In this country, one can talk of at least five different statutory registration regimes which operate side by side for good measure you can throw in a sixth one which is rather fringe as it depends on one of the other five.
THE DOCUMENTS ACT
This particular piece of registration under Kenya laws was enacted in 1901 although its history dates way back to 1896 when the colonial administration then in place felt the need for a simple registration system to be put in place for this country. Registration of documents systems was recommended in Kenya based on experiences that the British had had with it in Zanzibar. What the system creates is a simple registration of deeds system which are reflected in the register of documents so created. Under the system, any document can in fact be registered but especially those relating to transactions in land such as government grants of land but otherwise there is no prohibition against other documents not touching on land not being registered under it. The Act provides for both an optional and obligatory registration regime. For instance under Section 4 thereof there is a requirement that all documents conferring or purporting to confer, declare, limit or extinguish any right, title or interest in land must be registered. Such registration must occur within one month after execution failing which the same cannot be called in evidence or adduced in court without first seeking and obtaining a leave of court to do so. Similarly it is a requirement under the Act that documents of a testamentary nature must also be registered under the Act. Optional registration is addressed under Section 5, which provides for a non-compulsory registration so that it remains to be done at the instance of the person seeking to register such documents. The registrar is actually granted discretion in whether or not to accept any such document which though not compulsory or registerable may be presented to him for purposes of registration. All that the registrar will have to do will be to set out his reasons in writing and furnish the presenter with the same. Examples of documents whose registration are not compulsory but which may be registered at the insistence of the owner include Wills, Power of Attorney, Building Plans and in exercise of this discretion under the Act the registrar of documents will not accept any documents for registration if the document in question is not proper or where the requisite registration fee or stamp duty where applicable have not been paid. The most significant feature of this registration feature is the fact that the records kept thereunder serve merely to show that the transaction in question took place but it does not say anything about the validity or legitimacy of the transaction itself.
LAND TITLES ACT
The background to this particular registration regime lies in the doubts and the uncertainties that shrouded the question of individual property ownership within the Coastal Region so individual titles to land at the coast was in effect what led to its enactment. Under purely administrative arrangements between the Sultanate of Zanzibar and the colonial authorities, IBEA part of the sultans dominion was ceded to the British under a concession agreement and this was the so called 10 mile coastal strip. The terms of that arrangement bound the British to administer the area but subject to the rights of the inhabitants which included property rights such as the inhabitants may be having. The coastal region was settled by those inhabitants mixture of Arabs and Africans much earlier than the coming of the British so their property preceded the advent of imperialism. The registration regime created under this act was meant to give recognition to those long established claims of ownership and adjudicate them so that claimants would get recognition under the Act. Before this arrangement was put in place there had been a lot of difficulties experienced by property owners and uncertainties about these titles and they worked out adversely in terms of investments it hindered investments and in terms of development it hindered development, as people could not deal with their properties in the market. This is what made it necessary for the Act to be introduced in 1908. It was introduced with a view to creating a registration system that would be applicable only to the coastal region and this was particular more so given that the hinterland was adequately catered for by the series of the Crown Land Ordinances beginning with the one of 1902. These ordinances were meant to facilitate white settlement within the interior and did not do much for landowners at the coast. The system of registration under this Act was borrowed from the 1907 Act NO. 3 of Ceylon present-day Sri Lanka where it had proved effective. It provided for a registration system in favour of individual title claimants within the coastal region provided that they could prove their claims to the properties they owned and so an adjudication process became necessary and one was created and a compulsory registration system was put in place. Property owners were obligated to present their claims and so they were supposed to lodge their claims to the land registration court that was created under the Act. This court was presided over by a recorder of titles and a deputy who was expected to deal with such claims as may be lodged. Claimants were required to prove furnish evidence of ownership upon successfully proving such claims they were issued with various documents of title depending on the nature of their ownership or certificates of ownership were issued in respect of freehold property so any successful claimant who could prove the nature of their holding would obtain a certificate of ownership or certificate of mortgages would be issued in respect of mortgage of immoveable property whereas a certificate of interest would issue to those who could demonstrate the existence of other rights of whatever kind in the land subject matter. What it set in motion was a process of not conferring as it were any rights or interests but merely ascertaining and endorsing the same through extending recognition to such rights through of issuance of various documents of title. Registration of such interest in the register created under the Act would in effect bring to an end any rival claims that could evolve over such land. Title documents would issue with a short description of a document proving such ownership being noted in the register thereafter all subsequent documents or transactions relating to the same land would consecutively be entered in the register in the order in which they were presented and the effect of creating the register with all the entries was that it would be conclusive as to the question of ownership so that a certificate of title would make the owner of the holder thereof have a title that was good against the whole world. Similarly certificate of ownership would make the holder thereof as the undisputed owner of all the property, trees buildings standing on the land as at the date of that certificate unless or a memorandum noting or having entries to the contrary was produced to contradict that position. Once the adjudication process was complete the resulting position was that all unclaimed land or such land as was not subjected to successful claims would be designated Crown Land and became freehold property which could be dealt with by the government or the Crown in the normal manner including being subject to the exercise of powers of alienation or disposition.
GOVERNMENT LANDS ACT
This was an adaptation of the previous Crown Lands Ordinance, and in effect replaced the crown ordinance of 1915 that is when it was promulgated. Its objective was to provide for among other things deed plans and achieve better administration and registration of government plans in land and of govt dealings thereof. All grants of govt land and transactions relating thereto were required to be registered under the Act. The other objective that this particular registration sought to achieve was that of offering a remedy to all instances of defects patent on earlier registration systems especially that offered by the RTA. The model that the GLA adopts is similar to the registration machinery that is employed by the Land Titles Act. It is a requirement under the Act that all future grants of govt land have to be registered in line with the provisions made under the Act. Similarly all past documents relating to govt land previously registered under the RDA have to be re-registered under the provisions of the Act so as to bring them under the ambit of the govt lands Act as provided for in the Act. Of course this is consistent with the objectives set out under the Act to cure registration defects under the earlier registration statutes especially the RDA. It is also the intention under the system to introduce a fairly advanced system of registration of deed plans and procedures touching on a wide range of activities or transactions relating to land such as the leasing out regulating and other disposal of govt land. It also accommodates other dealings in relation to such lands such as the need for more scientific plan through accurate surveys so that one can have in effect a land grade of govt land reflected under this particular registration system. The overall effect that this introduction had was that of ushering in an English type of conveyancing which is dependent more on registration rather than an unregistered system especially when it comes to govt grants and other land dealings in relation thereto.
REGISTRATION OF TITLES ACT
This is a 1920 Act introduced with the purpose of facilitating the process of transfer of land through a registration of transfer system and essentially its purpose was to introduce in this country a title registration system based on the Torrens principles. This is a system that was introduced in Australia but which worked there so well that it achieved widespread acceptance in other jurisdictions. Our own Act is modelled on the 1897 Registration of Titles Act of the Federal Malay States present-day Malaysia as well as on the 1890 Transfer of Lands Act of the Australian State of Victoria and it gets aspects of both registration. In terms of features the main point of departure implicit on this particular Act is opposed to the earlier ones and especially the GLA is that whereas the earlier ones before it merely provide for a recording of documents system without conferring any additional benefits, the registration arrangement under this Act confers on the land owner what is expressly identified as an indefeasible title which is state guaranteed.
The other Acts or earlier Acts as we have seen in the case of the RDA provide for a registration of a documents which envisages the occurrences but is silent on the issue of validity leave alone the indefeasibility of such a title. In the case of the LTA, we have noted that it does not confer anything it only recognises and records a fact that is borne out on the ground but in the case of this particular registration the intention is not only to issue grants and note them through the recording system but to guarantee a title as incapable of being defeated once duly granted. All future grants of govt land and certificates of ownership of land within the coast be registered under it , remember Govt land is subject matter of the GLA whereas the arrangement of the Coast involves issuances of certificates to recognise the situation of land ownership that preceded any registration regime. If there is a requirement in subsequent Act, in effect the legislature is saying that we do not wish to repeal what was done under the earlier acts such as the GLA but we want you to redo it and it makes it a conversion process to bring the land at the coast under the ambit of GLA and it is from here that we head closer to getting all the registration processes under one Act.
Any land owner who has had his title registered under the GLA is required under the Act to apply to the registrar to have the same registered under the provisions of the Act and this comes with an advantage as it enables the landowners to enjoy the benefits of state guarantees of the resulting titles. It is not strictly a requirement that conversion be compulsory but the projection is that with certain advantages floated under this Act, eventually we would embark on the route whereby registration under all previous Acts would be phased out to enable us achieve the ultimate goal of having in future all land in the country brought under the umbrella of a single registration statute. The desire to stop that multiplicity and work towards a single registration statute began with this registration. The truth is that it never advanced that course as far as expected but it was recognition that there was need for a unified rather than multiple registration system in this country.
One who wishes to take advantage of the provisions of the Act will present the original title for endorsement at the same time submit subsequent documents relating to the title so that what in effect happens one abandons registration one opts out of the earlier registration that they fell within and from that point on they become part of the this registration without losing sight of the fact of where the title emanated from.
REGISTERED LAND ACT
The quest for a unified registration system of course can be argued to have started in earnest with the enactment of this particular statute. This was not the only objective that it had in fact its introduction is closely connected with the African Land question in the face of the existence of what amounted to an elitist system of title registration under the earlier Acts which appeared to cater only for the interests of white settlers and coastal Arabs to some extent with regard to private claims to land. Throughout this period it is instructive to note that no thought and no provision was made for registration of title to land owned by indigenous people or land falling within the so called native areas or special reserves. It is not until the run up to independence that serious thought was given to introducing a number of initiatives that would address this particular omission i.e. the failure to bring native occupied areas under the ambit of registration. Prior to its introduction THERE WAS SPECIAL AREAS ACT OF 1960 which started of the process which preceded the enactment of THE RLA Cap 300.
It is with the coming of independence and the struggle that preceded this that alerted the indigenous people to the fact that they could agitate for rights after serving in the 2nd world war and the demand for independence cauterised the speedier process of addressing the African Land Question which came through recognising that they needed to guarantee titles to indigenous people in regard to the land that they occupied. With a wide range of reforms in mind, the grievances by indigenous people regarding land or the shortcomings attendant to that could be attended to through the an ambitious registration system that was the RLA which sought to introduce for the first time registration in the native areas. The Act also sought to provide a conversion process whereby titles that had issued under previous registrations would be re-issued at whatever appropriate time under the provisions of the RLA in more or less the same issues that RTA had sought but achieved very little of. It also sought to achieve individualisation of title to customary law since in any case the area to which it first applied was with regard to indigenous occupied areas where communal mode of ownership was the rule rather than the exception.
It sought to provide not just a registration system per se but also a code of substantive law which could regulate all matters relating to land ownership as provided for under the Act as well as simplifying the process of conveyancing such land so that unlike other registration which were merely a registration code, here was a move away from that so that substantive law as well as a code for conveyancing was found in the same place. For the other registration regimes the substantive law is to be found in the Indian Transfer of Act of 1898
Native lands were supposed to be registered and the constitutional arrangement was that the title was vested in the local authorities within whose jurisdictions those lands fell. The land communally occupied by the native which could be other the Act could be declared adjudication regions and thereafter claimants would prove their claim or title to that land and where consolidation was desirable it would be done before the land finally registered. The land consolidated and adjudicated would then be registered to individuals and in any event not to more than 5 persons and absolute ownership is created under the Act.
In the case of land registered under the previous statutes, if it fell under the trust lands and fell due for renewal, the renewal would be exclusively done under the registration system created by the RLA and those that had not expired would still be deemed valid until such a time that they fell due for renewal then the conditions of the RLA would apply. Through this arrangement the conversion process ensured that through a gradual process,
The Act introduces the highly advanced system of indexing of property showing all the registered land within a particular area and all the information including size, title numbers, any claims, encumbrances or burdens which may affect such land. The RLA registered is regarded as conclusively and final authority on the issue of ownership of land infact first registration is expressly provided for as being unimpeachable, it cannot be impugned on any grounds whatsoever. Title Deeds are issued as prove of absolute ownership under the Act and this is for the land in the countryside. In the case of township properties certificate of lease issues for these properties. Both are evidence of ownership. It has been doubted given the wide scope of objectives or goals that the Act sought to accomplish, whether these goals or objectives are predicated on sound principles, i.e. the goal of guaranteeing sanctity of title regardless of how it is procured. The objective of having a unified registration system without providing for a first tract method of achieving that and leaving it to the events contemplated under the earlier registration Acts to play to the full before it is evoked. The very element of individualising title of land that has been corporately owned, the wisdom of doing that and all these have raised disaffection in how the statute with its provisions has worked out so far, whether to discredit it and call for a radical overhaul is an issue that occupies the minds of most people today. As of now we have it alongside others and until al properties including those that are valid for 999 years, then we have to wait for much longer before the conversion process sees the light of day and that is why some people have rubbished the whole process and are advocating for an overhaul.
PROPERTIES ACT
The Sessional Properties Act NO. 21 of 1987 this is not a distinct and independent registration system because it is clear that any registration carried out under this regime should be deemed to be carried out under an RLA registration. It introduces a vertical dimension to the issue of property. It makes it possible for an owner to own a property on a floor without owning the ground on which the property stands. The old notion of property is one that is novel in the sense of that a vertical dimension rather than the traditional notion of owning the physical ground is
Regardless of the fact that it does not own the ground on which such a unit stands. Classic example is like a scenario of a block of flats i.e. Delamare Flats are a good case in point. You can have a high-rise building with many floors and each floor has separate units that are distinct from each other and one can own a unit on any floor without having to trace the owner from the owner on the ground floor. You can own the property suspended up in the air. There are mutual rights and obligations that arise under such an arrangement because if it is a high-rise building it will have common stairway, parking, garden pool, runway and therefore rights and obligations have to be carefully balanced so that everyone can share equally in the common amenities. It is the case that such proprietors would enjoy their own units subject to the rights of all others.
The requirement under the Act is that if there are burdens like costs to be shared out equitably amongst the various proprietors. The requirement is that for these sectional properties notion to apply to any property it can only be effective where the residual term is not less than 35 years since Sectional Properties appeals only in major towns where scarcity of land is experienced. The residual charm of the grant should not be less than 45 years and any property that is affected by the provisions of the Act are deemed to be registration under the RLA. The fact that we have mutual rights and obligations on which the enjoyment of the sectional property unit depends means that there are certain limitations that will have to be imposed as a matter of necessity if the concept is to work. Mutual rights and obligations preclude owners of the units from behaving unfairly as all owners expect the right of support.
These are documents that purport to confer, declare limit or extinguish any right, title or interest in or over immoveable property in which case they have to be submitted for registration. So any documents conferring or purporting to confer, declare limit extinguish any title right or interest over immoveable property is compulsorily registerable under the Act. There are documents which need not be registered. Examples which are given include composition deeds, or documents relating to shares in a joint/company, debentures, certificates upon registration of debenture and leases to land for periods not exceeding 12 months. Documents which are otherwise registerable are provided for by other Acts such as the RLA, GLA or RTA.
In effect the approach taken in determining what is as a matter of law is required to be registered and what need not be registered is one that is not exclusive as it were. A lot of leeway is given to the Registrar to determine what can appropriately be brought under those subdivisions. Section 5 further gives instances where documents can at the option of the persons holding such documents be presented for registration cases such as plans and deed polls and that liberal approach appears to be part of the spirit depending on what the spirit will allow.
Section 6 specifically provides that unless accompanied by a certified English translation, no documents appearing in a language other than English will be registered that is the possibility of registering a document in kiswahili in French or other languages in the absence of a translated copy in English. Behind the reasoning is because English is the official language and this being a formal exercise, the requirement is not out of place. Under the Act the registrar enjoys certain powers, he can decline to register certain documents for any reasons to be furnished including the fact there are alterations that appear on such documents or that there are certain things that have been erased, Section 7 empowers the Registrar to decline registration of such documents if for any given reasons he is of the view that they are unacceptable for registration. He may also decline to register a document who is said to have executed the same denies having done so so that fictitious documents are locked out or can be locked out through the exercise of such discretion. Similarly where the person who is said to have prepared or executed the document appears to lack mental capacity in law to undertake such an exercise in which case Section 17 specifically makes reference to when such a person appears to be an idiot devoid of the requisite capacity. The registrar also enjoys the power to cancel any registration as may have been procured by way of a mistake or fraud or misrepresentation so the powers enjoyed by the registrar in the exercise of these requirement is that much wide.
In terms of time for presenting a document for registration under this particular system, the provisions of Sections 9 and 10 are instructive. Section 9 states that every registerable document must be presented for registration within two months of its execution and Section 10 creates a penalty in default so that a fine is imposed not exceeding ten times the prescribed registration fee for any registration of a document that is compulsorily registered. Effect of non registration, for the documents that are compulsorily registerable the position in law is that registration of a document under this system serves merely as prove that the transaction in question did occur and it does not say anything amount the legitimacy of the transaction itself and even where one fails to register a document that is required by law to be registered, that presumptive position still remains and as a further consequence of non-registration, one will be precluded from calling in evidence the contents of any such documents which is subject to compulsory registration which is not registered as by law required. A party seeking to rely on the contents of such a document would suffer a disability i.e. it cannot be used as evidence in court or without leave of court. Procuring such leave is not a matter of right and there has to be good reasons.
REGISTRATION UNDER GLA
The Act also provides for instances where registration of certain transactions is mandatory under Section 99 of the Act, the recent requirement is that all transactions affecting, conferring, purporting to confer or limit or extinguish any title, right or interest in land have to be formalised through a registered instrument. The approach is more or less the same as what we encountered under the RDA and there are exempted cases, documents which need not be submitted for registration under this Act. These include instances where we have a lease created for a period not exceeding one year that is not something that is subjected to registration unless one prefers it.
Section 100 relates to the effect or consequences of non-registration of a registered instrument. No evidence of such transactions can be tendered in court and transactions that are contemplated include sale of land or leases, relating to land transfers or land, mortgages on charges or liens held over land for them to be effective and for one to assert rights stemming from such dealings of duly registered instruments must be produced so that any document which may be executed and intended to created or assign or limit or extinguish any right interest or title to over land registered under the Act would be ineffectual for all purposes unless completed through a duly registered instrument.
When considering the aspect of whether or not they should be held as void, we are looking at the parties so that the effect of their being void for want of registration is one that operates inter parties. The general provisions of contract would come to play to augment the specific requirements of the Act and other than disabling the adverse claims or interests that may arise in relation to such dealings, one also need to consider the general rules of contract and their effects on other parties vis-à-vis themselves.
REGISTRATION LAW UNDER LTA CAP 285
Under the provisions of this Act all documents holding or affecting interests under this Act must be registered special under Section 57 and Section 59. further that no charge may be created and no mortgage may be created over land except by way of documents. Registration for purposes of this Act is effected by the making of the necessary entries in the register which is created and maintained in line with the provisions of the Act.
There are exceptions so that we have documents which need to be registered, examples include leases for one year or lesser periods, composition deeds, documents relating to shares in joint stock companies, debentures issued by such companies which are capable of creation only by way of floating charge over the company’s immoveable assets, endorsements upon transfer of such debentures. Those categories of documents need not be registered. The effect of non-registration of an instrument registerable under this Act is addressed by Section 58 of this Act which provides that every document unless registered shall be deemed to be void as against all parties claiming adverse interest in relation thereto. In the event that other transactions do occur which comply with the registration requirements i.e. transactions that occur along the registered ones might which are presented duly registered would take precedence over the unregistered ones