Background

Section 6 of the Land Registration Act, 2012, empowers the Cabinet Secretary Ministry of Lands and Physical Planning, in consultation with the national and county governments, to constitute, limit, or vary land registration units that are to be identified in unique and distinctive names or blocks.

In the exercise of these powers, on 22^nd November 2017, the then Cabinet Secretary for Lands published through Gazette Notice LN 277 of 2017 the Land Registration (Registration Units) Order, 2017 (“the Order”). The Order established the registration units set out in the First Schedule therein and made provision for land title conversion.

This move is in line with Article 68 of the Constitution of Kenya 2010 which provided for consolidation of the various land registration regimes and which saw the repeal of the previous land statutes being Indian Transfer of Property Act 1882, the Government Lands Act (Cap 280), the Registration of Titles Act (Cap 281), the Registered Land Act (Cap 300), and the Land Titles Act (Cap 282) and the subsequent enactment of the Land Registration Act 2012 and the Land Act 2012. 

Before the enactment of the Land Registration Act in 2012, each of the above-mentioned repealed legislation had its register, thus making registration complex. These variances created confusion and led to delays in registration. The Land Act and Land Registration Act were thus enacted in 2012 to consolidate these regimes, and thereby to reduce the confusion and incidences of land fraud and to fast-track land transactions.

Despite the repeal of the previous statutes, migration to the exclusive use of the Land Registration Act 2012 had not happened and transactions continued under the old Acts using the saving and transition clauses of the Act of 2012.

In the year 2017, The Ministry of Lands subsequently embarked on the process of conversion of all parcels of land to a consolidated registration regime as guided by the Land Registration (Registration Units) Order, 2017.

Pursuant to the powers under the Act, and under regulation 4 (4) of the Order, the Nairobi Land Registration Unit has now been established. This was done through Gazette Notice No. 11348 published on 31^st December 2020.  The Notice published a list of the parcels of land in Nairobi County that had been converted into new parcel numbers with the corresponding acreage specified therein. The Notice also invited aggrieved parties whose properties are listed therein to make complaints within 90 days from the date of the notice.

Objective of Conversion

The object of the conversion is to collapse and cancel all the titles issued under the various repealed land laws and replace them with titles under the 2012 Act. The migration of the parcels to the new regime will however not interfere with the ownership, size and the other interests registered against the respective title.

The migration to the new regime will see the use of Registry Index Maps (RIMs) as registration instruments to replace deed plans. This is expected to minimize land fraud since RIMs capture all land parcels within a designated area, whereas deed plans only capture data on a specified parcel. This makes it easier to detect any changes made in RIMs.

Process of Conversion

The Order provides that upon the establishment of a registration unit, the office responsible for land survey shall carry out survey works to facilitate conversion. The process shall involve:

1. In the case of an area that had existing titles issued under the repealed statutes, the office responsible for land survey shall prepare cadastral maps together with a conversion list. The list shall indicate new and (where applicable) old numbers for parcels of land within the registration unit. In this regard, the office in charge of the survey has an obligation to ensure the accuracy and completeness of the cadastral maps and conversion lists.
2. Upon completion, the survey office submits the cadastral maps together with the conversion lists to the Registrar who then transmits them to the Cabinet Secretary for publication in the Gazette and in at least two daily newspapers of nationwide circulation within 30 days of receipt.
3. The publication shall specify a date, not more than 4 months from the end date of publication to be the date after which the registry shall be open to the public for transactions relating to the parcels within the registration unit.

Effect of Conversion

All registers maintained in other registries previously dealing with the parcels within a registration unit shall be closed for any subsequent dealings. Further, the saving/transition registers under the repealed legislation shall from the effective date be closed and subsequent entries and documents be migrated to the new registry. However, the closed registers shall be maintained in both physical and electronic forms in the new land registration unit.

A registered owner will therefore be required to make an application using form LRA 97 for replacement of title documents issued from the closed registers. The application shall be accompanied by the original title and copies of the owner’s identification documents. If a registered owner fails to make an application for replacement, the Registrar shall replace the title documents issued from the closed register, cancel the previous title documents and retain them for safe custody.

Title documents held by third parties including banks, hospitals, and courts at the time of the commencement date shall be replaced upon application by the proprietor.

Aggrieved Parties

Any person with an interest in land within the registration unit which is aggrieved by the information contained in the conversion list or cadastral maps may within ninety (90) days from 31^st December 2021 make a complaint to the Registrar in the prescribed form (Form LRA 96); or Pending the resolution of any complaint, apply to the Registrar for registration of a caution in the prescribed form (Form LRA 67) set out in the regulations.

In the application, the complainant shall provide the Registrar with the name and contact details, nature of the complaint and grounds of the objection. The Registrar shall within 90 days resolve the complaint by either providing information or clarification or registering a caveat or caution which the Registrar removes upon resolution of the complaint.

Any party who is dissatisfied with the Registrar’s decision can appeal to the Environment and Land Court within 30 days.

Vide a public notice dated 21^st January 2021, the Ministry of Lands and Physical Planning informed the members of the public that it had set up a complaints help desk at the customer care center within the ministry’s Ardhi House Offices.

As outlined above, an interested person may lodge a complaint with the Registrar through the Ministry’s offices at Ardhi House, Nairobi.  The complainant will be required to fill in Form LRA 96 set out in the 2^nd Schedule of the Order or Form LRA 67 set out in the 6^th Schedule of the Regulations. The forms shall be accompanied by certified copies of the title document, Identification documents and PIN together with the contact details.

The Registrar receiving the complaint shall record it and assign a case reference number to facilitate follow-up. The complainant shall then be advised on the progress of the complaint.

Way Forward and Conclusion

Landowners who are wary of the process the government has initiated have raised a lot of concern in the local media. Some are of course uncomfortable with the status of their titles, given how they acquired the land. There is also the category of those who mortgaged their property and wonder what effect this exercise will have. These concerns are not helped by the fact that other than the announcement not much else has been said by the government on the proposed exercise. We expect that in the coming days and in good time before the deadline set, the Ministry will give more details on the roll-out. In our view given the sheer number of titles, this is perhaps the most ambitious task the Ministry will have undertaken ever, judging from the time it takes to issue titles in bulk even for small sections of the city.

That said, if you are a proprietor of, or hold an interest in, any property registered in the Nairobi Land Registration Unit we advise that you take time and peruse the Notice to verify if your and is among those affected. Very likely it is. We remain available for any assistance needed with regard to this verification and inspection of the cadastral maps. In case of any discrepancies in the information provided in the Notice, we are also available to assist you initiate the complaint process within the required timelines as discussed above.

Please note that the process of conversion is ongoing and that the current notice is only concerning the Nairobi Registration Unit. We are on the lookout for further developments in the other registration units. Once the prescribed duration lapses, we expect that there will be calls for the surrender of old titles to pave the way for the issuance of new ones. We shall issue an update once this process commences.

The move by the Ministry of Lands and Physical Planning to migrate to a consolidated registration regime is a step in the right direction towards curing the ills that had hitherto engulfed the land registration process in Kenya. However, landowners should be vigilant to ensure that they comply with all the notices and requirements by the ministry.

Should you require further information and guidance on this please get in touch with Mr. Tom Onyango (tonyango@tripleoklaw.com ), Renice Midar (rmidar@tripleoklaw.com, or any member of our Real Estate and Banking Team.