Экзамен зачет учебный год 2023 / Simpson, Land Law And Registration

KENYA REGISTERED LAND ACT AND RULES

Appointment of officers

7. (1) There shall be appointed a Chief Land Registrar, who shall be responsible for administering the land registries in accordance with this Act.

(2)There may be appointed a Deputy Chief Land Registrar and so many Land Registrars and Assistant Land Registrars as may be necessary for carrying out the provisions of this Act.

(3)The Deputy Chief Land Registrar shall have all the powers and may perform all or any of the duties conferred and imposed on the Chief Land Registrar by this Act or by any rules made thereunder, except the power of authorization conferred by subsection (4) of this section.

(4)The Chief Land Registrar may in writing authorize any Land Registrar or Assistant Land Registrar to exercise or to perform all or any of the powers or duties conferred on the Chief Land Registrar by this Act or by any rules made thereunder, and may at any time revoke or vary any such authorization:

Provided that no such authorization shall be deemed to divest the Chief Land Registrar of any of his powers or duties, and he may, if he thinks fit, exercise and perform all his powers or duties notwithstanding any such authorization.

It was originally provided that the Governor should appoint the Chief Land Registrar and other officers, but after Independence this was changed to the passive form above, since such officers are appointed by the Civil Service Commission. In Malawi it is provided that the Minister shall appoint the officers. In England they are appointed by the Lord Chancellor (E 126(1)). In Singapore the appointment is made by the President (Sing 5(1)).

The proviso to subsection (4) clears up a small point which otherwise can be a cause of uncertainty.

General powers of Registrar.

8. The Registrar may exercise the following powers in addition to any other powers conferred on him by this Act, that is to say—

(a)he may require any person to produce any instrument, certificate or other document or pan relating to the land, lease or charge in question, and that person shall produce the same;

(b)he may summon any person to appear and give any information or explanation respecting land, a lease or a charge, or any instrument, certificate or other document or plan relating to

KENYA REGISTERED LAND ACT AND RULES

the land, lease or charge in question, and such person shall appear and give such information or explanation;

(c)he may refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;

(d)he may administer oaths or take a declaration in lieu thereof, and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration;

(e)he may order that the costs, charges and expenses incurred by him or by any person in connexion with any investigation or hearing held by him for the purposes of this Act shall be borne and paid by such persons and in such proportions as he may think fit.

This section sets out all the general powers of the Registrar in the place where one would expect to find them, i.e. immediately following provision for his appointment instead of towards the end as in the Sudan Ordinance, and in KLR(SA)O which adopted the same form. Throughout the Act, however, the Registrar is given various special powers to perform specific acts incidental to its administration; e.g. in Part X he is given power to rectify the register in certain cases.

Indemnity of officers

The original draft of KRLA included the following section:

"The Chief Land Registrar shall not, nor shall any other officer of the Registry, be liable to any action or proceeding for or in respect of any act or matter done or omitted to be done in good faith in the exercise or supposed exercise of the powers of this Act, or any rules made thereunder."

This section was omitted from the final version as enacted, but a section on these lines is included in the English (E131), Sudan (Sud 86), and various other statutes. It has reappeared as Mal 8 and T & C 7. Obviously it can do no harm, and perhaps it may be wise to include it, though we can cite no instance where it has actually proved to be required.

Seal of registry

9. Each registry shall have a seal, and every instrument purporting to bear the imprint of such a seal shall be received in evidence and, unless the contrary is shown, shall be deemed without further proof to be issued by or under the direction of the Chief Land Registrar.

The Sudan Ordinance (and KLR(SA)O following it) did not provide for a registry seal, and did not appear to suffer as a result; but this provision was included in the KRLA to bring it into line with KRTA 4(3). The wording of Sing 6(2) was followed as being unequivocal and clearer than E 126(7).

KENYA REGISTERED LAND ACT AND RULES

Division 2 - The Land Register

The land register

10. (1) The land register shall comprise a register in respect of each parcel in each registration section, and a register in respect of each lease required by this Act to be registered.

(2) Each register shall be divided into three sections as follows—

A—the property section, containing a brief description of the land or lease, together with particulars of its appurtenances and a reference to the registry map and filed plan, if any;

B—the proprietorship section, containing the name and, where possible, the address of the proprietor and a note of any inhibition, caution or restriction affecting his right of disposition;

C—the encumbrances section, containing a note of every encumbrance and every right adversely affecting the land or lease.

This section makes clear the distinction between the 'registers' which are kept in respect of each parcel and of each registrable lease and the 'land register' which comprises all the 'registers'. The English form of the register (as prescribed in ER 2, 3, 6, and 7) has been followed. It should be particularly noted that any inhibition, caution, or restriction which affects the right of disposition is entered in the proprietorship section, and therefore literally stands in the way of any new entry.

In T & C 9 a useful addition is made to this section. It is provided that the register shall show whether the land is Crown land or private land, and that in respect of Crown land no entry in the proprietorship register will be needed. A similar addition to Mal 10 was made by the Adjudication of Title Act 1971 (s29 and Schedule).

Compilation of land register for special areas

11. (1) The registers kept under section 33 of the Land Registration (Special Areas) Act for the several registration districts established under that Act shall, on the commencement of this Act, be deemed to be the land registers for the corresponding registration districts established under this Act.

(2) Whenever an adjudication register has become final under section 27 of the Land Consolidation Act, the adjudication officer shall deliver the adjudication register to the Land Registrar or Assistant Land Registrar in charge of the registration district concerned, who shall prepare a register for each person shown in the

KENYA REGISTERED LAND ACT AND RULES

adjudication register as a landowner and every other person shown in the adjudication register as being entitled to the benefit of any interest, lease, right of occupation, charge or other encumbrance affecting the land shall be registered as being so entitled, subject in every case to any restriction of the power of the proprietor or of any such person as aforesaid to deal with the land, and to any interest, lease, right of occupation, charge or encumbrance affecting the land.

(2A) Upon receiving an adjudication register from the Director of Land Adjudication under section 27 of the Land Adjudication Act 1968, the Chief Land Registrar shall forward it to the Land Registrar or Assistant Land Registrar in charge of the district 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 which 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:

Provided that, in the case of group land, the group representatives shall be registered as the proprietors of the land (with the addition of the words "as group representatives of the ... group" and with a reference to the certificate of incorporation), and where there are no group representatives a note of the fact shall be made on the register and, pending the incorporation of group representatives, no person shall be registered as proprietor of the land.

(3) For the purposes of this Act, a right of occupation under African customary law recorded in the adjudication register shall be deemed to be a tenancy from year to year.

For general comment see next section. Subsection (3) makes 'customary occupation' an overriding interest under s30(d) (which includes 'periodic tenancies') and thus takes the place of KLR(SA)O 40(f), which had expressly named "right of occupation under native law and custom" as an overriding interest and which it was considered inadvisable to repeat. The subsection does not appear elsewhere.

Compilation of land register where land registered under other Acts, and of Government land and Trust land.

12. (1) On the application of this Act under section 2 of this Act to any area, then, in relation to every parcel of land situated in that area the title to which is already registered under the Registration of Titles

KENYA REGISTERED LAND ACT AND RULES

Act, the Government Lands Act or the Land Titles Act, the following provisions shall apply—

(a)if the title to the parcel is comprised in a grant or certificate of title registered under the Registration of Titles Act—

(i)the grant or certificate of title shall be deemed to be a land certificate or certificate of lease, as the case may be, issued under this Act, and the folio of the register of titles kept under section 25 of the Registration of Titles Act shall be deemed to be the register under this Act:

Provided that the Registrar may at any time prepare a register in the prescribed form showing all subsisting particulars contained in or endorsed on the folio of the register of titles kept as aforesaid and substitute such register for such folio and issue to the proprietor a land certificate or certificate of lease, as the case may be, in the prescribed form; and

(ii)that Act shall cease to apply to the parcel and this Act shall apply thereto;

(b)if the title to the parcel is comprised, in a register kept under the Government Lands Act or the Land Titles Act, the Registrar shall—

(i)as soon as conveniently possible, cause the title to be examined;

(ii)prepare a register in the prescribed form showing all subsisting particulars affecting the parcel which are capable of registration under this Act;

(iii)serve on the proprietor and on the proprietor of any lease or charge a notice of intention to register; and

(iv)issue to the proprietor if he so requires a land certificate or certificate of lease in the prescribed form;

and, on the expiration of the period limited by the notice or as soon as the Registrar has determined any objection made in pursuance thereof, Part X of the Government Lands Act or Part III of the Land Titles Act, the case may be, shall cease to apply to the parcel and this Act shall apply thereto.

(2) In compiling the land register, the Registrar shall register--

(a) the Government as the proprietor of all Government land in the area; and

KENYA REGISTERED LAND ACT AND RULES

(b) subject to the Land Adjudication Act 1968 and the Land Consolidation Act, the relative county council as the proprietor of all Trust land in the area, subject in each case to any grant or lease affecting the land, and on such registration the Registration of Titles Act shall cease to apply to the land.

Sections 11 and 12 should be considered together because normally 'compilation of the register' consists of only one, albeit very important, section which provides that the land register shall be compiled from the record which has become 'final' at the end of systematic adjudication (e.g. Sud 23(2), Mal 11, and T & C 10), though an existing land register may also have to be taken into account. In Kenya, however, a wide variety of circumstances had to be catered for:

First, the registers kept under the repealed section of the KLR(SA)O were to continue unchanged under the new Act (s 11 (1)).

Secondly, the usual provision had to be made for registers to be compiled from the final registers under the Land Adjudication Act (later the Land Consolidation Act) and the new Land Adjudication Act 1968, with its provision for group representatives (sl 1(2) and (2A)).

Thirdly, provision had to be made to conserve the titles registered under the KRTA, but to change them to the new form of register (s12(1)(a)).

Fourthly, provision had to be made to enable titles registered under the Government Lands Act or the Land Titles Act (advanced systems of deeds registration) to be examined with a view to their conversion forthwith to registration of title (s12(1)(b)). (This is a very brief provision for the conversion of deeds registration to registration of title, and we have already drawn attention to the slow progress that has been made under it. It can be contrasted with the process provided for in the Malaysia National Land Code (Penang and Malacca Titles) Act passed in 1963, which we described at some length in Chapter 11.10.9-11)

Lastly, provision had to be made for the registration of the Government or the relative county council as the proprietor of land which was not privately owned (s12(2)).

Transitional provisions.

13. (1) A parcel, the title to which, on the application of this Act to the area in which it is situated, is registered under the Government Lands Act or the Land Titles Act shall continue to be dealt with in accordance with the Government Lands Act or the Land Titles Act, as the case may be, until this Act applies to that parcel under section 12(1)(b) of this Act.

(2) Nothing in this Act shall affect the rights, liabilities and remedies of the parties under any mortgage, charge, memorandum of equitable mortgage, memorandum of charge by deposit of title or lease which, immediately before the registration under this Act of the land

KENYA REGISTERED LAND ACT AND RULES

affected thereby, was registered under the Government Lands Act, the Land Titles Act, the Registration of Titles Act or the Land Registration (Special Areas) Act, and

(a)such rights, liabilities and remedies shall be exercisable and enforceable in accordance with the law which was applicable thereto immediately before the registration of the land under this Act; and

(b)any such memorandum of equitable mortgage or memorandum of charge by deposit of title may be discharged by the execution of a discharge in the form prescribed under the Act under which such memorandum was first registered.

These provisions illustrate the sort of question that arises and the decisions that have to be made when a new Act is superimposed on an existing system.

The new Act made substantial differences in the rights of mortgagors and mortgagees, but it was decided not to change existing relationships involuntarily and subsection (2) therefore saved them. A similar provision was inserted into the Malawi Registered Land Act by the Adjudication of Title Act 1971.

First registration.

14. The date of first registration under this Act of any land shall—

(a)in the case of land the subject of a grant or lease under the Registration of Titles Act, be deemed to be the date on which this Act applied to the land concerned;

(b)in the case of land registered under the Land Registration (Special Areas) Act, be deemed to be the date on which it was first registered under that Act;

(c)in the case of land the subject of a grant, lease or certificate of ownership registered under the Government Lands Act or the Land Titles Act, be the date on which this Act applies thereto by virtue of section 12(1)(b) of this Act;

(d)in any other case be the date on which the land first came on to the land register.

This establishes the effective date of first registration in the varying circumstances of Kenya.

Manner of registration

15. Registration shall be effected by an entry in the land register in such form as the Chief Land Registrar may from time to time direct, and by the cancellation of the entry, if any, which it replaces.

In Malawi and the Turks and Caicos ss14 and 15 of the KRLA became subsections of a single section (Mal 11 and T & C l1) which reads:

KENYA REGISTERED LAND ACT AND RULES

"Manner of registration.

"[T & C] 11—(1) The first registration of any parcel shall be effected by the preparation of a register in accordance with the provisions of section 9 of this Law and the signing by the Registrar of the particulars of the ownership and the particulars of incumbrances, if any, appearing thereon.

"(2) Every subsequent registration shall be effected by an entry in the register in such form as the Registrar may from time to time direct, and by the cancellation of the entry, if any, which it replaces."

New editions of register

16. The Registrar at any time may open a new edition of a register showing only subsisting entries and omitting therefrom all entries that have ceased to have any effect.

See comment on section 17.

Cancellation of obsolete entries

17. The Registrar may cancel any entry in the register which he is satisfied has ceased to have any effect.

In Malawi and the Turks and Caicos these two sections have been transposed, on the grounds that it is more logical to provide for the cancellation of obsolete entries before providing for the opening of new editions, but this is a small point and the significant feature of the two sections is that they adopt the English procedure with its emphasis on conserving only subsisting entries in preference to the Torrens procedure which aims at keeping a record of the whole history of each parcel and never destroying anything.

Division 3 - Maps, Parcels and Boundaries

Registry map

18. (1) The Director of Surveys shall prepare and thereafter maintain a map or series of maps, to be called the registry map, for every registration district.

(2)Where for any registration district, or for a part thereof, no map has been so prepared, the Registrar may himself cause a map or series of maps to be prepared for that registration district, or for that part, and thereafter maintained, and such map or series of maps shall be deemed to be the registry map until the Director of Surveys prepares a map or maps under subsection (1) of this section and delivers it to the Registrar.

(3)On the registry map, every registration district shall be divided into registration sections, which shall be identified by distinctive names, and the registration sections may be further divided into

KENYA REGISTERED LAND ACT AND RULES

blocks, which shall be given distinctive numbers or letters or combinations of numbers and letters.

(4)The parcels in each registration section or block shall be numbered consecutively, and the name of the registration section and the number and letter of the block, if any, and the number of the parcel shall together be a sufficient reference to any parcel.

(5)The Registrar may, at any time, cause registration sections or blocks to be combined or divided, or cause their boundaries to be varied.

(6)A plan may be filed in respect of a particular parcel to augment the information available from the registry map, and the filing of the plan shall be noted in the register.

Subsection (1) is controversial, since it appears to make the Director of Surveys responsible for the preparation and maintenance of the map which, as an integral part of the register, should be the responsibility of the Registrar.

Moreover subsection (2), by implication, reduces the status of the maps which, perforce, had to be used to support many of the registers prepared under KLR(SA)O and which it was impracticable to replace. (The phrase 'Preliminary Index Diagram' was even coined to describe them.) Nevertheless this formula was followed in Mal 15(1) and (2) and BSIP 92(1). However, T & C 14 reads:

"Registry Map.

“[T & C] 14.—(1) The Registry Map shall be compiled from the demarcation maps made under the Land Adjudication Law, 1967, and shall be divided into registration sections which, so far as is possible, shall have the same boundaries and names as the adjudication sections; the registration sections, where the adjudication sections are so divided, shall be divided into blocks which shall be given the same letters or numbers or combination of letters and numbers as are given on the demarcation maps.

"(2) The parcels in each registration section or block shall be numbered consecutively following the numbering in the adjudication proceedings, and the name of the registration section and the number or letter of the block (if any) and the number of the parcel shall together be a sufficient reference to any parcel.

"(3) The Registrar may, at any time, cause registration sections or blocks to be combined or divided, or cause their boundaries to be varied.

“(4) A plan may be filed in respect of a particular parcel to augment the information available from the registry map, and the filing of the plan shall be noted in the register."

The linking of the registry number to the number in the adjudication proceedings goes back to Sud 23(4).

KENYA REGISTERED LAND ACT AND RULES

Power to alter registry map and to prepare new editions.

19. (1) Where the Registrar is maintaining the registry map he may, or in any case he may require the Director of Surveys to, correct the line or position of any boundary shown on the registry map with the agreement of every person shown by the register to be affected by the correction, but no such correction shall be effected except on the instructions of the Registrar in writing in the prescribed form, to be known as a mutation form, and the mutation form shall be filed.

(2)Whenever the boundary of a parcel is altered on the registry map, the parcel number shall be cancelled and the parcel shall be given a new number.

(3)Where the Registrar is maintaining the registry map he may, or in any case he may require the Director of Surveys to prepare a new edition of the registry map or any part thereof, and there may be omitted from the new map any matter which the Registrar considers obsolete.

See comment under section 20.

Further surveys.

20. The Registrar may cause a survey to be made for any purpose connected with this Act, but, where the registry map is maintained by the Director of Surveys such survey shall be used to amend the registry map only if it is approved by the Director of Surveys.

These two sections have been substantially improved by BSIP 93, 94, and 95, which are respectively labelled 'Correction of registry map' (for use where a mistake which ought to be put right is discovered), 'New editions of the registry map' (like the register, the map may become cluttered up with dead matter and a new edition may be needed), and 'Mutation' (where a positive change of boundary is required). In T & C 15 and 16, these became.

Correction of the Registry Map and new editions

“[T & C] 15—(1) The Registrar may cause to be made a survey of any land for the purposes of this Law and, after informing every person affected thereby, may cause the Registry Map to be corrected as a result of such survey.

“(2) The Registrar may, at any time, direct the preparation of a new Registry Map or any part thereof, and there may be omitted therefrom any matter which the Registrar considers obsolete."

“Mutation.

“[T & C] 16—(1) On the application of a proprietor of land, and subject to the agreement of all persons affected thereby, the Registrar may order the alteration of the Registry Map, but no such alteration shall be effected except on the instructions of the Registrar in writing in the prescribed form, to be known as a mutation form, and the mutation form shall be filed.