The use of proprietary interests as a way of securing performance of obligations is a major part of financial transactions and the provision of security promotes economic growth by enabling access to finance. Given the importance of security to a country in achieving economic growth, it is important for a country to have modern laws governing the use of proprietary interests as protection against credit risk.
The promulgation of the Kenyan constitution in 2010 facilitated the repeal of old laws and the coming about of new proprietary and security laws. The Kenyan Parliament passed three bills into law in respect to real property on the 2nd day of May 2012, being the National Land Commission Act, the Land registration Act and the Land Act. These Acts repealed a number of statutes that had been in existence as far back as 1899. The Land Act gives effect to Article 68 (The Constitution of Kenya, 2010) which generally requires Parliament to revise, consolidate and rationalize the land laws in Kenya.
The aim of having these new laws was to create a sound investment climate that would provide sound legal and regulatory framework for enterprises and undertakings and improve access to key financial and infrastructure services.
We shall concentrate on the aforementioned laws and the registration of the various interests in property under the said regimes.
Table of Contents
1. Introduction
2. Registration in Kenya
2.1 Registration of real property
2.2 Registration of encumbrances
3. Registration of personal property
3.1 Registration of personal or movable property under the Movable Credit and Securities Act
3.2 Registration of movable security under the Companies Act
4. Analysis
5. Analysis on security interests
6. Registration in England
6.1 Real property
6.2 Registration of Personal Property
7. Analysis
Objectives and Research Focus
This work examines the legal frameworks governing the registration of real and personal property in Kenya following the promulgation of the 2010 Constitution, while providing a comparative analysis against the registration practices in the United Kingdom. The research explores how these new legislative regimes aim to improve the investment climate, enhance access to credit, and establish modern regulatory standards for proprietary interests.
- The impact of the Constitution of Kenya, 2010, on land and security laws.
- Procedures for registering real property and encumbrances in Kenya.
- Legislative changes regarding the registration of movable assets under the Movable Credit and Securities Act.
- Comparative analysis of registration systems and electronic conveyancing between Kenya and the UK.
- Challenges in implementation, including corruption, systemic delays, and the adoption of digital signatures.
Excerpt from the Book
Registration of real property
Real property in Kenya is commonly referred to as Land, which is defined in article 260 of the Constitution as the surface of the earth and the subsurface rock, any body of water on or under the surface, marine waters in the territorial sea and exclusive economic zone, natural resources completely contained on or under the surface and the airspace above the surface.
Land is the single most contentious issue and the genesis of this contention is very clearly traced from the colonial times to the present. The constitution and new land laws came about as a way of remedying injustices suffered at the hands of pre and post-independence governments. (Mbote, 2009)
The most common method of transfer of title is by sale of the property. Land identification is the first step in transfer of property transaction, and it is the duty of the buyer to have a full and detailed description of what he or she interested in. The description can range from the size of the land, the location, whether it is a free hold title or leasehold title, and many more. Also to be considered, is whether the buyer is a foreigner, a company or a Kenyan citizen. Upon the promulgation of the new constitution in August, 2010 a foreigner cannot buy nor own freehold title in land. Therefore, all the freehold interest in land held by a noncitizen automatically converted to a ninety nine year lease (Article 8(1), Constitution of Kenya).
Summary of Chapters
Introduction: Provides the context regarding the importance of proprietary interests for economic growth and the legal shifts following the 2010 Kenyan Constitution.
Registration in Kenya: Details the procedural requirements for transferring land titles and the specific process for registering charges as encumbrances.
Registration of personal property: Outlines the implementation of the Movable Credit and Securities Act and the specific registration obligations for companies under the Companies Act.
Analysis: Critically evaluates the Kenyan registration framework, highlighting the transition towards reform and remaining systemic challenges.
Analysis on security interests: Discusses the practical difficulties of the new movable property laws and the impact on financial institutions.
Registration in England: Explores the UK's advanced electronic conveyancing system and the registration of charges for companies.
Analysis: Compares the UK and Kenyan systems, concluding that while legal structures are maturing, effective enforcement remains obstructed by systemic issues.
Keywords
Property Registration, Constitution of Kenya 2010, Real Property, Personal Property, Movable Credit and Securities Act, Land Act, Charges, Mortgages, Electronic Conveyancing, Security Interests, Legal Reform, Companies Act, Digital Signatures, Collateral, Kenya, United Kingdom
Frequently Asked Questions
What is the primary focus of this research paper?
The paper focuses on the legal mechanisms for registering real and personal property in Kenya in the context of the 2010 Constitution, with a comparative analysis of the registration processes used in the United Kingdom.
What are the central themes of the work?
The central themes include property rights, the modernization of land laws, secured transactions, the electronic registration of assets, and the challenges of legal enforcement and administrative transparency.
What is the core objective of the study?
The objective is to analyze how new legislative acts, such as the Land Act and the Movable Credit and Securities Act, provide a framework for securing financial obligations and how they compare to the more digitized systems in the UK.
Which scientific methodology is employed?
The paper utilizes a comparative legal analysis, reviewing statutory provisions, case law, and contemporary reports to evaluate the efficiency of property registration regimes in Kenya and the UK.
What does the main body cover?
The main body covers the procedures for land transfers, the registration of charges and encumbrances, the role of the Movable Credit and Securities Act, and the practical application of electronic filings in both jurisdictions.
Which keywords characterize this work?
Key terms include Property Registration, Constitution of Kenya 2010, Security Interests, Electronic Conveyancing, and Collateral.
How does the registration of charges in Kenya differ from that of mortgages under the new constitutional order?
Mortgages, which were previously common, have been abolished in favor of 'charges,' which confer rights to lenders upon default rather than granting them an ownership interest in the property itself.
What is the significance of the Movable Credit and Securities Act for the Kenyan financial sector?
The Act aims to create a sound investment climate by facilitating the use of movable property as collateral, thereby increasing credit access for individuals and entities through a modernized electronic registry.
What main challenge does the author identify regarding the implementation of these laws in Kenya?
The author identifies that while the legal framework has improved, actual implementation is hindered by corruption, administrative delays, and the activities of cartels within the registry systems.
How does the UK system influence the author's perspective on Kenyan reforms?
The author uses the UK as a benchmark for electronic conveyancing and digital authenticity, demonstrating that although Kenya has adopted similar legislative goals, it lacks the full technical and institutional integration required for a similarly efficient system.
- Quote paper
- Joy Mutimba (Author), 2017, Registration of Real and Personal Property in Light of the Promulgation of the Constitution of Kenya, 2010, Munich, GRIN Verlag, https://www.grin.com/document/420578
