On 19 December 2016, the High Court declared as unconstitutional and void, the regulations and forms of title deeds promulgated in 2014 by the former Cabinet Secretary of the Ministry of Lands, Housing and Urban Development, (Hon. Charity Ngilu).

The High Court made this decision on the basis that the Cabinet Secretary did not consult and take into account the advice of the National Land Commission and had also not sought Parliamentary approval to the regulations and the forms of title that she promulgated.

However, in view of the implications of the decision, the court suspended the declaration of invalidity for twelve months from December 2016, in order to give the Cabinet Secretary for Lands time to comply with the law in developing new regulations which will contain the new forms of title and leases. 

The Cabinet Secretary gazetted the new regulations containing the new forms of title in November 2017 and laid the regulations before Parliament before the lapse of the twelve months period given by the court. (The time period given by the court lapsed in December 2017)

Parliament approval

At the time the new regulations and forms of title were laid before Parliament (early December 2017), Parliament had already gone for recess.  More importantly, due to the general elections which had been held towards the end of 2017, there were no committees of parliament, including the committee on delegated legislation which is mandated with the responsibility of scrutinizing subsidiary legislation, such as the new rules and regulations which include the new forms of title and leases.

For this reason, it was not possible for Parliament to approve the new rules and regulations which include the new forms of title and leases within the timeline given by the court (by 19 December 2017).

Court extension

Upon being moved by the Cabinet Secretary, the court has now extended the time within which Parliament is to approve the new rules and regulations, including new forms of title and leases, to 31 July 2018 (which is six months from the date of the ruling for extension of time). 

The ruling of the High Court can be accessed here.

In our view, we think this is sufficient time for the committee on delegated legislation to scrutinise the new rules and regulations and have them approved by Parliament.

Implications of the above decision

This means that, landowners seeking to undertake change of user or subdivisions that will require the issuance of new titles, would have to wait until Parliament approves the new forms of title, which we expect will be in the next couple of months.

For further assistance please contact Alex Njage, Partner – Head of Real Estate & Construction, Muthoni Runji, Partner Real Estate and Construction or your relationship partner at Bowmans Kenya.