Dichotomy between policy and constitutional provisions

The report of the Taskforce on the extension and renewal of leases released late last year highlights a major dichotomy between our 2009 land policy and the 2010 constitution regarding the terms of leases on public land! The report points out that while the policy specifies that the duration of all leases should not exceed 99 years, the constitution does not preclude citizens from owning 999 year leases. While the constitution is explicit in its article 65 that terms of leases held by non-citizens shall not exceed 99 years, it remains silent on the limits for tenure terms of leases held by citizens. The gap can therefore be seized to effect transfers of 999 year leases from non-citizens to citizens! Clarity and direction on this matter is therefore needed. Luckily, our national land policy is due for review in 2019 and the dichotomy can be addressed during the imminent public discussions, alongside other policy concerns. But it will be important to keep in mind that proportionately, there aren’t too many 999 year leases in Kenya and the debate should therefore be kept objective and futuristic when the time comes.

Conversion of non-citizen held freehold interests to leasehold

But before we get there, the matter of freehold and leasehold land held by non-citizens needs specific attention. In its transitional provisions, the constitution provides that on its effective date, any freehold interest in land held by a non-citizen shall revert to the Republic of Kenya and the previous holder of the same shall be granted a 99 year lease at a peppercorn, read nominal, rent. Any other interest in land greater than a 99 year lease held by a non-citizen shall be converted to a 99 year lease, the transitional section further provides. So one would have expected that after August 2010, there would have been guidance on how all freehold interests, and hence the respective titles, held by non-citizens would be converted to leasehold interests of 99 years for ease of future transactions. Similarly, one would have expected guidance on how the 999 year leasehold interests held by non-citizens would be converted to 99 years too. Such guidance would have been expected to give details such as where to go, what documents to submit and the period over which necessary conversions would be done.

No such elaborate guidelines or guidance backed in law were provided. All one recalls was a 2013 newspaper announcement from the National Land Commission asking non-citizens to present their title deeds and other ownership documents to the Commission. The announcement was treated with near total contempt. And understandably so! No one wishes to surrender or provide details of their land ownership documents without legal assurances that they won’t suffer prejudice or loss, particularly in an environment where grabbers or their agents hung around land registries in hunt for easy-to-grab land. And one could identify with the apprehension by non-citizens given the information gap. But this procedural clarity was recently provided through the Legal Notice No 280 of 24^th November 2017 which carries some of the Land Regulations to the Land Act.

Conversion procedure

The above legal guide provides that the Commission shall undertake the anticipated conversions within five years of the commencement of the regulations. The Chief Land Registrar is subsequently expected to make entries on all registers of land held by non-citizens whose term was reduced to 99 year leases with effect from 27^th August, 2010. The regulations provide for a notification form, or announcements in national newspapers, to communicate the intention to convert as provided along with the intention and dates to have the subject parcels of land resurveyed. The affected proprietors will also be expected to surrender the original title documents to the Land Commission, which will in turn forward them to the Chief Land Registrar along with the cadastral map prepared after resurvey, the regulations indicate.

Conversion is free of charge

As would be expected, the regulations provide that the process will be free of charge. Without this, perhaps some proprietors would suffer financial limitations and end up occasioning disproportionate delays. A most important proviso pulls a rug from under the feet of those who may have shrewdly transferred their interests within the interim period to beat the constitutional requirements. It deems all transfers of land by non-citizens that may have occurred after the 27^th of August 2010, the date of promulgation of our constitution, to have effectively transferred a leasehold of no more than 99 years. So tough luck to those who may have deemed themselves lucky to have benefitted from a freehold interest or a 999 year lease interest from a non-citizen within the period! According to the regulations, they are effectively holding a 99 year lease.

So it is perhaps only a matter of time before the Lands Ministry and the Commission trigger the conversion process. One hopes that unlike before, those holding the targeted categories of land will respond promptly to allow expedition. Then buyers and financial institutions, who’ve had challenges dealing with such land before, can now be able to deal with updated registers and ownership documents.

Dated 29^th September, 2018