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Land Act 2012 on Administration & Management of Private Land
The just passed Land Act 2012 has several laws pertaining to the administration and management of private land. Anyone who owns private land in Kenya whether a plot of a farm and has title deed would be glad to know these laws. If anyone in real estate development feels that the laws could be made the sure way is to support the candidates that can make them better next Parliament.
Land Act 2012 on Administration and Management of private land
Regaining possession of land after concluding contract of sale of land
38. (1) No suit shall be brought upon a contract for the disposition of an interest in land unless—
(a) the contract upon which the suit is founded—
(i) is in writing;
(ii) is signed by all the parties thereto; and
(b) the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.
(2) Subsection (1) shall not apply to a contract made in the course of a public auction nor shall anything in that subsection affect the creation or operation of a resulting, implied or a constructive trust.
Vendor’s right to regain possession
39. If, under a contract for the sale of land, the purchaser has entered into possession of the land, the vendor may exercise his or her contractual right to rescind the contract by reason of a breach of the contract by the purchaser by—
(a) resuming possession of the land peaceably; or
(b) obtaining an order for possession of the land from the court in accordance with the provisions of section 41.
Damages for breach of contract
40. (1) Nothing in section 39 prevents a vendor from claiming damages and mesne profits from the purchaser for the breach of a contract for a sale, or for breach of any other duty to the vendor which the purchaser may be under independently of the contract, or affects the amount of damages that the vendor may claim.
2) Any term express or implied in a contract or other instrument that conflicts with this section shall be inoperative.
Procedure for obtaining order for possession
41. (1) A vendor who proposes to seek to regain possession of private land under section 39, shall serve a notice on the purchaser which shall inform the purchaser—
(a) of the nature and extent of the breach complained of by the vendor;
(b) whether the vendor considers that the breach is capable of being remedied by the payment of a stated amount of money owing under the contract;
(c) whether the vendor considers that the breach is capable of being remedied by the purchaser doing or desisting from doing anything or paying reasonable compensation or both, and of the thing that the purchaser must do or desist from doing or the amount of compensation that shall be paid or both to remedy the breach and the time, being not less than thirty days, within which the actions referred to in this paragraph must be completed;
(d) of the period within which the purchaser must remedy the breach, if the vendor considers that the breach is capable of being remedied; and
(e) of the consequence where the purchaser fails to remedy the breach or if the vendor does not consider that the breach can be remedied, the vendor may seek an order from the court to possess the land and rescind the contract.
(2) The fact that the notice served under subsection (1) does not comply in every particular with the provisions of subsection (1) shall not—
(a) render it invalid so long as the purport of the notice is clear; or
(b) absolve the purchaser from the consequences of not responding to the notice.
Relief against rescission of contract for the sale of land
42. (1) If the vendor, after serving on the purchaser a notice under section 41, applies to the court for an order for possession of the land or if the vendor has peaceably entered on to the land in order to regain possession under section 39, the purchaser may apply to the court for relief against the rescission of the contract either—
(a) in the proceedings for an order for possession; or
(b) in a proceedings brought by the purchaser.
(2) If the vendor has peaceably entered on to the land the purchaser shall apply for relief within ninety days after the entry on to the land.
(3) The court may grant relief on such terms as it considers appropriate, including relief for breach of any term or condition of the contract that is not capable of being remedied.
(4) An application for relief under this section shall not in itself to be taken as an admission by the purchaser that—
(a) there has been a breach of the contract by the purchaser;
(b) by reason of the breach, the vendor has the right to rescind the contract;
(c) a notice has been duly and properly served on the purchaser; or
(d) the time for remedying a breach or for paying an amount by way of compensation has expired, and the court may grant relief without determining any of those matters.
(5) Any, express or implied, term in a contract or other instrument to which this section applies that conflicts with or purports to set aside or negate this section shall be inoperative.
43. (1) In this Part, ―transfer includes a conveyance, an assignment, a transfer of land, a transfer of lease or other instrument used in the disposition of an interest in land by way of transfer.
(2) A proprietor may transfer land, a lease or a charge to any person (including himself or herself), with or without consideration, by an instrument in the prescribed form.
(3) The transfer shall be completed by the registration of the transferee as proprietor of the land, lease or charge.
(4) The transferee of a charge may require the chargor to execute the transfer for the purpose of acknowledging the amount due under the charge at the date of execution of the transfer.
Transfer to take effect immediately
44. A transfer shall not be expressed to take effect on the happening of any event or on the fulfillment of any condition or at any future time.
Transfer of leases
45. On the transfer of a lease, unless the contrary is expressed in the transfer, there shall be implied—
(a) a warranty on the part of the transferor that the rent, agreements and conditions on the part of the lessee to be paid, performed and observed have been so paid, performed and observed up to the date specified in the transfer or, if no such date is specified, the date of the transfer; and
(b) an agreement on the part of the transferee to pay the said rent as from the day following the date specified in the transfer or the date of the transfer, as the case may be, and to perform and observe the said agreements and conditions.
Effect of transfer on agreement in leases
46. (1) A transfer from a lessor or from a lessee shall possess all the rights, and be subject to all the liabilities, of the lessor or lessee, as the case may be, expressed or implied in the lease, or arising or which have arisen thereunder, and the transferee shall cease to be under any obligation or possessed of any rights in respect of the lease subject to subsection (2).
(2) Nothing in this section shall affect the rights or liabilities of the lessor or lessee, as the case may be, in respect of a breach of any of the agreements expressed or implied in a lease that occurred before the transfer.
Transfer subject to charge
47. In every transfer of land or a lease subject to a charge, there shall be an implied agreement by the transferee with the transferor to pay the interest, where applicable, secured by the charge.
Transfer subject to lease.
48. A transfer of land that is subject to a lease shall be valid without the lessee acknowledging the transferee as lessor, but nothing in this section— (a) affects the validity of any payment of rent made by the lessee to the transferor; or (b) renders the lessee liable, for failure to pay rent to the transferee, for any breach of agreement to pay rent, before notice of the transfer is given to the lessee by the transferee. Transmissions
Transmission on death of joint proprietor
49. If one of two or more joint proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death, delete the name of the deceased from the register by registration of the death certificate.
Transmission on death of a sole proprietor or proprietor in common
50. (1) If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words ―as executor of the will of (..........................) [deceased]‖ or ―as administrator of the estate of (..............................) [deceased]‖, as the case may be.
(2) Upon production of a grant, the Registrar may, without requiring the personal representative to be registered, register by transmission—
(a) any transfer by the personal representative; and
(b) any surrender of a lease or discharge of a charge by the personal representative.
(3) In this section, ―grant‖ means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.
Effect of transmission on death
51. (1) Subject to any restriction on a person’s power of disposing of any land, lease or charge contained in an appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor, as the case may be, shall hold the land, lease or charge subject to any liabilities, rights or interests that are unregistered but are nevertheless enforceable and subject to which the deceased proprietor held the same, but for the purpose of any dealing the person shall be deemed to have been registered as proprietor thereof with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration.
(2) The registration of any person as aforesaid shall relate back to and take effect from the date of the death of the proprietor.
Transmission on bankruptcy
52. (1) Upon production to the Registrar of a certified copy of the order of court adjudging a proprietor bankrupt, or directing that the estate of a deceased proprietor shall be administered according to the law of bankruptcy— (a) a copy of the order shall be filed with the registrar; and (b) the trustee in bankruptcy shall be registered as proprietor of any land, lease or charge of which the bankrupt or the deceased proprietor is proprietor, in place of the bankrupt or deceased proprietor.
(2) A trustee in bankruptcy shall be described in the register as ―trustee of the property of (............................), a bankrupt‖.
Transmission upon company’s liquidation
53. (1) If a company is being wound up, the liquidator shall—
(a) produce to the Registrar a resolution or order appointing the liquidator; and
(b) satisfy the Registrar that the person has complied with the Companies Act, Cap. 486, and the Registrar shall enter the appointment in respect of any land, lease or charge of which the company is registered as proprietor, and file the copy of the resolution or order.
(2) An instrument executed by or on behalf of a company in liquidation delivered for registration after the appointment of the liquidator has been entered under subsection (1) shall be sealed with the common seal of the company and attested to by the liquidator or, in the case of a company not required by law to have a common seal, shall be signed by the liquidator whose signature shall be verified in accordance with the relevant law.
(3) Where a vesting order has been made under section 240 of the Companies Act, the liquidator shall present the order and the Registrar shall register the liquidator as proprietor of any land, lease or charge to which the order relates.
Transmission in other cases
54. If a person has become entitled to any land, lease or charge under any law or by virtue of any order or certificate of sale made or issued under any law, the Registrar, on the application of any interested person supported by such evidence as the person may require, shall register the person entitled, as the proprietor.