Q&A – 25 February 2013
990 years right of occupancy
My right of occupancy states that it shall be valid for a period of 990 years (not 99 years) from 2005. In belief of this I am selling it at a premium as this is the only piece of land that has been granted such a long period. The purchasers are worried about the period granted. What should I do?
First and foremost it is clear that land cannot be granted for a period exceeding 99 years. Hence either you have a fake certificate of right of occupancy or there is an error and it should read 99 years. We reproduce section 20 of the Land Act which states:
(1) A granted right of occupancy shall be– (a) granted by the President; (b) in general or reserved land; (c) of land which has been surveyed; (d) required to be registered under the Land Registration Act, to be valid and, subject to the provisions of that law and this Act, indefeasible; (e) for a period up to but not exceeding 99 years; (f) at a premium; (g) for an annual rent which may be revised from time to time; (h) subject to any prescribed conditions; (i) capable of being the subject of dispositions; (j) liable, subject to the provisions of this Act, to revocation; (k) liable, subject to the prompt payment of full compensation, to compulsory acquisition by the state for public purposes. (2) A granted right of occupancy shall not confer on the holder any water rights or rights over the foreshore unless those rights are expressly mentioned nor shall it confer on the holder or any person acting under the authority of the holder any rights to mines, minerals, or gas or the right to appropriate and remove from the country for gain or for purposes of research of any kind any flora or fauna naturally occurring or present on the land or any paleontological or archaeological remains found on the land.
we suggest you consult your lawyer to guide you further.
Lease over, tenant still occupying
I had entered into a lease agreement for a period of 3 years, whereby rent was payable quarterly in advance. The 3 years have expired and the lessee has not vacated yet. What are my rights? For the period that he has overstayed can I collect the rent or will it create a three year lease again if I collect rent from him? Please guide.
By merely accepting rent from him for the period beyond the 3 year lease will not automatically create another 3 year lease again. In fact the tenant (lessee) is obliged to pay this rent for the period that he has overstayed. The Land Act states very clearly that (1) where a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land. (2) A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired is not, by reason only of that fact, to be taken as having given consent to the lessee remaining in possession of the land or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease but where the lessor continues for two months to accept rent from a tenant who remains in possession after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.
You also retain the right to evict him. Your lawyer can guide you further.
Reporting by Bank on potential money laundering
I work for a bank as a teller and see persons and smaller companies bring in tens of millions of shillings in cash every single day. Is there no regulation that requires banks to provide such information to an authority so that these individuals can be taxed and their transactions traced. For all you know these funds could be drugs money or money being washed for terrorism activities.
The Anti-Money Laundering Act and the Anti-Money Laundering Regulations, 2012 specifically provide for this. Banks are covered in both the act and the regulations.
Under Information to be reported in respect of transactions, regulation 23 states that a report to the Financial Intelligence Unit (FIU) made under sections 4(2) and 17 of the Act, shall contain the following information – (a) date and time of the transaction, or, in case of a series of transactions the period over which the transactions were conducted; (b) type of funds or property involved; (c) amount or value of property involved; (d) currency in which the transaction was conducted; (e) method in which the transaction was conducted; (f) method in which the funds or property were disposed of; (g) amount disposed; (h) currency in which the funds were disposed of; (i) purpose of the transaction; (j) names of other institutions or person involved in the transaction; (k) bank account numbers in other institution involved in the transaction; (l) the name and identifying number of the branch or office where the transaction was conducted; and (m) any remarks, comments or explanation which the person conducting the transaction may have made or given in relation to the transaction.
Regulation 24 provides further reporting standards where a reporting person, which includes banks, makes a report concerning a property associated with terrorist financing and related activities and regulation 25 provides specific details required to be filed with the FIU when a bank account is used for any suspicious activity.
In short, your bank is a reporting person under the Act and should your bank fail to report any such suspicious activity with the FIU your managers and/or directors can be imprisoned and/or fined. You should discuss this with your bank manager who can decide what transactions are reportable.