Section 108 states that every disposition of land, lease or charge shall be effected by an instrument in the prescribed form.
Section 109 states that every instrument must be signed by both or all parties to the instrument.
However, the proviso to Section 109 gives the registrar power to dispense with this requirement except for the signature of the transferor or transferee. But not in the case of a transfer but in the case of any other instrument. Discharge forms under the RLA are only signed by one party mainly the Chargee. Previously the printed discharge forms for RLA had provisions for signature for the Chargee and the Chargor but presently the new forms do away with the signature of the Chargor.
VERIFICATION UNDER RLA
The State guarantees title
If there is Error in register resulting in loss the state provides for indemnity under Sections 144-147 except for the first registration as stated under Section 144(1)
Signing of the documents under the Act must therefore be witnessed by prescribed persons. The terminology under RLA does not talk of execution and attestation but talks of verification which is a bit more than just execution.
Documents are divided into 3 categories
The RLA requires more than just witnessing the execution of a document. It also requires verification of the execution of the document:
Section 110 requires the person executing the document to appear before the Registrar or such public officer or other person as prescribed. Where the person executing the instrument is unknown to the Registrar, public officer or other person, he must be accompanied by a credible witness.
The witness or prescribed officer must satisfy himself/herself as to the identity of the signatory and ascertain whether he/she freely and voluntarily executed the document.
The prescribed officer is then required to complete a certificate to the effect that they have identified the person signing and that the person signing has freely and voluntarily executed the document.
The identification of the signatory and the completion of the Certificate signifies verification.
Instruments executed in the Commonwealth
Justice of the Peace
Commissioner for Oaths
Instruments executed in a Foreign Country
British Consular officer or pro-consul or such other person or class of persons as the Minister may determine
Instruments executed in Kenya:
Registrar and Deputy Registrar of the High Court
Registrar-General, Deputy Registrar-General
Superintendent of Prisons
The RLA was intended to be a simple Act that can be understood by the citizens and should be executed even without the aid of an Advocate.
Under the RLA there is no requirement as is the case with the ITPA regime that if it is a charge that is being charged that one of the witnesses must be an advocate. However in practice it is the Advocates who normally attest.
Where the instrument is a charge, the witness need not be an Advocate as is the case with charges under the RTA and mortgages under the LTA and GLA
RLA Section 65(1)(a) this makes provision for a special acknowledgement signed by the chargor that he understands the effect of Section 74.
In practice however, the witnesses are usually advocates.
Simplifying the verification under the RLA seems to be a weakness of the Act as most of the verifying persons might not be in a position to do so.
Under Section 110 the Registrar has power to dispense with verification where:
- Such verification cannot be obtained; or
- It can only be obtained with difficulty and the Registrar has to be satisfied that the document has been properly executed; or
- In any other case in his opinion the document has been properly executed.
- The registrar is required to record his reasons for dispensing with verification.
Giving the Registrar this kind of authority seems to be a weakness especially in this age of fraudulent land transactions.