Registration regimes in Kenya, By George W. Onyore

REGISTRATION SYSTEMS:
Forms of Documentation
In Kenya we have five land registration systems:
1. Registration of Documents Act 1901, RDA (Cap 285) 1st Document
2. Land Titles Act 1908, LTA (Cap 282)
3. Government Lands Act 1915, GLA (Cap 280)
4. Registration of Titles Act, 1920, RTA (Cap 281)
5. Registered Land Act 1963, RLA (Cap 300) and the Sectional Properties Act No 21 of 1987 which is applicable under the RLA.

The form of documentation is governed or determined by the statute under which a particular piece of land is registered.

REGISTRATION OF DEEDS AND REGISTRATION OF TITLES

The land registration systems are of two types
1. The registration of documents or deeds; The RDA, LTA and GLA fall under this type. The scrutiny is there but not as thorough as when one is scrutinizing a title. The State is just acknowledging that a conveyance was registered but beyond that they are not vouching for the validity of that transaction at all. It is just a record. One here has to trace the good root of title as there are no guarantees; it is up to one to establish the valid title of the person purporting to transfer title.
2. The registration of titles; The RTA and RLA fall under this type. The scrutiny under a Title is thorough and the state guarantees a title. That it is a valid document and that one can rely on it. The RLA register is clear that what you see is what you get and one should not even worry about who had the title before unlike in the registration of deeds where one has to worry about who owned the deed before.

The RDA 1901 was the simplest and first of all the documents dealing with land in Kenya. Section 4 talks of the compulsory registration and Section 5 about its being optional

The LTA only covers property at the Coast only the 10 mile coastal strip. Given under an agreement of the Sultan of Zanzibar and the Sultan of Oman, it was available for alienation by the British and was owned by some families who had it freehold or had freehold interests. Since the system of registration was rudimentary, even the way boundaries were demarcated was rudimentary so the demarcation was not systematised.

GLA 1915 – dealt with all the land in the hinterland. The Crown Lands Ordinance was replaced by the GLA and any titles registered under the RDA 1901 had to be registered afresh under the GLA. The GLA introduced a more refined system of the register where there were deed plans in the registry.

Methods of Registration under LTA and GLA
The method of registering is the same. Even the way the documents are drafted under these two regimes are the same. Conveyancing is by the way of a deed, signed, sealed and delivered.

RTA – ; The form of documentation under the RTA follows the statutory forms. Section 33 RTA. This section prohibits the Registrar of Titles from registering under the Act any document or instrument which is not in statutory form. Many advocates have borrowed some of the language and phraseology from the GLA and LTA for example “… this instrument is made on the …. Between Susan hereinafter referred to as the landlord on the one part and George hereinafter referred to as the tenant on the other part..” this is English phraseology that is common in both the GLA and LTA

Registered Lands Act; It is different from all the other Acts, form of documentation is statutory, enacted in 1963 and it is intended that eventually all land will come under this regime. We may never get all the land registered under the RLA. This Act was intended to make it possible for any property owner under this Act to be able to transact without having to rely overly on an advocate. Section 108 is to the effect that statutory forms must be used to register any transaction under this Act. The law requires that where advocates want to depart from the statutory forms, they must obtain consent from the Chief Land Registrar to use their own format. The Chief Land Registrar may issue an approval in the form of a letter if he is satisfied that the form meets the standards. The Chief quotes a reference number which will always be required to be shown on the format to the effect that the chief registrar has approved the format under the quoted number e.g. CLR3VOL XXIV.

Procedural and Substantive Law governing various registration systems

LTA – the procedural is found in the Act itself but the substantive law is found in the ITPA and this also applies to the GLA. For example, if one wants to know the remedies of a lender under the GLA, they will not be found in the GLA but under Section 69 of the ITPA. The provisions containing substantive rights are found in the ITPA.

RTA – the procedural law is contained in the RTA but where there has been a conversion, the GLA still applies especially in relation to matters that occurred before the property was transferred to the RTA regime. The substantive law will still be found in the ITPA. Where the RTA and ITPA are silent on a given matter related to the land, the common law will apply.

RLA – The Act itself contains both the procedural and substantive law. Section 163 states that “subject to the provisions of the RLA and save as may be provided by any written law for the time being in force, the common law of England as modified by the doctrines of equity shall extend and apply to Kenya in relation to land, leases and charges registered under the Act and interests therein but without prejudice to the rights, liabilities and remedies of the parties under any instrument subsisting immediately before such application.” Section 164 provides that the ITPA ceases to apply upon first registration under the RLA. This is a self-contained code. You don’t need to consult any other regime. Section 53 gives the rights and duties of a tenant and landlord. Where the Act is silent, ITPA does not apply but one goes straight to the common law.

Obtain conveyancing precedents – precedents of documents that have been registered.