Christine A Oseko, Managing Partner, Oseko & Ouma: Viewpoint

Viewpoint: Christine A Oseko

The Land Registry was fully digitalised in April 2018, allowing for virtually all conveyancing processes to be carried out online through the e-citizen platform. The new Land Information Management System extends to titles registered under the Land Registration Act 2012 and the Registration of Titles Act 2010, since titles and information held under these regimes have already been reduced to soft information, and can be read and accessed online. As a result, the registry announced immediate cessation of all physical applications given that the various property transactions could be completed in a paperless form, including the transfer of ownership, issuance of consent, legal charges and leases. The system was based on a thesis by a student from the University of Nairobi. A web-based prototype system was subsequently created and tested using Buruburu Block 78 and 79 titles in Nairobi.

While lauded by the general public as a great step towards reducing transaction timelines and costs, the legal community has called for further consideration of the system, which has held back its implementation. The most cited provision is section 34 of the Advocates Act, which reserves the duty of preparing, executing and registering conveyancing documents only to advocates. This is an important point to make because land transactions, as opposed to normal commercial contracts, carry great importance and affect not only the individuals involved, but also government policies, which could potentially lead to community conflicts and civil wars, as has happened in the past. That is why advocates dealing with land rights are held to a high degree of responsibility, and are thus required by law to hold adequate indemnity cover to compensate clients who suffer losses due to the advocates’ own negligence.

In a computer-supported integrated system where almost anybody can draw up conveyancing documents and authenticate signatures without a system to verify whether they are indeed practising advocates, it will become difficult to control fraudulent transactions and buyers would be vulnerable without recourse.

Furthermore, not all conveyancing transactions are straightforward transfers between the vendor, the purchaser, and the Ministry of Lands, Housing and Urban Development. For example, some titles are subject to various consent, such as those offered by a lessee, a chargor, Kenya Railways, the Kenya Civil Aviation Authority and the Land Control Board. It is not yet clear how such consent will be offered and verified through the integrated system; however, if not offered, they will greatly prejudice the rights of third parties likely to be affected by the transactions.

Additionally, in banking transactions, advocates play a vital role in facilitating the registration of the securities and the release of funds to the vendor by the financier. These undertakings by a professional provide the financier with a sense of comfort as they are legally enforceable against the issuer. Therefore, the role of advocates in commercial transactions is hard to dispense without potentially creating short-comings to the mortgage and lending segments.

The Land Information Management System did not take into consideration that linkage data from other registries and authorities may affect the ability to convey land, which is important given the various players involved in conveyancing. The system has also not been subjected to citizen participation as required under the Constitution, nor does it carry the Standardisation Mark as required by the Standards Act, making it susceptible to hacking.

These shortcomings notwithstanding, the land management system plays an important role in attracting real estate and infrastructure investors, including project financiers. An investor is more likely to commit funds under a system that assures quick approvals to keep the project on track. There is no doubt that a digital land management system will make the business environment more attractive to foreign investors.