The Land Amendment Act 2007
Feb 04, 2008
The Land Amendment Act 2007, is intended to amend the Land Act, Cap 227 to enhance the security of occupancy of lawful and bona fide occupants on registered land in accordance with Article 237 of the Constitution and for related matters.
The Land Amendment Act 2007, is intended to amend the Land Act, Cap 227 to enhance the security of occupancy of lawful and bona fide occupants on registered land in accordance with Article 237 of the Constitution and for related matters.
1. Amendment of section 31 of the Land Act
Section 31 of the 1998 Land Act reads:
Tenant by occupancy.
(1) A tenant by occupancy on registered land shall enjoy security of occupancy on the land.
(2) The tenant by occupancy referred to in subsection (1) shall be deemed to be a tenant of the registered owner to be known as a tenant by occupancy, subject to such terms and conditions as are set out in this Act or as may be prescribed.
(3) The tenant by occupancy shall pay to the registered owner an annual nominal ground rent as shall, with approval of the minister, be determined by the board.
(3a) The minister shall, within 60 days after receipt of a request for approval under subsection (3), communicate his or her decision in writing to the board.
(3b) Where the minister makes no communication of his or her decision after the expiration of the period prescribed in subsection (3a), it shall be deemed that the approval has been given.
(3c) For purposes of this section, nominal ground rent shall mean reasonable rent —
(i) taking into consideration the circumstances of each case.
(4) The tenant and the registered owner if aggrieved by the decision of the board may appeal against the decision to the land tribunal and the tribunal may confirm, reverse, vary or modify the decision or make such other orders as it is empowered to make by this Act.
(5) The approved rent determined under subsection (3) shall not exceed sh1,000 per year irrespective of the area or location of the land. (Repealed under the Land Amendment Act 2004)
(6) If a tenant by occupancy fails to pay the approved ground rent for a period exceeding two years, the registered owner may give a notice in the prescribed form to the tenant requiring him or her to show cause why the tenancy should not be terminated for non-payment of rent and shall send a copy of the notice to the committee.
(7) If the ground rent is not paid within a year from the date of service of notice or the tenant by occupancy has not taken any steps within six months after the date of service of the notice to challenge the notice by referring to the land tribunal, the registered owner may apply to the land tribunal for an order terminating the tenancy for non-payment of the rent.
(8) The maximum annual ground rent referred to in subsection (5) may be revised every five years by regulations made under section 93. (Repealed under the Land Amendment Act 2004)
(9) For the avoidance of doubt, the security of tenure of a lawful or bona fide occupant shall not be prejudiced by reason of the fact that he or she does not possess a certificate of occupancy.
Section 31 of the Land Act, in this Act referred to as the principal Act, is amended:
(a) by inserting immediately after subsection (3c) the following —
(3d) Where the board has not determined the annual nominal ground rent payable by a tenant by occupancy within six months after the commencement of this Act, the rent may be determined by the minister.
(3e) The rent payable under this section shall be paid within one year after the minister has approved the rent payable under subsection (3) or determined the rent payable under subsection (3d).
(b) by substituting subsection 31 (6) with the following —
(6) If a tenant by occupancy fails to pay the approved ground rent for a period exceeding one year, the registered owner shall give a notice in the prescribed form to the tenant requiring him or her to show cause why the tenancy should not be terminated for non-payment of rent and shall send a copy of the notice to the committee.â€
2. Insertion of new sections 32A and 32B
The principal Act is amended by inserting immediately after section 32, the following —
32A. Lawful or bona fide occupants to be evicted only for non-payment of ground rent.
(1) A lawful or bona fide occupant shall not be evicted from registered land except upon an order of eviction issued by a court only for non-payment of the annual nominal ground rent.
(2) A court shall, before making an order of eviction under this section, take into consideration the matters specified in section 32(1).
(3) When making an order for eviction, the court shall state in the order, the date, being not less than six months after the date of the order, by which the person to be evicted shall vacate the land and may grant any other order as to expenses, damages, compensation or any other matter as the court thinks fit.
(4) A person who attempts to evict, evicts or participates in the eviction of a lawful or bona fide occupant from registered land without an order of eviction commits an offence and is liable on conviction to imprisonment not exceeding seven years.
(5) Where a person is convicted under subsection (4), the court may —
(a) order that person to pay compensation or damages to the person who was evicted; or
(b) make an order for restitution in favour of the person who was evicted.
32B. Person claiming interest in land under customary tenure to be evicted only by court.
(1) A person claiming an interest in land under customary tenure shall not be evicted except upon an order of eviction issued by the court.
(2) A court shall not issue an order under subsection (1) unless —
(a) the court has heard the person claiming the interest in the land on the matter;
(b) adequate compensation has been paid to the person claiming the interest in the land, except where the person has abandoned the occupancy;
(c) the court has visited the locus in quo and conducted a hearing; and (d) the court has received a report from the land committee of the area on the status of the occupants on the land.
(3) For avoidance of doubt, subsection (1) shall not apply to a person who has been allowed to temporarily occupy or use land under customary tenure.
(4) A person who attempts to evict, evicts or participates in the eviction of a person claiming an interest in the land under customary tenure without an order of eviction commits an offence and is liable on conviction to imprisonment not exceeding seven years.
(5) Where a person is convicted under subsection (3), the court may —
(a) order that person to pay compensation or damages to the person who was evicted; or
(b) make an order for restitution in favour of the person who was evicted.
3. Amendment of section 35
Section 35 of the 1998 Land Act reads:
Option to purchase.
(1) A tenant by occupancy who wishes to assign the tenancy shall, subject to this section, give the first option of taking the assignment of the tenancy to the owner of the land.
(2) The owner of land who wishes to sell the reversionary interest in the land shall, subject to this section, give the first option of buying that interest to the tenant by occupancy.
(3) Any offer made under this section shall be on a willing buyer willing seller basis.
(4) Where an option to buy is offered to any party under subsection (1) or (2), the party who makes the offer must set out the terms of the offer with sufficient detail and clarity for the party to whom the offer is made to understand the offer and make an appropriate response to it.
(5) A party to whom an offer to buy is made under subsection (1) or (2) shall, within three months after the receipt of the offer, either refuse the offer or make such a response as will enable meaningful negotiations to take place between the parties.
(6) Either party to the negotiations to which subsection (5) refers may, at any time after three months have elapsed since the negotiations commenced, refer the matter to the mediator for him or her to assist the parties to reach an agreement.
7) Where the mediator is unable, after three months of negotiations, to assist the parties to reach an agreement on the option to buy, he or she shall make a declaration to that effect; and the party who made the offer of the option to buy shall thereupon be enabled to assign the tenancy by occupancy or, as the case may be, sell the reversionary interest free of the option to buy, to such other person as he or she thinks fit.
Section 35 of the principal Act is amended —
(a) by inserting immediately after subsection (1) the following —
“(1a) Subject to subsection (7), a tenant by occupancy who purports to assign the tenancy by occupancy without giving the first option of taking the assignment of the tenancy to the owner of the land commits an offence and is liable on conviction to a fine not exceeding 96 currency points or imprisonment not exceeding four years or both.
(b) by inserting immediately after subsection (7) the following —
(8) Subject to subsection (7), a transaction for the sale of the interest in land by the owner made without giving the first option of buying the interest to the tenant by occupancy is invalid and the commissioner shall not make any entry on the certificate of title in respect of that transaction.â€
4. Amendment of section 92 of the principal Act
Section 92 of the 1998 Land Act reads:
Offences and penalties.
(1) A person who —
(a) being a non-citizen, acquires land in freehold using fraudulent means;
(b) makes a false declaration in any manner relating to land;
(c) willfully and without the consent of the owner occupies land belonging to another person; or
(d) being a member of the land tribunal, a board, a committee, solicits or receives any payment from any person to whom any service is rendered under this Act being payment which the member is not authorised to collect or receive under this Act, commits an offence.
(2) A person convicted of an offence specified in subsection (1) (a) is liable to a fine not exceeding 1,000 currency points or imprisonment not exceeding three years or both.
(3) A person convicted of an offence specified in subsection (1) (b) is liable to a fine not exceeding 25 currency points or imprisonment not exceeding one year or both.
(4) A person convicted of an offence specified in subsection (1) (c) is liable on conviction to a fine not exceeding 25 currency points or imprisonment not exceeding six months or both.
(5) A person who commits an offence under subsection (1) (d) is liable upon conviction to a fine not exceeding 25 currency points or imprisonment not exceeding six months or both.
(6) A court convicting a person of an offence to which subsection (4) relates may, in addition, issue a warrant addressed to a Police officer requiring the officer immediately and subject to such conditions as the court may impose to —
(a) enter upon the land which was the subject of the conviction;
(b) dispossess and remove from the land the person convicted together with his or her family, dependents and servants;
(c) take possession of the land on behalf of the owner, together with crops growing on the land and buildings and other immovable property;
(d) hand over the property to the owner immediately after taking possession.
(7) No order shall be made under subsection (6) (c) if the court is satisfied that some person other than the person convicted or his or her family, dependents or servants is in lawful possession of the land
Section 92 of the principal Act is amended by substituting with subsection (4) the following –
(4) A person convicted of an offence specified in subsection (1)(c) is liable on conviction to a fine not exceeding 96 currency points or imprisonment not exceeding four years or both.â€
Note: One currency point is equivalent to sh20,000
1. Amendment of section 31 of the Land Act
Section 31 of the 1998 Land Act reads:
Tenant by occupancy.
(1) A tenant by occupancy on registered land shall enjoy security of occupancy on the land.
(2) The tenant by occupancy referred to in subsection (1) shall be deemed to be a tenant of the registered owner to be known as a tenant by occupancy, subject to such terms and conditions as are set out in this Act or as may be prescribed.
(3) The tenant by occupancy shall pay to the registered owner an annual nominal ground rent as shall, with approval of the minister, be determined by the board.
(3a) The minister shall, within 60 days after receipt of a request for approval under subsection (3), communicate his or her decision in writing to the board.
(3b) Where the minister makes no communication of his or her decision after the expiration of the period prescribed in subsection (3a), it shall be deemed that the approval has been given.
(3c) For purposes of this section, nominal ground rent shall mean reasonable rent —
(i) taking into consideration the circumstances of each case.
(4) The tenant and the registered owner if aggrieved by the decision of the board may appeal against the decision to the land tribunal and the tribunal may confirm, reverse, vary or modify the decision or make such other orders as it is empowered to make by this Act.
(5) The approved rent determined under subsection (3) shall not exceed sh1,000 per year irrespective of the area or location of the land. (Repealed under the Land Amendment Act 2004)
(6) If a tenant by occupancy fails to pay the approved ground rent for a period exceeding two years, the registered owner may give a notice in the prescribed form to the tenant requiring him or her to show cause why the tenancy should not be terminated for non-payment of rent and shall send a copy of the notice to the committee.
(7) If the ground rent is not paid within a year from the date of service of notice or the tenant by occupancy has not taken any steps within six months after the date of service of the notice to challenge the notice by referring to the land tribunal, the registered owner may apply to the land tribunal for an order terminating the tenancy for non-payment of the rent.
(8) The maximum annual ground rent referred to in subsection (5) may be revised every five years by regulations made under section 93. (Repealed under the Land Amendment Act 2004)
(9) For the avoidance of doubt, the security of tenure of a lawful or bona fide occupant shall not be prejudiced by reason of the fact that he or she does not possess a certificate of occupancy.
Section 31 of the Land Act, in this Act referred to as the principal Act, is amended:
(a) by inserting immediately after subsection (3c) the following —
(3d) Where the board has not determined the annual nominal ground rent payable by a tenant by occupancy within six months after the commencement of this Act, the rent may be determined by the minister.
(3e) The rent payable under this section shall be paid within one year after the minister has approved the rent payable under subsection (3) or determined the rent payable under subsection (3d).
(b) by substituting subsection 31 (6) with the following —
(6) If a tenant by occupancy fails to pay the approved ground rent for a period exceeding one year, the registered owner shall give a notice in the prescribed form to the tenant requiring him or her to show cause why the tenancy should not be terminated for non-payment of rent and shall send a copy of the notice to the committee.â€
2. Insertion of new sections 32A and 32B
The principal Act is amended by inserting immediately after section 32, the following —
32A. Lawful or bona fide occupants to be evicted only for non-payment of ground rent.
(1) A lawful or bona fide occupant shall not be evicted from registered land except upon an order of eviction issued by a court only for non-payment of the annual nominal ground rent.
(2) A court shall, before making an order of eviction under this section, take into consideration the matters specified in section 32(1).
(3) When making an order for eviction, the court shall state in the order, the date, being not less than six months after the date of the order, by which the person to be evicted shall vacate the land and may grant any other order as to expenses, damages, compensation or any other matter as the court thinks fit.
(4) A person who attempts to evict, evicts or participates in the eviction of a lawful or bona fide occupant from registered land without an order of eviction commits an offence and is liable on conviction to imprisonment not exceeding seven years.
(5) Where a person is convicted under subsection (4), the court may —
(a) order that person to pay compensation or damages to the person who was evicted; or
(b) make an order for restitution in favour of the person who was evicted.
32B. Person claiming interest in land under customary tenure to be evicted only by court.
(1) A person claiming an interest in land under customary tenure shall not be evicted except upon an order of eviction issued by the court.
(2) A court shall not issue an order under subsection (1) unless —
(a) the court has heard the person claiming the interest in the land on the matter;
(b) adequate compensation has been paid to the person claiming the interest in the land, except where the person has abandoned the occupancy;
(c) the court has visited the locus in quo and conducted a hearing; and (d) the court has received a report from the land committee of the area on the status of the occupants on the land.
(3) For avoidance of doubt, subsection (1) shall not apply to a person who has been allowed to temporarily occupy or use land under customary tenure.
(4) A person who attempts to evict, evicts or participates in the eviction of a person claiming an interest in the land under customary tenure without an order of eviction commits an offence and is liable on conviction to imprisonment not exceeding seven years.
(5) Where a person is convicted under subsection (3), the court may —
(a) order that person to pay compensation or damages to the person who was evicted; or
(b) make an order for restitution in favour of the person who was evicted.
3. Amendment of section 35
Section 35 of the 1998 Land Act reads:
Option to purchase.
(1) A tenant by occupancy who wishes to assign the tenancy shall, subject to this section, give the first option of taking the assignment of the tenancy to the owner of the land.
(2) The owner of land who wishes to sell the reversionary interest in the land shall, subject to this section, give the first option of buying that interest to the tenant by occupancy.
(3) Any offer made under this section shall be on a willing buyer willing seller basis.
(4) Where an option to buy is offered to any party under subsection (1) or (2), the party who makes the offer must set out the terms of the offer with sufficient detail and clarity for the party to whom the offer is made to understand the offer and make an appropriate response to it.
(5) A party to whom an offer to buy is made under subsection (1) or (2) shall, within three months after the receipt of the offer, either refuse the offer or make such a response as will enable meaningful negotiations to take place between the parties.
(6) Either party to the negotiations to which subsection (5) refers may, at any time after three months have elapsed since the negotiations commenced, refer the matter to the mediator for him or her to assist the parties to reach an agreement.
7) Where the mediator is unable, after three months of negotiations, to assist the parties to reach an agreement on the option to buy, he or she shall make a declaration to that effect; and the party who made the offer of the option to buy shall thereupon be enabled to assign the tenancy by occupancy or, as the case may be, sell the reversionary interest free of the option to buy, to such other person as he or she thinks fit.
Section 35 of the principal Act is amended —
(a) by inserting immediately after subsection (1) the following —
“(1a) Subject to subsection (7), a tenant by occupancy who purports to assign the tenancy by occupancy without giving the first option of taking the assignment of the tenancy to the owner of the land commits an offence and is liable on conviction to a fine not exceeding 96 currency points or imprisonment not exceeding four years or both.
(b) by inserting immediately after subsection (7) the following —
(8) Subject to subsection (7), a transaction for the sale of the interest in land by the owner made without giving the first option of buying the interest to the tenant by occupancy is invalid and the commissioner shall not make any entry on the certificate of title in respect of that transaction.â€
4. Amendment of section 92 of the principal Act
Section 92 of the 1998 Land Act reads:
Offences and penalties.
(1) A person who —
(a) being a non-citizen, acquires land in freehold using fraudulent means;
(b) makes a false declaration in any manner relating to land;
(c) willfully and without the consent of the owner occupies land belonging to another person; or
(d) being a member of the land tribunal, a board, a committee, solicits or receives any payment from any person to whom any service is rendered under this Act being payment which the member is not authorised to collect or receive under this Act, commits an offence.
(2) A person convicted of an offence specified in subsection (1) (a) is liable to a fine not exceeding 1,000 currency points or imprisonment not exceeding three years or both.
(3) A person convicted of an offence specified in subsection (1) (b) is liable to a fine not exceeding 25 currency points or imprisonment not exceeding one year or both.
(4) A person convicted of an offence specified in subsection (1) (c) is liable on conviction to a fine not exceeding 25 currency points or imprisonment not exceeding six months or both.
(5) A person who commits an offence under subsection (1) (d) is liable upon conviction to a fine not exceeding 25 currency points or imprisonment not exceeding six months or both.
(6) A court convicting a person of an offence to which subsection (4) relates may, in addition, issue a warrant addressed to a Police officer requiring the officer immediately and subject to such conditions as the court may impose to —
(a) enter upon the land which was the subject of the conviction;
(b) dispossess and remove from the land the person convicted together with his or her family, dependents and servants;
(c) take possession of the land on behalf of the owner, together with crops growing on the land and buildings and other immovable property;
(d) hand over the property to the owner immediately after taking possession.
(7) No order shall be made under subsection (6) (c) if the court is satisfied that some person other than the person convicted or his or her family, dependents or servants is in lawful possession of the land
Section 92 of the principal Act is amended by substituting with subsection (4) the following –
(4) A person convicted of an offence specified in subsection (1)(c) is liable on conviction to a fine not exceeding 96 currency points or imprisonment not exceeding four years or both.â€
Note: One currency point is equivalent to sh20,000