The Land Control Bill, 2023

SPECIALISSUE

Kenya Gazette Supplement No.124(National Assembly Bills No.39)

REPUBLIC OFKENYA

KENYA GAZETTESUPPLEMENT

NATIONALASSEMBLY BILLS,2023

NAIROBI,28thJuly,2023

CONTENT

| Bill for Introduction into the National Assembly- | PAGE | |-----------------------------------------------------|--------| | The Land Control Bill,2023 | 1253 |

Clause

PARTI-PRELIMINARY

• 1-Short title.
• 2-Interpretation.
• 3-Application.

PARTII-ESTABLISHMENT OFLAND CONTROL COMMITTEES

• 4-Establishmentofcommittees
• 5-Qualificationsfor appointment
• 6-Procedure ofappointing committeemembers.
• 7-Vacancies ina land control committee
• 8-Remuneration.
• 9-Functionsofaland control committee.

PARTII-CONTROLOFDEALINGSIN AGRICULTURALLAND

• 10-Transactions affecting agricultural land
• 1l-Review of transactions and grant of consent.
• 12—Notice and attendance to review hearings.
• 13-Grant orrefusal of consent.
• 14-Recovery ofconsideration foravoid transaction.
• 15-Appointment ofappeal committees.

PARTIV-MISCELLANEOUS

• 16-False statements.
• 17-Prohibition ofland transactions.
• 18-Exemptions.

PARTV-PROVISIONSONDELEGATEDPOWERS

• 19-Regulations.

THELANDCONTROLILL,2023 ARRANGEMENT OF CLAUSES

PARTVI-TRANSITION,SAVINGANDREPEAL

• 20-Transition and saving
• 21-RepealofCap.302.

THELANDCONTROLBILL,2023

A Bill for

AN ACT ofParliament to regulate certain transactions in land for connected purposes

ENACTEDby theParliamentofKenya,asfollows-

PARTI-PRELIMINARY

• 1.This Act may be cited as the Land Control Act, Shorttitle 2023.
• 2.In thisAct,unless the context otherwiserequires

"agricultural land"means-

• (a) an area not designated as a city or urban area under theUrban Areasand CitiesAct,2011;or
• (b)land declared by the Cabinet Secretary,by notice in the Gazette,to be agricultural land for the purposes of this Act;

other than land which,by reason ofany condition or covenant in the title thereto or any limitation imposed by law,is subject to the restriction that it may not be used for agriculture or to the requirement that it shall be used for a non-agricultural purpose;

"Cabinet Secretary"means the Cabinet Secretary for the timebeingresponsibleformattersrelatingto land;

"appeals committeemeans the Land Control Appeals Committee appointed under section 15;

"controlled transaction"means one of the transactions specified in section 3;

"co-operative society"means a society registered as a co-operative society under the Co-operative Societies Acts;

"land"includes an estate,interest or right in land;

"land control area"means an area to which the

Cabinet Secretary hasapplied thisActundersection3(2);

"land control committeemeans aLand Control Committee appointed under section 4;

"mortgage"includes charge;

Interpretation.

• No.13of2011.

Cap.490.

private companymeans a private company within

the meaning of section9of the CompaniesAct,2015;

"Chief Land Registrar" means the Chief Land Registrar appointed under section 12 of the Land Registration Act,2012;

"older member of society"

means a person who has attained the age ofsixty years;

"registrar" means any person charged with the registration of dealings in land under a written law or,in relation to shares, the person keeping the register of the

shares;

"share"means a share within the meaning of the No.17of2015

Companies Act,2015.

"youth"means the collectivity of all individuals in the Republicwho-

• (a)have attained the age of eighteen years:but
• (b) havenot attained the age of thirty-fiveyears
• 3.(1) This Act shall apply to all transactions relating Application to-
• (a) disposition of land within an area not designated as a city or urban area under section 4 of Urban
• Areas and Cities Act,2011;
• (b) disposition of land within an area planned or No.13of2019.
• designated for agricultural use under the Physical and Land Use Planning,2019;and
• (c) disposition of land used for agricultural purposes
• (2) The Cabinet Secretary may,in consultation with the National Land Commission and the approval of the National Assembly,designate specific land control areas and transactions to be subject to theprovisions of this Act.

PARTII-ESTABLISHMENT OFLAND CONTROL COMMITTEES

• 4.(1) The Chief Land Registrar shall,by notice in the
• Gazette, appoint a Land Control Committee in each constituency
• (2)Each landcontrol committeeshall comprise

No.13of2011

No.3of2012.

Establishment of committees.

• (a)a chairperson;
• (b) the Deputy County Commissioner appointed under section 15 (2)(b)of the National Government CoOrdinationAct,2013whoshallbethesecretaryof
• the committee;
• (c) the sub-county administrator appointed under
• section50of the County GovernmentsAct,2012;
• (d) two persons,being oneman and one woman,aged
• sixty years and above;and
• (e) two other persons,one being a youth,with demonstrated knowledge and experience in land law,surveying,land administration or dispute
• resolution.
• (3)The Chief Land Registrar shall appoint the members of a land control committee under subsection 2(a),(d) and (e) on different dates to serve for a single term of fouryears.
• (4) The Chief Land Registrar shall commence the recruitmentprocess at least three months before the expiry of thetermofthemembersofa land control committee.
• 5.(l) A person shall qualify for appointment as
• chairpersonofa land control committeeif theperson-
• (a)holds a degree from a university recognized in
• Kenya;
• (b)demonstrates knowledge of the culture,traditions and dispute resolution mechanisms of thepeople living in the geographical areaunderthe jurisdiction oftheland control committee;and
• (c)meets requirements under Chapter 6of the
• Constitution.
• (2) A person shall qualify for appointment asa
• member of a land controlcommittee under section 4(2)(d) and (e)if the person-
• (a) holdsa secondary school certificate;
• (b)demonstrates knowledge of the culture,traditions and dispute resolution mechanisms of the people living in the geographical area under the jurisdiction of the land control committee;and

No.1of2013

No.17of2012.

Qualifications for

appointment.

• (c)meets requirements under Chapter 6 of the Constitution.
• 6.(1) Whenever a vacancy occurs in the office of the chairperson or a member of the land control committee appointed under section 4(2) (d) and (e),the Chief Land Registrar shall constitute a selection panel comprising
• (a) the Deputy County Commissioner as chairperson;
• (b)a person nominated by the constituency office established under Regulations made pursuant to the Parliamentary Service Act,2019 as the secretary;
• (c)a person representing personsliving with disabilities;and
• (d) two persons, being one man and one woman, representing the business community.
• (2)The selection panel shall-—
• (a) advertise the vacancies within seven days of the constitution of the panel;
• (b) shortlist applicants on the basis of merit;
• (c) interview the shortlisted applicants in an open forum;and
• (d) submit the results of the interview to the Chief LandRegistrarfor appointment.
• (3)In appointing members of aland control committee,the Chief Land Registrar shall ensure gender
• balance.
• 7.Theofficeofamemberofa land control committee
• shall becomevacantifthemember-
• (a) resigns in writing to the Chief Registrar;
• (b) dies;
• (c)is adjudged bankrupt;
• (d) is convicted of an offence and is sentenced to a termofimprisonmentforaperiodofatleastsix months without the option of a fine;
• (e) has been absent from three consecutive meetings of the committee withoutreasonable cause:or

Procedureof appointing committee members.

No.22of2019.

Vacancies ina land control committee.

• (f)is incapacitated by mental or physical illness and is unableto discharge thefunctionsofthe office
• 8.Themembersofa land control committeeshall be paid such allowancesasmay be determined by the Cabinet Secretary on the recommendation of the Salaries and Remuneration Commission.
• 9.The functions of a land control committee shall be
• to-
• (a) review and grant consent to any sale, charge, transfer,grant,exchange for value or no value, lease,assignment,grant of easement or right of way in relation to agricultural land;
• (b)review and grant consent for any combination or subdivision ofagricultural land;
• ()grant consent for the issue,sale,transfer,mortgage or anyother disposal ofor dealingwithany share in a company,co-operative society or any entity owningagricultural land onbehalfofpersonswho have contributed to its purchase;
• (d)grant consent for the exercise of thepower ofsale by chargee undersection 97of theLandAct,2012 for agricultural land;
• (e)review any other dealings in land referred to it by the Chief Registrar;
• (f)resolve any dispute over general boundarieswithin their jurisdiction;
• (g)settle any land dispute referred to it by willing parties pursuant to Article 60(1)(g)and Article 159(2)(c)oftheConstitution;
• (h) handle any matter referred to the Committee in pursuance of section 20 of the Environment and
• Land CourtAct,2012;
• (i) undertake fact-finding and evidence-gathering in matters covered under the,Law of Succession Act, the Environment and Land Court Act,2011,the Land Registration Act,2012,the National Land Commission Act,2012 and the Land Act,2012 uponrequestofpartiesor the courts.

Remuneration.

Functions ofa

landcontrol committee.

No.6 of2012.

No.19of2011.

Cap.160.

No.19 of2011.

No.3of20212.

No.5of2012

No.6of2012

PARTII-CONTROL OF DEALINGSIN AGRICULTURALLAND

• 10.(1) Unless with the express consent of a land
• control committee under this Act,any transaction affecting agricultural landsituatedwithin a land control area shall be void.
• (2) This section does not apply to-
• (a) the transmission of land by virtue of the will or intestacy of a deceased person,unless that transmission would resuit in the division of the land into two or more parcels to be held under separate titles:or
• (b)a transaction to which the Government or the
• SettlementFund Trusteesor a county is a party.

11. (1) A party to a controlled transaction may apply

• to theirrespectiveland control committeefor thegrantof consent in the prescribed form within six months of the making of the agreementfor the controlled transaction.
• (2) Despite subsection (1) the Environment and Land Court may extend the period for making an application where it considers that there is sufficient reason so to do, upon such conditions as it may thinkfit.
• (3)An application under this section shall be
• accompaniedwith-
• (a)a copy of the agreement of the controlled transaction for which consent is sought;
• (b) a copy of the cadastral map of the land affected by the transaction;
• (c)a certified copy of the title documentof the land affected by the transaction;
• (d)spousal consent to the transaction;
• (e) details of the acreage of land held by each party within the geographical area under the jurisdiction of thecommittee;and
• (f)any other prescribed document.
• (4)The land control committee shall-

Transactions

affecting agrieultural land.

Reviewof transactions and grant of consent

• (a)maintain a register of all applications in the prescribed form,physically and electronically;and
• (b)avail theregister for inspection by themembers of the public subject to any prescribed fee upon application and any other condition thatmay be prescribed by the Cabinet Secretary through regulations.
• 12.(1) The secretary of a land control committee shall publish,at least fourteen days before the date of a review
• hearing,a list ofall applications-
• (a)at the office of the Chief Land Registrar;
• (b) at the constituency office of the area member of
• Parliament:
• (c)at each chief's office within the constituency;and
• (d) on the sub-county website.
• (2)Any member of the publicmay file an objection to an application before the land control committee in the prescribedform.
• before a land controlcommitteeand any interested party may attend a review hearing inperson or be represented by an advocate.
• (4) A land control committee may require any other party with information that may assist its fair determination ofan application to appear and produce documents before it,after giving the person at least forty-eight hours'notice.
• (5)A land control committee may,after givingat least twenty-four hoursnotice,enter upon and inspect any land in the exercise ofitsfunctionsunder this Act.
• (6)A land controlcommittee shallhearand determine an application under this Act within thirty days of its
• receipt of the application.
• (7) A person who willfully refuses or neglects to appear before a landcontrol committee commits an offence and shall be liable,upon conviction,toa fine not exceeding onehundred thousandshillingsorimprisonmentfora term not exceeding sixmonths,or toboth.

Notice and attendance to review hearings

• 13.(1) In reviewing an application under this Act,a land control committeeshall consider-
• (a) the authenticity of the documents lodged together with the application;
• (b)existing interests of spouses,children,siblings or affected parties;and
• (c)the prescribed minimum and maximum land holding acreages in respect of private land in the geographical area within its jurisdiction.
• (2) In deciding whether to grant or refuse consent in respect ofa controlled transaction,a landcontrol committee
• shall-
• (a)haveregard to the effectwhich the grant orrefusal of consent is likely to have on the economic development of the land concerned or on the maintenance orimprovementofstandardsofgood husbandrywithin theland control area;
• (b) act on the principle that consent ought generally to berefusedwhere-
• (i) the person to whom the land is to be disposed of-
• (a)isunlikely to farm the landwell or to develop it adequately:or
• (b) is unlikely to be able to use the land profitably for the intended purpose owing to its nature;or
• (c)alreadyhas sufficient agricultural land;or
• (ii)the person to whom the share is to be
• disposed of-
• (a) already has sufficient shares in a private company or co-operative society owning agricultural land;
• or
• (b)would,by acquiring the share,be likely to bring about the transfer of thecontrol of the company or societyfrom oneperson to another and the transfer would belikely tolower the standardsofgood husbandry on the land;or

Grant or refusal of consent.

• (iii)thedisposingparty willbeleftwith
• inadequate land for housing,subsistence, undertaking cultural activities such as burial and prayers;
• (iv) thetransactionislikely torender the remaining portion of the land incapable of providing housing and livelihood to the spouses,siblings or children residing on the land;
• the terms and conditions of the transaction, including the price to bepaid,are markedly unfair or disadvantageous to one of the parties to the transaction;or
• (vi) the purchase price does not accord with the value of theland calculated on thebasisofa land value index developed under section 107AoftheLandAct,2012.
• (vii)inthecaseofthedivisionof land into two or more parcels,the division would be likely to reduce theproductivity of theland;
• (c)refuse consent in any case in which the land or share is tobe disposed ofby wayofsale,transfer, lease,exchange or partition to a person who is not-
• a citizen of Kenya;or
• (ii) a private company or co-operative society all ofwhosemembersare citizensofKenya:or
• group representatives incorporated under the Cap.287 Land(Group Representatives) Act;or
• a state corporation within themeaning of the Cap.446.
• (iv)
• State Corporation Act.
• (3)Upon conclusion of is review,a land control committee shall read a decision signed by its chairperson, secretary and one other designated member at an open forum in thepresenceof theparties to thetransaction.
• (4)The committee shall avail the written and signed Registrar and the Registrar of the Environment and Land
• decision to the parties and remit copies to the Chief Court.

No.6of2012

• (5)A person aggrieved by the decision of a land control committee may lodge an appeal with the Land Control Appeal Committee within thirty days of the decision
• (6) Where an application for the consent of a land control committee has been refused,then the agreement for a controlled transaction shall become void unless appealed within theprescribed timelines.
• 14.(1) Any money or other valuable consideration
• paid in the course ofa controlled transaction thatbecomes voidunder this Act shall berecoverableasa debt by the personwhopaid it from theperson towhom itwaspaid.
• (2) A person shall not pay or receive any money or enter into or remain in possession of any land in furtheranceofavoided controlled transaction.
• (3) A person who knowingly contravenes subsection (2) commits an offence and shall,upon conviction,be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months,or to both.
• 15.(1) The Cabinet Secretary shall,through a competitive process,appoint such Land Control Appeals Committees as may be necessary bynoticein the Gazette.
• (2)An appeal committee shall comprise-
• (a)a chairperson who shall be a person qualified to be appointed asa judge of theHigh Court;and
• (b) four other persons who must possess a degree from a university recognized in Kenya and have knowledge and expertise inmattersrelating to land management,law,community service,dispute resolution or physical planning.
• (3)An appeal committee shall hear and determine an appeal within thirty days of its lodging.
• (4) The Cabinet Secretary may make rules governing s
• committee.

PARTIV-MISCELLANEOUS

• 16.Any person who knowingly makes any false statement in an application or appeal under this Act,or who

Recovery of consideration for a void transaction.

Appointment of

appeal committees.

False statements.

knowingly gives any false information to any person in

connection with the determination of an application or appeal under this Act commits an offence and shall be liable,upon conviction,to a fine not exceeding one hundred thousand shillings or to imprisonment fora term not exceeding sixmonths,or to both.

17. The Cabinet Secretary may, by notice in the Gazette,prohibit any controlled transaction or any class of controlled transaction.

Prohibition of land transactions.

• 18.The Cabinet Secretary may,by notice in the Exemptions Gazette,exempt-
• (a)any land or share,or any classof land or share;or
• (b) any controlled transaction,or any class of controlled transaction;or
• (c)any person in respect of controlled transactions or some class of controlled transaction,

from all or any of the provisions of this Act on such conditions as he or she may thinkfit to impose.

PARTV-PROVISIONSONDELEGATEDPOWERS

• 19.(l) The Cabinet Secretary may make regulations for prescribing anything which may be prescribed under this Act,and generally for carrying into effect the purposes and provisions of this Act.
• (2) Without prejudice to the generality of subsection (1).regulations may prescribe-
• (a) the forms to be used and the fees to be paid for
• things to be done under this Act;
• (b) the procedure for the making of applications and appeals under this Act,and the particulars and
• material to befurnished;
• (c) the convening of and procedure at meetings of a
• land controlcommittee;
• (d) the convening of and procedure at meetings of an
• appeals committee;and
• (e) the manner of conducting surveys and studies to ascertain theminimum andmaximum land holding
• acreages in respect of private agricultural land;

Regulations.

• (3)Forthe purposesof Article94(6)of the
• Constitution-
• (a) the purpose and objective of delegation under this section is to enable the CabinetSecretary to make regulations to provide for the better carrying into effect of the provisions of this Act and to enable theland control committeesandappeals committees to discharge their functions more effectively;
• (b) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and to fulfil the objectives specified under this section;
• (c) the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provisions Act and theStatutory InstrumentsAct,2013.

PARTVITRANSITION,SAVINGAND REPEAL

• 20.(1) The Cabinet Secretary shall,as far as it is practicable,appoint members of the land control boards existingbefore the commencementof this Act asmembers oftheland control committeesestablished underthisAct.
• (2) Any consent or direction given under the Land Control Actbefore the commencement of this Act shall be deemed as a consent or direction given under this Act.
• (3) Any application for consent made under the Land ControlActwhich immediately before the commencement ofthis Acthasnotbeen finally determinedunder that Act shall be deemed to be an application dulymade under this Act,and it shall be forwarded by the person in whose possession it is to the appropriate land control committee for determination in accordancewith thisAct.
• 21.The Land Control Act isrepealed

Cap.2

No.23of2013.

Transition and saving.

Cap.302.

Cap.302

Repeal of Cap. 302.

MEMORANDUMOFOBJECTSANDREASONS

Statement of objects and reasons for the Bill

The principal object of this Bill is to repeal and replace the Land Control Act,Cap.302 to align the law governing dealings in agricultural land with the provisions of the Constitution of Kenya 20io,the Environment and Land Court Act,2011,theLand Registration Act,2012

and theLand Act,2012.

The Bill proposes the establishment of Land Control Committees in each constituency to replace the current Land Control Boards.The land control committees aretocomprisepersonsdrawnfromwithin thelocality they serve who are conversant with the traditions,customs,and way of life of the community in the area.This will enable each proposed transaction to be reviewed soberly with a view of ensuring proper utilization of agricultural land for the benefit of all.It is additionally proposed that the land control committees develop theuse of alternative dispute resolution mechanisms in their operations and that they undertake evidence-gathering and fact-finding on the request of parties or the courts in matters relating toland and land use

The Bill further proposes the establishment of Land Control Appeals

Committees to handle any appeals emanating from the land control committees.

PART I(Clause1-3) of the Bill containspreliminary provisions.

PART II (Clause 4-9) of the Bill contains provisions establishing

and capacitating Land Control Committees in each constituency.

PART IHI (Clause 10-15)of the Bill contains provisions outlining the transactions that are subject to review and the considerations to be

madebyland control committees before the grantorrefusal of consent.

PART IV (Clause 16-18) of the Bill contains miscellaneous provisions,

PART V (Clause 19) of the Bill contains provisions granting the

CabinetSecretaryfor landspowers tomake subsidiarylegislation.

PART VI(Clause 20-21) of the Bill contains transitional,saving and repeal provisions.

Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms

This Bill delegates legislative power to the Cabinet Secretary responsible for land to make regulations for the carrying into effect of its provisions.The Bill does not limit any fundamental rights or freedoms.

Statement as to whether the Bill is a money Bill within the meaning of Article 114 of the Constitution

The enactment of this Bill shall occasion additional expenditure of publicfunds.

Dated the21st July.2023

WILBERFORCEOUNDO, MemberofParliament.