The Land Control Act, an old statute of dubious utility in current times and how the Land Control Bill, 2022 intends to change that.

Introduction

In his judgment in the case of Aliaza v Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR) Justice Kiage, JA labelled the Land Control Act, CAP 302 (the “Act”) as “an old Statute of dubious utility in current times” and we wholeheartedly agree! Over time, the Act has been used by sellers of agricultural land to enhance and benefit from fraudulent transactions by using the statute as a cloak and an alibi for fraud and dishonesty The courts have been in the forefront in rejecting any fraudulent perpetuation that may be masked by the Act.

Since the promulgation of the Constitution of Kenya, 2010 (the “Constitution”), Kenya’s political and administrative map changed drastically by abolishing provinces, districts and divisions and introducing administrative centers in each county though wards and sub-counties. However, the land control boards remain as originally envisaged under the Act, in districts.

The Land Control Bill, 2022 (the “Bill”), which was published on 25th?February, 2022 in the Kenya Gazette aims to better regulate land transactions and dispositions that relate to agricultural land. The Bill, if passed, will repeal the Act and seek to align the law governing dealings in agricultural land with the provisions of the Constitution of Kenya, 2010, the Land Act, 2012 and the Land Registration Act, 2012.

The Bill proposes to set up Land Control Committees (“Committees”) which will be appointed by the Chief Lands Registrar within the boundaries of each county. This differs from the appointment process under the Act where members of the Land Control Boards (“LCB”) were appointed by the Minister in charge of agriculture. Under the Bill, the Committees will have their qualifications and composition expanded along with handling additional roles such as resolving disputes and undertaking alternative dispute resolution. The composition of the Committees embraces an inclusive approach to gender, youth and elderly persons, in addition to the administrative representatives from the National and County Governments. The Bill will therefore map out the jurisdiction of each Committee in line with the new administrative structure under the Constitution.

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New developments in the Bill

1.???? Land Control Committees

The Bill proposes to establish Committees in each constituency in Kenya to replace the current LCBs. In addition to this, the Bill provides for the following:

a)???? the composition of the Committees;

b)???? the qualifications required for appointment of a person to a Committee;

c)???? the procedure for the appointment of Committee members;

d)???? vacancies in a Committee; and

e)???? the functions of a Committee.

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Composition of the Land Control Committee

Under the Land Control Act, the current Land Control Boards are comprised of the District Commissioner or his deputy, not more than 2 other public officers, two persons nominated by the county council having jurisdiction within the same jurisdiction of the board and 3 to 7 other persons within the area of jurisdiction of the board.

From the above descriptions, you will note that, save for the District Commissioner and his deputy, the Act did not provide for any specific qualifications that members to the Land Control Boards should hold nor does it state in which profession board members should be. Any land practitioner will tell you that they have disagreed with the findings of a board at least once since some members do not understand or are familiar with the provisions of the land laws.

The Bill provides that a Committee shall comprise of the following:

·?????? a chairperson;

·?????? the Deputy County Commissioner appointed under section 15(2)(b) of the National Government Co-ordination Acct, 2013, who shall serve as the Secretary of the Committee;

·?????? the sub-county administrator appointed under section 50 of the County Governments Act, 2012;

·?????? 1 man and 1 woman each aged 60 years and above; and

·?????? two other persons with demonstrated knowledge and experience in land law, surveying, land administration or dispute resolution, one of whom must be a youth.

Qualifications

In addition to the above, any member appointed to a Committee must hold the following qualifications:

·?????? a secondary school certificate;

·?????? demonstrate knowledge of the culture, traditions and dispute resolution mechanisms of the people living in the geographical area under the jurisdiction of the Committee; and

·?????? meets requirements under the Chapter 6 of the Constitution.

The chairman of a Committee must, in addition to the above, hold a degree from a recognized university in Kenya. Having professionals serve in the Committees will be a great initiative as this will enable the review of each proposed transaction in agricultural land by trained professionals who understand the land laws in place and the underlying processes. It will also ensure that consent is not granted where it is not required to and obtaining consent will be speedy given that the officials handling the same will be well versed with what the law with respect ?to dealings in controlled transactions.

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Appointment

Another proposal brought about the Bill is to have the members to a Committee be appointed by a selection panel constituted by the Chief Land Registrar that will advertise any vacancy in a Committee, shortlist applicants, interview the shortlisted applicants and submit the results of the interviews to the Chief Land Registrar for appointment. Under the Act, members of the Land Control Boards were appointed by the Minister in charge for matters relating to land, which mandate is currently being undertaken by the Cabinet Secretary for matters relating to land.

It is also worth noting that under the Bill, save for the Deputy County Commissioner and sub-county administrator, all other members of a Committee will only serve for a single term of 4 years unlike the Act, which does not give a cap on how long a member can serve in a Land Control Board. By failing to cap the term for which the members of the LCB would serve, the Act provided leeway for LCB members to perpetuate corruption while handling agricultural land matters. This is because unqualified members would end up serving in the Board for indefinite periods of time and were only required to step down when the Minister appoints new members in their place. This is detrimental to the agricultural sector in terms of barring infusion of new ideas and minds into the Board. The Bill proposing to cap the term of office to 4 years will pave way for development in the Land Control Committees which in turn will help curb the issue of fraud and corruption brought about by individualization of the LCB positions by some members. Once the Bill passes into law the clarification on the term of office for the Committee will be a major improvement from the Act.

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Functions

In the Act, the LCBs main function is to “control dealings in agricultural land”. Section 6 of the Act requires that the LCB grant its consent in dealings involving sale, transfer, lease, partition and division into two or more parcels held under separate titles except where a division if of less than 20 acres and within area in which Development and Use of Land Planning Regulations apply relating to agricultural land. Notably, section 6 applies to transactions affecting agricultural land done by natural persons, co-operative societies or private companies.

In addition to the functions set out under the Act, the Bill introduces new functions that the Committees may carry out. They are to:

a)???? review any dealings in land referred by the Chief Registrar;

b)???? resolve any dispute over general boundaries within their jurisdiction;

c)???? 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;

d)???? handle any matter referred to the Committee in pursuance of section 20 of the Environment and Land Court Act, 2012; and

e)???? undertake fact-finding and evidence gathering in matters covered under the Law of Succession Act, the Environmental and Land Court Act, the LRA, the LA and the National Land Commission Act upon request of the parties or the courts.

It is important to note that the Bill aims to extend the ambit of controlled transaction to include the sale and/or disposition of any share of an entity that owns agricultural land.. The Bill aims to seal this lacuna by extending the mandate of the land control committees to look into the composition of entities that own agricultural land to ensure that no consent is issued to entities that wish to sell, transfer, lease, exchange or partition agricultural land to an entity whose members are not all Kenyan citizens. The Committee may refuse consent in any case in which the land or share is to be disposed of by way of sale, transfer, lease, exchange or partition to a person who is not a citizen of Kenya, a private company or co-operative society all of whose members are citizens of Kenya, group representatives incorporated under the Land (Group Representatives) Act, a state corporation within the meaning of the State Corporation Act.

Part III of the Bill provides for the control of dealings in agricultural land. It states in Section 11(3) that an application made to a Committee relating to any transaction affecting agricultural land will be accompanied by:

·?????? a copy of the agreement of the controlled transaction for which consent is being sought;

·?????? a copy of the cadastral map of the land affected by the transaction;

·?????? a certified copy of the title document of the land;

·?????? spousal consent to the transaction;

·?????? details of the acreage of the land held by each party within the geographical area under the jurisdiction of the Committee; and

·?????? any other relevant document.

These requirements as introduced by the Bill will greatly assist in the uniformity of applications made to the Committee and reduce the arbitrary demands the LCB make when reviewing applications for consent. Furthermore, the fact that cadastral maps can only be obtained from the office of the Surveys of Kenya will further authenticate and legitimize the documents submitted to the Committees for review.

In addition to the above documents, the Committee will make the following considerations when reviewing any application received:

·?????? the authenticity of the documents lodged together with the application;

·?????? any existing overriding interests; and

·?????? the prescribed minimum and maximum land holding acreages in respect of private land in the geographical area within the Committee’s jurisdiction.

When deciding whether to grant or refuse consent in respect of a controlled transaction (as defined in the Act), the Bill has introduced more circumstances where Committees shall refuse to grant a consent where:

a)???? the disposing party will be left with inadequate land for housing, subsistence, undertaking cultural activities such as burial and prayers;

b)???? the transaction is likely to render the remaining portion of land incapable of providing housing and livelihood to the spouses, siblings or children residing on the land;

c)???? the terms and conditions of the transaction are markedly unfair or disadvantageous to one of the parties to the transaction; or

d)???? the purchase price does not accord with the value of the land calculated on the basis of a land value index developed under section 107A of the LA; and

e)???? in the case of a sub-division, where the division would be likely to reduce the productivity of the land.

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Void transactions

Section 11(2) of the Act states that where an application for the consent of a Committee has been refused, then the agreement for a controlled transaction shall become void on the expiry of the time limited for appeal as provided for under the Act.

Unlike the Act, the Bill seeks to provide an avenue of redress for an aggrieved party once an agreement for a controlled transaction has been voided. Section 14 of the Bill provides that an aggrieved party in a voided agreement, having already paid any money or valuable consideration may recover such money or consideration as a debt from the person to whom it was paid.

The Act had a similar provision but faced challenges in enforcement thereof. By bestowing the Committees with the power to resolve disputes relating to agricultural land to the Committees before being referral of such disputes to the land control appeals committees, the Bill seeks to mitigate these challenges as well as any disputes arising from its provisions.

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Appeal Committees

Section 15 provides that the Cabinet Secretary shall appoint a land control appeal committee (“Appeal Committee”) in every constituency through a competitive process by notice in the Kenya Gazette.

An Appeal Committee shall comprise of a person who shall be qualified to be appointed as a judge of the High Court to serve as the chairperson and 4 other persons who must possess a degree from a university recognized in Kenya and have knowledge and expertise in matters relating to land management, law, community service, dispute resolution or physical planning.

The Act established two appeal boards, i.e., the provincial and central appeal boards, that were mandated to hear and determine appeals brought before it from the various land control boards. The Bill proposes to change the composition of the Appeal Boards to have professionals well versed in land matters to hear and determine any appeals as opposed to the Act that has government officials sit in the appeal boards.

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Impact of the Bill on Landowners and Investors.

Land use control is a useful and necessary tool for ensuring that land is used efficiently and productively. This came about as a result of recommendations of the National Land Policy, 2009 that called for equitable access to land for beneficial use and occupation for all Kenyans in the face of a reported skewed land distribution. As a result, a vast majority of Kenyan citizens are landless while a select few own large tracts of land which is sometimes underutilized despite Article 60 (1) of the Constitution requiring that land in Kenya shall be held, used and managed equitably and sustainably. The Constitution empowers the National Assembly to prescribe minimum and maximum private land-holding acreages.

The Land Control Bill provides the framework under which transactions in respect of agricultural land are to be administratively regulated through land control committees which will have powers to grant or deny consent for controlled transactions.

An application for consent of a land control committee relating to any of the controlled transactions envisaged under the Bill will be denied if the land or share would be disposed to a person who is not a citizen, a private company or cooperative society, all of whose members are not Kenyan citizens; a group representative incorporated under the Land (Group Representatives) Act; or a state corporation.

The Bill further reinforces the provisions of Article 65 which prohibits non-Kenyan citizens from owning agricultural land/land with a freehold tenure by controlling the dealings of shares in a company that owns agricultural land. This therefore means that any trading of shares in a company that owns agricultural land and any transfer of an interest in a company that owns agricultural land, shall be a controlled transaction that requires the consent of the relevant Committee.

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Conclusion.

Kenya’s economy is heavily reliant on agriculture. The current legal framework is centered on restricting foreign ownership of agricultural land and encouraging the use of alternative dispute resolution mechanisms to ease the pressure on the court systems.

We acknowledge that in as much as foreign investment in the agricultural sector could play a major role in achieving food security in Kenya and provide a much needed boost to the agricultural sector, it is also equally important to promote and safeguard the rights of indigenous Kenyans to own, transact, cultivate and dispose of land as envisaged in the Constitution and the land laws. These two principles can complement each other if we put in place robust laws that will benefit all parties. This can be achieved through supporting regulations that give strict stipulations to be met by foreigners in order to qualify for consent of the Land Control Committee to acquire agricultural land.

From the above analysis, it is clear that the bill seeks to improve efficiency and professionalism in any dealings involving agricultural land. We would like to also note that the Bill ?was tabled for the 1st reading on 11th May, 2023 and is therefore still at that stage.

We continue tracking the progress of the Bill and provide any further insights in the future.

?Disclaimer: This article is not a legal opinion but is meant for general understanding of the topic.

Authors: Jessica Mwenje , Angela Njuguna & Winfridah Kerubo Gai

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