The Ministry of Lands, Housing and Physical Planning has since early 2019 been undertaking digitization of its records and operations with a view of enhancing delivery of services. The expected result of this ambitious process aimed at improving services and improving Kenya’s ranking in the World Bank Doing Business Report is the platform that will be known as National Land Information Management System (NLIMS). These changes have also been necessitated by the provisions of the Constitution of Kenya 2010 which altered significantly the land tenure regime in Kenya and led to the passing of various pieces of legislation that deal with land. Those changes have led ultimately to the enactment of laws to facilitate electronic land transactions.
The Land Registration (Electronic Land Transactions) Regulations issued vide Legal Notice 101 of June 2019 gave effect to this by providing that all land transactions under the Land Registration Act shall be carried out through the electronic registration system. The Regulations further detail the way the system will be accessed, operated, and maintained. It further provides for situations where other documentation can be lodged manually. Further to these Regulations, the Business Laws (Amendments) Act of 2020 made various amendments to existing pieces of legislation such as Registration of Documents Act, Land Registration Act, the Stamp Duty Act, the Survey Act and the Companies Act to facilitate electronic registration of land transactions.
In recent stakeholders’ engagements the Ministry of Lands has been highlighting how the platform will be used by various users in land transactions. While this is still work in progress, some of the features that we can report on now include the following:-
- The availability of a digital cadastral map of the country, starting with Nairobi County (which is ready) with clear demarcations of private and public property, including sectional properties. One will be able to carry out a search on any parcel of land including its physical planning details. Public land will be marked and highlighted as such.
- Users will need to register an account on the platform and upload their property details as and when needed. Professional users (advocates, valuers, etc) will be verified and registered as such to enable them facilitate transactions on the platform. Other entities such as banks and financial institutions will also be considered for such registration.
- Activities related to title processing will be done entirely from the platform starting from searches to valuation by either private of government valuers, to assessment and payment of stamp duty up to registration of the title and security documents. This will be done by uploading the requisite documentation in cases where necessary, and having the documents pass through every requisite department where electronic codes, stamps and signatures will be embedded for a final output document. It may be necessary to surrender the title on prompting from the land’s registry.
There were a couple of issues raised, especially with regards to the role of advocates in drafting specific documents in accordance with client instructions. That in our view still requires additional work. Secondly, the acceptance of output documents upon completion of registration in lieu of drafted documents as it were is also something stakeholders felt needed addressing since the platform as designed envisages Land Registration Act forms will simply be used without any modifications. This will present a problem for transactions that are not of the vanilla variety.
Finally, the use of electronic or digital signatures in certain aspects of the transaction process raised an issue of validity or authentication of the integrity and indemnity of documents generated since the rules and regulations governing digital signatures have not been finalized.
Although other countries that have tried electronic registration such as the UK have had hitches, and some have had to retreat, we think that this is a commendable initiative that will, if well implemented, ultimately ensure a quick, transparent, reliable, and seamless experience on land transactions. The previous experience that we have all had of missing or inadequate information relating to the status of land will no longer be an impediment to economic activities.
We look forward to continuous engagement with the Ministry of Lands and our clients as NLIMS is rolled out and implemented.
For further information, contact the Real Estate and Banking team through Partner and Head of Real Estate and Banking Practice Tom Onyango and Partner Janet Othero.