Authors: Janet Othero (Senior Associate) and Cheptoo Langat (Pupil)
Previously, the Ministry of Lands has relied on a paper-based system to discharge its mandate. This system has proved untenable in this era of great technological advancement. The Ministry of Lands commenced a digitization exercise a couple of years ago which included scanning all lands office records. This is a project spearheaded by various ministries of the government to improve the efficiency of its services and operations by enhancing transparency in the system. As for digitization of the lands records, the main objective is to reduce the number of disputes pertaining to land and ease operations at the said office.
The digitization process has presented some discrepancies with existing law, that is the bulk of the content of a case lodged in court by the Law Society of Kenya. The suit seeks to quash a publication by the Ministry of Lands in the Daily Nation on the 4th April 2018, stating that land transactions will be processed online with effect from 13th April 2018. The orders sought in the suit amongst others, were to compel the Ministry of Lands to set up a consultative task force for the creation of electronic registration and conveyancing. This will be considered against the background of the proposed Land Registration (General) Regulations of November 2017 that were recently passed in Parliament. This article does not seek to analyze the merits and demerits of case.
The Land Act and Land Registration Act of 2012 were enacted with provisions requiring the National Land Commission and Ministry of Lands to come up with standardized conveyance forms and registration regimes. Parliament recently gazzetted the Land Registration (General) Regulations to give effect to electronic filing of registrable land documents. Of importance to note is that the regulations are subsidiary to the legislation in place and are mainly procedural. In its provisions relating to electronic registration and conveyancing, it does state that all dealings under the enabling Act shall be carried out in electronic form.
The Advocates Act at Section 34 stipulates that no unqualified person shall take instructions to draw or prepare any document or instrument relating to the conveyancing of property. The regulations appear to secure the role of advocates by providing standard forms that require attestation of advocates where required. The regulations do state that the electronic system will be configured paying regard to provisions of the Advocates Act on the qualifications of persons who may draw and engross conveyancing documents.
Currently, the Lands Information Management System (LIMS hereinafter) portal does not provide for an avenue for such inclusion of advocates to carry out transactions. It is configured in a way that any transactions have to be undertaken against a personal account of the parties to the transaction thereby removing advocates from the equation once documents are drafted. With the introduction of standard forms to the public, the role of advocates is further diminished from the process.
Moreover, the online portal contravenes Section 2 of the Stamp Duty Act as it purports to collect Stamp Duty whereas the Act states that it is the role of the Collector of Stamp Duty at the Kenya Revenue Authority (KRA hereinafter). The stamp duty is assessed under the LIMS portal and the stamp duty amounts are payable against a bank code or M-pesa paybill number issued under the same portal. These amounts are payable to a non-traditional KRA recipient account. It is also unclear how the payment of Stamp Duty and Capital Gains Tax will be done under the online system
Further, there are valid concerns raised that there was no public participation in the digitization process. This is evidenced by the various gaps in the system, with no information available such as how to process documents under the Government Land Act (Repealed), new leases, sub-leases, extension of leases, change of user, letters of allotment and provisional certificate of titles. It also does not provide for simultaneous registration of documents such as discharge, transfer and charge. Further LIMS does not seem to consider the transfer and transmission of deceased person’s property whose National ID cards and phone numbers have since been surrendered.
There have been complaints that while digitization seeks to make the conveyancing process secure and efficient, the online system has failed to achieve this in its initial launch. For instance, in conducting a search manually, the process would take less than a week to complete. Under LIMS, the time taken has not been ascertained for reasons including not all the files were scanned and uploaded in the system. Further, official search results under the RTA system contained the entire history of the land, while the search results procured using LIMS do not contain the entire history.
One of the most overlooked issues arising is the security and privacy of the records and data. While with the manual system there was a degree of safety in that only authorized personnel could access the lands records, stakeholders are yet to be advised on the security features of LIMS from local and international hackers. The government has outsourced this service to a third party. There is no clarity regarding in which jurisdiction the data is housed and how the same can be accessed if the third party terminates its services with the government.