Point in Time
Act No: No. 6 of 2012
Act Title: LAND
[ Date of commencement: 2nd May, 2012. ]
[ Date of assent: 27th April, 2012. ]
Arrangement of Sections
PART I – PRELIMINARY PROVISIONS
1.
Short title

This Act may be cited as the Land Act, 2012.

3.
Application
(1)

This Act shall apply to all land declared as—

(a)

public land under Article 62 of the Constitution;

(b)

private land under Article 64 of the Constitution; and

(c)

community land under Article 63 of the Constitution and any other written law relating to community land.

4.
Guiding values and principles
(1)

The guiding values and principles of land management and administration in this section bind all State organs, State officers, public officers and all persons whenever any of them—

(a)

enacts, applies or interprets any provisions of this Act; and

(b)

makes or implements public policy decisions.

(2)

In the discharge of their functions and exercise of their powers under this Act, the Commission and any State officer or public officer shall be guided by the following values and principles—

(a)

equitable access to land; security of land rights;

(b)

security of land rights;

(c)

sustainable and productive management of land resources;

(d)

transparent and cost effective administration of land;

(e)

conservation and protection of ecologically sensitive areas;

(f)

elimination of gender discrimination in law, customs and practices related to land and property in land;

(g)

encouragement of communities to settle land disputes through recognized local community initiatives;

(h)

participation, accountability and democratic decision making within communities, the public and the Government;

(i)

technical and financial sustainability;

(j)

affording equal opportunities to members of all ethnic groups;

(k)

non-discrimination and protection of the marginalized; and

(l)

democracy, inclusiveness and participation of the people; and

(m)

alternative dispute resolution mechanisms in land dispute handling and management.

7.
Methods of acquisition of title to land

Title to land may be acquired through—

(a)

allocation;

(b)

land adjudication process;

(c)

compulsory acquisition;

(d)

prescription;

(e)

settlement programs;

(f)

transmissions;

(g)

transfers;

(h)

long term leases exceeding twenty-one years created out of private land; or

(i)

any other manner prescribed in an Act of Parliament.

PART II – MANAGEMENT OF PUBLIC LAND General Provisions
10.
Guidelines on the management of public land
(1)

The Commission shall prescribe guidelines for the management of public land by all public agencies, statutory bodies and state corporations in actual occupation or use of public land.

(2)

The guidelines prescribed under subsection (1) shall indicate management priorities and operational principles for the management of public land resources for identified uses.

(3)

The Commission shall, in the development of the guidelines under subsection (1), comply with Article 10(2) of the Constitution

11.
Conservation of ecologically sensitive public land
(1)

The Commission shall take appropriate action to maintain public land that has endangered or endemic species of flora and fauna, critical habitats or protected areas.

(2)

The Commission shall identify ecologically sensitive areas that are within public lands and demarcate or take any other justified action on those areas and act to prevent environmental degradation and climate change.

(3)

Notwithstanding subsection (2) the Commission shall consult existing institutions dealing with conservation.

14.
Notification requirements applicable to allocation of public land
(1)

The Commission shall, before allocating any public land under this Act, issue, publish or send a notice of action, to the public and interested parties, at least thirty days before, offering for allocation, a tract or tracts of public land.

(2)

The notice under subsection (1) shall include the terms, covenants, conditions and reservations which are to be included in the conveyance document and the method of allocation.

(3)

The notice under subsection (1) shall provide a period of fifteen days from the date of its issuance, within which the public and interested parties may comment.

(4)

At least thirty days prior to the allocation of public land, the Commission shall send a notice to the governor in whose county the public land proposed for allocation is located and to the head of the governing body of any administrative subdivision having development control or other land use regulatory responsibility in the geographic area within which the public lands are located and to the head of any administrative subdivision having administrative or public services responsibility in the geographic area within which the lands are located.

(5)

The notice under subsection (4) shall be sent to other known interested parties including, but not limited to, adjoining landowners, persons in actual occupation of the land including—

(a)

marginalised communities and groups living in the general vicinity of the public lands being proposed for allocation; and

(b)

boards of cities and municipalities and town administrators, created under sections 12, 13 and 31 of the Urban Areas and Cities Act, 2011 (No. 13 of 2011), in the geographic vicinity within which the public lands proposed for allocation are located.

(6)

The notice under subsection (4) shall be published in the Gazette and at least once a week for a period of three weeks and thereafter shall be published in a newspaper of general circulation in the general vicinity of the public land being proposed to be offered for allocation.

(7)

A notice under this section above shall specify the place, date, and time of allocation, the appraised value of the land, describe with particularity each parcel of land to be allocated, and specify that the terms of allocation shall be available in the Commission’s offices in Nairobi and the Commission office nearest the land being proposed for allocation.

(8)

Failure to provide notice of proposed allocations as required under this section shall serve as grounds for the Commission to—

(i) require that the notification procedures outlined in this subsection be repeated; or
(ii) void the allocation on grounds that the notification requirements of this Act were not properly conducted.

Reserved Public Land

17.
Development plans
(1)

A management body shall, on its own motion or at the request of the Commission, submit to the Commission for approval a plan for the development, management and use of the reserved public land vested in the management body.

(2)

Before submitting a plan to the Commission under subsection (1) a management body shall—

(a)

consider any conservation, environmental or heritage issues relevant to the development, management or use of the public land in its managed reserve for the purpose of that managed reserve; and

(b)

incorporate in the plan a statement that it has considered those issues in drawing up the plan;

(c)

submit an environmental impact assessment plan pursuant to existing law on environment; and

(d)

comply with the values and principles of the Constitution.

(3)

If a management body submits a plan to the Commission under subsection (1) and the Commission approves that plan and notifies the management body of that fact, the management body may develop, manage and use the public land concerned in accordance with the plan as approved or subsequently varied as the case may be.

(4)

Notwithstanding the provisions of this section, the Commission shall, in considering an application under this section, comply with the relevant law relating to development control.

18.
Revocation of management orders
(1)

If a management body does not comply with guidelines or directions issued by the Commission in writing, or does not submit a development plan in compliance with a request made under section 17(2), the Commission, by order in the Gazette, may revoke that management order.

(2)

If the Commission considers that it is in the public interest to revoke a management order, the Commission may, by order in the Gazette, revoke the management order.

(3)

The preparation and implementation of development plans under this Act shall be in accordance with the physical planning regulations and any other relevant law.

19.
Conservation of land based natural resources
(1)

The Commission shall make rules and regulations for the sustainable conservation of land based natural resources.

(2)

Without limiting what the Commission may prescribe under subsection (1), the rules and regulations may contain—

(a)

measures to protect critical ecosystems and habitats;

(b)

incentives for communities and individuals to invest in income generating natural resource conservation programmes;

(c)

measures to facilitate the access, use and co-management of forests, water and other resources by communities who have customary rights to these recourses;

(d)

procedures for the registration of natural resources in an appropriate register;

(e)

procedures on the involvement of stakeholders in the management and utilization of land-based natural resources; and

(f)

measures to ensure benefit sharing to the affected communities.

PART III – ADMINISTRATION OF PUBLIC LAND Leases, Licences and Agreements for Public Land
20.
Licence for temporary purposes
(1)

The Commission may grant a person a licence to use unalienated public land for a period not exceeding five years subject to planning principles as it may prescribe.

(2)

The Commission may serve a notice to quit upon the licensee at any time after the expiration of nine months from the date of the licence.

(3)

The fee payable under a licence under this section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission.

(4)

The licensee may, with the consent of the Commission, transfer the benefit of a licence under this section, and the transfer and the consent thereto shall be endorsed on the licence.

21.
Removal of building under temporary Licence

At any time before the licence expires, the occupant of any public land under a licence granted under section 20 may remove any structure or other building erected by the occupant.

22.
Penalty for unpaid fees, etc

The Commission may declare a licence granted under section 20 to be forfeited if–—

(a)

the fees payable under the licence is unpaid for one month after it became due;

(b)

any tax or taxes imposed upon the land, or upon a structure or building erected on the land, or upon the licencee, remains unpaid for two months after becoming due; or

(c)

if the occupant of the land fails to abide with the conditions of the licence.

General Conditions Relating to Leases, Licences and Agreements for Public Land

26.
Covenants and conditions binding on persons claiming under grant, lease or licence

Every covenant or condition, whether expressed or implied, in a grant, lease or licence under this Act which is binding on a grantee, lessee or licensee shall, unless otherwise expressly provided in the grant, lease or licence, be binding upon all persons claiming an interest in the land that is the subject of the grant, lease or licence, and whose title is derived through or under the grantee, lessee or licensee.

27.
Obligations of children

A child shall be capable of holding title to land through a trustee and such child shall be in the same position as an adult with regard to the child’s liability and obligations to the land.

28.
Rents and other payments
(1)

The rent, royalties and payments reserved under any lease or licence shall be a debt owed to the Commission, and shall be paid by the lessee or licensee at the office of the Commission or at such other place as the Commission may prescribe.

(2)

The annual rent reserved under any lease or licence shall be payable in advance on the first day of January in each year of the term.

(3)

The payments made under subsection (2) shall be accounted for to the respective governments.

29.
Unpaid rents and other payments
(1)

If any funds due in respect of any rent, principal instalment, royalty or other payment (in this section referred to as “the principal debt”) under any agreement lease or license under this Act, or under any Act repealed by this Act, remain unpaid after the due date, a late payment interest at the rate of two percent per month or part thereof, or at such other rate as may from time to time be specified by the Commission in the Gazette, shall be charged on the amount remaining unpaid for more than one month after the due date until the full amount is recovered.

(2)

Any payment made under subsection (1) shall first be attributed to the payment of outstanding interest and thereafter only when such interest has been paid in full shall any payment be attributed to the reduction of the principal debt.

(3)

If any interest becomes payable under subsection (1) the Commission shall serve on the debtor a notice demanding payment of that interest in addition to the other money then due.

(4)

Notwithstanding the foregoing provisions of this section, the Commission may waive the whole or part of any late payment of interest provided for by this section, if the debtor has provided the Commission a good and sufficient reason for the late payment.

(5)

The Commission shall publish and publicize annually, any remission or waiver made under subsection (4).

(6)

Notwithstanding the provisions of this section, the law relating to public financial management shall apply.

30.
Commission may sue for rent, etc., in arrears

Without prejudice to the Commission’s right to recover a debt in any other way, the Commission may sue in Court for any rent, principal, instalment, royalty or other payment, payable under any agreement, lease or license under this Act, that is in arrears, or for any penalty payable under section 29.

31.
Forfeiture of lease if rent unpaid or for breach of covenant
(1)

If any part of the rent or royalties reserved in a lease under this Act is unpaid for a period of twelve months after becoming due, or if the lessee breaches any express or implied covenant, the Commission may—

(a)

serve a notice upon the lessee, specifying the rent or royalties in arrears or the covenant of which a breach has been committed; and

(b)

commence an action in Court for the recovery of the land at any time at least one month after serving the notice contemplated in paragraph (a).

(2)

In an action commenced under subsection (1)(b) on proof of the facts, the Court shall declare the lease forfeited, subject to relief upon such terms as may appear just.

(3)

If the Court has declared a lease to be forfeited under subsection (2), the Commission may re-enter upon the land.

(4)

In exercising the power of granting relief against forfeiture under this sub-section (1) the Court shall be guided by the principles of the doctrines of equity.

32.
Forfeiture of licence
(1)

Subject to any other provision of this Act, where the rent or any part thereof payable under a license issued under this Act is at any time unpaid for a period of thirty days after the same has become due, or if the licensee fails to comply with, or commits any breach of, the conditions, whether express or implied, of the license, the Commission may make an application in Court to declare the license forfeited.

(2)

Upon receipt of an application under subsection (1), together with a statement specifying the rent in arrears or the condition which has not been complied with or of which a breach has been committed, the Court shall cause to be served upon the licensee, a copy of the statement together with a notice of the date, not being less than fourteen days from the date of the notice, when the application will be heard.

(3)

If upon the date fixed for the hearing of the application or to which the hearing is adjourned it is proved to the satisfaction of the court that rent is in arrears or that the licensee has failed to comply with or has committed a breach of any of the conditions of the license, the Court shall, subject to such relief against forfeiture for non-payment of rent as may seem just, declare the license forfeited.

33.
Debt owed to Commission not extinguished by forfeiture

A forfeiture shall not extinguish any debt owed to the Commission in respect of any rent, royalty or other payment to be made by a lessee or licensee under a lease or license forfeited.

34.
Subdivision, etc., of public land subject to continuing interests, etc.
(1)

If the Commission proposes to resurvey the boundaries of any leased public land, or to subdivide land that is the subject of any interests or cautions, the Commission may, with reasonable notice to the holders of the interests, or of the relevant cautioners, by order incorporating a survey plan or revised survey plan authenticated by the office or authority responsible for survey, make such adjustments to those boundaries as—

(a)

the Commission considers necessary; and

(b)

according to any proposed plan of subdivision approved under the law relating to physical planning,

without any obligation to make or pay compensation.

(2)

The Commission shall notify all interest holders and relevant caveators of the boundaries adjustments made under subsection (1).

(3)

On the adoption by the Commission of a survey plan or revised survey plan referred to in subsection (1) and the registration of the order with reference to that survey plan or revised survey plan, the boundaries of the relevant public land are adjusted accordingly—

(a)

despite the existence of any interests registered or cautions lodged in respect of that public land; and

(b)

with or without the consent of the holders of those interests or of the relevant cautioners.

(4)

The Commission shall ensure that an adjustment made under subsection (3) is made in conformity with sound planning and land management principles so as to cause as little detriment as possible to any interest or caveat affected by that adjustment.

(5)

On the adjustment under subsection (3) of the internal or external boundaries of leased public land subject to interests or caveats, the interests or caveats apply to the relevant locations or lots within those boundaries and not to the public land referred to in the instruments which created those interests or caveats.

34.
Subdivision, etc., of public land subject to continuing interests, etc.
(1)

If the Commission proposes to resurvey the boundaries of any leased public land, or to subdivide land that is the subject of any interests or cautions, the Commission may, with reasonable notice to the holders of the interests, or of the relevant cautioners, by order incorporating a survey plan or revised survey plan authenticated by the office or authority responsible for survey, make such adjustments to those boundaries as—

(a)

the Commission considers necessary; and

(b)

according to any proposed plan of subdivision approved under the law relating to physical planning,

without any obligation to make or pay compensation.

(2)

The Commission shall notify all interest holders and relevant caveators of the boundaries adjustments made under subsection (1).

(3)

On the adoption by the Commission of a survey plan or revised survey plan referred to in subsection (1) and the registration of the order with reference to that survey plan or revised survey plan, the boundaries of the relevant public land are adjusted accordingly—

(a)

despite the existence of any interests registered or cautions lodged in respect of that public land; and

(b)

with or without the consent of the holders of those interests or of the relevant cautioners.

(4)

The Commission shall ensure that an adjustment made under subsection (3) is made in conformity with sound planning and land management principles so as to cause as little detriment as possible to any interest or caveat affected by that adjustment.

(5)

On the adjustment under subsection (3) of the internal or external boundaries of leased public land subject to interests or caveats, the interests or caveats apply to the relevant locations or lots within those boundaries and not to the public land referred to in the instruments which created those interests or caveats.

(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 purposes 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 map, cadastral plan and the acreage without any obligation to pay compensation.

[Act No. 28 of 2016, s. 54.]

35.
Acceptance of purchase money or rent not to operate as waiver of forfeiture

The acceptance by or on behalf of the Commission of any purchase money or any rent or other payment under any lease or licence shall not be held to operate as a waiver by the Commission of any forfeiture accruing by reason of the breach of any covenant or condition annexed to any sale, lease or license of or respecting public land, whether the sale, lease or licence is under this Act or under any other Act relating to the disposal of public land.

36.
Notice of lease, license or agreement action on public land
(1)

A notice of action indicating the availability of public land for use through lease, licence, or agreement shall be published in the Gazette and in at least two daily newspapers of nationwide circulation when a determination has been made that such public land is available for a particular use.

(2)

The notice under subsection (1) shall indicate the use proposed for the public land and shall notify the public that applications for a lease, licence or agreement shall be considered, and specify the form of negotiation, whether by competitive or non-competitive bidding, under which the land use authorization shall be issued.

PART IV – COMMUNITY LAND
37.
Community land

Community land shall be managed in accordance with the law relating to community land enacted pursuant to Article 63 of the Constitution.

PART V – ADMINISTRATION AND MANAGEMENT OF PRIVATE LAND Contracts Over Land
39.
Validity of contracts in sale of land

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.

40.
Damages for breach of contract
(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.

41.
Procedure for obtaining order for possession
(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.

Transfers

43.
Transfer
(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.

44.
Transfer to take effect immediately

A transfer shall not be expressed to take effect on the happening of any event or on the fulfilment of any condition or at any future time.

45.
Transfer of leases

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.

46.
Effect of transfer on agreement in leases
(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.

47.
Transfer subject to charge

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.

48.
Transfer subject to lease

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

49.
Transmission on death of joint proprietor

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.

50.
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 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.

51.
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 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.

54.
Transmission in other cases

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.

PART VI – GENERAL PROVISIONS ON LEASES
55.
Application of this Part
(1)

Unless otherwise provided in a lease instrument, the provisions of this Part shall apply to all leases, other than leases governed by legislation relating to community land.

(2)

The parties to a lease made or coming into effect before the commencement of this Act may agree, in writing, to adopt or incorporate any of the provisions of this Part into that lease and any provisions adopted or incorporated shall, unless the agreement otherwise provides, become a part of the lease and shall be enforceable in every respect, with effect from the date of the agreement.

(3)

In this Part, unless the context expressly or by implication renders it unfeasible, references to a lease include a sublease.

56.
Power to lease land

Subject to the provisions of this Act, the owner of private land may—

(a)

lease that land or part of it to any person for a definite period or for the life of the lessor or of the lessee or for a period which though indefinite, may be terminated by the lessor or the lessee; and

(b)

subject the lease to any conditions that may be required by this Act or any other law or that the lessor may impose.

57.
Periodic leases
(1)

If in any lease—

(a)

the term of the lease is not specified and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease;

(b)

the term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease shall be for six months;

(c)

the lessee remains in possession of land with the consent of the lessor after the term of the lease has expired, then—

(i) unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and
(ii) all the terms and conditions of the lease that are consistent with the provisions of sub-paragraph (i) shall continue in force until the lease is terminated in accordance with this section.
(2)

If the owner of land permits the exclusive occupation of the land or any part of it by any person at a rent but without any agreement in writing, that occupation shall be deemed to constitute a periodic tenancy.

(3)

The periodic tenancy contemplated in subsection (1)(a) shall be the period by reference to which the rent is payable.

(4)

A periodic tenancy may be terminated by either party giving notice to the other, the length of which shall be not less than the period of the tenancy and shall expire on one of the days on which rent is payable.

58.
Short-term leases
(1)

A short term lease is a lease—

(a)

made for a term of two years or less without an option for renewal;

(b)

that is a periodic lease; and

(c)

to which section 57(2) applies.

(2)

A short term lease may be made orally or in writing.

(3)

A short term lease is not a registrable interest in land.

59.
Lease terminating on the occurrence of a future event

A lease that comes into operation after the date on which this Act comes into operation and that provides for its termination or permits notice of its termination to be given on the occurrence of a future event shall not be invalid provided that the event is sufficiently defined in the lease so as to be identified when it occurs.

60.
Lessee remaining in possession after termination of lease without the consent of lessor
(1)

If a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land.

(2)

A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.

61.
Future leases
(1)

For the avoidance of doubt, a lease of land may be made for a term to begin on a future date, not being later than twenty-one years after the date on which the lease is executed.

(2)

A future lease, which is expressed to be for a period of more than five years, shall be of no effect unless and until it is, registered.

62.
Notice by co-owners

If a lease is entered into by—

(a)

two or more lessors as co-owners; or

(b)

two or more lessees as co-owners,

and the lease is terminable by notice, the notice shall be given by and to all the co-owners, unless all the parties to the lease have, expressly or by implication, agreed otherwise.

64.
Surrender to enable a new head lease to be entered into not to affect the sublease
(1)

The surrender of a lease for the purpose of enabling a new lease to the same lessee to be entered into shall not require the surrender of any sublease in respect of the surrendered lease, if, on or before the date on which the term of the new head lease is to expire—

(a)

the term of the sublease is to expire; or

(b)

in the case of a sublease that is a periodic tenancy, the sublease may be terminated by the giving of the specified period of notice of termination and the expiry of that period.

(2)

A sublease preserved under subsection (1)—

(a)

shall continue in force as though it had been entered into in respect of the new head lease; and

(b)

all rights and obligations under the sublease, including those which relate to any period before the surrender of the head lease, shall continue to be enforceable, except to the extent that any such obligation is, by reason of the fact that a new head lease has been entered into, more onerous than it would have been had the original head lease not been surrendered.

(3)

A sublease entered into in respect of a surrendered lease includes, for purposes of this section, any sublease entered into by a person deriving title through the lessee under the surrendered lease.

66.
Conditions implied on leases on part of the lessee
(1)

There shall be implied in every lease, covenants by the lessee with the lessor binding the lessee—

(a)

to pay the rent reserved by the lease at the times and in the manner specified in the lease;

(b)

to use any land in a sustainable manner and in accordance with any conditions imposed on the use of that land by the lease, or any written law or any provisions in a grant of a public land out of which that lease has been created and, in particular, not to cut down, injure or destroy any living tree on the land unless the purpose for which the land has been leased cannot be carried out without so doing;

(c)

to yield up the land and buildings in the same condition as they were when the term of the lease began, except that the lessee shall not be bound to repair damage or restore the land and buildings to the same conditions they were at the beginning of the lease if the damage or deterioration of the condition is caused by—

(i) reasonable wear and tear;
(ii) fire, flood or explosion or other accident not attributable to the negligence of the lessee, or the lessee’s invitees or employees;
(iii) civil commotion;
(iv) lightning, storm, earthquake, volcanic activity or other natural disaster;
(d)

to keep all boundary marks in repair; and

(e)

to keep all buildings comprised in the lease in a reasonable state of repair.

67.
Consent by lessor to application by lessee under lease
(1)

On and after the commencement of this Act, a covenant by the lessee not to take an action without the consent of the lessor shall be construed as requiring the lessor not unreasonably to withhold consent to the taking of that action by the lessee.

(2)

If a lessee applies to the lessor for consent to—

(a)

transfer or assign the lease;

(b)

enter into a sublease;

(c)

part with possession of the leased land or buildings;

(d)

change the use of the land or buildings from a use which is permitted under the lease;

(e)

extend, improve, add on to or in any other way develop any building beyond what is permitted in the lease;

(f)

create a charge over the lease;

(g)

take any of the actions referred to in sub paragraphs (a), (b), (c), (d), (e); or

(h)

in relation to any part of the leased land or buildings, or for any part of the term of the lease,

the lessor shall inform the lessee, in writing, within a reasonable time after receiving the application, whether the lessor is giving or refusing consent.

(3)

Without limiting the generality of the lessor’s obligation under subsection (1), consent is unreasonably withheld if the lessor as a condition of or in relation to the giving of consent—

(a)

requires the lessee to pay any money, by way of additional rent, or a premium or a fine or other consideration for the consent, other than the payment of the lessor’s reasonable expenses incurred in connection with the giving of consent;

(b)

imposes on the lessee any unreasonable condition or precondition; or

(c)

the lessee has requested for consent to transfer or assign the lease or enter into a sublease, and the lessor objects to the gender or nationality or other personal characteristic of the transferee, assignee or sublessee, in circumstances that a reasonable person would consider those factors irrelevant to the granting of such consent.

(4)

If the lessor refuses to give consent or gives consent subject to a condition or pre-condition and the lessee so requests, in writing, the lessor shall promptly inform the lessee, in writing, of the reasons for the refusal or for the imposition of the condition or pre-condition, as the case maybe.

(5)

If the lessee or any person, to whom this section applies at the request of the lessee, has paid any money or suffered any loss in connection with subsection (3), that person may recover that money and seek damages for that loss from the lessor.

(6)

This section shall not prevent the inclusion, in a lease, of a covenant binding the lessee absolutely not to take any action of the kind referred to in subsection (2).

68.
Merger of lessor’s interest not to affect remedies

If a sublessor surrenders the head lease to the owner or merges the head lease with the land out of which it was created, the owner of the land shall have all the same remedies against the sublessee for non-performance or non- observation of the covenants and conditions expressed or implied in the sublease and all the same rights to give notice of the termination of the sublessee to the subleases as the sublessor had before the surrendered or merged the head lease.

Transfer and Assignment of Leases

69.
Burden and benefit of covenants to run with the reversion
(1)

If the interest held by the lessor under a lease, the reversion, ceases to be so held by the lessor, whether by transfer, assignment, grant, operation of law or otherwise, then, unless a contrary intention, expressly or impliedly, appears from the lease, or from any other circumstance—

(a)

the obligations imposed on the lessor by covenant of the lease run with the reversion and may be enforced by the person who is from time to time entitled to the reversion;

(b)

the rights to the benefits of every covenant imposed on the lessee, that refers to the subject matter of the lease, may be exercised and enforced by the person who is from time to time entitled to the reversion against the person who is from time to time entitled to the lease.

(2)

A person who becomes entitled to exercise a right to which subsection (1)(b) refers may exercise the right even if it first became exercisable or accrued before the time at which that person became so entitled unless before that time, the right was waived or the lessee was released from the obligation to which the right relates.

(3)

If, in respect of a lease—

(a)

there has been a division of the reversion into different parts so that different persons are lessors of the different parts; or

(b)

the lease has terminated in relation to the part of the land comprised in the lease,

the obligations referred to in subsection (1)(a) and the rights and remedies referred to in subsection (1)(b) shall be apportioned, and to the extent required by that apportionment, remain attached to each part of that reversion or to that part of the land in respect of which the lease has not been terminated as the case may require and may be enforced by the person entitled to enforce those obligations under subsection (1)(a) and exercised by the person entitled to exercise those rights and remedies under subsection (1)(b).

70.
Effect of payment by lessee to assignor of reversion
(1)

If a lessor has transferred or assigned the reversion, any payment by the lessee of any part of the rent or of any other money due under the lease to the transferor or assignor shall discharge the lessee to the extent of that payment unless the lessee had actual notice of the transfer or assignment before making the payment.

(2)

Notwithstanding any other provision to the contrary in any other written law, the registration of a transfer of the reversion shall not, for purposes of subsection (1), in itself, be an actual notice to the lessee of the transfer.

71.
Transferor or assignor of lease released from liability to pay rent and observe covenants thereafter
(1)

In respect of any lease or any transfer or assignment of a lease or part of it made or coming into effect on or after the date of the commencement of this Act—

(a)

the rule of the common law that a transferor or assignor of a lease remains liable on the personal covenant to the lessor for payment of rent and for all breaches of covenants, notwithstanding that the transferor or assignor is no longer in possession or occupation of the leased land, shall cease to apply; and

(b)

the effect of a transfer or assignment of a lease is, as from that date, to discharge absolutely and without more the transferor or assignor from any obligation to pay rent or to observe any covenants in respect of the land as from the date of the transfer or assignment, whether the person to whom the lease has been transferred or assigned is in or goes immediately into occupation or possession of the land so transferred or assigned.

(2)

As long as the transferor or assignor remains in occupation of the leased land and notwithstanding the transfer or assignment, that transferor or assignor shall remain liable to pay rent and comply with all the covenants as if the person were still the lessee for as long as the person shall remain in occupation.

(3)

Subsection (1) shall not absolve a transferor or assignor of a lease from any obligation to pay rent or remedy and breach of a covenant that accrued or arose during the term of the lease when that transferor or assignor was bound by all the covenants in that lease and the lessor may enforce all such obligations of that lease that have so accrued or arisen against that transferor or assignor notwithstanding that the lease has been transferred or assigned.

(4)

As from the date of the commencement of this Act—

(a)

the rule of common law that a lessee remains liable to pay rent and comply with all the covenants notwithstanding that the lessee has, with the agreement of the lessor, vacated the leased land before the date for the termination of the lease, shall cease to apply; and

(b)

subsection (5) shall forthwith apply.

(5)

A lessee who, with the agreement of the lessor, vacates land before the termination of a lease shall remain liable to pay rent and observe all the covenants in the lease for one year from the date on which the lessee vacates the land or buildings, unless the lease provides expressly for a shorter period, and if the lessor leases that land or any buildings to another person before the end of one year, the provisions of subsection (1) shall apply, with effect from the date of the execution of that lease.

(6)

Subsection (1) shall not absolve a lessee to whom subsection (5) applies, from any obligation to pay rent or remedy a breach of a covenant that accrued or arose during the term of the lease when that lessee was bound by all the covenants in that lease and the lessor may enforce all such obligations of that lease that have accrued or arisen against that lessee notwithstanding the fact that the lessee has vacated the land.

(7)

The provisions of subsections (1) and (5) shall apply in a similar manner to the transfer, or assignment of a lease of a part of the leased land and to the vacating of a part of the leased land as they apply to the transfer of assignment of the lease of all the land and the vacating of all the land comprised in the lease.

(8)

Any term expressed or implied in a lease or in a condition or covenant in a lease that is in conflict with this section shall be void.

Remedies and Relief

73.
Lessor’s right of forfeiture
(1)

Subject to the provisions of section 76 and to any provisions to the contrary in the lease, the lessor shall have the right to forfeit the lease if the lessee—

(a)

commits any breach of, or omits to perform, any agreement or condition on his part expressed or implied in the lease; or

(b)

is adjudicated bankrupt; or

(c)

being a company, goes into liquidation.

(2)

The right of forfeiture may be—

(a)

exercised, where neither the lessee nor any person claiming through or under him is in occupation of the land, by entering upon and remaining in possession of the land; or

(b)

enforced by action in the court.

(3)

The acceptance by the lessor of any rent after the service of a notice of forfeiture under section 75 does not operate as a waiver of the lessor’s right of forfeiture unless the lessor has by any other positive act shown an intention to treat the lease as subsisting.

74.
Effect of forfeiture on subleases

The forfeiture of a lease determines every sublease and every other interest appearing in the register relating to that lease, but—

(a)

where the forfeiture is set aside by the court on the grounds that it was procured by the lessor in fraud of the sublesee; or

(b)

where the court grants relief against the forfeiture under section 76, every such sublease and other interest shall be deemed not to have determined.

75.
Notice before forfeiture

Notwithstanding anything to the contrary contained in the lease, no lessor shall be entitled to exercise the right of forfeiture for the breach of any agreement or condition in the lease, whether expressed or implied, until the lessor has served on the lessee a notice of not less than thirty days—

(a)

specifying the particular breach complained of; and

(b)

if the breach is capable of remedy, requiring the lessee to remedy the breach within such reasonable period as is specified in the notice; and

(c)

in any case other than non-payment of rent, requiring the lessee to make compensation in money for the breach,

and the lessee has failed to remedy the breach within thirty days thereafter, if it is capable of remedy, and to make reasonable compensation in money.

76.
Relief against forfeiture
(1)

A lessee upon whom a notice has been served under section 75, or against whom the lessor is proceeding, by action or re-entry, to enforce his right of forfeiture, may apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and the conduct of the parties and the circumstances of the case, thinks fit, and, if it grants relief, may grant it on such terms as it thinks fit.

(2)

The court, on application by any person claiming as sublesee or chargee any interest in the property or part of the property comprised in the lease forfeited or sought to be forfeited, may make an order vesting the property or such part in such sublesee or chargee for the whole period of the lease or any less period, upon such conditions as the court in the circumstances of the case thinks fit:

Provided that nothing in this subsection shall apply in the case of a forfeiture arising from a breach to which the sublesee is a party, or from the breach of an express agreement or condition against subleasing, parting with the possession of or disposing of the property leased.

(3)

This section shall have effect notwithstanding any stipulation or agreement to the contrary and whether the lease is registered or not.

77.
Unlawful eviction
(1)

A lessee who is evicted from the whole or a part of the leased land or buildings, contrary to the express or implied terms and conditions of a lease, shall be immediately relieved of all obligation to pay any rent or other monies due under the lease or perform any of the covenants and conditions on the part of the lessee expressed or implied in the lease in respect of the land or buildings or part thereof from which the lessee has been so evicted.

(2)

For purposes of this section, a lessee shall be considered as having been evicted from the whole or part of the leased land or buildings, if, on the commencement of the lease, the lessee is unable to obtain possession of the land or buildings or part thereof, as a result of any action or non-action of the lessor or any of the lessor’s agents or employees, contrary to the express or implied terms of the lease:

Provided that a lessee who is aggrieved as a result of unlawful eviction under this section may commence an action against the lessor for remedies.

PART VII – GENERAL PROVISIONS ON CHARGES
80.
Charge of land to take effect as security only
(1)

Upon the commencement of this Act, a charge shall have effect as a security only and shall not operate as a transfer of any interests or rights in the land from the chargor to the chargee but the chargee shall have, subject to the provisions of this Part, all the powers and remedies in case of default by the chargor and be subject to all the obligations that would be conferred or implied in a transfer of an interest in land subject to redemption.

(2)

In the case of the charge of a lease, the chargee shall not be liable to the lessor for rent or in respect of the covenants and conditions contained or implied in the lease to any greater extent than would have been the case if the charge had been by way of a sublease.

(3)

Every charge instrument shall contain—

(a)

the terms and conditions of sale;

(b)

an explanation of the consequences of default; and

(c)

the reliefs that the chargor is entitled to including the right of sale.