Point in Time
Act No: No. 3 of 2012
Act Title: LAND REGISTRATION
[ Date of commencement: 2nd May, 2012. ]
[ Date of assent: 27th April, 2012. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Land Registration Act.

3.
Application

Subject to section 4, this Act shall apply to—

(a)

registration of interests in all public land as declared by Article 62 of the Constitution;

(b)

registration of interests in all private land as declared by Article 64 of the Constitution; and

(c)

registration and recording of community interests in land.

4.
Limitation of application

This Act shall not prohibit or otherwise affect the system of registration under any law relating to mining, petroleum, geo-thermal energy or any other rights over land and land-based resources in respect of public land.

5.
Conflict with other laws

Except as otherwise provided in this Act, no other written law, practice or procedure relating to land shall apply to land registered or deemed to be registered under this Act so far as it is inconsistent with this Act.

PART II – ORGANISATION AND ADMINISTRATION

Land Register, Land Registries and Offices

8.
Community Land Register
(1)

Subject to the legislation on community land made pursuant to Article 63 of the Constitution, there shall be maintained in each registration unit, a community land register in which shall be kept—

(a)

a cadastral map showing the extent of the community land and identified areas of common interest;

(b)

the name of the community identified in accordance with Article 63(1) of the Constitution and any other law relating to community land;

(c)

a register of members of the community;

(d)

the user of the land;

(e)

the identity of those members registered as group representatives;

(f)

the names and identity of the members of the group; and

(g)

any other requirement as shall be required under the law relating to community land.

(2)

The Registrar shall issue a certificate of title or certificate of lease in the prescribed form.

(3)

The Registrar shall not register any instrument purporting to dispose of rights or interest in community land except in accordance with the law relating to community land.

(4)

For the avoidance of doubt the provisions in this section shall not apply to unregistered community land held in trust by county governments on behalf of communities under Article 63(3) of the Constitution.

10.
Public access to the register

Subject to the Constitution and any other law regarding freedom of and access to information, the Registrar shall make information in the register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe.

11.
Seal of Registry

Each registry shall have an official seal, and every instrument bearing the imprint of the seal shall be received in evidence and, unless the contrary is proved, shall be deemed without further proof to be issued by or under the direction of the Registrar.

13.
Qualifications for appointment of Chief Land Registrar
(1)

A person shall not qualify for appointment as Chief Land Registrar unless such a person—

(a)

is a citizen of Kenya;

(b)

holds a degree from a university recognized in Kenya;

(c)

is an advocate of the High Court of Kenya of not less than ten years standing;

(d)

has had at least ten years experience in land administration or management; and

(e)

meets the requirements of chapter six of the Constitution.

(2)

A person shall not be qualified for appointment if that person—

(a)

has been convicted of a felony;

(b)

is an undischarged bankrupt;

(c)

has not met his or her legal obligations in relation to tax;

(d)

has benefited from or facilitated an unlawful and irregular allocation or acquisition of land or other public property; or

(e)

has been removed from office for contravening the provisions of the Constitution.

15.
Cadastral map
(1)

The office or authority responsible for the survey of land shall prepare and thereafter maintain a map or series of maps, to be known as the cadastral map, for every registration unit.

(2)

The parcel boundaries on such maps shall be geo- referenced and surveyed to such standards as to ensure compatibility with other documents required under this Act or any other law.

Maps, Parcels and Boundaries

18.
Boundaries
(1)

Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.

(2)

The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.

(3)

Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:

Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).

19.
Fixed boundaries
(1)

If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.

(2)

The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.

(3)

Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.

20.
Maintenance of boundaries
(1)

Every proprietor of land shall maintain in good order the fences, hedges, stones, pillars, beacons, walls and other features that demarcate the boundaries, pursuant to the requirements of any written law.

(2)

The Registrar may in writing, order the demarcation within a specified time of any boundary mark, and any person who fails to comply with such an order commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings.

(3)

The Registrar may in writing, order which of adjoining proprietors shall be responsible for the care and maintenance of any feature demarcating a common boundary, and any proprietor so ordered to be responsible for the care and maintenance of the boundary feature who allows the boundary feature or any part of it to fall into disrepair, be destroyed or removed commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings.

21.
Interference with boundary features
(1)

Any person who defaces, removes, injures or otherwise impairs a boundary feature or any part of it unless authorized to do so by the Registrar commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding two hundred thousand shillings or to both.

(2)

Any person convicted of an offence under subsection (1), whether or not any penalty is imposed upon the person, is liable to pay the cost of restoring the boundary feature, and the cost shall be recoverable as a civil debt by any person who is responsible under this section for the maintenance of the feature.

22.
Combinations and subdivisions
(1)

Subject to authentication of the cadastral map, if contiguous parcels are owned by the same proprietor and are subject in all respects to the same rights and obligations, the Registrar, on application by the proprietor, may combine these parcels by closing the registers relating to them and opening a new register or registers in respect of the parcel or parcels resulting from the combination.

(2)

Upon the application of a proprietor of a parcel for the division of that parcel into two or more parcels, and authentication of the cadastral map, the Registrar shall effect the division by closing the register relating to the parcel and opening new registers in respect of the new parcels resulting from the division, and recording in the new registers all subsisting entries appearing in the closed register:

Provided that nothing shall be done under this section that would be inconsistent with the provisions of this Act or any other written law.

23.
Reparcellation
(1)

Subject to section 15 and authentication of the cadastral map, on the application of the proprietors of contiguous parcels who are desirous of changing the layout of their parcels, and with the consent in writing of all other persons in whose names any right or interest in the parcels is registered and of any cautioner, the Registrar may—

(a)

cancel the registers relating to those parcels and prepare new registers in accordance with the new edition of the cadastral map; or

(b)

refuse to effect the reparcellation if the Registrar considers that the proposed reparcellation involves substantial changes of ownership, which should be effected by transfers without invoking this section, in which case, the Registrar shall direct the proprietors accordingly.

(2)

Upon reparcellation, the new parcels shall vest in the persons in whose names they are registered.

Effect of Registration

24.
Interest conferred by registration

Subject to this Act—

(a)

the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

(b)

the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.

25.
Rights of a proprietor
(1)

The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—

(a)

to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b)

to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.

(2)

Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

26.
Certificate of title to be held as conclusive evidence of proprietorship
(1)

The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a)

on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b)

where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

(2)

A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.

27.
Transfer without valuable consideration
(1)

A proprietor who has acquired land, a lease or a charge by transfer without valuable consideration shall hold it subject to—

(a)

any unregistered rights or interests subject to which the transferor held it;

(b)

the law relating to Bankruptcy; and

(c)

the winding-up provisions of the Companies Act, (Cap. 486).

(2)

Notwithstanding subsection (1), the transfer when registered, shall have the same effect as a transfer for valuable consideration.

29.
Actual notice

Every proprietor, at the time of acquiring any land, lease or charge, shall be deemed to have had notice of every entry in the register relating to the land, lease or charge and subsisting at the time of acquisition.

Certificates of Title, Certificates of Lease and Searches

31.
Production of certificate
(1)

If a certificate of title or a certificate of lease has been issued, then, unless it is filed in the registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certificate of title or the certificate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certificate of title or the certificate of lease.

(2)

Where the disposition is a transfer, the certificate shall, when produced, be cancelled, and in that case a new certificate may be issued to the new proprietor.

(3)

Where the disposition is a charge, the certificate shall be delivered to the chargee.

32.
Dispositions of leases and charges

On the registration of any disposition of a lease or charge, the original and the duplicate of the lease or charge shall, unless the Registrar is satisfied that they cannot be produced, be produced to the Registrar, who shall note particulars of the disposition on the lease or charge and on the duplicate.

34.
Searches and copies

A person who requires an official search in respect of any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee.

35.
Evidence
(1)

Every document purporting to be signed by a Registrar shall, in all proceedings, be presumed to have been so signed unless the contrary is proved.

(2)

Every copy of or extract from a document certified by the Registrar to be a true copy or extract shall, in all proceedings, be received as prima facie evidence of the contents of the document.

(3)

Every entry or note in or on any register, cadastral map or filed plan shall be received in all proceedings as conclusive evidence of the matter or transaction that it records.

(4)

No process for compelling the production of the register, or of the cadastral map, or of any filed instrument or plan, shall issue from any court except with the leave of that court, which leave shall not be granted if a certified copy or extract will suffice, and any such process, if issued, shall bear thereon a statement that it is issued with the leave of the court.

PART III – DISPOSITION AFFECTING LAND

General Principles

37.
Transfers
(1)

A proprietor may transfer land, a lease or a charge to any person with or without consideration, by an instrument in the prescribed form or in such other form as the Registrar may in any particular case approve.

(2)

A transfer shall be completed by—

(a)

filing the instrument; and

(b)

registration of the transferee as proprietor of the land, lease or charge.

40.
Transfer to take effect immediately

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.

41.
Conditions repugnant to interest transferred
(1)

A condition or limitation is void if it purports to—

(a)

restrain absolutely a transferee or any other person from disposing of the interest transferred; or

(b)

determine the interest of the transferee on the happening of any future event or on the failure of any future event to happen.

(2)

Except as otherwise provided in this Act, no transfer of land shall contain a direction that the land shall be used or enjoyed by the transferee in a particular manner.

(3)

This section does not apply to Wakfs.

42.
Transfer of part

No part of the land comprised in a register shall be transferred unless the proprietor has first subdivided the land and duly registered each new subdivision.

45.
Verification of execution
(1)

Subject to subsection (3), a person executing an instrument shall—

(a)

appear before the Registrar, public officer or other person as is prescribed; and

(b)

be accompanied by a credible witness for the purpose of establishing identity, unless the person is known to the Registrar, public officer or other person.

(2)

The Registrar, public officer or other person shall identify the person and ascertain whether the person freely and voluntarily executed the instrument, and shall complete thereon a certificate to that effect.

(3)

The Registrar may dispense with verification under this section—

(a)

if the Registrar considers that it cannot be obtained or it can only be obtained only with difficulty and is otherwise satisfied that the document has been properly executed; or

(b)

if the Registrar knows the document has been properly executed, and shall record on the document the reasons for dispensing with the appearance of the parties.

46.
Stamping

An instrument required by law to be stamped shall not be accepted for registration unless it is stamped in accordance with the Stamp Duty Act, (Cap. 480).

47.
Minors
(1)

The name of a person under the age of eighteen years may be entered in the register to enable the minor’s interest to be held in trust and shall be registered under the name of the guardian either on first registration or as a transferee or on transmission.

(2)

Nothing in this section enables a person under eighteen years of age to deal with land or any interest in land by virtue of such registration, and, if the Registrar knows a child has been registered, the Registrar shall enter a restriction accordingly.

(3)

If a disposition by a minor whose minority has not been disclosed to the Registrar has been registered, that disposition may not be set aside only on the grounds of minority.

48.
Agents and persons under disability
(1)

Except as provided in subsection (3), no instrument executed by any person as agent for any other person shall be accepted by the Registrar unless the person executing it was authorized in that behalf by a power of attorney executed and verified in accordance with section 45.

(2)

The original of a power of attorney or, with the consent of the Registrar, a copy certified by the Registrar shall be filed.

(3)

The guardian of a person under a legal incapacity or, if there is no such guardian, a person appointed under some written law to represent that person, may make an application, do any act and be party to any proceeding on behalf of that person, and may generally represent that person for the purposes of this Act.

(4)

Before accepting a document executed by a guardian or other person so appointed to represent a person under a legal incapacity, the Registrar shall—

(a)

be satisfied that the person claiming to be the guardian is entitled to execute the document; or

(b)

require the production of the appointing instrument of the person, and shall file a note of the explanation to that effect.

49.
Gift to person under incapacity

A person with a legal incapacity who has been registered as a proprietor of land, a lease or a charge acquired by way of gift may, repudiate the gift within six months after the person ceases to be under a legal incapacity, if the person has not already disposed of the subject-matter, but no such repudiation shall be effective until—

(a)

the person has transferred the land, lease or charge to the donor, who is bound to accept it; and

(b)

the transfer has been registered.

Dispositions Prejudicial to the Creditor

50.
Court orders on prejudicial dispositions

The court may order that any interest in private land acquired or received under or through certain prejudicial dispositions of those interests in private land made by a debtor, or the value of those interests in land, be restored for the benefit of unsecured creditors and the order made under this section shall not increase or prejudice the value of any security held by a creditor over the interest in land of the debtor.

51.
Prejudicial dispositions
(1)

A disposition under this Act shall be deemed to prejudice a creditor if—

(a)

the person making the disposition is unable to pay all their debts without recourse to that private land or any interest in it; and

(b)

the disposition hinders, delays or defeats or is intended to hinder, delay or defeat the exercise by a creditor of any right of recourse to land or any interest in land in respect of which that disposition has been made in order to satisfy in whole or in part any debt owed to the creditor by the person making the disposition, subject to subsection (2).

(2)

A disposition shall not be deemed to prejudice a creditor if it is made with the intention of preferring one creditor over another.

52.
Dispositions to prejudice creditors may be set aside
(1)

A creditor, public officer, national or county government or public entity charged with the responsibility for collection of money owing by any person to the national or county government or any part of may apply to the court under this section for an order of the court to set aside a prejudicial disposition.

(2)

An application made under this section shall—

(a)

specify the land to which it relates;

(b)

specify the disposition alleged to be prejudicial;

(c)

be served on—

(i) the person who has made the disposition;
(ii) the person in whose favour the disposition has been made;
(iii) any other person involved in the disposition from whom compensation is sought.
(3)

Subject to section 53, on being satisfied that an applicant has been prejudiced by a disposition to which this Part applies the court may order—

(a)

any person who acquired or received land under that disposition or through a person who acquired or received land under such a disposition—

(i) to pay any amount of compensation within any time to the applicant which the court shall specify;
(ii) to re-assign a land or a derivative right to the person who has made the prejudicial disposition; or
(iii) to take any other action which the court may specify; or
(b)

the debtor who made the prejudicial disposition—

(i) to hold the restored land through the re-assignment of land or derivative right under subsection (3)(a)(ii) as a trustee for debtor’s creditors; and
(ii) to deal with the land so held only in accordance with any orders that the court may issue.
53.
Protection of person receiving land
(1)

If a person acquires or receives land in respect of which the court could make an order for restoration or for the payment of reasonable compensation, the court shall not make that order against that person if that person proves that the land was—

(a)

acquired or received in good faith and without knowledge of the fact that it has been the subject of a disposition to which this part applies; or

(b)

acquired or received through a person who acquired or received it in the circumstances set out in paragraph (a).

(2)

Reference to knowledge in this section shall include actual, constructive and imputed knowledge.

PART IV – LEASES
PART V – CHARGES
58.
Statutory charge

Nothing in this Part shall affect the provisions of any Act that provides for the registration of a notification or note in respect of any sum of money owing to a public body.

59.
Lender’s consent to transfer

If a charge contains a condition, express or implied by the borrower that the borrower will not, without the consent of the lender, transfer, assign or lease the land or in the case of a lease, sublease, no transfer, assignment, lease or sublease shall be registered until the written consent of the lender has been produced to the Registrar.

PART VI – TRANSMISSIONS AND TRUSTS
60.
Transmission on death of joint proprietor

If any of the joint tenants of any land, lease or charge dies, the Registrar shall, upon proof of the death, delete the name of the deceased tenant from the register by registering the death certificate.

61.
Transmission on death of a sole proprietor or proprietor in common
(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 the 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 confirmation of a grant, and on production of the 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.

62.
Effect of transmission on death
(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 enforceable and subject to which the deceased proprietor held the land, lease or charge, but for the purpose of any dealing the person shall be deemed to have been registered as proprietor of the land lease or chage 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 a person as provided in section 61, shall relate back to and take effect from the date of the death of the proprietor.

63.
Transmission on bankruptcy
(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 be administered according to the law on bankruptcy—

(a)

a copy of the order shall be filed; 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”.

64.
Liquidation
(1)

If a company is being wound up, the liquidator shall—

(a)

produce to the Registrar any 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 that has been presented 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 by the liquidator or, in the case of a company not required by law to have a common seal, and be signed by the liquidator whose signature shall be verified in accordance with section 45.

(3)

Where a vesting order has been made under the Companies Act, the liquidator shall present the order to the Registrar who shall register the liquidator as proprietor of any land, lease or charge to which the order relates.

65.
Transmission in other cases

If a person has become entitled to any land, a lease or charge under any law or by virtue of any order or certificate of sale made or issued under any law, the Registrar shall, on the application of an interested person supported by instruments of transfer or such evidence as the Registrar may require, register the person entitled, as the proprietor.

66.
Trusts not to be entered
(1)

A person acquiring land, a lease or a charge in a fiduciary capacity may be described in that capacity in the instrument of acquisition and be registered with the addition of the words “as trustee”, but the Registrar shall not enter particulars of any trust in the register.

(2)

An instrument that declares, or is deemed to declare, a trust, or a certified copy, may be deposited with the Registrar for safe custody; but the instrument or copy shall not form part of the register or be deemed to be registered.

(3)

Where the proprietor of land, a lease or a charge is a trustee, the proprietor shall hold the land, lease or charge subject to any unregistered liabilities, rights or interests to which it is subject by virtue of the instrument creating the trust, and for the purpose of any registered dealings, the proprietor shall be deemed to be the absolute proprietor, and no person dealing with the land, a lease or a charge registered under this section shall be deemed to have notice of the trust, nor shall any breach of the trust create a right to indemnity under this Act.

67.
Survivor of trustees

Whenever two or more proprietors are registered jointly as trustees, and the survivor of such proprietors would not be entitled to exercise individually the powers that were vested in them, the Registrar shall enter a restriction to that effect.

PART VII – RESTRAINTS ON DISPOSITION

Inhibitions

68.
Power of the court to inhibit registered dealings
(1)

The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.

(2)

A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.

(3)

An inhibition shall not bind or affect the land, lease or charge until it has been registered.

69.
Effect of inhibition

So long as an inhibition remains registered, any instrument that is inconsistent with the inhibition shall not be registered.

70.
Cancellation of inhibition

The registration of an inhibition shall not be cancelled except in the following cases—

(a)

on the expiration of the time stated in the inhibition;

(b)

on proof to the satisfaction of the Registrar of the occurrence of an event stated in the inhibition;

(c)

on the land, lease or charge being sold by a charge, unless such sale is itself inhibited; or

(d)

by a consequent order of the court.

Cautions

71.
Lodging of cautions
(1)

A person who—

(a)

claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;

(b)

is entitled to a licence; or

(c)

has presented a bankruptcy petition against the proprietor of any registered land, lease or charge,

may lodge a caution with the Registrar forbidding the registration of dispositions of the land, lease or charge concerned and the making of entries affecting the land lease or charge.

(2)

A caution may either—

(a)

forbid the registration of dispositions and the making of entries; or

(b)

forbid the registration of dispositions and the making of entries to the extent expressed in the caution.

(3)

A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration.

(4)

The Registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act.

(5)

Subject to this section, the caution shall be registered in the appropriate register.

72.
Notice and effect of caution
(1)

The Registrar shall give notice, in writing, of a caution to the proprietor whose land, lease or charge is affected by the caution.

(2)

A disposition that is inconsistent with the caution shall not be registered while the caution is still registered except with the consent of the cautioner or by the order of the court.

73.
Withdrawal and removal of caution
(1)

A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar.

(2)

The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice.

(3)

If a cautioner has not raised any objection at the expiry of the time stated, the Registrar may remove the caution.

(4)

If the cautioner objects to the removal of the caution, the cautioner shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs.

(5)

After the expiry of thirty days from the date of the registration of a transfer by a chargee in exercise of the chargee’s power of sale under the law relating to land, the Registrar shall remove any caution that purports to prohibit any dealing by the chargee that was registered after the charge by virtue of which the transfer has been effected.

(6)

On the withdrawal or removal of a caution, its registration shall be cancelled, and any liability of the cautioner previously incurred under section 74 shall not be affected by the cancellation.

74.
Second caution in respect of the same matter

The Registrar may refuse to accept a further caution by the same person or anyone on behalf of that person in relation to the same matter as a previous caution.

75.
Wrongful cautions

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such person.

Restrictions

PART VIII – RECTIFICATION AND INDEMNITY
81.
Right to indemnity
(1)

Subject to the provisions of this Act and of any written law relating to the limitation of actions, any person suffering damage by reason of—

(a)

any rectification of the register under this Act; or

(b)

any error in a copy of or extract from the register or in a copy of or extract from any document or plan certified under this Act,

shall be entitled to indemnity.

(2)

No indemnity shall be payable under this Act to any person who has caused or substantially contributed to the damage by fraud or negligence, or who derives title, otherwise than under a registered disposition made bona fide for valuable consideration, from a person who caused or substantially contributed to the damage.

82.
Amount of indemnity

An indemnity awarded in respect of the loss of any interest in land, shall not exceed—

(a)

the value of the interest at the time when the mistake or omission which caused the damage was made, if the register is not rectified; or

(b)

the value of the interest immediately before the time of rectification, if the register is rectified.

84.
Recovery of indemnity paid

If any funds are paid by way of indemnity under this Part, the Cabinet Secretary shall be entitled to recover by suit or otherwise the amount so paid from any person who has caused or substantially contributed to the loss by fraud or negligence, and to enforce any express or implied agreement or other right which the person who has been indemnified would have been entitled to enforce in relation to the matter in respect of which the indemnity has been paid.

85.
Errors in survey
(1)

A claim to indemnity shall not arise between the national or county government and a proprietor, and no suit shall be maintained on account of any surplus or deficiency in the area or measurement of any land disclosed by a survey showing an area or measurement differing from the area or measurement disclosed on any subsequent survey or from the area or measurement shown in the register or on the cadastral map.

(2)

As between a proprietor and any person from or through whom the proprietor acquired the land, no claim to indemnity shall be maintainable on account of any surplus or deficiency in the area or measurement above or below that shown in any other survey or above or below the area or measurement shown in theregister or on the cadastral map, after a period of six months from the date of registration of the instrument under which the proprietor acquired the land.

86.
Review of the decision of the Registrar
(1)

If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.

(2)

The Rules Committee shall make rules on the procedures to be followed by the Registrar or an aggrieved person under subsection (1).

87.
Meaning of ‘opportunity of being heard’
(1)

If this Act requires that a person be given an opportunity to be heard before a particular thing is to be, or may be done, that person shall be deemed to have been given such an opportunity—

(a)

if the person attends before the Registrar personally or by an advocate or other agent, and is given such an opportunity; or

(b)

if the person intimates, personally or by an advocate or other agent, that the person does not wish to be heard; or

(c)

if the person has been served with a notice in writing specifying the nature of the thing to be done and appointing a day and time not less than seven days after service of the notice at which, if the person attends before the Registrar, the person may be heard.

(2)

If a person or an advocate or other agent on the person’s behalf attends before the Registrar concerning a matter on which the person is entitled to be heard, or fails to attend pursuant to such a notice, the Registrar may, adjourn the hearing from time to time, and, notwithstanding failure to attend, may, hear that person at any time.

88.
Prescribed fees
(1)

The prescribed fees shall be payable in respect of a certificate of title, certificate of lease, searches, survey plans, printed forms and all other matters connected with registration, and the Registrar may refuse registration until the fees are paid.

(2)

The Registrar shall not register a disposition of any land, lease or charge against which unpaid fees are recorded until such fees are paid and shall refuse to register a disposition or to issue a certificate of title or a certificate of lease if the fees payable to the Registrar under the Land Adjudication Act or the Land Consolidation Act are not recorded in the register as having been paid in full.

89.
Recovery of fees and expenses

Unpaid fees or expenses incurred by the Registrar shall constitute a debt due and shall be a civil debt recoverable summarily.

90.
Summary recovery

An order for the payment of a sum of money made by the Registrar under any power conferred by this Act shall be deemed to be a decree of the High Court and shall be enforceable as such.

PART IX – CO-TENANCY AND PARTITION
95.
Ancillary powers of Registrar in connection with partition
(1)

If the land sought to be partitioned is capable of being partitioned generally, and the tenants in common have agreed on the partition, but the resultant share of any particular tenant would be less in acreage than the minimum prescribed under the Land Act, either generally or for the development or use of the land which that particular proprietor intends to undertake on that land, the tenants in common shall endeavour to reach a compromise on the matter, with or without the aid of mediation, and any party who is dissatisfied with that compromise or otherwise may refer that partition to the Registrar who shall—

(a)

add that share to the share of any other tenant in common; or

(b)

distribute that share amongst two or more other tenants in common in any proportion that, in default of agreement, the Registrar shall consider just and reasonable; and cause the value of the share added or distributed to be assessed and order that there be paid to the tenant in common of that share by each tenant in common who has received an addition to his or her share, the value of that addition.

(2)

If any sum is payable under subsection (1)(b), the Registrar may order that sum be secured by way of a charge on the share of the tenant or tenants in common liable to pay that sum.

96.
Sale of co-owned land
(1)

If for any reason the land sought to be partitioned is incapable of being partitioned, or the partition would adversely affect the proper use of the land, and the applicant for partition or one or more of the other tenants in common require the land to be sold, and the tenants in common cannot agree on the terms and conditions of the sale or the application of the proceeds of the sale, the tenants in common may make an application to the court for an order for sale and the court may—

(a)

cause a valuation of the land and of the shares of the tenants in common to be undertaken; and

(b)

order the sale of the land or the separation and sale of the shares of the tenants in common by public auction or any other means which appears suitable to the court; or

(c)

make any other order to dispose of the application which the court considers fair and reasonable.

(2)

The court shall, in exercising its powers under paragraphs (b) and (c), have regard to any of the matters set out in section 94(3)(a) to (f) that may be relevant in the circumstances.

(3)

A tenant in common shall be entitled to purchase the land or any share of it that is offered for sale, either at an auction or at any time by private sale.

97.
Partition subject to lender’s consent
(1)

If any undivided share in land or a lease held by tenants in common is subject to a charge, a partition of that land or lease shall not be registered by the Registrar unless the lender’s written consent is produced to the Registrar.

(2)

If a partition referred to in this section takes place with the consent of the lender, the land appropriated to the borrower shall, for all purposes, be deemed to be subject to the charge as if it had originally been comprised by it and the land appropriated to the other tenants in common shall be released from the charge.

PART X – CREATION OF EASEMENTS AND ANALOGOUS RIGHT
98.
Creation of easement
(1)

An owner of land or a lessor may, by an instrument in the prescribed form, grant an easement over the land, lease or a part of that land to the owner of another parcel of land or a lessee for the benefit of that other parcel of land.

(2)

The owner of land or a lessor referred to in subsection (1), who is transferring, assigning or leasing land or a lease may, in the transfer, assignment or lease, grant an easement for the benefit of the land transferred, assigned or leased over the land retained by him or her or reserve an easement for the benefit of land retained by him or her.

(3)

An instrument creating an easement shall clearly specify—

(a)

the nature of the easement and any conditions, limitations or restrictions subject to which it is granted;

(b)

the period of time for which it is granted;

(c)

the land, or the specific part of it burdened by the easement; and

(d)

the land to benefit from the easement, and shall, required by the Registrar, include in a plan that sufficiently defines the easement.

(4)

If a co-owner, by a disposition, severs any building or part of it or land separated by a common dividing wall or other structure, whether that wall or other structure is a party wall or other structure, cross-easements of support of the dividing wall or other structure in respect of the severed buildings or land and the owners of the severed buildings or land shall be implied in the disposition and their successors in title shall be entitled to the benefit subject to the burdens of the cross-easements.

(5)

There shall be implied in every grant of an easement the grant of all ancillary rights which may be reasonably necessary for the full and effective enjoyment of the grant.

(6)

A grant of an easement may contain an agreement between the owners of the dominant and servient lands binding either or both of them to pay for or contribute towards the cost of constructing, maintaining or re- pairing any way, wall, drainage, installation or work forming the subject matter of the easement.

(7)

No easement and no right in the nature of an easement shall be capable of being acquired by any presumption of a grant from long and uninterrupted use.

(8)

Nothing in this section shall prevent the lawful use of a right of way for persons and for stock acquired and that right of way shall be deemed to be property.

99.
Cancellation and extinguishment of easements and analogous rights
(1)

Subject to subsection (3), an easement granted or an analogous right created under this Part may be cancelled by the person occupying the dominant land.

(2)

Any cancellation pursuant to subsection (1), shall be effected in the prescribed form and the easement, or analogous right shall be extinguished on the date that cancellation is recorded in the register.

(3)

On the application of any person occupying servient land, the Registrar may cancel an easement or an analogous right if the Registrar is satisfied that—

(a)

the period of time for which the easement or analogous right was intended to subsist has expired; or

(b)

the event upon which the easement or analogous right was intended to terminate has occurred.

(4)

The consent of any lessee or lender for the time being entitled to the benefit of any easement or analogous right shall be necessary for any cancellation of any such easements or analogous rights and such consent shall be signified in the prescribed form.

100.
Enjoyment of easement and analogous rights
(1)

The benefit of an easement, or an analogous right granted under this Part shall be enjoyed, during the term of its existence, by the owner of the dominant land, any successors in title and by—

(a)

any lessee of the dominant land, or so far as the nature of the easement, or analogous right or part of it permits; and

(b)

any lender on the security of a charge for the time being in possession of the dominant land, or so far as the nature of the easement or analogous right any part of it permit.

(2)

Any person referred to in subsection (1)(a) or (b) who is by this section entitled to the benefit of an easement or analogous right may take out, in their own name, any proceedings necessary for the enforcement of the easement or the analogous rights.

PART XI – MISCELLANEOUS
PART XII – SAVINGS AND TRANSITION
104.
Saving registers under repealed laws
(1)

A register maintained under any of the repealed Acts shall, on the commencement of this Act, be deemed to be the land register for the corresponding registration unit established under this Act.

(2)

Upon receiving an adjudication register from the Director of Land Adjudication, the Registrar shall forward it to the Deputy Registrar or Registrar in charge of the registration unit concerned, who shall prepare a register for each person shown in the adjudication record as an owner of land, and every person shown in the adjudication record as being entitled to an interest that does not amount to ownership of land shall be registered as being so entitled, subject, in every case to, any restriction of the power of the proprietor or of any person so entitled to deal with the land and to any interest, lease, right of occupation, charge or encumbrance affecting the land.