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Your Utafiti Housing coop brief Q1

This brief talks about land tenure system in Kenya and is copied Verbatim from National land Commission (NLC) site.


Most people seeking land for development end up with unsuitable ones for the projects they had in mind simply because they did not understand the various categories of land and the tenure system applied in Kenya. Understanding types of land ownership is of paramount importance especially when it comes to purchasing land.

Land tenure is the act, right or period of holding land. There are two types of land tenure system in Kenya:

a)            Freehold: It is the greatest interest a person can have on land as it gives the holder absolute ownership of the land for life. This means descendants can succeed the owner for as long as the family lineage exists. A freehold title deed generally has no restrictions as to the use or occupation. However, there are conditional freeholds, which restrict the use of the land, for instance, for agricultural purposes or ranching only. A freehold interest is also known as fee sample or absolute proprietorship.

b)            Leasehold: This is the interest in land for a specific period subject to payment of a fee or rent to the grantor. Payment of rates is made to the respective county governments for services rendered. Leases are granted by the Government for public land, local authority for trust land and individuals with freeholds. The maximum term of government leases is 99 years.

A leaseholder can also apply for a renewal or extension of the lease more particularly if he or she wants to re-develop the property and the lease period is about to expire or the remaining period is not enough to recoup the investments.


This is a signed plan by the Director of Surveys showing the precise particulars of a surveyed piece of land. It shows the details such as the shape of the plot, the distances and bearings all-round the plot, scale of plotting, Deed plan number, land reference number, size of the plot in hectares, signature of the Director of Surveys, the date of authentication by the Director of Surveys and above all, it shows if the plot is a New Grant or an extension of lease. This in practice is under the provisions of Registration of Titles Act (RTA). The Deed Plan once duly prepared is attached to a certificate defining the current owner and any endorsements by the relevant Registrar in the event the property has changed hands or there are encumbrances therein whatsoever relating to the plot.


The word Caveat means warning or proviso (something said as a warning, caution, or qualification). The lodging of a caveat over a property is a way telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority.


A Caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.


a) Notice and effect of Caution

The registrar shall give notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.

b) Withdrawal/removal of the Caution

        I.            A caution can be removed by the person lodging the same, or by order or the court, or by the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.

      II.            The registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.

c) Second Caution in respect to the same matter

The registrar may refuse to accept a further caution by the same person or anyone on his behalf in relation to the same matter as a previous caution.

d) Wrongful Caution

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damaged at the suit of any person who has sustained damage, to pay compensation to such person.


Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registrable instrument, e.g. a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.


A lease is an interest in land for a specific period of time and subject to payment of rent. Likewise, there are also restrictions or conditions imposed by the lessor (land lord) to the lessee (tenant) on what he/she can do with the land. For example, in the question above the person holding the 99-year lease is the lessee while the government is the lessor/land lord.

In Kenya the government grants leases for land especially in urban areas so as to safeguard community interests and to have direct control of the use and development of land. Examples of government lease terms are 33- and 66-year leases for the former trust land areas – now Community Lands or native reserves in the colonial period. Such towns included Kapsabet, Kakamega, Mariakani, Embu and Kisii among others.

In this case one could be given a 33-year term and on expiry of the same they would get an additional 66 years to make a total of 99 years. However, this was on conditions that they fulfilled the conditions in the lease in terms of developments and payment of statutory fees like annual rent and rates.

The 99-year leases were granted on the former government land (crown land) and examples included towns like Nairobi, Mombasa, Eldoret, Kericho, Nyahururu and Nyeri among others. For such land the government grants a 50-year term on expiry of the 99-year term. However, a 99-year extension can be granted if the lessee proves that they will completely re-develop the land by putting up a new approved structure on the land.

The 999-year leases were granted by the former colonial government for agricultural farms in government land areas (crown land). Such farms are found in Nairobi and Rift Valley in what was famously known as the White Highlands. The 999-year leases being held by the former colonial farmers were transferred to the Africans who bought or were allocated the farms.

However, Sessional Paper No. 3 of 2009 on the National Land Policy recommends leases of not more than 99 years and consequently all such leases are converted by the government to 99 years with effect from 1st September 2010 after the promulgation of the constitution, 2010. The Land Policy 2009 is a vital document for anyone interested in land to read through.


A Lease extension is granted by the government through the National Land Commission (NLC) when the lessee applies for an extension of term before the existing term has expired.

A good example is the question above where the lease term of 99 years with effect from 1st January, 1920 still has 4 years before it expires. In this case if the lessee applies for an extension they will be granted an additional 50 years but from the date of approval and not in 2019 when the lease will expire. The advantage for the lessee in this case is that extension is granted while the land still belongs to him/her


Renewal of lease is granted by the government through the NLC when the lessee applies for an extension of term after the existing term has expired. For example, in the above case if the lessee applies for an extension after 1st January 2019 at the time when his lease expires then he will be granted a renewal of lease through re-allocation. An allotment letter is issued granting the person the land with conditions. In renewal of the lease, since the lease term has expired the land reverts to the lessor who could be either the national or county government. The lessor consequently will re-allocate to the lessee if they meet all the conditions of the previous lease and the land is not required for a public purpose. The new term is given with effect from the date of expiry of the old term.


When one needs to extend or renew a land lease an application is first lodged at the relevant County Government office within which the land is located. This means that the County Land Management Boards (CLMB) of the NLC will play a vital role. Before the same is approved the application is considered by the sections dealing with public health, roads, rates, water and sewerage among others.

The departments of Survey and Physical Planning in the National government are also consulted before the approval is granted by the County Land Management Boards, now operational in 44 Counties.

The NLC then implements the approval by preparing a new lease for the lessee. The new lease will bear the new extended term and an enhanced annual rent after re-valuation by a government valuer. Approval fees for renewal/extension of lease is KSh. 5000 paid by the lessee.

In cases of extension of lease the lessee will surrender the existing title and on payment of the required legal fees a new lease/title will be prepared in his/her favour. In cases of renewal of lease a letter of allotment is issued and on payment of the legal fees stipulated in the letter a new lease/title is prepared for the lessee. The new lease is then registered by the relevant Land Registry under the Ministry of Land, Housing and Urban Development.

It is advisable to apply for extension of lease before the term expires to avoid a scenario where property ownership hangs in limbo as in the case when the lease expires and thus reverts to the lessor until that time when the lessor will approve the renewal of lease.

Likewise, the lessee must always read and implement conditions stipulated in the lease to ensure compliance and reduce chances of denial of extension/renewal of lease due to breach of contract.

Statutory fees like annual rent and rates should always be paid on time to avoid penalties and comply with set conditions. Remember the lessor reserves the right to grant an extension/renewal of lease and compliance to conditions imposed by the lessor enhances chances of the extension/renewal of term.

In practice the government as a lessor has always been fair to lessees and extension/renewal is usually granted if conditions of the previous lease were adhered to and the land is not required for a public purpose.