THE ESK LEGAL BRIEF
SPOTCHECK ON THE LAND ACT AND LAND REGISTRATION ACT: OVERLOOKED AND UNDERUTILISED STATUTORY PROVISIONS AND PRACTICE
Introduction
Kenya’s land legal framework underwent a transformative overhaul with the enactment of the Land Act, 2012 and the Land Registration Act, 2012, both of which came into force on 2nd May 2012. These statutes were enacted to give effect to the land-related provisions of the Constitution of Kenya, 2010, particularly Articles 60 to 68, which articulate the principles of land policy, the classification of land and the institutional framework for land administration.
The Land Act provides the substantive framework for the management, administration and utilisation of land, including matters relating to leases, charges, compulsory acquisition, settlement programmes, easements and related interests. The Land Registration Act, on the other hand, establishes the framework for registration of interests in land, maintenance of land registers, protection of registered proprietors of land and regulation of dealings affecting registered land.
Yet, despite the comprehensive nature of these statutes, numerous provisions remain overlooked, underutilised or misunderstood in practice. Some provisions offer preventive remedies that can protect parties before a dispute escalates, while others provide procedural safeguards or avenues for administrative intervention that can avoid unnecessary litigation. This article undertakes a spotcheck of selected provisions of the two statutes, examining their purpose and practical significance to landowners, purchasers, lenders, developers and conveyance practitioners.
The Land Act, 2012
a) Sections 136-149: Easements and Analogous Rights – The Uncharted Territory
Part X of the Land Act provides a statutory framework for easements and analogous rights, including rights of way, wayleaves and communal rights of way.
An easement is essentially a non-possessory interest that enables a person to use another person’s land for a defined purpose or requires the owner of that land to tolerate or refrain from specified acts. Sections 138 onwards provide mechanisms for the creation and enforcement of easements and related rights, while other provisions address access, wayleaves and communal rights of way.
Why are these provisions often overlooked? Landlocked parcels of land, blocked access routes and disputes concerning utilities are common sources of land litigation. Notably, parties will often proceed directly to court without first considering whether the statutory mechanisms for establishing or enforcing an appropriate right of access are available.
What many don’t realise is that the statutory framework under the Land Act, can be particularly useful where: reasonable access; a neighbour refuses necessary access; public infrastructure such as electricity lines or pipelines requires a wayleave; a public or communal right of way is required; or adjoining landowners need to formalise an existing access arrangement.
The Land Act provides mechanisms through which these interests may be created, regulated and compensated where applicable. Therefore, developers and landowners should consider formalizing access rights rather than relying on informal arrangements. A properly registered easement can provide significantly greater certainty than an informal understanding between neighbours.
b) Section 13: Lessee’s Pre-emptive Rights to Allocation
Section 13 of the Land Act protects the immediate past lessee’s pre-emptive right to allocation where leasehold land reverts to the national or county government, subject to the statutory conditions, including Kenyan citizenship and the land not being required for a public purpose.
In Tenai v Sidhu & 5 Others [2025] KECA 105 (KLR), the Court of Appeal affirmed that the former lessee had a pre-emptive right and that this right could support a legitimate expectation that the lease would be renewed, particularly where the lessee had pursued renewal and the public authorities failed to properly process or explain the application.
Significantly, the Court found that the subsequent allocation to another party was made in violation of the former lessee’s legitimate expectation, noting that the expectation was consistent with the pre-emptive rights recognised under both the earlier land law regime and the Land Act.
The decision also carries an important due-diligence lesson for subsequent purchasers. A registered title is not necessarily the end of the inquiry where the root of title is challenged; the purchaser may need to establish the legality and regularity of the acquisition and satisfy the court that the title was acquired free from relevant interests.
The practical takeaway is that lease expiry should trigger action, not complacency. Lessees approaching expiry should make timely applications and maintain a clear documentary trail of their dealings with the relevant land authorities.
Conversely, persons seeking to acquire land previously held under a lease should investigate whether the former lessee has exercised or may assert a statutory pre-emptive right.
c) Sections 107-133: Compulsory Acquisition – The Overlooked Procedural Safeguards
The Land Act also provides the statutory framework governing compulsory acquisition of land for public purposes. Compulsory acquisition is an exercise of state power which directly interferes with an individual’s proprietary rights. Consequently, the Constitution and the Land Act prescribe procedural and substantive safeguards intended to protect affected proprietors.
Procedural compliance in this regard is key. The fact that land is required for a public project does not dispense with the statutory procedure. One of the important requirements is consultation with affected persons. Though often overlooked, Courts have recognized the importance of meaningful engagement with affected communities, particularly where government projects involve displacement or interference with occupation and livelihoods.
Therefore, landowners affected by compulsory acquisition should not just wait for the final decision of the acquisition. They should scrutinise the process from its commencement, including: whether the acquisition is for a lawful public purpose; whether the National Land Commission has followed the prescribed procedure; whether the required notices have been issued; whether affected persons have been given an opportunity to participate and give their views; whether valuation and compensation have been properly undertaken; and whether possession has been taken in accordance with the law.
Early legal intervention may be critical where procedural irregularities arise.
The Land Registration Act, 2012
a) Section 28: Overriding Interests – Interests Beyond the Register
One of the fundamental features of the Land Registration Act is that registration does not necessarily disclose every interest affecting land. Section 28 of the Act provides that registered land is subject to specified overriding interests, whether or not those interests are noted on the register. These include: trusts, including customary trusts; rights of way, rights of water and profits subsisting at first registration; natural rights of light, air, water and support; rights acquired or in the process of being acquired by prescription; and other rights provided under written law. Indeed, in Kiebia v M’lintari & another [2018] KESC 22 (KLR), the Supreme Court confirmed the legal recognition of customary trusts as overriding interests and explained that such trusts need not be noted on the register. Also recently, in Kariuki v Ringsview Apartment Ltd & another (Environment and Land Case Civil Suit E140 of 2021) [2026] KEELC 3463 (KLR), the Environment and Land Court upheld a constructive trust arising from an apartment unit that was fully paid up but the Vendor subsequently charged the mother title without notice to a financier, which though unregistered, qualified as an overriding interest within the meaning of Section 28 of the Land Registration Act and is therefore binding on the title.
The importance of Section 28 is that a purchaser or financier cannot always assume that an interest does not exist merely because it does not appear on the title. Due diligence by the purchaser or financier should therefore extend beyond the official search. Physical inspection of the land, inquiries from occupants, examination of family arrangements and investigation of the historical acquisition of the property may reveal interests that are not apparent from the register.
b) Section 79: Rectification by the Registrar – An Underutilised Remedy
Section 79 of the Land Registration Act provides mechanisms through which the Registrar may rectify the land register in circumstances permitted by the Act.
Administrative rectification can be useful where the issue is capable of being corrected without determination of a substantive dispute through litigation. Thus, before commencing court proceedings seeking cancellation or alteration of a title, one should first identify the nature of the alleged error. Where the issue falls within Section 79, approaching the Registrar may provide a faster and more proportionate remedy.
However, Section 79 should not be confused with the Court’s power under Section 80. In Paragon Electronics Limited v Chief Land Registrar & 2 others; Ngum & 2 others (Interested Parties) [2025] KEELC 3209 (KLR), the Court emphasised the limits of the Registrar’s power to rectify the register holding that it is only in non-contentious matters of an error which does not materially affect the interests of any proprietor and with the consent of all affected parties, that a Registrar can rectify the register pursuant to Section 79 of the Land Registration Act.
c) Sections 18-21: Boundaries – Prevention Rather Than Litigation
Boundary disputes are among the most common land disputes in Kenya yet the Land Registration Act provides mechanisms for dealing with boundaries before a dispute becomes a court case. Section 18 restricts the Court from entertaining proceedings concerning boundaries of registered land unless the boundaries have first been determined in accordance with the statutory framework. The said statutory framework requires boundary disputes to be determined by the Land Registrar in the first instance. Thus, where a dispute concerns the location of a boundary, the first question should not necessarily be “which court should we file in?” Rather, it should be: “have the statutory boundary determination mechanisms been exhausted?”
d) Section 36(8)-(9): The Fourteen-Day Suspension Period Following an Official Search
Another potentially useful but less frequently discussed mechanism appears in Section 36 of the Land Registration Act. Where a person proposing to deal with registered land conducts an official search, registration of another instrument affecting the land is suspended for fourteen days. Where a properly executed instrument is presented within that period by the person, the statute gives that instrument priority in the circumstances specified by the provision.
This mechanism is particularly relevant because depending compliance with the statutory requirements, the search process can have implications on priority and protection of the interests arising from that proposed dealing. Thus, one should not treat an official search as merely an information-gathering exercise as it might have further implications.
How ESK Advocates LLP Can Help
At ESK Advocates LLP, we provide comprehensive legal advice and representation in land transactions and land disputes. Our services include conducting due diligence, preparation and review of sale agreements and other land instruments and advising on all kinds of land disputes. We also assist clients in making applications to the Land Registrar including, for cautions, restrictions and rectification of the land register, as well as representing clients in compulsory acquisition and compensation claims, settlement scheme disputes and proceedings before various Courts and other relevant forums.
By identifying potential legal and procedural issues at an early stage, we help our clients protect their interests, minimise exposure to disputes and make informed decisions in relation to their land.
Article By:
Frankline Ojanji
Associate Advocate
Disclaimer:
This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.
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