Land transactions in Kenya are intricate processes governed by legal regulations, and securing specific consent and clearance certificates is imperative for the successful registration of related documents. This article provides a comprehensive overview of various consents required and clearance certificates necessary for different types of land transactions.
1. Consent of the Land Control Board
Regulated by the Land Control Act (Cap 302), this consent is essential for transactions involving agricultural land. Section 2 of the Act defines agricultural land as any land that is not within a municipality, township, market, or an area that was a township or trading center under the now-repealed Township or Trading Centers Ordinance. 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.
Which transactions require the Land Control Board Consents?
S.6 (1) of the Land Control Act lists transactions which require LCB consent. Failure to obtain LCB consent renders that transaction null and void. The transactions listed are as follows:
a) Sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing in any agricultural land situated within a land control area;
b) Division of agricultural land into two or more parcels to be held under separate titles;
c) Issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which owns agricultural land.
Under S.6 (2), the declaration of a trust of agricultural land situated within a land control area also requires LCB consent.
Which transactions do not require the Land Control Board consents?
Under S.6 (3), LCB consent is not required in respect of the following transactions:
a) Transmissions of agricultural land (whether by testate or instate succession) unless that transmission would result in the division of the land into two or more parcels to be held under separate titles;
b) Transactions to which the Government is a party or transactions which involve trust land. (Under the Constitution of Kenya 2010, trust land is classified as community land.)
S.8 (1) of the Land Control Act states the procedure for obtaining LCB consent. Applications are to be made to the LCB through the appropriate lands office, using prescribed forms (See Form 1 of the Schedule). Form 2 of the Schedule contains the format of the Letter of Consent. The application must be made within six months of the making of the agreement for the controlled transaction. The Proviso to Section 8(1) of the Land Control Act, however, states that the High Court may grant an extension of that period if there is sufficient reason to do so and upon such conditions as it may think fit. (The application is usually made by way of Originating Summons.)
Provincial Land Control Appeals Board from which a higher appeal lies to the Central Land Control Appeals Board. See Sections 11 and 12 of the Land Control Act provides. Under S. 13(2), the decision of the Central Land Control Appeals Board shall be final and shall not be questioned in any court. But note: Judicial Review applies.
When can the land control board be denied?
Section 9 (1) (b) of the Land Control Act provides that the Land Control Board consent ought to be refused in the following situations:
(i) Where the person to whom the land is to be disposed of-
- Is unlikely to farm the land well or to develop it adequately; or
- Is unlikely to be able to use the land profitably for the intended purpose owing to its nature; or
(c) Already has sufficient agricultural land.
(ii) Where the person to whom the share to be disposed of-
(a)Already has sufficient shares in a private company or co-operative society that owns agricultural land; or
(b)Would, by acquiring the share, be likely to bring about the transfer of the control of the company or society from one person to another and the transfer would be likely to lower the standards of good husbandry on the land; or
(iii) Where the terms and conditions of the transaction (including the price to be paid) are markedly unfair or disadvantageous to one of the parties to the transaction; or
(iv) Where, in the case of the division of the land into two or more parcels, the division would be likely to reduce the productivity of the land.
Under Section 9 (1) (c), where the person intending to acquire the land is a non-citizen, consent shall not be given. However, under S.24, the President has power to exempt any transaction or person from the provisions of the Land Control Act. Such exemption is granted by way of notice in the Gazette. Note: Article 65 (1) of the Constitution 2010 states that a person who is not a citizen may hold land based on leasehold tenure only and the lease when granted shall not exceed 99 years. See also Section 107(3) of the Land Registration Act which states that for the avoidance of doubt, any lease granted to a non-citizen shall not exceed 99 years.
What happens when a land control board consent is not given
Section 9(2), of the Land Control Act provides that where an application for the consent of a Land Control Board has been refused, then the agreement for a land-controlled transaction shall become void-
- on the expiry of the time limit for an appeal to the Provincial Land Control Appeals Board;
- where an appeal is made to the Provincial Land Control Appeals Board and dismissed, on the expiry of the time limit for an appeal to the Central Land Control Appeals Board; or
- where a further appeal is made to the Central Land Control Appeals Board and dismissed.
The court the case of Caroline Cherono Kirui v Liner Cherono Towett [2018] eKLR in making its decision cited Section 8 (1) of the Land Control Act and the cases of David Kinisu Sifuna –vs- Marriane Eyaase Kisanji & 2 others [2015] eKLR and Joyce Mukami –vs- Cypriano Kimathi Mwongo [2016] eKLR, where the courts held that a transaction becomes void if consent is denied or not the necessary party has failed to apply for consent within the time provide and without a valuable reason as why they failed to apply for the consent.
2. Consent of Commissioner of Lands/National Land Commission
For leases granted by the Government, written consent from the Commissioner of Lands or National Land Commission is mandatory. This consent pertains to conditions related to development and usage imposed on government-granted leases. Such prohibitions are usually found in the Special Conditions contained in the title documents.
3. Consent of Kenya Railways Corporation
Where the transaction of the property in question is adjacent to a railway line one requires the consent of the Kenya Railways Corporation. In addition to other necessary approvals such as the Land Control Board and the National Land Commission.
4. Consent of Kenya Ports Authority
Where a person wants to buy or even sell a piece of land adjacent to the Kenyan ports and habours they require the Kenya Ports Authority’s consent to do so failure to get the consent nullifies the transaction.
5. Consent of Kenya Airports Authority
Similar to ports, transactions involving land bordering airports or airstrips fall under the jurisdiction of Kenya Airports Authority require their explicit consent. In the case of Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 Others, Civil Appeal No. 218 of 2014 (supra) the court held as follows:- “…In our considered view, subject to approvals and limitations authorized by law, the security and safety of flight paths is not negotiable. Article 24 of the Constitution recognizes that a right or fundamental freedom shall not be limited except by law and such limitation must be reasonable and justifiable in an open and democratic society. In our view, the security and safety of flight paths is a limitation on enjoyment of the right and freedoms in the Bill of Rights; such a limitation is permitted by law and is reasonable and justifiable in an open and democratic society.”
The law gives the Kenya Airport Authority the discretion of whether or not to grat the consent this position was affirmed by the court in the case of Kenya Civil Aviation Authority & another v Timothy Nduvi Mutungi [2017] eKLR: KAA is within its discretion to refuse to grant consent to build, and does not have to compromise and tell the land owner the maximum height of a structure that can be built, especially where the land is on the approach funnel of a runway.
6. Consent of Chargee
Section 59 of the Land Registration Act 2012 makes it mandatory for a chargor to obtain the consent of the chargee before they can transfer or lease the charged property which is the security of the chargee. This provision is usually contained in the charge/mortgage instrument This ensures that the security interest of the chargee is duly protected.
7. Consent of Landlord and Head Lessor
Tenants must obtain the consent of the landlord to assign or sublet the property, as outlined in Sections 54(1) and 55 of the Land Registration Act 2012.
8. Spousal Consent
Section 93(3) of the LRA 2012 cross refers to the Matrimonial Property Act, which, in s. 12 (5) requires the consent of a spouse where the other spouse seeks to charge or transfer land or a dwelling house which that other spouse holds in his or her name individually. The consent is usually given in the form of an Affidavit. the court in the case of Kadzo Mkutano v Mukutano Mwamboje Kadosho & 2 others [2016] eKLR the Judge held that; “Section 28 of the Land Registration Act recognizes spousal rights over matrimonial property as an overriding interest. Spousal consent, is therefore required before a spouse can sell matrimonial property. In the absence of such a consent, the sale becomes null and void.”
Clearance Certificates
a. Rates Clearance Certificate
Issued by the relevant County Government authority, this certificate confirms the payment of all dues, including land rates, interest charges, and water bills. It is a prerequisite for registering transfers, ensuring all outstanding charges are settled. It is necessary to obtain a Rates Clearance Certificate before a transfer is presented for registration: Section 38(1) of the Land Registration Act 2012 states that the Registrar shall not register a transfer unless a written statement by the relevant government agency certifying that all outstanding rates and other charges in respect of the land is produced to him. The document is referred to as a Rates Clearance Certificate.
b. Land Rent Clearance Certificate
Applicable to leaseholds from the Government, this certificate verifies the payment or non-owing of annual rent. Obtaining this certificate is mandatory before registering any transaction involving leasehold land. Section 39(1) of the Land Registration Act 2012 provides that the Registrar shall not register an instrument purporting to transfer or create an interest in land unless a certificate is produced certifying that no rent is owing to the national or county governments in respect of the land. Therefore before registering any transaction involving leasehold land, the grantee must obtain a Rent Clearance Certificate. See also Ss.55 and 56(4) of the Land Registration Act 2012.
CONCLUSION
Understanding and securing these consents and clearance certificates are crucial steps in ensuring the legality and smooth execution of land transactions in Kenya. Adherence to these regulatory requirements not only facilitates registration but also aligns with the broader objectives of equitable land distribution and preventing speculative land acquisitions. Legal guidance is recommended to navigate these complexities successfully.
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Disclaimer
This article is for informational purposes only and should not be construed as legal advice.
