REPUBLIC OF KENYA

MINISTRY OF LANDS, PUBLIC WORKS, HOUSING AND URBAN DEVELOPMENT

REGULATORY IMPACT ASSESSMENT ON LAND LAWS (AMENDMENT) REGULATIONS

OCTOBER 2023

This Regulatory Impact Assessment (RIA) has been prepared by

the Ministry of Lands, Public Works, Housing and Urban
Development pursuant to section 6 and 7 ofthe Statutory
Instruments Act (No. 23 of 2013)

Catalog
1. INTRODUCTION .......................................................................................................................................................... 3

1.1 : Regulatory-Making Authority and the Legal Mandate............................................................................ 3

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 1.2 : Requirements of the Statutory Instruments Act ..................................................................................... 3

1.3 : What is a Regulatory Impact Statement? ................................................................................................. 4

2. CONTEXT AND BACKGROUND ................................................................................................................................... 5

2.1 Post 2010 Land Reforms in Kenya................................................................................................................... 5

2.2 The concept of Peppercorn/Ground Rent............................................................................................... 7

3. STATEMENT OF THE OBJECTIVES AND REASONS .................................................................................................. 8

The Land Act, 2012 ......................................................................................................................................... 8

Registration of Documents Act ...................................................................................................................... 9

The Land Control Act ...................................................................................................................................... 9

3. POLICY AND LEGAL FRAMEWORK.......................................................................................................................... 19

4. STAKEHOLDERS IDENTIFICATION AND PUBLIC PARTICIPATION...................................................................... 20

4.1 Public Participation in Regulation Making.................................................................................................... 20

4.2 Parameters of Meaningful Public Participation............................................................................................ 20

4.3 Steps in Organizing Public Participation ....................................................................................................... 21

4.4 Stakeholders identification and clustering ................................................................................................... 21

Initial consultations and development of Drafts ........................................................................................ 21

Targeted Stakeholders .................................................................................................................................. 22

Consultation with technical Institutions ..................................................................................................... 22

Public meetings and County consultations ................................................................................................. 22

Approach and methodologies ...................................................................................................................... 24

5. REGULATORY AND NON-REGULATORY OPTIONS AND REASONS WHY OTHER OPTIONS ARE NOT
APPROPRIATE ............................................................................................................................................................... 24

5.1 Option 1 : Status Quo/ Do Nothing Option and Impact Analysis ................................................................ 24

Option 2: Regulatory Option and Impacy Analysis ............................................................................................ 25

6. THE EFFECT OF THE PROPOSED REGULATIONS ON KEY COMPONENTS OF THE SOCIETY ......................... 25

7. COST BENEFIT ANALYSIS ..................................................................................................................................... 26

Context ................................................................................................................................................................... 26

Costs Associated With the Regulations ............................................................................................................... 26

Benefits Associated With the Regulations .......................................................................................................... 27

7. CONCLUSION AND RECOMMENDATION............................................................................................................. 27

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 Recommendation .................................................................................................................................................. 27

Draft Copy Of the Statutory Instrument .............................................................................................................. 27

1. INTRODUCTION

1.1 : Regulatory-Making Authority and the Legal Mandate

The Cabinet Secretary responsible for lands is conferred the power to make Regulations under the
following provisions of the Law:
(a) Section 160 of the Land Act, 2012;
(b) Section 110 of the Land Registration Act, 2012;
(c) Section 35 of the Land Adjudication Act (Cap 284);
(d) Section 25 of the Land Control Act (Cap 302);
(e) Section 59 of the Sectional Properties Act, 2020;
(f) Section 45 of the Survey Act (Cap 299);
(g) Section 25 of the Valuers Act (Cap 532); and
(h) Section 90 of the Physical Planning and Land Use Act, 2019.
It is in exercise of the above powers, the Cabinet Secretary proposes to review some of the old
archaic and obsolete Regulations touching on administration and management of different
categories of land in Kenya. The review of the Regulations is also informed by broader policy
considerations contained in the Draft Land Laws (Amendment) Bill, 2023. The Regulations include
the following:
1) Amendment of the Land Registration (General) Regulations 2017;
2) Amendment of the Valuers (Forms and Fees) Rules 1987 [L.N. 33/1987, L.N. 300/1995,
L.N. 92/2011.]
3) Amendment of the Land Control Regulations, 1968;
4) Amendment of the Land Regulations, 2017;
5) Amendment of the Community Land Regulations, 2017;
6) Amendment of the Land Adjudication Regulations, 1970;
7) Amendment of the Physical and Land Use Planning (Planning Fees) Regulations, 2021;
and
8) Amendment of the Survey Regulations, 1994.
9) Amendment of The Survey (Electronic Cadastre Transactions) Regulations, 2021

1.2 : Requirements of the Statutory Instruments Act

The Statutory Instruments Act, No. 23 of 2013 (SIA) is the legal framework governing the conduct
of RIA in Kenya. Sections 6 and 7 require that if a proposed statutory instrument is likely to impose

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significant costs on the community or a part of the community, the regulation-making authority
shall, prior to making the statutory instrument, prepare a regulatory impact statement about the
instrument. The Act further sets out certain key elements that must be contained in the RIA
namely:
(a) a statement of the objectives of the proposed legislation and the reasons;
(b) a statement explaining the effect of the proposed legislation;
(c) a statement of other practicable means of achieving those objectives, including other
regulatory as well as non-regulatory options;
(d) an assessment of the costs and benefits of the proposed statutory rule and of any other
practicable means of achieving the same objectives; and
(e) the reasons why the other means are not appropriate.

Section 5 of the Act requires that a regulation-making authority to conduct public consultations
drawing on theknowledge of persons having expertise in fields relevant to the proposed statutory
instrument and ensuring that persons likely to be affected by the proposed statutory instrument
are given an adequate opportunity to comment on its proposed content.

1.3 : What is a Regulatory Impact Statement?

RIA is a systematic policy tool used to examine and measure the likely benefits, costs and effects
of new or existing regulation. A RIA is an analytical report to assist decision makers. As an aid
to decision making RIA includes an evaluation of possible alternative regulatory and non-
regulatory approaches with the overall aimof ensuring that the final selected regulatory approach
provides the greatest net public benefit.
RIA is usually conducted before a new government regulation is introduced to provide a detailed
and systematic appraisal of the potential impact of a new regulation in order to assess whether
the regulation is likely to achieve the desired objectives. RIA promotes evidence-based policy-
making as new regulations typically lead tonumerous impacts that are often difficult to foresee.
From a societal viewpoint, RIA should confirm whether or not a proposed regulation is welfare-
enhancing in that, the benefits outweigh the costs. RIA therefore has objectives of improving
understanding of the real- world impact of regulatory action, including both the benefits and the
costs of action, integrating multiple policy objectives, improving transparency and enhancing
governmental accountability.

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2. CONTEXT AND BACKGROUND

2.1 Post 2010 Land Reforms in Kenya

Prior to the promulgation of the Constitution of Kenya, 2010 Kenya had more five land
registration systems namely; the Registered Land Act (RLA), the Registration of Titles Act
(RTA), the Indian Transfer of Property Act,1889, the Land Titles Act (LTA), Registration of
Documents Act (RDA) and the Government Lands Act (GLA). The Constitution of Kenya 2010
categorized all land in Kenya to three categories namely public, private and community land.

The Constitution also required Parliament to revise, consolidate and rationalize existing land
laws, revise sectoral land use laws in accordance with the principles set out in Article 60 (1);
and enact legislation:

a) to prescribe minimum and maximum land holding acreages in respect of private land;

b) to regulate the manner in which any land may be converted from one category to
another;

c) to regulate the recognition and protection of matrimonial property and in particular the
matrimonial home during and on the termination of marriage;

d) to protect, conserve and provide access to all public land;

e) to enable the review of all grants or dispositions of public land to establish their
propriety or legality;

f) to protect the dependants of deceased persons holding interests in any land, including
the interests of spouses in actual occupation of land; and

g) to provide for any other matter necessary to give effect to the provisions of the Chapter.

Pursuant to the above constitutional requirement, Parliament enacted among other laws, the
Lands Act, 2012 and the Land Registration Act, 2012. These two laws repealed and replaced
the following statutes:

a) The Government Lands Act, (Cap 280);

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b) The Registration of Titles Act (Cap 281);

c) The Land Titles Act (Cap 282);

d) The Registered Land Act (Cap 300);

e) The Wayleaves Act (Cap 292); and

f) The Land Acquisition Act (Cap. 295).

g) the Indian Transfer of Property Act,1889

2.2 Statement of the Problem

When the above statutes were repealed in 2012, the Subsidiary legislations issued under
them remained in force and have been implemented to-date. This was done pursuant to the
provisions of section 24 of the Interpretation and General Provisions Act (Cap 2) which
provides that where an Act is repealed, subsidiary legislation issued under it shall, unless a
contrary intention appears, remain in force, so far as it is not inconsistent with the repealing
Act, until it has been revoked or repealed by subsidiary legislation issued or made under the
provisions of the repealing Act. Given the fact that these Regulations had been issued long
before the parent Acts were repealed, and the fact that land transactions have been
transforming from manual to electronic, the Regulations have become archaic and obsolete.

Among the noticeable deficiencies in these Regulations include:

a) Existence of regulatory gaps where many processes, fees and charges are not provided
for;

b) Inequities in administration and management of non-tax revenue relating to land rent;

c) Unresponsive administrative processes and procedures which remain unresponsive to

the modern societal demands informed by dynamic lifestyles and socioeconomic and
political factors;

d) These Regulations were promulgated during an era of different policy priorities. The
society has since been transformed and the laws must be reviewed to reflect the
socioeconomic and political requirements.

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e) Unsustainable levels of revenue collection which in turn compromises efficiency and

quality of service. Leaseholders are charged peppercorn rent which can be as low as Ksh
13. Freeholders of land in prime places like Nairobi CBD, upper hill, Karen, Muthaiga,
Runda, Kitsuru Lavington among others do not pay rent while leaseholders in less prime
areas of the city such as Kayole, Umoja, Dandora etc are charged rent. This inequity is of
monumental proportions.

2.2 The concept of Peppercorn/Ground Rent

Section 8 of the Sixth Schedule to the Constitution recognizes the application of peppercorn
rent in Kenya. This was after the Constitution converted the freehold interest to 99-year
leases for land held by persons who are not citizens, and reverted them to the people of
Kenya, to be granted to the foreigners at a peppercorn rent. The term “peppercorn rent” is
defined as “a low or minimal rent”. However, what is considered low or minimal can vary
greatly1.

In the UK for instance peppercorn rent/ground rent varies depending on the type of property
and its location, but on average, owners of leasehold properties pay anywhere between £300
and £700 ground rent per year (though there are situations where ground rent can exceed
£1m).

Freehold ownership of land means that the land belongs to the freeholder. Owing to our
colonial history and multiplicity of property registration systems, some parcels are
registered as leasehold and others as freehold.

Ground rents can be set for the entire term of a lease, but some modern leases include
escalating ground rentals. These enable the freeholder to raise the rent paid by a certain
amount and at a specific time frame, usually in line with inflation.

1
The Oxford English Dictionary

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3. STATEMENT OF THE OBJECTIVES AND REASONS

The overall objective of the proposed legislative proposals is to review relevant legal
provisions relating to non-tax revenue generating instruments under the relevant land laws
to mobilize resources towards budget support. This is intended to give full effect to the
proposed Land Laws (Amendment) Bill, 2023.

The specific objectives to review Regulations under—

a) The Land Act, 2012-Review of rent payable for leasehold land and freehold land.
b) The Land Registration Act, 2012-Introduce Schedule of revised fees and charges.
c) The Community Land Act, 2016- introduce a schedule on fees of revised fees and
charges
d) The Land Adjudication Act, Cap 284- introduce a schedule on fees of revised fees and
charges
e) ;The Physical and Land Use Planning Act, 2019-amend the Physical and Land Use
Planning (Planning Fees) (Amendment) Regulations, 2021
f) ;
g) The Survey Act, Cap 299- introduce a schedule on fees of revised fees and charges
h) ;
i) The Valuers Act, Cap 532- introduce a schedule on fees of revised fees and charges
j) ;
k) Registration of Documents Act, Cap 285- introduce a schedule on fees of revised fees
and charges
l) ;
The Sectional Properties Act, 2020- introduce a schedule on fees of revised fees and charges

3. Salient Features of the Land Laws (Amendment) Bill, 2023

The Land Act, 2012

The proposed amendments under the Land Act include the following:

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a) giving clarity to the meaning of the term allocation of public land and the respective
roles played by the National and County government as opposed to the National Land
Commission;
b) separation of the roles of renewal and extension of leases and respectively assigning
them to the National Land Commission and the Cabinet Secretary.
c) providing for the periodic review of rent and valuation of land for rent after every ten
years to be in tandem with the current property values;
d) vest upon the Cabinet Secretary, the mandate of handling compulsory land
acquisition,
e) eliminating conflict of interest likely to occur when one entity is involved in valuation
process and at the same time making compensation payments and eliminate delay in
acquiring land since the acquiring public body has direct control in making
compensation payments as opposed to when funds were being transferred to the
Commission and establish the Land Acquisition Committee to replace of the Land
Acquisition Tribunal.
f) Introduction of a new provision to the effect a proprietor of freehold land situated
within a city or urban centre where one shall be required to pay annual land levy
equivalent to rent of a comparable leasehold land of the same size and locality.

Registration of Documents Act

Proposed amendments under this Act seek to:

a) decentralize land registries for registration of documents across the country as

opposed to when such services were only available in Nairobi and Mombasa, and
b) align the Registration of Documents Act to the constitutional principles.

The Land Control Act

Proposed amendments under this Act seek to:

a) reconstitute and align land control boards according to the Constitution of Kenya,
2010 new governance structure and

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b) enable granting consents to transact in agricultural land within paradigms of Article

65 of the Constitution which allows non-citizens to own land on leasehold terms not
exceeding 99 years, as opposed to when their ownership could only be permitted by the
President.

The Land Registration Act, 2012

Proposed amendments under this Act seek to:

a) streamline registration of long term leases within the provisions of the Sectional
Properties Act, 2020 and
b) to widen the scope under which the registrar can revoke a title obtained through fraud
by the proprietor.

The Community Land Act, 2016

Proposed amendments under this Act seek to: allow the Cabinet Secretary to complete
pending adjudication programmes under the Land Adjudication Act beyond the 2 year
period permitted by the Community land Act.

The Sectional Properties Act, 2020

Proposed amendments under this Act seek to:

a) widen the scope of the Sectional Properties Act to include phased developments
b) introduce a second tier corporation known as Umbrella Corporation to deal with
management issues associated with a big or mixed use sectional development.

3. Analysis of the Land Regulations (Amendment) Regulations, 2023

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PROPOSED CHANGES TO THE LAND LAWS REGULATIONS

REGULATION SUBJECT JUSTIFICATION & PROJECTED
OUTCOME/IMPACT
Amendment of Regulation 97 of the Land Application for official search Review of obsolete and archaic
Registration (General) Regulations 2017 under section 34 of the Act (online regulations
and manual).
Make land administration and
Application for registration of management more efficient.
documents/instruments in the
Address Regulatory gaps by
prescribed forms and any other
providing for all services and
whose forms are not prescribed.
procedures
Application for incorporation of a
Harmonizing some fees especially
trust.
those unreasonably low/align to
Corporation certificate fees market rates
Notice of Change of Corporation Promoting efficiency and
Membership. technology, sustainability
Notice of Change of Corporation Promote value for money for
Board Membership. services rendered.
Public Notice on the Termination
of Sectional Status.
Application for Conversion of Sub-
Leases/Long-Term Leases.
Application for issuance of
certificate of title or certificate of
lease upon adjudication,
consolidation/ amalgamation,
allocation, subdivision, partition,
sectional plan, vesting order and
Transfer
On resubmission for registration of
any document previously rejected
because of an error thereon or for
failure to comply with any
prerequisite of registration (per
document rejected)

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Application for replacement of title

section 33(3) of the Act
For opening new registers
consequent upon a partition,
amalgamation or subdivision for
each resultant parcel
Application for reconstruction of
lost or destroyed land register
under section 33(5)
On application for rectification of
the register or change /correction
of name not occasioned by the land
registrar under section 79(1) & (3).
On application for the preparation
of a surrender of lease, discharge of
charge, release of easement,
release of profit or lease of
restrictive agreement, application
to server a joint proprietorship,
application for partition, notice of
revocation of power of attorney or
a caution
On application for the preparation
of any instrument not herein above
described
On application for approval of form
not provided in the prescribed
forms
On application for the preparation
of any instrument which in the
opinion of the Registrar requires
substantial additions to or
variations from the prescribed
form
Application for re-establishing a
missing boundary or

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ascertainment of a boundary in
dispute
Application for ascertaining and
fixing boundaries.
Placement of caution or restriction
other than restriction by the land
registrar or government entities.
For any formal proceeding or
hearing including Caution,
Removal of Caution, restriction,
double registration,
correction/Change of name
conducted by the registrar under
the Act

Application for certified copies of

the proceedings arising from the
determination of the Land
Registrar or Chief Land Registrar
On appeal to the Chief Land
Registrar from an order of the land
registrar
For attendance by any officer of the
registry at a place outside the
registration office for a day or part
thereof of the absence from the
registry and the expenses incurred
For attendance by any officer of the
registry at a place outside the
registration office for more than a
day of the absence from the
registry and the expenses incurred
Application for certified copies of
instruments

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Attestation of mutations/ sectional

plans (1-5 portions/units)
Attestation of mutations/ sectional
plans (6-10 portions/units)
Attestation of mutations/ sectional
plans (above 10 portions/units)
On making an application to
convert land from one category to
another
For attestation by the Registrar
under section 45 of the Act
For professional advice on any
registration matters by the Land
Registrar/ Chief Land Registrar
Amendment of the Valuers (Forms and Urban rating and agriculture Review of obsolete and archaic
Fees) Rules 1987 [L.N. 33/1987, L.N. Compulsory acquisition regulations. The Schedule was last
300/1995, L.N. 92/2011.] revised more than 10 years ago.
Rental
Plant machinery and automobile: Make land administration and
management more efficient.
Furniture, fittings, equipment,
Address Regulatory gaps by
trading stock and going concerns
providing for all services and
Minimum valuation fees: procedures
Harmonizing some fees especially
Consultancy: those unreasonably low/align to
market rates
Court attendance for a day or less
than a day Promoting efficiency and
technology, sustainability
Court attendance for more than a
day Promote value for money for
services rendered.
Provision of certified copies of data

Disbursement cost and expenses

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Amendment of the the Land Control Review of fees for approval on Facilitate Land Control Boards to
Regulations, 1968 change of user, approval on work more efficiently
subdivision, registration fee, Land
Control Board fee, Special Land
Control Board and Planning fee
Amendment of the Land Regulations 2017 Approval fee on sub division, Review of obsolete and archaic
partition, re-parcelation, regulations
combination and amalgamation.
Conveyancing fee on alienation/ Make land administration and
allocation/renewal, extension of management more efficient.
lease, change of user, extension of
Address Regulatory gaps by
user, sub division, partition, re-
providing for all services and
parcelation, combination and
amalgamation. procedures
Registration fee Harmonizing some fees especially
Application for Land control board those unreasonably low/align to
consent fee market rates
Application for Special Land
Control Board consent Promoting efficiency and
Planning fee technology, sustainability
Application for creation of a public
right of way (wayleave) Promote value for money for
Application for a public right of services rendered.
way (communal)
Application for approval of
transaction on controlled land by
ineligible person
For attendance by any officer at a
place outside the office for a day or
part thereof of the absence from
the office and the expenses
incurred
For attendance by any officer at a
place outside the office for more
than a day of the absence from the
office and the expenses incurred
Approval of sectional plans
Balloting fee on settlement
Settlement fee on low potential
Settlement fee on medium
potential
Settlement fee on high potential

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Conveyancing fee on settlement

scheme
Survey fee on settlement scheme
Amendment of the Community Land Application for recognition of Provide for regulatory gaps
Regulations 2017 interest/claim on community land,
Notification of change of
community land management
committee.
Updating the register of members,
Application for recognition of
adjudication of claims.
Application for customary right of
occupancy
Amendment of the Land Adjudication Filing case to the Land Make adjudication services more
Regulations, 1970 Adjudication committee efficient
Appeal to the Arbitration Board.
Objection to the Adjudication
Register.
Appeal to the Cabinet Secretary
against the decision of the
Adjudication Officer
Consent of land Adjudication
officer on staying of land suits
under section 30 (1) of the Act.
Appeal to the Cabinet Secretary
against the decision of the
Adjudication Officer under Section
30(1) of the Act.
Sale of sketch map/demarcation
maps
Letter for confirmation of
ownership of land under land
adjudication.
Sale of case proceedings per page.
Land Adjudication fees per hectare.
Amendment of the Physical and Land Use Consultancy Review of obsolete and archaic
Planning (Planning Fees) Regulations, services/Professional advise on regulations
2021 Physical Planning:
Make land administration and
For attendance by any officer of
management more efficient.
the National Physical Planning
Directorate at a place outside the
office for a day or part thereof of
the absence from the office and

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the expenses incurred. Address Regulatory gaps by

For attendance by any officer of providing for all services and
the National Physical Planning procedures
Directorate at a place outside the
office for more than a day of the Harmonizing some fees especially
absence from the office and the those unreasonably low/align to
expenses incurred market rates
For professional advice on Promoting efficiency and
physical planning matters to technology, sustainability
body corporate by a National
Physical Planning Promote value for money for
services rendered.
Amendment of the Survey Regulations, Land Survey and mapping Fees Review of obsolete and archaic
1994 regulations
Consultancy fees on land survey
and mapping matters. Make land administration and
management more efficient.
Application for Licensing fee
Address Regulatory gaps by
Approval of Geodetic controls
providing for all services and
including CORS and other Geo-
procedures
referencing Infrastructure per
annum Harmonizing some fees especially
those unreasonably low/align to
Geo-referencing of Land Parcels
market rates
15,000xH square root of area in
Hectares excluding expenses as Promoting efficiency and
per survey regulations schedule technology, sustainability
eight
Promote value for money for
Search fees services rendered.
Fixed boundary Survey
Geo-referencing and Survey of
sectional Unit
Processing and approval of
mutation surveys
Mutation Surveys per land
parcel(3000xH where H is square
root of area in Hectares)
Topographical surveys

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Evidence in court plus expenses

incurred as per prevailing policies
and approved by the authority
responsible for land survey and
mapping
Resolution of boundary dispute
plus expenses incurred as per
prevailing policies and approved
by the authority responsible for
land survey and mapping
Authentication of plan, diagram or
imagery extract
RIM amendments
Sale of maps (blue prints)
Sale of the National Atlas
Sale of mutation forms
Sale of assorted stationaries(file
folders, computations sheets,
cover note, parcel files, etc)
Sale of Topographical maps (SK
series, county, various scales topo
maps etc)
Sale of Nautical Charts
Sale of digital Geo-spatial data (e.g.
PDF, image, CAD, shape-file or
layers).
Approval for aerial Survey
Including Drone Mapping
(minimum fee)

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3. POLICY AND LEGAL FRAMEWORK

In May 2023, the World Bank Group approved a Development Policy Operation (DPO) for $1
billion to provide low-cost budget financing along with support to key policy and
institutional reforms for Kenya’s near-term objectives of fiscal consolidation as well as it’s
long-term goal of green and inclusive growth.

This framework is being undertaken in recognition of the resilience of Kenya’s economy as

demonstrated by the rebound from the COVID-19 pandemic in 2022 with real gross domestic
product (GDP) increasing by 6% year-on-year in the first half of 2022, driven by broad-based
increases in services and industry, although this recovery was dampened by global
commodity price shocks and the long regional drought, Kenya’s medium term growth
prospects remain positive with GDP projected to grow by 5.2% on average in 2023–24
notwithstanding current global and domestic shocks.

It is necessary to prioritize policy options to reduce fiscal deficit, respond to the rising cost
of living and climate change shocks. The DPO is supporting Kenya to institute a raft of policy
reforms across three pillars targeting the creation of fiscal space in a sustainable and
equitable manner, including revenue and expenditure measures to support fiscal
consolidation, strengthening the debt management framework, and protecting pro-poor
expenditures. The second set of reforms is targeted to improve competitiveness to boost
agricultural exports and a third wave of reforms to improve governance and financial
inclusion for private sector driven growth by strengthening the confidence of the private
sector in the government’s commitment to a level playing field. Each of the three pillars
contains actions among which the review of Kenya’s land laws to expand revenue collection
base is a priority activity.

rebound from the COVID-19 pandemic in 2022 with real gross domestic product (GDP)
increasing by 6% year-on-year in the first half of 2022, driven by broad-based increases in
services and industry, this recovery was dampened by global commodity price shocks and
the long regional drought. Nevertheless, Kenya’s medium term growth prospects remain
positive with GDP projected to grow by 5.2% on average in 2023–24 notwithstanding
current global and domestic shocks.
It is necessary to prioritize policy options to reduce fiscal deficit, respond to the rising cost
of living and climate change shocks. Many domestic resource mobilization efforts have
concentrated on boosting tax revenue and improving the administrative efficiency of tax
institutions; little systematic attention has gone to non-tax revenue collection.

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4. STAKEHOLDERS IDENTIFICATION AND PUBLIC PARTICIPATION

4.1 Public Participation in Regulation Making

Public participation is defined by the International Association for Public Participation as the
involvement of those affected by a decision in the decision-making process. In relation to
Regulation making, public participation is an interaction between the regulation-making
body and the public with an aim of making the proposed Regulations acceptable and better.
Public participation encompasses a range of public involvement, from informing people,
listening, dialogue, debate and analysis to implementation of the agreed solutions.
Public participation in Kenya’s legislative process is a fundamental constitutional
requirement under Articles 10, 118, 124, 201, 221, and 232 and the Statutory Instruments
Act. Participation in the legislative process is open to all members of the public, individually
or as legally recognized organized groups.

4.2 Parameters of Meaningful Public Participation

The parameters of meaningful public participation were outlined by the High Court of
Kenya in the Constitutional Petition No 168 of 2017 Khelef Khalifa & 2 others v
Independent Electoral and Boundaries Commission & another [2017] Eklr. The Court ruled
that public participation must meet the following test:

(a) There has to be evidence of inclusivity that is to say that all stakeholders or those
affected by an administrative policy, or law had to be given an opportunity to
express or ventilate their views well aware of what was at stake.
(b) The affected people have to be given sufficient notice of the nature of the
decision to be made and when the consultations will be held. The information
has to be disseminated through public barazas, churches, mosques, print and
electronic media and other avenues to ensure that the information reached the
targeted audience.
(c) The government agency or a public officer in charge of the programme of public
participation has to of essence take into account the participation of the governed
in quantitative as well as qualitative way. In other words, the engagement has
to be meaningful and done in good faith rather than a mere formality.
(d) Public participation calls for innovation and some level of malleability
depending on the nature of subject matter for example culture, geographical
issues, logistical constraints. The test to be applied is effectiveness and efficiency.
The question to be asked is, was the mechanism effective in achieving sufficient public
participation?.

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(e) Public participation does not mean that everyone has to give their views on the issue
at hand as to attain such a standard at times could be impractical. A public
participation exercise has to however show intentional inclusivity and
diversity. A programme of public participation cannot disregard bona fide
major stakeholders otherwise the program would be ineffective and illegal.
Those mostly affected by the policy are expected to have a bigger say in that policy,
legislation or action and their views have to be sought, taken into account. The view
of the major stakeholders has to be captured through minutes or any other proof that
shows that their views were captured and had a bearing in the final decision.
(f) Public participation is not a public relations exercise. It has to be meaningful and
done in good faith. (Highlights added for emphasis).

4.3 Steps in Organizing Public Participation

1. Creating awareness – placing advertisements in mainstream media. This helps in

generating awareness and increases citizen interest to participate and give views.
2. Involvement – identification of the key stakeholders or interested groups including
those directly affected and those that can offer solutions.
3. Contacting the public – communication to the stakeholders in writing and inviting
them for meetings and requesting submission of documents or memoranda.
4. Meetings – holding meetings to get views including field visits, where necessary.

4.4 Stakeholders identification and clustering

Initial consultations and development of Drafts

Inter-agency Task-force was appointed to develop the draft Land Laws (Amendment) Bill,
2023 and the Land Regulations Amendments. This team included senior officers from:
1) Ministry of Lands, Public Works, Housing and Urban Development
2) Office of the Attorney-General
3) Council Of Governors
4) The National Treasury
5) The National Land Commision
6) Kenya Law Reform Commission

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Targeted Stakeholders

The following stakeholders were identified:

1) Law Society of Kenya
2) Institution of Surveyors of Kenya
3) Kenya Institute of Planners
4) Valuers Registration Board
5) Kenya Property Developers Association
6) Kenya Bankers Association
7) Kenya Land Alliance
8) Council of Governors
9) County Governments-Department of lands
10) National Assembly Departmental Committee on Lands
11) Senate Committee on Land, Environment and natural Resources
12) National Assembly Judicial and Legal Affairs Committee
13) Committees on Delegated Legislation
14) The Public

Consultation with technical Institutions

Public meetings and County consultations

The Schedule of public meetings and county visits has been adopted as follows:
CLUSTER COUNTIES VENUE DATES AND
TIME
I Ministry of Lands, Public Works, Geospatial Data 7th Nov, 2023
Housing and Urban Development, Centre-survey of 9.00 AM
National Land Commission, Kenya
National Treasury, Council of
Governors (COG

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II Law Society of Kenya (LSK), Kenya Geospatial Data 17th Nov, 2023
Private Sector Alliance (KEPSA), centre, Survey of 9.30 AM
Kenya Property Developers Kenya
Association (KPDA) Real Estate
Agents Registration Board, Valuers
Registration Board)Kenya Bankers
Association (KBA), Institution of
Surveyors of Kenya (ISK) and
Kenya Institute of Planners (KIP)
III Nyamira, Kisii, Migori, Homa Bay Kisii 20th Nov. 2023
9.30 AM
Kisumu, Siaya, Vihiga Kisumu 21st Nov 2023
9.30 AM
Busia, Kakamega, Bungoma Kakamega 22nd Nov.
2023
9.30 AM
Uasin Gishu, Nandi, Trans Nzoia, Eldoret 23rd Nov. 2023
Elgeyo Marakwet, West Pokot, 9.30 AM
Turkana
IV Narok, Bomet, Kericho, Nakuru, Nakuru 20th Nov, 2023
Baringo 9.30 AM
Nyeri, Laikipia, Samburu, Nyeri 21stt Nov, 2023
Nyandarua, Kirinyaga, Murang’a 9.30 AM
Embu, Tharaka Nithi, Meru, Isiolo, Meru 22nd Nov,
Marsabit 2023
9.30 AM
Nairobi, Kajiado, Wajir, Mandera, Nairobi 23rd Nov, 2023
Kiambu 9.30 AM
V Kitui, Garissa, Makueni, Machakos Kitui 20th Nov, 2023
9.30 AM
Taita Taveta, Kwale, Mombasa, Malindi 22nd Nov, 2023
Kilifi Lamu, Tana River 9.30 AM
Malindi
VI Parliamentary, Committee on Naivasha 24th Nov, 2023
Budget, Parliamentary, Committee 9.30 AM
on land, Parliamentary Committee
on Delegated Legislation, Senate
Committee on Budget, Senate
Committee on land, Senate

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Committee on Delegated
Legislation

Approach and methodologies

The following approaches and methodologies were applied during the stakeholder
consultation process:
1) Physical meetings
2) Letters
3) Virtual Meetings
4) Emails
5) Publishing in local dailies
6) Gazette Notice

5. REGULATORY AND NON-REGULATORY OPTIONS AND REASONS WHY OTHER

OPTIONS ARE NOT APPROPRIATE

5.1 Option 1 : Status Quo/ Do Nothing Option and Impact Analysis

Option 1: Status Quo/Do nothing option Impact

Continued application of old and obsolete Obsolete and archaic regulations
regulatory instruments compromise quality and efficiency
Prejudiced land administration and
management frameworks
Continued existence of Regulatory gaps for
all services and procedures
Inequities in application of fees
Difficulties in leveraging services on
technology,
Sustainable processes and procedures
No value for money for services rendered.

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Option 2: Regulatory Option and Impact Analysis

Option 1: Regulatory option Impact

Reviewing obsolete and archaic Replace obsolete and archaic regulations
Regulations, addressing regulatory gaps with modern ones
Make land administration and management
more efficient.
Address Regulatory gaps by providing for
all services and procedures
Harmonizing some fees especially those
unreasonably low/align to market rates
Promoting efficiency and technology,
sustainability
Promote value for money for services
rendered.

6. THE EFFECT OF THE PROPOSED REGULATIONS ON KEY COMPONENTS OF THE

SOCIETY
9.1 Table 1: Effect on Taxes, fees, revenues, public sector, private and business, fundamental
rights, and existing legal framework
Component Effect
Public sector The Regulations shall facilitate efficiency at both levels of
Government.

Facilitate automation and digitization of services

Enhanced non-tax revenue for the exchequer.

Private Sector and business Improved efficiency in provision of land services.

Reduced waiting period

Fundamental rights and The approval of these Regulations will contribute

freedoms

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towards attainment and protection of rights provided for

under the Constitution namely right to property, safe and
clean environment, food security, highest attainable
standards of health, life, and human dignity.
Existing legal frameworks In developing these regulations, task force took
cognizance of existing legal frameworks in the land sector
and proposed amendments to other areas aimed at
increasing efficiency.

The Regulations are in statutory harmony with the

Constitution, Acts of Parliament and other subsidiary
legislations.
The Regulations will not affect normal
budgetary allocations for the Land sector.

7. COST BENEFIT ANALYSIS

Context

The Government of Kenya, like all other governments raises revenue using both tax and non-
tax instruments, where non-tax sources include any revenue that do not come from taxes.
Non-tax revenue is an important but often under-tapped source of public revenue that is all
the more vital in Africa today as countries face declining official development assistance,
rising indebtedness, limited domestic resource mobilization capabilities for budget support,
among other challenges.
Projections indicate that high levels of financing will be required to bring about Africa’s
structural transformation and to achieve the 2030 Agenda for Sustainable Development and
Agenda 20632.
In 2020, Kenya's non-tax revenues amounted to 2.4% of GDP. This was lower than the
average non-tax revenues for the 31 African countries (6.8% of GDP). Sales of goods and
services represented the largest share of non-tax revenues in Kenya in 2020, amounting to
0.5% of GDP and 21.2% of non-tax revenues3.

Costs Associated With the Regulations

2
Kedir et al., 2017; UNDP, 2018
3
Revenue Statistics in Africa, 2022, ATAF, AUC and the OECD

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The only cost associated with these Regulations is the cost of their development including
conducting stakeholder consultations and engagement with other public offices.

Benefits Associated With the Regulations

The following are the benefits related to implementation of these Regulations

1. Review of obsolete and archaic regulations and replacement with modern regulations
will result to increased efficiency, quality service and more efficiency in land
administration and management systems.
2. Regulatory gaps addressed by providing for all services and procedures
3. Harmonized fees will remove existing inequities where some property owners
shoulder the burden of those who do not pay.
4. Promoting efficiency and technology, sustainability
5. Promote value for money for services rendered.
6. Increased revenue collections it is projected that the current collections of Kshs. 14
billion will increase to Kshs. 59 billion per a year.

7. CONCLUSION AND RECOMMENDATION

The proposed draft Regulations, are necessary for the full operationalization of the proposed
Land Laws (Amendment) Bill, 2023. There are significant benefits that the country will
realize by having revised Regulations
The proposed Regulations is the most viable regulatory option.

Recommendation

We recommend that the Land (Amendment) Regulations, 2023 be approved.

Draft Copy Of the Statutory Instrument

A copy of the draft Land Laws (Amendment) Bill 2023, the Land Laws (Amendment)
Regulations, 2023 and the Regulatory Impact Assessment can be down loaded from
https://lands.go.ke

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