January 27, 2021 In Thought Leadership

Extension of Government Leases

Section 13 of the Land Act (Act no 6 of 2012) provides that the National Land Commission (the Commission) may make rules and regulations pertaining to the application for extension of leases before their expiration. In  compliance with these obligations, the Ministry of Lands and Physical planning in consultation with the Commission developed the Guidelines for renewal and extension of leases (the Guidelines) vide gazette notice 5734 on 9th June 2017.

The Guidelines provide that the Commission, through registered mail, notify a lessee of the expiration of their leasehold interest five years prior to expiration. The notice should specify the date of expiration as well as the lessee’s preemptive right to apply for extension of the lease. Failure to apply for an extension of lease before expiration of the lease term results in the reversion of the land back to the  National or County Government. The lessee’s interest in the land will therefore be extinguished on the date of expiration. As such applications for extension of lease should be made while the lease is still subsisting.

In Charles Mwangi Kagonia v Dhraj D. Popat & Another [2006] eklr the court stated that a person cannot apply for an extension or a renewal of lease when the lease had already expired. The court made reference to section 60 of the Registered Land Act(repealed) where the law stated that one can only apply for renewal of a lease while the lease is still in continuance.

Owing to the above, once the lease expires, all the interests conferred by it are extinguished and the land reverts back to the commissioner of land to be reallocated. In Nairobi City Council v Chhagal Lala Divani W/o Chhagan Lala & 2 Others (2013) eKLR, the plaintiffs sought an order to compel the Commissioner of Lands to renew and extend their lease. It was held that there was no specific provision conferring upon the plaintiff the right to an extension of the leasehold title.

Based on the law and the abovementioned precedent, we advise that all persons holding a leasehold interest in land apply for extension of such interest before its expiry in order to prevent the land from reverting back to the government as it is not set-in stone the preemptive rights enjoyed by the Lessee will be renewed once the lease expires.

APPLICATION FOR EXTENSION OF LEASE

An application for lease extension must be;

  1. made by the registered owner or appointed administrator at the office of the Commission situated within the respective land registration unit.
  2. Upon receipt of the application, the Commission shall, within seven days, forward it to either, a representative of the Cabinet Secretary where the land is vested in the National Government or the County Executive Committee member for lands if vested in the County Government for approval.
  3. The application should have the following attachments
    • a copy of ID/passport;
    • a letter of administration or confirmation of grant where applicable;
    • a current official search (one month);
    • passport size photograph; and
    • a certificate of incorporation in the case of a company.

In the event of rejection for extension, the National or County Government shall give the lessee a notice of at least three years prior to expiration of the intention not to extend the lease.

Should you require any further legal assistance please do not hesitate to reach out to Craig Oyugi (cdo@africalawpartners.com) Samuel Kisuu (smk@africalawpartners.com)