Land Rights
Classification of land ownership in Kenya
Private Land
This is where land is owned by individuals either in person or through corporate bodies like companies. Land can be owned either by one person or in association with others. Co-ownership is where land is owned by two or more persons. Co-ownership can exist in two forms:
Joint Tenancy
This is where two or more persons own land (one title deed) together and have an undivided or unseparated interest in land. The rights of the owners to the land are considered one and indivisible. Upon the death of either of the owners, the land is automatically transferred to the surviving owner through the doctrine of survivorship. Property owned through joint tenancy cannot be passed down to heirs in a will.
Tenancy in common
This is where two or more people own land (one title deed) in a manner that each person holds an individual, undivided interest in the property and each of them has the right to transfer their respective interests. Here, although there are jointly registered in one title deed, it is possible to separate each owners’ rights to the property. As a result, the principle of survivorship does not apply in the event of the death of either of the owners.
Public Land
This is land which belongs to the public and is held by the government on behalf of the public.
Examples include: all minerals, forests, all roads, all rivers and lakes.
Community Land
Community land is regulated by the Community Land Act. This is land which is owned by communities on the basis of their ethnicity, culture or similar community of interests. Examples include community forests such as the Mau Forest as owned by the Ogiek community and ancestral lands and lands traditionally owned by hunter-gatherer communities. It is estimated that 65% of Kenyan land is community land.
Ways of Acquiring Land
This is where the buyer acquires complete and full ownership of the land by paying the seller who legally transfers the ownership.
Detailed Step-by-Step (practical)
- Site visit & preliminary checks: Confirm physical boundaries, neighbours and visible use.
- Official land search: Use Ardhisasa (Ministry of Lands) via eCitizen to obtain official search which confirms legal owner, charges, caveats, and encumbrances. Always perform an Official Search before any payment.
- Verify seller identity and title: Match ID numbers and title serial; confirm no pending court matters or caveats.
- Sale agreement (must be in writing): Include clear terms: full price, deposit, payment schedule, handing over conditions, party obligations, who pays stamp duty, who will pay registration fees, and what happens in default.
- Deposit payment; The buyer pays a deposit (usually 10%) after signing of the sale agreement. Usually the buyer is given three months to pay the balance of the purchase price. (Parties can agree on a longer or shorter timeline).
- Completion documents; Within the three months period the seller compiles all documents required to complete the sale including;
- Original Certificate of Title (Title Deed)
- Transfer Documents
- Land Control Board Consent – For sales relating to agricultural land, the LCB consent is mandatory.
- Certificate of incorporation, CR-12, board resolution (incase the seller is a company).
- Seller Identity Card, passport photyographs and KRA Pins (incase the seller is a company).
- Payment of the balance of the purchase price. The buyer pays the balance of the purchase price, and the seller hands over the completion documents to the buyer.
- Transfer & Registration. The buyer then submits the transfer documents to the land registrar and pays stamp duty.
- Issuance of title deed: After successful registration, the new title/transfer is issued in the buyer’s name.
Note: Avoid purchasing land that does not have an original title deed in the seller’s name, such as property that is still undergoing the succession or inheritance process following the death of the registered owner.
Leasing is where the land owner (lessor/landlord) grants a tenant (lessee) the right to use their land for a specific period of time in exchange for regular rent payments.
Detailed Step-by-Step Guide
- Identification of the land: The tenant identifies the land that they want to lease.
- Site visit & preliminary checks: The tenant visits the land to check its condition, boundaries, and the current use.
- Official land search: Use Ardhisasa (Ministry of Lands) via eCitizen to conduct an official search to confirm who owns the land, its history, boundaries and any cliams like loans on the land.
- Lease agreement: The parties negotiate the lease terms and especially the period of the lease and the rent to be paid by the tenant. The landlord prepares the lease agreement and shares it with the tenant who reviews it and eventually signs it. It is important for both the buyer and seller to have at least two witnesses when signing the agreement.
- Registration: If the lease is for a period of two or more years, the parties should register it with the land registrar.
Note: Take care not to lease land from a person who lacks the legal authority to lease it, such as someone who is not the registered owner of the land or a tenant who has not obtained the landlord’s consent to sublease the property.
This is where the government acquires land from a private owner for public purposes such as to construct a railway or road.
Detailed Step-by-Step Guide
- The National Land Commission (NLC) publishes a notice of intent to acquire the land in question in the Kenya Gazette and delivers a copy of the notice to the land registrar and persons having an interest in the land.
- 30 days after the notice of intent, the NLC sets a date of inquiry. It serves a notice to all affected persons.
- The persons affected deliver their written claims to the NLC before the date of the inquiry.
- The NLC holds a hearing whereby they listen to all the concerns of the persons affected.
- NLC makes a decision on the compensation to be given to each of the people affected.
- In some cases, NLC may agree that a person receives an alternative piece of land instead of monetary compensation.
- Once the persons affected accept the award, NLC promptly pays the interested persons. If there is a dispute, NLC puts the money into a special compensation account.
- NLC notifies the persons affected of the date of possession. The government body that was acquiring the property then take: possession. NLC informs the registrar when possession has been taken.
- The registered owners of the land deliver the title documents to the registrar so that changes can be made accordingly.
- Any disputes arising should be referred to the Land Acquisition Tribunal. Appeals from the Tribunal should be filed at the Environment and Land Court.
This is where a person acquires land through inheritance upon the death of the registered owner.
Testate Succession - Process for transferring property when the deceased left a will.
Gather the key documents;
- Original will & two photocopies;
- Death certificate;
- A letter from the chief listing all the beneficiaries of the estate, their ages and relationship to the deceased;
- Identity cards of the executor (the person named in the will to be responsible for implementing the deceased’s instructions in the will);
- Identity cards of the beneficiaries/birth certificates (in case of minors);
- Proof of ownership of property by the deceased (title deeds, logbooks, share certificates etc.)
- Prepare the application for Grant of Probate.
- The executor files the application for Grant of Probate in Court through the Judiciary efiling The executor also pays the filing court fees.
- Gazettement: The judiciary will publish a notice in the Kenya Gazette for 30 days to allow for objections to be raised. If someone has been left out of the list of beneficiaries, they can make an application to Court at this point to be included.
- Issuance of Grant: The Court allocates a date for the applicants to attend court. If there are no objections, the grant of probate (the document that gives the legal authority to deal with the deceased’s properties) is issued for six months. The executor does not have the power to distribute the estate at this stage. The grant is to enable them to manage and recover the deceased assets ex; collect rent and sell agricultural produce.
- Confirmation of Grant: Upon the lapse of the 6 months, the executor apply for confirmation of the issued grant. This is to grant them the power to distribute the property ex; transfer the respective shares of agricultural land to the beneficiaries. An application for confirmation of grant is usually accompanied by a consent signed by the beneficiaries on how the deceased’s properties will be distributed among them.
- Completion of administration: The executor should complete administration by distributing the deceased’s property to the beneficiaries within 6 months of confirmatioon of the grant. They should then file a report accounting for all the deceased’s assets and liabilities.
Intestate Succession - Process for transferring property when the deceased did not leave a will.
Gather the key documents;- Death certificate;
- A letter from the chief listing all the beneficiaries of the estate, their ages and relationship to the deceased;
- Identity cards of the persons applying to be appointed as administrators (usually the deceased’s relatives with the spouse or children having first priority)
- Identity cards of the beneficiaries/birth certificates (in case of minors);
- Proof of ownership of property by the deceased (title deeds, logbooks, share certificates etc.)
- Identity cards of all sureties (those who have taken responsibility for what the applicant(s) say(s).
- Prepare the application for Letters of Administration Intestate.
- The administrators file the for Letters of Administration Intestat in Court through the Judiciary efiling The executor also pays the filing court fees.
- Gazettement: The judiciary will publish a notice in the Kenya Gazette for 30 days to allow for objections to be raised. If someone has been left out of the list of beneficiaries, they can make an application to Court at this point to be included.
- Issuance of Grant: The Court allocates a date for the applicants to attend court. If there are no objections, the grant of Letters of Administration Intestate (the document that gives the legal authority to deal with the deceased’s properties) is issued for six months. The administrators do not have the power to distribute the estate at this stage. The grant is to enable them to manage and recover the deceased assets ex; collect rent and sell agricultural produce.
- Confirmation of Grant: Upon the lapse of the 6 months, the administrator apply for confirmation of the issued grant. This is to grant them the power to distribute the property ex; transfer the respective shares of agricultural land to the beneficiaries. An application for confirmation of grant is usually accompanied by a consent signed by the beneficiaries on how the deceased’s properties will be distributed among them.
- Completion of administration: The administrators should complete administration by distributing the deceased’s property to the beneficiaries within 6 months of confirmatioon of the grant. They should then file a report accounting for all the deceased’s assets and liabilities.
Note; The number of persons applying for letters of administration intestate should not exceed four. Where there are children below 18 years, there should be at least two adults applying for letters so that they can hold the property on behalf of the minors until they become adults.
