The Land Control Bill, 2022 (the Bill) proposes to regulate various land transactions in relation to agricultural land. The Bill intends to repeal and replace the Land Control Act (Chapter 302) and seeks to align the law governing dealings in agricultural land with the provisions of the Constitution of Kenya, 2010, the Environment and Land Court Act, 2011, the Land Act, 2012 and the Land Registration Act, 2012.
The Bill proposes to establish Land Control Committees (the Committees) in each constituency to replace the current Land Control Boards. The proposed functions of the Committees are as follows:
review and grant consent to any sale, charge, transfer, grant, exchange for value or no value, lease, assignment, grant of easement or right of way in relation to agricultural land;
- review and grant consent for any combination or subdivision of agricultural land;
- grant consent for the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a company, co-operative society or any entity owning agricultural land on behalf of persons who have contributed to its purchase;
- grant consent for the exercise of the power of sale by chargee under section 97 of the Land Act, 2012 for agricultural land;
- review any other dealings in land referred to it by the Chief Registrar;
- resolve any dispute over general boundaries within their jurisdiction;
- settle any land dispute referred to it by willing parties pursuant to the Article 60 (1) (g) and Article 159 (2) (c) of the Constitution;
- handle any matter referred to the Committee in pursuance of section 20 of the Environment and Land Court Act, 2012; and
- undertake fact-finding and evidence-gathering in matters covered under the Law of Succession Act, the Environment and Land Court Act, 2011, the Land Registration Act, 2012, the National Land Commission Act, 2012, and the Land Act, 2012 upon request of parties or the courts.
In accordance with the Bill, a party to a controlled transaction is required to apply for consent from the Committee within six (6) months of entering into an agreement for the controlled transaction. The Committee is required to hear and determine applications brought under the Bill within thirty (30) days of receipt of the application.
Section 13 (2) (c) of the Bill states that a land control committee shall refuse consent to a controlled transaction in which the land or share to be disposed of by way of sale, transfer, lease, exchange, or partition is to a person who is not:
- a citizen of Kenya; or
- a private company or co-operative society all of whose members are citizens of Kenya; or
- group representatives incorporated under the Land (Group Representative) Act (Cap 287); or
- a state corporation within the meaning of the State Corporation Act, 1986.
The Bill empowers the Cabinet Secretary in charge of the Ministry of Lands and Physical Planning to exempt the various transactions from all or any of the provisions of the Bill on such conditions as he/she deems fit to impose. Currently, this power is reserved for the president only.
Impact of the Bill
The Bill proposes to improve the duration of obtaining consent for a controlled transaction. Furthermore, noting that each constituency is proposed to have a Land Control Committee, the services will be accessible to all constituents. Currently, the land control boards are only established in land control areas or, where it is divided into divisions, in each division.
The Bill limits a foreigners’ right to own land in Kenya on the basis of a leasehold tenure of not more than ninety-nine (99) years, by stating that consent shall not be given where a party to a controlled transaction is not a Kenyan citizen.
If you have any queries relating to agricultural land transactions or any aspect of land law generally, do not hesitate to contact Dennis W. Muhindi. Please note that this e-alert is meant for general information only and should not be relied on without seeking specific subject matter legal advice.
Read the original publication at MWC Legal.