 5. Section 9 of the Land Registration Act is amended by inserting the following new paragraph in subsection (2) immediately after parugraph (d) (da) passport number, telephone number and email address, where applicable. 6. Section 12 of the Land Registration Act is amended in subsection (l) by (a) deleting the marginal note and substituting therefor the following marginal note Appointment of Land Registrars and other fficers. (b) inserting the words "a Deputy Chief Land Registrar, County Land Registrars, Land Registrars" immediately after the words "Chief Land Registrar". 7. The Land Registration Act is amended by inserting the following new section immediately after section 13 No. 28 Amendment of section 9 of No. 3 of 2012. Amendment of section 12 of No. 3 of 2012. Insertion of new section l3,A. in No. 3 of 2012. Qualifications for appointment of other land Registrars. 13A. ( 1) A person shall not qualify for appointment as Deputy Chief Land Registrar unless such a person is an Advocate of the High Court of Kenya of not less than ten years' standing, a land surveyor, a land economist or an expert in any other relevant field. (2) A person shall not qualify for appointment as a County Land Registrar unless such a person is an Advocate of the High Court of Kenya of not less than five years' standing or an Advocate of the High Court with at least five years' experience in land administratior, a land surveyor, a land economist or an expert in any other relevant field. (3) A person shall not qualify for appointment as a Land Registrar unless such a person is an Advocate of the High Court of Kenya, a land surveyor, a land economist or an expert in any other relevant field. (4) Upon appointment, the Registrar shall take an oath of office in the prescribed form. No. 28 8. Section 14 of the Land Registration Act is amended by (a) renumbering the existing section 14 as Ia 0); (b) insertirg the following new subsections immediately after subsection (1) (2) In addition to the powers conferred by section L4 (1) the Chief Land Registrar shall (a) formulate practice instructions and guidelines for implementation of the land registration policies and strategies; set standards for the registries; supervise the registries; prepare and submit an annual report on the state of land registration to the Commission and the Cabinet Secrctary, (e) hear and determine appeals from the registries; (0 approve the format of any instrument which is not in accordance with the prescribed form; and (g) perform such other functions or duties as may be provided under any written law. (3) The Deputy Chief Land Registrar shall be the principal assistant of the Chief Land Registrar in the execution of the functions of the Chief Land Registrar. (4) The County Land Registrar shall be responsible for administering the registries within the respective county and in the implementation of policies, guidelines and strategies in accordance with this Act. (5) The Registrar shall not be held personally liable for lawful acts discharged by the Registrar under this Act in good faith. 560 Land Laws (Amendment) 2016 (5) Upon the commencement of this Act, any person holding the position of Chief Land Registrar, and Land Registrars who do not meet the qualifications prescribed in this Act shall be redeployed to other positions and duties within the public service. Amendment of section 14 of No.3 of 2012. (b) (c) (d) 2016 561 Land Laws (Amendment) 9. Section 16 of the Land Registration Act is amended (a) in subsection ( 1) by deleting the words "and such correction shall not be effected except on the instruction of the Registrar, in writing," appearing immediately after the words "subdivision plan" and substituting therefor the words "approved combination plan or any other approved plan necessitating the alteration of the boundary"; (b) l;, subsection (2) by deleting the wordsNotwithstanding subsection ( 1), ooy alteration and shall be made public and" (c) by inserting the following new subsection immediately after subsection (3) (4) Any rectification to the cadastral map in accordance with this section shall be notified to the Registrar by the submission of the rectified cadastral map and all the approvals that necessitated the amendments. 10. The Land Registration Act is amended in section 17 by deleting subsection (3) and substituting therefor the following (3) The office or authority responsible for the survey of land shall submit to the Commission a copy of the cadastral maps relating to public land and the Commission shall be a depository of the maps. 11. Section 28 of the Land Registration Act is amended by (a) deleting paragraph (a); (b) deleting paragraph (0; (c) inserting the following new proviso to the section Provided that the Registrar may direct the registration of any of the liabilities, rights and interests hereinbefore defined in such manner as the Registrar deems necessary. 12. Section 30 of the Land Registration Act is amended (a) in subsection (1) by deleting the words "or a lease" and substituting therefor the words "whose name appears in the register or a leas e"; No.28 Amendment of section l6 of No. 3 of2012. Amendment of section 17 of No. 3 of 2012. Amendment of section 28 of No. 3 of2012. Amendment to section 30 of No. 3 of 2012. No.28 562 Land Laws (Amendment) (b) in subsection (2Xb) by deleting the expression "twenty-five" and substituting therefor the expression "twenty-one". 13. Section 33 of the Land Registration Act is amended (a) in subsection ( 1) by deleting the word "duplicate" appearing immediately after the word "issue of a" and substituting therefor with the word "replacement"; (b) in subsection (3) by deleting the word "duplicate" appearing immediately after the word "issue a" and substituting therefor the word "replacement"; (c) by inserting the following new subsection (6) (6) Upon the issue of a replacement certifi cate no further dealings shall be carried out using the replaced certificate. 14. Section 36 of the Land Registration Act is amended (a) by deleting subsection (4) and substituting therefor the following subsection (4) Where an instrument presented for registration later than three months from the date of the instrument, then, as well as registration fee, and additional fee equal to the registration fee shall be payable for each of the three months which have elapsed since that date: Provided that in no such case shall the sum of the additional fees, exceed two times the original registration fees payable; (b) by inserting the following new subsections immediately after subsection (4) (5) Interests appearing in the register shall have priority according to the order in which the instruments which led to their registration were presented to the registry, irrespective of the dates of the instruments and notwithstanding that the actual entry in the register may be delayed: Provided that where an instrument is prepared in the registry, it shall be deemed to 2016 Amendment of section 33 of No. 3 of2012 Amendment of section 36 of No. 3 of 2012. 1 1 I I 2016 563 l,and Laws ( Amendment) have been presented on the date which thc application was made to the Registrar. (6) Instruments sent by post or under cover and received during the hours of business shall be deemed to be presented simultaneously immediately before the closing of office that day, and instruments so sent but received between the time of closing and the next opening of the office for business shall be deemed to be presented simultaneously immediately after such opening. (7) Where more than one instrument or application are presented on the same day such that in the opinion of the Registrar there is doubt as to their order of priority, the Registrar shall reject the registration and shall inform the applicants of such rejection. (8) Where any person proposing to deal with registered land has, with the consent in writing of the proprietor, applied for ofticial search and has stated in his application the particulars of the proposed dealing, the registration of any instrument affecting the land to be comprised in or affected by the proposed dealing shall be stayed for a period (hereinafter referred to as the suspension period) of fourteen days from the time at which application for the search was made, and a note shall be made in the register accordingly. (9) If a properly executed instrument affecting the proposed dealing is presented for registration, within the suspension period, the instrument shall have priority over any other instrument which may be presented for registration during the suspension period, and shall be registered notwithstanding any caution or any other entry for which application for registration may have been made during the suspension period Provided that upon commencement of the Act, any instrument that shall not have been registered will be required to be so regiStered No. 28 No.28 (c) the proprietor of a parcel which is burdened with an easement, a prorit or restrictive agreement and the proprietor of a parcel which benefits from the easement, profit and agreement, vests in the same proprietor, the interests shall not merge unless a surrender or discharge is registered or the parcels are combined or there is a declaration of merger, which may be contained in the instrument evidencing the disposition. 15. Section 38 of the Land Registration Act is amended (a) 1n subsection ( 1) by deleting the words tfl:[:,,{,:fr'3r,$",'#' J;,d'* ;H:;*:X?'? Tli substituting therefor with the words "transferring or vesting"; (b) in subsection (2) by deleting paragraph (b). 16. Section 39 of the Land Registration Act is amended in subsection (2) by deleting the words "relevant County Land Management Board" and substituting therefor the words "national or county government". 17. Section 43(2) of the Land Registration Act is amended by deleting the word "private land" appearing immediately after the word "disposition of ' and substituting therefor with the words "an interest in land". 1,8. Section 44 of the Land Registration Act is amended (a) deleting subsection (3) and substituting therefor the following subsection (3) The execution of any instrument referred to in section ( 1) by a corporate body, association, 564 Land Laws (Amendment) 2016 within three months. (10) Where on the registration of an instrument relating to a disposition under this Act, the interests of (a) a lessor and lessee; (b) chargor and chargee, or i Amendment of section 38 of No. 3 of2012. Amendment of section 39 of No. 3 of 2012. Amendment of section 43 of No. 3 of 2012. Amendment of Section 44 of No. 3 of 2012. 565 2016 Land Laws (Amendment) cooperative society or other organisation shall be effected in accordance with the provisions of the relevant applicable law and in the absence of provisions on execution of instruments, the execution shall be effected in the presence of either an advocate of the High Court of Kenya, a magistrate, a Judge or a notary public. (b) deleting subsection (4) and substituting therefor the following subsection (4) An instrument executed outside Kenya shall not be registered unless it has been endorsed or is accompanied by a certificate in the prescribed form completed by a notary public or such other person as the Cabinet Secretary may prescribe. (c) in subsection (5) by inserting the following paragraph (e) immediately after paragraph (d) (d) a copy of the certifi cate of incorporation, in the case of a corporate entity; or 19. Section 54 of the Land Registration Act is amended by (a) in subsection (1) by deleting the word "leased' appearing immediately after the word "leased land"; (b) in subsection (2) by inserting the following new paragraph immediately after paragraph (b) (c) on any of the grounds set out under section 39(4). (c) inserting the following new subsection immediately after subsection (5) (6) The Cabinet Secretary may prescribe regulations for the registration of long term leases. 20. Section 55 of the Land Registration Act is amended by deleting the words "lessee that the lessee" appearing immediately after the words "by the" and substituting therefor the phrase "lessor that the lessor"; 21. Section 56 of the Land Registration Act is amended No.28 Amendment of section 54 of No. 3 of 2012. Amendment of Section 55 ofno. 3 of 2012. Amendment of Section 56 ofNo.3 of 2012. No. 28 566 Land Laws (Amendment) (a) by deleting subsection (4) and substituting therefor the following new subsection (4) The Registrar shall not register a charge, unless a land rent clearance certiti cate, certifying that no rent is owing in respect of the land, and the consent to charge has been presented, or unless the land is freehold. (b) by inserting the following new subsection immediately after subsection (5) (5A) No certificate shall be required under subsection (4) if the charge relates to (a) a unit in a condominium; (b) an office in a building; or (c) a sub-lease where the lease is by virtue of any law subject to the full payment of the rent by the head-lessor. (c) in subsection (6) by deleting the words "chargee of his or her" appearing in subsection (6) immediately after the word "exercise of the" and substituting therefor the word "chargee's". 22. Section 57 (2) of the Land Registration Act is amended in section by deleting the word "charge" appearing immediately after the word "first" and substituting therefor the word "chargee's. 23. Section 7 6 of the Land Registration Act is amended (a) in subsection (2) by deleting the words "the making" appearing in paragraph (c); (b) by inserting the following new subsection immediately after subsection (2) (24) A restriction shall be registered in the register and may prohibit or restrict either all dealings in the land or only those dealings which do not comply with specified conditions." 24. Section 77 (2) of the Land Registration Act is amended by deleting the word ..it)) appearing immediately after the word "with" and substituting therefor with the words "a restriction". 2016 Amendment of section 57 ofNo.3 of2012. Amendment of section 58 of No. 3 of2012. Amendment of Section 77of No. 3 of2012. 2016 561 Land Laws (Amendment) 25. Section 78( 1) of the Land Registration Act is amended in by deleting the word "that" appearing immediately after the word "order". 26. Section 79 of the Land Registration Act is amended (a) in subsection ( 1) (i) by inserting the word "mistakes" immediately after the word "errors" appearing in paragraph (a); (ii) inserting the following new paragraphs immediately after paragraph (c) (d) for purposes of updating the register; (e) for purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form. (b) by deleting subsection (2) and substituting therefor the following subsection (2) No alteration affecting the title of the proprietor may be made pursuant to sub-section ( 1) without the proprietor' s consent unless (a) the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or (b) it would for any other reason be unjust for the alteration not to be made. Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration. (c) by inserting the following new subsection immediately after subsection (3) (3A) A person aggrieved by the decision of the Registrar under this section may apply to the Court for any necessary orders. (d) by deleting the introductory statement in subsection (4) and substituting therefor the following new introductory statement No. 28 Amendment of Section 78 of No.3 of2012. Amendment of Section 79 of No. 3 of2012. No. 28 568 Land Laws (Amendment) (4) The Cabinet Secretary may by regulations prescribe the guidelines that the Regisffar shall follow before rectifying or directing rectification under this section and without prejudice to the generality of the foregoing, the regulations may provide for 27. Section 80 of the Land Registration Act is amended in subsection (2) by deleting the phrase "who is in possession and had acquired the land, lease or charge for valuable consideration" appearing immediately after the word "proprietor". 28. Section 83 of the Land Registration Act is amended by deleting the word "may" appearing immediately after the word "party". 29. Section 9l of the Land Registration Act is amended (a) in subsection( 1) by deleting the words "in undivided shares" appearing immediately after the word "persons"; (b) deleting subsection (2) and substituting therefor the following subsection (2) Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares. (c) in subsection (4) by deleting the word "or" appearing at the end of paragraph (b) and substituting therefor the word "and"; (d) deleting subsection (8) and substituting therefor the following new subsection (8) The Registrar may upon receipt of adequ ate proof dispense with the consent under subsection (6) if the Registrar considers that the consent cannot be obtained or is being withheld unreasonably and the Registrar shall note on the register and on the instrument the reasons for dispensing with the consent. (e) inserting the following new immediately after subsection (8) 2016 Amendment of section 80 of No. 3 of2012. Amendment of section 83 of No. 3 of2012. Amendment of section 9l ofNo. 3 of2012. I ) subsection 2016 s69 Land Laws (Amendment) (9) A person who is aggrieved by the decision of the Registrar may apply to the Court for the necessary orders. 30. Section 92 of the Land Registration Act is amended by inserting the following new proviso to the section Provided that a designated co-tenant shall be provided with the original title to the land. 31. Section 93 of the Land Registration Act is deleted and replaced by the following new section 93 93. Subject to any written law to the contrary, if a spouse obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses or all spouses, such property shall be deemed to be matrimonial property and shall be dealt with under the Matrimonial Property Act. 32. Section 94 of the Land Registration Act is amended (a) in subsection ( 1), by deleting the words "certificate of land" and substituting therefor the words "certificate of title or certificate of lease"; (b) by inserting the following new subsection immediately after subsection (4) (5) Any co-tenant aggrieved by the decision of the Registrar may apply to the Court for a review of that decision. 33. Section I02 of the Land Registration Act is amended in subsection (3) by deleting the words "or that it has been agreed between the payer and the payee that the fee may be paid in installments" appearing at the end of the subsection. 34. Section 103 of the Land Registration Act is amended (a) in subsection ( 1) (i) by deleting the word "ownership" appearing immediately after the words "certificate of in paragraph (c) subparagraph (i) and substituting therefor the words "title or certificate of lease"; No. 28 Amendment of section 92 ofNo. 3 of2012. Amendment of section 93 ofNo. 3 of 2012. Amendment of section 94 of No. 3 of 2012. Amendment of section 102 of No.3 of 2012. Amendment of section 103 ofNo. 3 of2012 No. 28 s70 Land Laws (Amendment) (ii) by deleting the word c(a)) appearing immediately after word "of in paragraph (c) subparagraph (ii) and substituting therefor the word "an"; (iii) by inserting the following new subparagraph immediately after subparagraph (iii) of paragraph (c) (iv) a dealing or a transaction using any of the replaced register, certifi cate of title or certiticate of lease; (iv) by deleting the word "form" appearing in paragraph (d) immediately after the word "conceals" and substituting therefor the word from"; (b) in subsection (2) by deleting the word "public" appearing immediately after the word "unlawfully occupies". 35. Section 105 of the Land Registration amended (a) in subsection (1) by deleting paragraph substituting therefor the following paragraph (a) in the case of an interest in land previously under the repealed Government Lands Act and the repealed Land Titles Act then (i) the register or folio maintained under the repealed Government Lands Act and the repealed Land Titles Act in respect of the interest in land shall be deemed to be the register under this Act; (ii) the last conveyance or assignment noted in the register or folio maintained under the repealed Government Lands Act and the repealed Land Titles Act in respect of the interest in land shall be deemed to be evidence of ownership of the interest in land for pu{poses of issuing a certificate of title or a certificate of lease under this Act: Provided that the Registrar may at any time prepare a register under this Act showing all subsisting particulars 2016 Amendment of section 105 of No. 3 of 2012. Act is (c) and new 2016 57r Land Laws (Amendment) contained in the register or folio maintained under thc repealed Government Lands Act and the repealed Land Titles Act and issue to the proprietor a certificate of title or a certificate of lease in the prescribed form. (b) by deleting subsection (2) and substituting therefor the followirg subsection (2) In compiling the land register, the Registrar shall (a) register the relevant public land in the name of the county or national government in trust for the people resident in the county or national government; (b) comply the direction of the Commission as contained in any Gazette notice made under section 15 of the Land Act; and (c) include any special provisions relevant to the public land. 36. Section 2 of the National Land Commission Act is amended in section2 by deleting the detinition of "Board". 37. Section 5 of the National Land Commission Act is amended by (a) in subsection (2) by (i) deleting pa ragraph (c) and substituting therefor the following paragraph (c) ensure that public land under the management of the designated state agencies is sustainably managed for the intended purposes; (ii) deleting paragraph (d) and substituting therefor the following paragraph (d) may develop and maintain an effective land information system for the management of public land; (iii) deleting paragraph (e); (iv) deleting paragraph (0; deleting subsection (3). deleting subsection (4). No. 28 No.6 of 2012. Amendment of section 2 of No. 5 of 2012. Amendment of section 5 of No. 5 of 2012. (b) (c) Historical land injustices. Cap.22. No. 28 572 Land Laws (Amendment) 2016 38. Section 15 of the National Land Commission Act Amendmentor section l5 ofNo.5 is deleted and substituted by the following new section- or20t2. I 5. ( 1) Pursuant to Article 67 (3) of the Constitution, the Commission shall receive, admit and investigate all historical land injustice complaints and recommend appropriate redress. (2) For the pu{poses of this section, a historical land injustice means a grievance which (a) was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty or agreement; (b) resulted in displacement from their habitual place of residence; (c) occurred between l5th June 1895 when Kenya became a protectorate under the British East African Protectorate and 27th August, 2010 when the Constitution of Kenya was promulgated; (d) has not been sufficiently resolved and subsists up to the period specified under paragraph (c); and (e) meets the criteria set out under subsection 3 of this section. (3) A historical land claim may only be admitted, registered and processed by the Commission if it meets the following criteria (a) it is verifiable that the act complained of resulted in displacement of the claimant or other form of historical land injustice; (b) the claim has not or is not capable of being addressed through the ordinary court system on the basis 2016 573 Land l-aws (Amendment) that (i) the claim contradicts a law that was in force at the time when the injustice began; or (ii) the claim is debarred under section 7 of the Limitation of Actions Act or any other law; (c) the claimant was either a proprietor or occupant of the land upon which the claim is based; (d) no action or omission on the part of the claimant amounts to surrender or renouncement of the right to the land in question; and (e) it is brought within five years from the date of commencement of this Act. (4) A claim alleging historical land injustice shall be permissible if it was occasioned by (a) colonial occupation; (b) independence struggle; (c) pre-independence treaty or agreement between a community and the government; (d) development-induced displacement for which no adequate compensation or other form of remedy was provided, including conversion of non public land into public land; (e) inequitable land adjudication process or resettlement scheme; (0 politically motivated or conflict based eviction; (g) colruption or other form of No.28 No. 28 514 Land Laws (Amendment) illegality; (h) natural disaster; or (i) other cause approved by the Commission. (5) When conducting investigations under subsection ( 1) into historical land injustices the Commission may (a) request from any person includirrg any government department such particulars, documents and information regardirrg any investigation, as may be necessary; or (b) by notice in writing, addressed and delivered by a staff of the Commission to any person, direct such person, in relation to any investigation, to appear before the Commission at such time and place as may be specified in the notice, and to produce such documents or objects in the possession, custody or under the control of such person and which are relevant to that investigation. (6) Where a complainant is unable to provide all the information necessary for the adequate submission or investigation of a complaint, the Commission shall take reasonable steps to have this information rnade available. (7) lf at any stage during the course of an investigation, the Commission is of the opinion that the resources of the Commission may be more effectively utilized if all claims within a given area or township were to be investigated at the same time, the Commission shall cause to be published in the Gazette or in such other manner as the Commission may deem appropriate, a notice advising potential 2016 2016 575 Land Laws (Amendment) complainants of the decision and inviting them to lodge claims within a period specified in such notice. (8) A claim in respect of a matter contemplated in subsection (7) shall not be lodged after the expiry of the period specified in the said notice. (9) The Commission ? after investigating any case of historical land injustice referred to it, shall recommend any of the following remedies (a) restitution; (b) compensation, if it is impossible to restore the land; (c) resettlement on an alternative land; (d) rehabilitation through provision of social infrastructure; (e) affirmative action programmes for marginahzed groups and communities; (0 creation of wayleaves and easements; (g) order for revocation and reallocation of the land; (h) order for revocation of an official declaration in respect of any public land and reallocation; (i) sale and sharing of the proceeds; 0) refund to bona fid, third party purchasers after valuation; or (k) declaratory and preservation orders including injunctions. ( l0) Upon determination of a historical land injustice claim by the Commission, dny authority mandated to act under the redress No. 28 No. 28 576 Land Laws (Amendment) recommended shall be required to do so within three years. ( I I ) The provisions of this section shall stand repealed within ten years. 39. The National Land Commission Act is amended by repealing section 18. 40. The First Schedule of the National Land Commission Act is amended (a) in paragraph (1) (i) by deleting the words "in consultation with the Prime Minister" appearing in the opening sentence; (ii) by deleting sub-parugraph (b); and (iii) by deleting the proviso; (b) by inserting the words "within seven days" immediately after the word "shall" appearing in paragraph (7). (c) insertirrg the following new paragraph (8A) immediately after paragraph (8) (8A) If the President does not appoint the chairperson or members of the Commission as prescribed under paragraph (8), the approved nominees shall be taken to have been appointed upon the lapse of twenty one days. (d) by deleting paragraph (1a); 41. Section 2 of the Land Act is amended (a) deleting the definition of "allocation of land" and substituting therefor the following definition "allocation of land" means the legal process of granting rights to public land; (b) in the definition inserting the word word "relating"; of Cabinet Secretary by "to" immediately after the (c) by inserting the following new definitions in their proper alphabetical sequence "agrrculture or agricultural" has the meaning assigned 2016 Repeal of section 18 ofNo. 5 of 2012. Amendment of First Schedule to No. 5 of 2012. Amendment to section 2 of No.6 of 20t2. 20L6 577 l^and Laws (Amendment) to it by the Agriculture, Fisheries and Food Authority Act, 2013; "customary land" means private land on which one or more members of the family have customary rights of ownership; "Land Preservation Order" ban order served under the Agriculture, Fisheries and Food Authority, 2013; "lawful improvements" means improvements which increase or improve the value of land which have been quantified by a qualified valuer in accordance with all applicable law and includes (a) any permanent infrastructural developments including dams, reservoirs, water treatment plants; any buildings; any growing commercial trees or shnrbs; any water points, fences and other pastoral infrastructure that may be on the land. "national spatial data infrastructure" means the combination of technology, data" institutional arrafigements and people that enables the discovery, evaluation and use of geographical data for users from all sectors of the economy and the general citizenry1' "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 venfure 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 No.28 No, l3 of 2013 No. l3 of 2013 (b) (c) (d) 578 No. 28 Land Laws (Amendment) 2016 through import substitution and exports; (e) sustainable agricultural practices and sustainable forest management which can contribute to addressing climate change concerns; (0 emphasis is on reference to Kenya and the application of Kenyan law without waiver of any rights of Kenya. "state corporation" has the same meaning assigned to it by the State Corporations Act. cap.446 42. Section 5 of the Land Act is amended by inserting f,,"l,o?lll,l'".u* the following new subsection immediately after subsection zot2. (2) (3) Save as provided for in the Constitution, a registered proprietor shall not, for the purposes of obtaining planning permission, be obliged to surrender the freehold interest in exchange for leasehold. 43. Section 6 of the principle Act is amended by- Hilf?:}';:""., of2012. (a) deleting the marginal note and substituting therefor the following new marginal note Powers andfunctions of the Cabinet Secretary in land management. (b) inserting the following new paragraphs immediately after paragraph (f) (g) provide policy direction regarding all classes of land in consultation with the Commission where appropriate; (h) coordinate the development and implementation of a National Land Information System in collaboration with the Commission; (i) administer and undertake all dealings including registration of private land interests subject to Part VIII of this Act. 44. Section 8 of the Land Act is amended by- Hil,lf""1l,ij.u", 2012. (a) re-numbering the existing provision as 579 2016 Land Laws (Amendment) subsection ( 1); (b) by inserting the following new subsection immediately after subsection ( 1) (2) The Commission shall establish and maintain a register containing (a) the particulars of all public land converted to priv ate land by allocation; (b) the names and addresses of all persons whose land has converted to public through compulsory acquisition or reversion of leasehold; (c) particulars of community land converted into public; and (d) such other details as the Commission may consider necessary. Section 9 of the Land Act is amended by in subsection (2) by deleting the word "alienation" appearing in paragraph (a) and substituting therefor the word "allocation"; deleting subsection (4). Section 12 of the Land Act is amended in subsection ( I ) by deleting the introductory part and substituting therefor the following ( I ) Whenever the national or county government is satisfied that it may be necessary to allocate the whole or part of a specific public land, the Cabinet Secretary or the County Executive Committee member responsible for matters relating to land shall submit a request to the Commission for the necessary action by way of (b) in subsection (3) by inserting the words "upon the request of the national or a county government" immediately after the word "shall'; (c) in subsection (7) by deleting the expression "( I 6)" and substituting therefor the expression "( 1 7)"; (d) in subsection (9) by inserting the words "and the 45. (a) (b) 46. (a) No. 28 Amendment of section 9 of No. 6 of 2012. Amendment of section l2 ofNo.6 of 2012. No.28 580 Land Laws (Amendment) Commission shall include in its annual report the status of implementation of this subsection" immediately after the words "as the case may be". 47. The Land Act is amended by inserting the following new section immediately after section 12 Controlled land. l2A. (l) In this part "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. "ineligible person" means (i) an individual who is not a Kenyan citizen; (ii) the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such govemment or political subdivision, or (iii) a body corporate which has non-citizens as shareholders shall be deemed to be a non citizen." "interest" has the meaning assigned to it in the Act and interest in land shall include transfer, lease, licence, charge, exchange, partition or other disposal of or dealing with any controlled land. "corporation" means a body incorporated with or without a share capital 2016 Insertion of new section l2,A. in No. 6 of 2012. 581 2016 Land Laws (Amendment) under any written law in Kenya and the expression includes a limited liability partnership; (2) No transaction in controlled land, includirrg a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary. (3) In decidirrg whether to approve or not approve an application, the Cabinet Secretary shall seek the approval of the relevant authorities 48. Section l3 of the principle Act is amended by (a) deleting subsection (l) and substituting therefor the following new subsection (1) Before the expiry of the leasehold tenure, the Commission shall (a) within five years, notiff the lessee, by registered mail, of the date of expiry of the lease and inform the lessee of his or her pre-emptive right to allocation of the land upon application, provided that such lessee is a Kenyan citizen and that the land is not required by the national or county goveflrment for public purposes; and (b) if within one year the lessee shall not have responded to the notification, publish the notification in one newspaper of nationwide circulation. (b) inserting the following new subsection immediately after subsection (1) (lA) Where a lease is not granted after an application under subsection (l), the Commission shall give the lessee the reasons for not granting the lease, in writing. 49. Section 15 of the Land Act is amended- *ffff#ifi.. of2012. No. 28 Amendment of section 13 ofNo.6 of 2012. t, i I I i No. 28 582 Land Laws (Amendment) (a) by deleting the marginal note and substituting therefor the following new marginal note Reservation and development of public land. (b) by deleting the words "may, in consultation with the national government and the county governments" appearit g in subsection ( 1) and substituting therefor the words "shall, upon request by the national or county government". (c) in subsection (2) by deleting the phrase "and ItXt,"rHJ,,,,o'*r::ifif u,'o,n."'."ii"""? d: subsection. 50. Section 16 of the Land Act is amended in subsection ( I ) by deleting the opening sentence and substituting therefor the followirg ( 1) Upon request by the national or county government, the Commission frdy, by order in the Gazette 51. Section23 of the Land Act is amended (a) Bt]I#J[lv*;'iil;T:TH::T; occurs; (iii) deleting the word "grantee" appearing in paragraph (b); (b) ffJttt;Tl;T:;i"fLlf;:ii stituting thereror (2) A lease or licence for public land shall be issued by the Commission and shall be registered by the Chief Lands Registrar. 52. Section 24 of the Land Act is amended by (a) deleting the word 'ograrrt" appearing immediately after the word "every"; (b) deleting the word "grantee" wherever it occurs. 53. Section25 of the Land Act is amended (a) in subsection ( 1) by deleting the word "determination" appearing in paragraph (a) and 2016 Amendment of section l6 of No. 6 of 2012. Amendment of section 23 of No.6 of2012. Amendment of section 24 ofNo.6 of2012. Amendment of section 25 ofNo.6 of 2012. 583 2016 Land Laws (Amendment) substituting therefor the word "termination"; (b) in subsection (2) by deleting the word "arbrtration" and substituting therefor the phrase "reference to an independent professional valuer who shall be appointed by the Commission through an open, transparent and competitive process as per the public procurement law". 54. Section 34 of the Land Act is amended by inserting the following new subsection immediately after subsection (5) (6) If the office or authority responsible for survey proposes to survey the boundaries of any land that is subject to any interests or cautions, for pu{poses of geo referencing, the office will give reasonable notice to the holders of the interests or to the relevant cautioners and will make adjustments on the cadastral ffi&p, cadastral plan and the acreage without any obligation to pay compensatioll. 55. Section 38 of the Land Act is amended (a) by deleting the marginal note and substituting therefor the following marginal note Validity of contracts in sale of land. (b) in subsection ( I ) (i) by insertirg the words "Other than as provided by this Act or by any other written law" at the beginning of the provision. (ii) by deleting the word "unless" appearing immediately after the word "land". (c) by deleting subsection (2) and substituting therefor the following new subsection (2) Subsection ( I ) shall not apply to (a) a contract made in the course of a public action; (b) the creation or operation of a resulting, implied or a constructive trust; or (c) any agreement or contract made or entered into before the commencement of this Act, provided that (i) the verbal contracts shall be reduced to writing within two years from the No.28 Amendment of section of 34 ofNo. 6 of 2012. Amendments to section 38 of No.6 of 2012. No.28 newspaper circulation." of nationwide 56. Section 42(lXb) is amended by deleting the article '(a)' appearing between the words "in" and "proceedings". 57 . Section 63 of the Land Act is amended by (a) deleting the word "longer" appearing in the marginal note and substituting therefor the word "shorter" (b) deleting subsection (3) and substituting therefor the following new subsection "(3) The term of a sublease shall not be longer than the term of the head lease." 58. Section 65 of the Land Act is amended (a) in subsection (l) by deleting the word "extend" appearing in paragraph (e) and substituting therefor the word "extent"; (b) in subsection(2) by inserting the words "and upon giving a seven days' notice to the lessee" immediately after the words "reasonable time" appearing in paragraph (a). 59. Section 72 of the Land Act is amended in subsection ( 1) by deleting the word "not" appearing immediately after the words "and shall". 60. Section 78 of the Land Act is amended (a) in subsection ( 1) by deleting the words "including any charge made before the coming into effect of this Act and in effect at that time, any other charges of land which are specifically referred to in this Part"; (b) by inserting the following proviso immediately after subsection (l) Provided that (a) the provisions of this Part shall not be construed so as to affect the validity of any 584 I-and Laws (Amendment) 2016 date of enactment of this Act; and (ii) the Cabinet Secretary shall put a notice of the requirement to reduce the contracts in writing, in a Amendment of section 42 of No. 6 of2012. Amendment of section 63 of No.6 of2012. Amendment of section 65 of No.6 of 2012. Amendment of section 72 ofNo.6 of 2012. Amendment of section 78 of no.6 of 2012. 585 2016 Land Laws (Amendment) entry in the register or any charge, mortgage other security instrument which was valid immediately before the commencement of this Act and the entries in the register and the charges, mortgages or other instruments shall continue to be valid in accordance with their terms not withstanding their inconsistency with the provisions of this Part; (b) the provisions relating to the realization of any charge, mortgage or other instrument created before the commencement of this Act shall apply save for the requirement to serve notice to spouses and other persons who were not required to be served under the repealed Acts of Parliament. 61. SectionT9 of the Land Act is amended (a) in subsection (5) by deleting the words "prescribed in the register" in subsection (5) and substituting therefor the words "land registef'; (b) in paragraph (a) of subsection (6) by inserting the words "plus interest as agreed by the chargor and the chargee" immediately after the words "obtained from the charge"; (c) by deleting subsection (9) and substituting therefor the following subsection (9) A chargor shall not possess or sell land whose title documents have been deposited by a chargee under an informal charge without an order of the court; 62. Section 81 of the Land Act is amended (a) in subsection (l) by inserting the words "Unless otherwise provided in the charge instrument," at the beginning of subsection (1); (b) deleting subsection (4) and substituting therefor the following (4) Unless otherwise provided in the charge instrument, if the chargee, holding a charge created subsequent in time to one in favour of a prior chargee, lends money or money's worth on the security of a charge No. 28 Amendment of section 79 of No.6 of 2012. Amendment of section 81 of No.6 of2012. No.28 586 Land l,aws (Amendment) to a chargor and it later transpires that a prior chargee or the chargor himself acted dishonestly or fraudulently in procuring the charge, the prior chargee's right to repayment under the charge shall be postponed to the rights of the subsequent chargee. 63. Section 82 of the Land Act is amended (a) in subsection ( 1) by deleting the words cc a chargor" appearing immediately after the word "Act" and substituting therefor the word "char9ee"; (b) in subsection (2) by deleting the word "chargor" appearing in paragraph (b) and substituting therefor the word "chargee". 64. Section 84 of the Land Act is amended (a) by deleting the marginal note and substituting therefor the following marginal note Variation of charge. (b) In subsection (5) by inserting the words "on the register" immediately after the words "endorsed on" appearing in paragraph (a). 65. The Land Act is amended by deleting section 87 and substituting therefor the following section 87.If a charge contains a condition, express or implied that chargee prohibits the chargor from, transferring, assignirg, leasing, or in the case of a lease, subleasing the land, without the consent of the chargee, no transfer, assignment, lease or sublease shall be registered until the written consent of the chargee has been produced to the Registrar. 66. Section 88 of the Land Act is amended in subsection ( I ) by deleting the word "at" appearing immediately after the word "improvements" in paragraph (c). 67 . Section 90 of the Land Act is amended (a) in subsection ( 1) by inserting the word "in" immediately after the words "continues to be"; (b) in subsection (3) by deleting the words "two months" appearing immediately after the word 2016 Amendment of section 82 of No. 6 of 2012. Amendments of section 84 ofNo.6 of 2012. Amendment of section 87 of No.6 of 2012. Amendment of section 88 of No. 6 of2012. Amendment of section 90 of No. 6 0f 2012. 20L6 587 Land Laws (Amendment) "within" and substituting therefor the words "ninety days". 68. Section 91 of the Land Act is amended by deleting the words "this section" and substituting therefor the words "subsection ( l Xc) of this section. 69. Section 92 of the Land Act is amended in subsection (7) by inserting the word "the" immediately after the words "incurred by". 70. Section 93 of the Land Act is amended (a) in subsection ( 1) by deleting the words "unless the charge instrument expressly provides to the contrary" appearing immediately after the word o'shall"; (b) 11 :*:,::tion (3) by deleting the words "in possession" appearing in paragraph (a); (c) by deleting subsection (5) and substituting therefor the following subsection (5) The provisions of this section shall only apply to a receiver of income appointed under this section and not to receivers appointed under any other instrument to which the chargor may be subject. 71. Section94 of the Land Act is amended (a) in subsection (2) by deleting the words "and any lilf,r:rjr3jf:i[1,fu#,$#;H:l: (b) in subsection (2) by inserting the following new proviso at the end of the subsection 'oProvided that this power of entry shall only be exercised after obtaining a court order." (c) in subsection (7) by deleting the words "apply to" appearing immediately after the words "order as" and substituting therefor the words "applies to". 72. Section 95 of the Land Act is amended (a) in subsection (3) by deleting the word "withdraw" appearing in paragraph (cXii) and substituting No.28 Amendment of section 9l of No.6 of 2012. Amendment of section 92 of No. 6 of 2012. Amendment of section 93 of No. 6 of 2012. Amendment of section 94 ofNo.6 of2012. Amendment of section 95 of No. 6 of 2012. I I No.28 s88 Land Laws (Amendment) therefor the word "withdrawal"; (b) in subsection (4) by deleting the expression "sections 102 and 104" appearing immediately after the words "provisions of' and substituting therefor the expression "secti on 94" ; 73. Section 96 of the Land Act is amended in subsection (3) by inserting the word "of immediately after the word "out" appearing in paragraph (b). 74. Section 98 of the Land Act is amended (a) in subsection ( I ) by inserting the word "or" immediately after the word "whole" appearit g in paragraph (a); (b) in subsection (3) by deleting the words (c A sale of' appearing at the beginning of the provision and substifuting therefor the words "A transfer of '; (c) by inserting the following new subsections immediately after subsection (4) (5) In a sale by a private contract, the chargee shall be entitled to rely on a valuation carried out by a valuer who is registered with the institute of Surveyors of Kenya and the report shall in the absence of a manifest error, be conclusive in relation to the market price: Provided that the valuation report shall at the time of sale be not more than six months old. (6) A transfer by charge shall have priority over all entries made after the transfer of the charge undertaking the sale and the chargee shall stand discharged upon the registration of the transfer. (7) Where it is noted in the register that a second charge by the chargor ranks pari passu to the charge submitting the transfer, the instrument of transfer by the charge shall include a duly executed consent of the charge with a pari passu charge consenting to the sale. (8) For the pu{poses of this section, land, a 2016 Amendment of section 96 of No. 6 of 2012. Amendment of section 98 of No.6 of 2012. 589 2016 Land Laws (Amendment) lease, or a charge shall be deemed to have been sold when a bid has been accepted at the auction sale. (9) If at any time the charger is entitled to and wishes to repay the money secured by the charge, and the charge is absent, cannot be found or if the registrar is satisfied that the charge cannot be discharged otherwise, the chargor may deposit the amount due with the Court, in trust, for the person entitled to the money, and after which the obligations of the charger under the charge shall cease. ( l0) Upon the deposit referred to in subsection (9), the Registrar shall cancel the registration of the charge and the Court shall pay the amount deposited to the chargee if the charge applies for it within six years of the deposit, and where the chargee does not apply for the amount within the stated period, it shall be deposited with the Unclaimed Financial Assets Authority as an unclaimed asset. No. 28 75. Section 103 subsection ( 1) by of the Land Act is amended in lffifffl'"?Ir" u of 2012. Amendment of section 104 of No. 6 of2012. (i) deleting the expression "85(3Xa) and (b)" appearing immediately after the words "in section" and substituting therefor the expression "90 (3)"; (ii) inserting the words 'oto the extent that the spouse was required to give consent to the creation of the charge but did not give consent" immediately after the word "chargor" appearing in paragraph (c); and (iii) deleting paragraph (d); 76. Section 104 of the Land Act is amended (a) in subsection ( 1) by deleting the word "available" appearing immediately after the words "available remedies" in sub-paragraph (i) of paragraph (b); (b) in subsection (2) by deleting the words "authorize an order" appearing immediately after No. 28 s90 Land Laws (Amendment) the words "refuse to" and substituting therefor the words "grant an order under subsection (1)"; (c) in subsection (4) by deleting word "must" and substituting therefor the words "may at any time before the charged property is sold". 77. Section 107 of the Land Act is amended (a) in subsection (1) by deleting the word "publtc" ]pRearing immediately after the words "acquisition of'; (b) lil,.ti'1il:-.,',:*,'#':.lo,5ilJg sub stituting cc (4) In the event that the Commission has not undertaken the acquisition in accordance with subsection (3) for the reasons stated in subsection (3) within thirty days, it shall give to the acquiring authority the reasons for the (c) fft[#l#HTJ'::,'.:fl T:' j:#1;:. (( sections 1 10 to 143" appearing after the words "purposes of ' and substituting therefor the expression "sections L07 to 133". 78. Section 11 1 by inserting a new subsection immediately after subsection ( 1) (1A) The acquiring body shall deposit with the Commission the compensation funds in 3ffJx :3J: ;:il:I,ff :. ff ::[3x :3 fi::;t*t* 79. Section ll7 of the Land Act is amended (a) by deleting the marginal note and substituting therefor the followirrg marginal note " Payment of interest. " (b) in subsection ( 1) by deleting the words "rate prevailing bank rates" and substituting therefor the words "base lending rate set by the Central Bank of Kenya and prevailing atthattime; (c) by deleting subsection (2) and substituting therefor the following new subsection "(2) If additional compensation is payable under section I 19 there shall be added to the 2016 Amendment of section 107 of No.6 of 2012. Amendment of section lll ofNo.6 of 2012. Amendment of sections I l7 ofNo.6 of2012. 2016 s91 Land Laws (Amendment) amount of the additional compensation interest thereon at the base lending rate set by the Central Bank of Kenya and prevailing at that time, from the time when possession was taken or compensation was paid, whichever is earlier." 80. Section 1 18 of the Land Act is amended by deleting the marginal note and substituting therefor the following marginal note "Final survey." 81. Section ll9 of the Land Act is amended by (a) deleting the marginal note and substituting therefor the following marginal note " Condition for payment of compensation. " (b) inserting the following new paragraph immediately after paragraph (a) "(b) by deleting section 1 19 and substituting with the following new section No. 28 Amendment of sections I l8 of No. 6 of 2012. Amendment of sections I l9 of No.6 of2012. Condition for payment of compensation 119. Payment of compensation shall be made only upon the exercise of due diligence which shall include final survey and the determination of acreage, boundaries, ownership and value. 82. Section I20 of the Land Act is amended by deleting the marginal note and substituting therefor the following marginal note " Formal taking of possession." 83. Section LZI of the Land Act is amended by deleting the marginal note and substituting therefor the following marginal note " Surrender of documents of title." 84. Section I22 of the Land Act is amended deleting the marginal note and substituting therefor following marginal note " Acquisition of other land on account of severance. 85. Section 123 of the Land Act is amended deleting the marginal note and substituting therefor by the ,, by the Amendment of sections 120 of No. 6 of 2012. Amendment of sections 121 ofNo.6 of 2012. Amendment of sections 122 of No.6 of 2012. Amendment of sections 123 of No. 6 of2012. s92 No. 28 Land Laws (Amendment) fullowing marginal note 2016 Amendment of sections 124 ofNo.6 of2012. Amendment of sections l25of No. 6 of 2012. Amendment of sections 126 ofNo.6 of 2012. Amendment of section 134 ofNo.6 of2012. 86. (a) (b) " Withdrawal of acquisition. " Section I24 of the Land Act is amended by deleting the marginal note and substituting therefor the following new marginal note " Power to obtain temporary occupation of land." in subsection (3) by deleting the words "the first offer ofl' appearing immediately aftq the words "may after paying" and substituting therefor the word "full". 87. Section 125 of the Land Act is amended by (a) deleting the marginal note and substituting therefor the following marginal note " Payment of compensation." (b) by deleting subsection (2). 88. Section 126 of the Land Act is amended by (a) deleting the marginal note and substituting therefor the following marginal note " Compensation for damage s. " (b) deleting the expression "L20" appearing in paragraph (b) and substituting therefor the expression "I24 (3)". 89. Section 134 of the Land Act is amended (a) by deleting subsection ( 1) and substituting therefor the following subsection "(1) The National Government shall implement settlement programmes to provide access to land for shelter and livelihood." (b) in subsection (3) by deleting it to read "The national government shall administer the settlement programmes in consultation with the Commission and the respective county governments" (c) by deleting subsection (4) and substituting therefor the following new subsection it 2016 593 Land Laws ( Amendment) "(4) Identification of beneficiaries shall be carried out and verified by a sub-county selection committee appointed by the Cabinet Secretary comprising of the following persons (a) the deputy county commissioner; (b) the sub-county administrator; (c) a representative of the Commission; (d) a national government representative, who shall be the secretary; (e) a representative of persons with special needs; (0 a representative of women; (g) a youth representative; and (h) a representative of elders' Provided that (i) the persons appointed under paragraphs (e), (0, (g) and (h) shall be nominated by the area member of the National Assembly; and (ii) a chairperson shall be appointed at the first sitting of the committee from the persons appointed under paragraphs (e), (0, (g) and (h). (d) in subsection (5) delete and insert (( the Commission shall reserve public and for the establishment of approved settlement programmes, and where public land is not available, the board of trustees shall purchase or acquire land for such purposes" (e) in subsection 6 by inserting the words "of the Constitution" immediately after the expression "Article 10"; (0 by deleting subsection (7) and substituting therefor the following subsection (7) Any land acquired in a settlement scheme established under this Act or any other No. 28 No. 28 594 Land Laws (Amendment) 2016 law shall be subdivided and a transfer shall only be allowed through a process of succession". (g) in subsection (8) by deleting the words "the Commission and" appearing immediately after the words "from time to time." 90. Section 135 of the Land Act is amended- #,ilfff[?i"., of2012 (a) in subsection (1) by deleting the words ""administered by the National Land Commission" appearing in subsection (1) and substituting therefor the words "administered by a board of Trustees known as the Land Settlement Fund Board of Trustees"; (b) by inserting the following new subsections immediately after subsection (1) (1A) The Board of Trustees shall be a body corporate with perpetual succession and a corlmon seal, and which shall in its corporate name, be capable of (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; (c) borrowing money or making investments; (d) doing or performing such other things or acts necessary for the proper performance of the functions of the Agency under this Act and which may lawfully be done or performed by a body corporate. (1B) The Board of Trustees shall consist of (a) the Cabinet Secretary land matters who chairperson; (b) the Cabinet Secretary National Treasury; responsible for shall be the responsible for (c) the Cabinet Secretary responsible for agriculture; (d) the Cabinet Secretary responsible for the environment and natural 2016 59s Land Laws (Amendment) resources; (e) the Cabinet Secretary responsible for Internal Security; and (0 a representative of the Commission. (lC) The Board of Trustees shall (a) be responsible for the provision of access to land (i) to squatters; (ii) to displaced persons; (iii) for development projects; (iv) for conservation; or (v) such other causes that may lead to movement and displacement of persons; (b) purchase private land for settlement programmes; (c) coordinate the provision of shelter and a livelihood to persons in need of settlement programmes; and (d) perform any other function that may enhance the development and promotion of settlement programmes. (c) in subsection (2) by deleting the word "Commission" wherever it occurs and substituting therefor the words o'Board of the Land Settlement Fund Trustees"; (d) in subsection (3) by deleting paragraph (c); (e) by deleting subsection (5) and substituting therefor the following new subsection "(5) In ca:rying out its functions under Part IX of this Act, the Board of the Land Settlement Fund Trustees shall consult the relevant county government where applicable." 91. Sectionl39 of the Land Act is amended No. 28 Amendment of section 139 of No. 6 of 2012. I I '! No. 28 (a) 596 Land Laws (Amendment) in subsection (2) by deleting the words "local authority having jurisdiction in the area were" appearing in paragraph (b) and substituting therefor the words "county government having jurisdiction in the area where"; by renumbering the subsections as appropriate. Section 140 of the Land Act is amended in subsection (2) by deleting the words "local authority having jurisdiction in the area were" appearing in paragraph (b) and substituting therefor the words "county government having jurisdiction in the area where"; by inserting the word "an" immediately after the words "may make" appearing in subsection (3). 93. Section l4l ( I ) of the Land Act is amended by deleting the word 'oand" appearing in paragraph (a) immediately after the word permit and substituting therefor the word "any". 94. The Land Act is amended by repealing section 142. 95. Section 146 of the Land Act is amended in subsection (3) by deleting the words "to create" appearing immediately after the term "to create". 96. Section 147 of the Land Act is amended in subsection (2) by deleting the words "certificate of occup ancy" and substituting therefor the words "certificate of title or certificate of lease" in paragraph (a). 97 . The Land Act is amended in section 151 by deleting the words "effected and" appearing immediately after the word "notice". 98. The Land Act is amended by inserting the following new sections immediately after section I52. 20t6 Amendment of section 140 of No. 6 of 2012. Amendment of section 141 of No. 6 of2012 Repeal of section [42 of No. 6 of 2012. Amendment of section 146 of No.6 of2012. Amendment of section 147 of No. 6 of2012. Amendment of section l5l of No. 6 of 2012. Insertion of new section 152A to l52G into No. 6 of 2012. 1 I I i I ! I i 1 I i I i I I I ; (b) 92. (a) (b) :::il.#;f,Hf*'r lszL. A occupy priv ate, Eviction Notice to unlawful occupiers ofpublic land. Shall Evictions to be 152R. An unlawful occupant of private, ;li"'i:*:: ll,,n,n. Act eeffimunity or public land shall be evicted in accordance with this Act. person shall not unlawfully community or public land. I52C. The National Land Commission cause a decision relating to an eviction 20t6 Eviction Notice to unlawful occupiers of community land. Eviction Notice to unlawful occupiers of private land. Application to Court fbr relief. 597 Land Laws (Amendment) from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local langu age, where appropriate , zt least three months before the eviction. 152D. (1) The County Executive Committee Member responsible for land matters shall cause a decision relating to an eviction from unregistered community land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local langu age, where appropriate, ?t least three months before the evictiorl. (2) In the case of registered community land, the procedure prescribed in section I52E shall apply. 1528 (1) if, with respect to private land the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice, of not less than three months before the date of the intended eviction. (2) the notice under subsection ( 1) shall (a) be in writing and in a national and official language; (b) in the case of a large group of personS, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land; (c) specify any terms and conditions as to the removal of buildings, the No. 28 No.28 Mandatory procedures during eviction. s98 Land Laws (Amendment) reaping of growing crops and any other matters as the case may require; and (d) be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area 152F. ( 1) Any person or persons served with a notice in terms of sections I52C, L52D and l52E may apply to Court for relief against the notice. (2) The Court, after considering the matters set out in sections I52C, l52D and 1528, may (a) confirm the notice and order the person to vacate; (b) cancel, v&t!, alter or make additions to the notice on such terms as it deems equitable and just; (c) suspend the operation of the notice for any period which the court shall determine; or (d) order for compensation. 152G. (1) Notwithstanding any provisions to the contrary in this Act or in any other written law, all evictions shall be carried out in strict accordance with the following procedures (a) be preceded by the proper identification of those taking part in the eviction or demolitions; (b) be preceded by the presentation of the formal authorizations for the action; (c) where groups of people are involved, government officials or their representatives to be present 2016 2016 Disposal of property left after eviction. Demolition of unauthorized structures. 599 Land Laws (Amendment) during an eviction; (d) be carried out in a manner that respects the dignity, right to life and security of those affected; (e) include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly, and persons with disabilities; (0 include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction; (g) include mechanisms to protect property and possessions left behind involuntarily from destruction; (h) respect the principles of necessity and proportionality during the use of force; and (i) give the affected persons the first priority to demolish and salvage their property. (2) The Cabinet Secretary shall prescribe regulations to give effect to this section. 152H. The competent officer of the Commission or County Government, community owning a registered community land or owner of private land shall at least seven days from the date of the evictior, remove or cause to be removed or disposed by public auction, any unclaimed property that was left behind after an eviction from private, community or public land. 1521. Where the erection of any building or execution of any works has commenced or been completed on any land without authority, the competent officer No.28 No.28 153. 99. The Land Act is amended by repealing section 100. Section 155 of the Land Act is amended (a) in subsection (3) by deleting the word "if ' appearing immediately after the word "that" and substituting therefor the words "the persorf'; (b) in subsection (4) by deleting the word "if' appearing immediately after the word "environment" appearing in paragraph (h) and substituting therefor the word "of'. ( c ) ;?r :;i,::. HL #,),.?,*:','lilt** :l; . .fr,T* "' ) ;'' 101. The Land Act is amended by deleting section 159 andsubstitutingthereforethefollowingnewsectio 600 Land Laws (Amendment) 2016 shall order the person in whose instance the erection or work began or was carried, to demolish the building or works, within such period as may be specified in the order, Repeal of sections 153 ofNo.6 of 2012. Amendment of section 155 of No.6 of2012. Amendment of section 159 of No. 6 of 2012. Minimum and maximum land holding acreages. 159. ( 1) Subject to Article 40 of the Constitution (a) the minimum land holding acreage shall be subject to the provisions of Article 66(1) of the Constitution and the legislation envisaged therein. (b) the maximum land holding acreage shall be subject to Article 60( 1) (a) and (c) of the Constitution. (2) The Cabinet Secretary shall publish guidelines on the penalties for non compliance with the provisions of this section.