- - The Land (Group Representatives) Act, Cap 287.
- - Trust Lands Act, Cap 287.
Current dispensation.
The current legislative dispensation pertaining the management of the Community lands is the Community Land Act. This however has its rooting from the Constitution of Kenya, 2010 under Article 63. The Land Act also gives a caption pertaining the Community land and reiterates the provisions of article 63 of the Constitution.
The conversion models/ methods
i. Through a transfer.
ii. Through allocation by the registered community- this has to be ratified by the community assembly as established in the Community Land Act.
Provisions as per the Community Land Act
We are guided by sections 21 as read together with section 23 of the Community Land Act which do reiterate the above mentioned mechanisms which provide as hereunder;
21. (1) The Community land register shall, in addition to the particulars set out under section 8(1) of the Land Registration Act, 2012, contain the particulars of all conversions involving community land.
(2) A registered community shalI, before the conversion of registered community land into any other category of land seek and obtain approval from two thirds of the assembly in a special meeting convened for that purpose.
23. Registered community land may, subject to the approval of the registered community, be converted to private land through-
(a) transfer; or
(b) allocation by the registered community, subject to ratification of the assembly as provided in section 21(2).
The Land Act under section 37 provides as hereunder;
37. Community land shall be managed in accordance with the law relating to community land enacted pursuant to Article 63 of the Constitution.
How to conduct a transfer.
A community having the power to own property in the context and definition of a community is issued with a certificate of title or certificate of lease pursuant to the provisions of section 8(2) of the Land Registration Act, 2012.
A transfer will therefore follow its due course as any normal transfer/ transaction. The interest in the community land may be acquired vide succulent means like getting into a land sale agreement subject to the resolution and/ or approval from the two thirds quorum of the assembly in a special meeting convened for that purpose.
Requisite documents to effectuate a transfer.
1. A copy of the title deed/ certificate of title.
2. The land search documents.
3. Clearance to transfer certificate from the LCB if agricultural land.
4. The transfer forms signed by the seller or community representatives (Community Land Management Committee).
5. The sale agreement document.
6. The valuation report.
7. The Stamp Duty declaration and payslip.
8. Land rent clearance certificate.
9. Land rates clearance certificate.
10. Certificate
of clearance from the county.
11. A copy of national ID.
12. A copy of your KRA pin.
13. 3 passport photos of the seller.
14. 3 passport photos of yourself (Buyer).
15. Certificate of registration of the community.
Allocation of land by the assembly
The act is pretty clear that allocation of land will be done on the condition that the provision of section 21(2) of the act is complied by.
(2) A registered community shalI, before the conversion of registered community land into any other category of land seek and obtain approval from two thirds of the assembly in a special meeting convened for that purpose.
It is prudent to note that the registered community assembly shall elect members of the Community Land Management Committee consisting of members between 7 and 15 in number. This management is he one responsible for submitting the name of the community and submit the name, register of members, minutes of the meeting and the rules and regulations of the committee to the registrar for registration purposes.
- Allocation of the registered community land is therefore pursuant to the approval by the members that one be allocated a portion of the registered community land to a member or group members in the community at a fee for use and occupation for a period determined by the community.
- Note that in this model no separate title will be issued to the individual since the rights of the community supersede that of an individual.
The land is issued subject to general conditions such as;
- Land be used lawfully.
- Land cannot be leased or assigned to a third party.
- Land must be surrendered back to the community if the individual is no longer entitled to use the land.
THE COMMUNITY LAND REGULATIONS, 2017
Regulation 16. (1) provides as hereunder;
A community may convert whole or part of its land to private land through transfer with the approval of at least two thirds of the community assembly.
Upon approval under paragraph (1), a transfer instrument shall be prepared and executed by the Chairman and the Secretary of the community land management committee and presented to the registrar for registration in accordance with the Land Registration Act, No. 3 of 2012.
A community may allocate whole or part of its land to the members in accordance with the Act with the approval of at least two thirds of the community assembly
STEPS
1. - Register the community
a. - Transfer the land after conducting due diligence
- -Draft an offer to the sellers.
Things to note
- Subject to section 21(2) of the Community Land Act, buyer’s advocate ensure that the sellers have obtained approval to sell the land from 2/3 of the assembly of the community/ family in a special meeting convened for that purpose.
- Buyer’s advocate to get approval to sell from relevant county government- see section 6 of the Community Land Act.
- Buyer’s advocate to consider sellers replies to any pre-contract inquiries and requisitions.
- Buyer’s advocate to make sure that there is a sale agreement which is signed by the parties and a deposit may be issued at this instance.
- Buyer’s advocate to draft the transfer and send it for approval and execution by the seller.
- Regulation 16(2) of the Community Land Regulation 2017, upon approval of transfer by the 2/3 of the community assembly, the transfer instrument shall be prepared and executed by the Chairman and secretary of the Community Land Management Committee.
- After execution of the transfer by the buyer’s advocates, completion happens where the seller’s representative receive the balance of the purchase price and the buyer’s advocates receive the completion documents.
- Buyer’s advocate registers the transfer.
Unregistered Community.
- Unregistered community land is usually held by the respective County Government in trust of the community.
- Article 63 of the Constitution and Section 10 of the Community Land Act provides for the above and fathoms that the same shall not be transferred or disposed off unless it is within the prescribes of this act.
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