The Land Act, 2012 defines transmission as the passing of land, a lease or a charge from one person to another by operation of law on death, insolvency or otherwise.
Transmission on the Death of a Joint Proprietor
Section 49 of the Land Act, 2012 and Section 60 of the Land Registration Act, 2012 create a provision that the Registrar shall, upon proof of the death of any of the joint tenants of any land, lease or charge, delete the name of the deceased tenant from the register by registering the death certificate.
Regulation 54 of the Land Registration (General) Regulations 2017 provides that the application for the removal of the name of a deceased joint proprietor from the register shall be set out in Form LRA 38 set in the Sixth Schedule. As highlighted above this application is supported by the original death certificate and a certified copy of death certificate of the deceased joint tenant(s). The Registrar shall thereafter note the death in the land register; retain the certified copy of the death certificate; and return the original death certificate to the person who lodged the notice.
Transmission on Death of a Sole Proprietor or Proprietor in Common
Section 50 of the Land Act, 2012 and Section 61 of the Land Registration Act, 2012 provide for the procedure to be followed on the death of a sole proprietor or proprietor in common.
Where a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of (……………………..) [deceased]” or “as administrator of the estate of (…………………………) [deceased]”, as the case may be.
Upon the production of a grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor the Registrar may, without requiring the personal representative to be registered, register by transmission—
- Any transfer by the personal representative; and
- Any surrender of a lease or discharge of a charge by the personal representative.
Transmission on Bankruptcy
Section 52 of the Land Act, 2012 and Section 63 of the Land Registration Act, 2012 provide for the procedure to be followed in transmission on bankruptcy. A trustee in bankruptcy is to produce to the Registrar of Lands a certified copy of the order of court adjudging a proprietor bankrupt, or directing that the estate of a deceased proprietor shall be administered according to the law of bankruptcy. Thereafter a copy of the order is to be filed with the Registrar; and the trustee in bankruptcy is to be then registered as the proprietor of any land, lease or charge of which the bankrupt or the deceased proprietor is proprietor, in place of the bankrupt or deceased proprietor.
An application by a trustee in bankruptcy to be registered as a proprietor of an interest in land under section 63 of the Land Registration Act is to be lodged in Form LRA 44 set out in the Sixth Schedule of the Land Registration (General) Regulations 2017 and is supported by-
- A copy of the order of the Court adjudging a proprietor bankrupt, duly certified by the Court Registrar.
- Transfer by a trustee in bankruptcy which shall be in Form LRA 45 set out in the Sixth Schedule.
TRANSMISSION UPON COMPANY’S LIQUIDATION
Section 53 of the Land Act, 2012 and 64 of the Land Registration Act, 2012 create the procedure to be followed in transmission upon a company’s liquidation. The procedure to be followed if a company is being wound up is as follows the liquidator is to produce to the Registrar a resolution or order appointing the liquidator; and satisfy the Registrar that they have complied with the Companies Act, Cap. 486 and the Registrar is to thereafter enter the appointment in respect of any land, lease or charge of which the company is registered as proprietor, and file the copy of the resolution or order.
It is important to note that an instrument executed by or on behalf of a company in liquidation delivered for registration after the appointment of the liquidator has been entered is to be sealed with the common seal of the company and attested to by the liquidator or, in the case of a company not required by law to have a common seal, shall be signed by the liquidator whose signature shall be verified in accordance with the relevant law.
Where a vesting order is made under section 240 of the Companies Act, the liquidator is to present the order and the Registrar registers the liquidator as proprietor of any land, lease or charge to which the order relates.
An application by a liquidator to be noted on the register under section 64 of the Land Act is lodged in Form LRA 46 set out in the Sixth Schedule of the Land Registration (General) Regulations 2017.
The application is supported by a copy of the vesting order, duly certified by the Court and a Statutory Declaration by the applicant in Form LRA 47 set out in the Sixth Schedule confirming compliance with the requirements under the Companies Act, 2015 if the company is incorporated in Kenya. In the case of a foreign company the application is to be accompanied by a copy of a resolution duly certified by a company secretary or a notary public, appointing the liquidator.
A transfer by a liquidator shall be in Form LRA 48 set out in the Sixth Schedule.
Land Act, 2012
Land Registration Act, 2012
Land Registration (General) Regulations 2017.