Conversion Of Land Reference Numbers in Nairobi City County And Migration Of Land Registration Processes To Ardhi Sasa Portal

Introduction

The promulgation of the Constitution of Kenya in 2010 ushered in a new dispensation in terms of land policy in Kenya. Article 68 of the Constitution provided for the revision, consolidation and rationalisation of existing land laws through legislation by parliament.

Kenya has had several land registration regimes which include the repealed Indian Transfer of Property Act, 1882, the Government Lands Act (Cap. 280), the Registration of Titles Act (Cap. 281), the Land Titles Act (Cap. 282) and the Registered Land Act (Cap. 300). These laws all had varying systems of land registration.

In 2012, the Land Registration Act was enacted repealing all the above statutes, a first step in harmonising the land registration regime in Kenya. The Cabinet Secretary for Lands and Physical Planning continued the harmonisation journey by releasing a Notification of Conversion on the 31st of December 2020 through a special issue of the Kenya Gazette Vol.CXXII-No.242 (“Notification of Conversion”) which was published under regulation 4 (4) of the Land Registration (Registration Units) Order, 2017. The Notification of Conversion published a list of parcels in Nairobi to be converted to new parcel numbers to establish a uniform land registration unit, close the registers under the repealed land laws and open new registers under the current land laws and migrate all registration processes to the new online platform known as Ardhisasa.

The Process of Conversion

In compliance with the Notification of Conversion, the Ministry of Lands and Physical Planning (the “Ministry”) began the conversion and migration process which resulted in the gradual closure of the old registers and consequently no transactions could proceed to title documents issued under the repealed land laws until they have been converted and new registers opened. This process began in Nairobi Land District Registry and will be implemented nationwide.

Step 1 – Cadastral Maps

The process of conversion begins with the preparation of cadastral maps which serve as a unified survey document. This process will go hand in hand with the preparation of a conversion list of the old parcel numbers of land within a registration unit and their corresponding sizes.

Step 2 –Publication

The Order requires that the Cabinet Secretary of Lands and Physical Planning (the “Cabinet Secretary”) publishes in the Kenya Gazette and in at least two daily newspapers of nationwide circulation, the list of parcels of land that have been converted.

The publication should bear the old title number of the parcel of land as contained in the old register and the new title number to be contained in the new register. The publication should also specify the date on which owners of the affected parcels may be able to transact with their parcels of land.

The Cabinet Secretary has so far published Fifteen (15) notices on diverse dates and each of the publications have provided the list of old title numbers, their corresponding new numbers as well as the date on which owners of the listed parcels of land may commence transactions in the new registers. The gazette notices may be accessed from the Ministry’s official website https://lands.go.ke/ .

Step 3 – Objection

If any detail contained in the conversion list or cadastral maps as contained in the Notice is incorrect, landowners should complain within ninety (90) days from the date of publication of the Notice with the Registrar of Lands, at the Registrar help desk and the Registrar is required to determine the objection within ninety (90) days upon receipt of the objection. To complain, a landowner will be required to attach certified copies of the title, the national identity card, Kenya Revenue Authority PIN, and provide their contact details. A complaint number will be assigned to a complaint to facilitate further follow-up and resolution.

Step 4 – Migration of Titles

If no objections are lodged within the ninety (90) period, the Registrar is required to publish a notice inviting the registered owner of the parcels listed in the publications to make applications for the replacement of title documents issued from the closed register. The owners of parcels listed in the publications are required to apply for the replacement of their old title documents with new title documents under the Land Registration Act, 2012 according to the Registrar’s notification. This is because the old register is closed 90 days after the list of converted units is published and no transactions can be recorded in the old register until a new register is opened and the old title document is replaced with the new one.

All the interests contained in the old title document are also transposed to the new title document including but not limited to registered charges, leases, restrictions, court orders and any other encumbrances.

Process of replacement of Title

The application for replacement of the old title is initiated through the National Land Information Management System - Ardhisasa platform - wherein the landowners, through their advocates apply for replacement of title and surrender the old title physically to the Ministry after which they will be contacted on when to collect the new title. Landowners are however required to create Ardhisasa accounts through which they can verify and authorise all applications touching on their parcel(s) of land including the application for replacement of the old title. Once the new title has been issued, all transactions including registration of charges, leases and transfers are carried out through the Ardhisasa platform.

Conclusion

Two years after the Notification of Conversion was published there is still a big challenge in obtaining the converted titles. Indeed only a handful of converted titles have been issued so far. The biggest impediment to the issuance of the converted titles is the fact that Ardhisasa is yet to be a fully functional platform yet all the processes relating to conversion have to be undertaken on the platform. Property owners and legal practitioners are still experiencing challenges in obtaining converted titles. These challenges on Ardhisasa also extend to other land processes on the platform including delays in the verification of property details, lack of adequate and timely feedback from the Ministry officials once a complaint is lodged, and delays in the registration process among others. However, we are aware that through various engagements with the Cabinet Secretary, the Ministry is working to streamline and fast-track the functionality of the platform.

The Ministry through the Cabinet Secretary has indicated that with time, all properties in Kenya will be converted in line with the Notification of Conversion, with Nairobi County being the pilot. We, therefore, expect similar conversions in the different Land Registration Units in the country in compliance with the provisions of the Order to be rolled out per county.

AUTHORS: Jessica Mwenje and Angela Njuguna