THE CONVERSION OF TITLE DEEDS IN KENYA: THE WHY, WHAT AND WHEN?


By Ibrahim Mwathane

  1. Introduction

1.1 Land reforms

When Kenyans pushed for land reforms, they kept their eyes on the wider picture. They were keen on policy, constitutional and legal reforms. Before the reforms, the country never had a national land policy pre- and post-independence. And Kenyans were conscious that the package of provisions bequeathed them by the independence constitution was due for reform, in order to align it with their aspirations in the holding and management of land. So the provisions in the Constitution of Kenya 2010[1] allowed for the revision, consolidation and rationalization of land laws, among many other things. This because the laws were many and inconsistent. Some were even incompatible, making it pretty hard for land owners, users and professionals. This was in keeping with the national land policy[2] too, which had been enacted by parliament in 2009, after a lengthy and protracted public process.

These two seminal documents, the policy and the constitution, were then used to inform a set of new legislation, among these the Land Registration Act[3]. This Act was passed by parliament as part of a bundle that also included the Land Act[4] and the National Land Commission Act[5]. The three had undergone substantial public debate. But even with this, debate in parliament was emotive. Indeed, it is this set of laws that perhaps occasioned the first constitutional amendment in Kenya, as the timeline for the enactment of land legislation by our parliament was changed by two months (60 days)[6], beyond the 18 months provided for in the Fifth Schedule of the Constitution.

And during public and parliamentary debate, the draft Land Registration Bill contained provisions that this would henceforth be the only law under which registration of title to land in Kenya would be done. Indeed, it further provided that the Land Commission, in liaison with the national and county governments would, by order in the Gazette, would constitute an area or areas of land to be a land registration unit, and may, at any time, vary the limits of any such units (the mandate to constitute land registration units would be later given to the Cabinet Secretary responsible for land by the 2016 amendments[7] to the law). The draft bill also provided that the office responsible for the survey of land (read the Director of Survey), shall be responsible for maintaining a map or series of maps, to be known as the cadastral map, for every registration unit. As one will appreciate in subsequent sections, these provisions provided the prelude to conversion of title deeds, much as many may not have so appreciated as they discussed and approved the draft Land Registration Bill for enactment into law at the time.

Happy Kenyans with their land ownership documents. The ongoing process aims to replace documents issued under the old laws

1.2 Multiple statute registration regime

It should be kept in mind that until then, the land registration regime in Kenya was under multiple statutes. There were ownership documents issued under the Indian Transfer of Property Act[8] of 1882, a statute introduced for use in Kenya but whose substantive land law was meant for British India. It ought to have been repealed a lot earlier. In addition, a lot of land at the Kenya Coast had been registered under another statute known as the Land Titles Act[9] of 1908, with a registry at Mombasa. But Government Land would be registered under the Government Lands Act[10] (GLA) of 1915 (this involved a problematic deeds registration system) or the Registration of Titles Act[11] of 1920 (offered a system of registration of title meant to improve on the deeds system under GLA).  Both of these were administered from the Central Land Registry in Nairobi. Most titles in the country were however issued under the accelerated titling programme under the Registered Land Act[12] of 1963, following the adjudication of rights in the former Trust lands. Most rural land registries in Kenya exclusively administered title deeds issued under the Registered Land Act.

Vast travel for some landowners

For these reasons, and to illustrate with practical examples, it was not unusual to find land in Nyanza region or Kenya’s Coast region registered under the Government Lands Act, but with titles whose register would be in Nairobi. Similarly, a lot of land allocated in the former “white highlands”[13], covering parts of Central and the Rift Valley regions, had their registers centralized in Nairobi. Under the multiple statute registration regime, it was normal to find two land parcels abutting each other in say, Kiambu or Uasin Gishu Counties, but with one proprietor having to always deal with the Nairobi central land registry, while the other always dealt with the local Kiambu or Eldoret land registries.

Similarly, some properties in Kwale and Kilifi in Coast could only be administered from the Mombasa land registry. This has been recipe for confusion, high costs of land administration, and, consequently, transaction complexity and delays. Some land owners have had to cover vast distances to access registries and move transactions.

No more use of Deed Plans

All these old registration laws were repealed on enactment of the Land Registration Act. It should also be noted that this Act only recognizes the use of one uniform survey document, the cadastral map. In our circumstances, this cadastral map will be the Registry Index Map (RIM). Drawn at considered scale, one sheet of the RIM can support title for hundreds of land parcels, which is expedient and cuts on costs. Unlike a Deed Plan which reflects a single parcel and its abuttals, a Registry Index Map gives a broader view of multiple land parcels and surrounding features such as roads of access within a locality, and is therefore friendlier for planning.

It however can be much more easily amended (as opposed to Deed Plans), and must therefore be very securely kept to keep it away from those likely to abuse it for vested interests. The Land Registration Act does not recognize the use of Deed Plans as legal instruments to support title, as some of the previous laws did. Landowners and some surveyors who have handled and used these instruments for decades must quickly acquaint themselves to the changed circumstances.

But the conversion of the titles previously issued under the five repealed statutes, in order to conform to the new Land Registration Act, had not yet been done.

Since 2012, we have used some transition clauses in the Land Registration Act to deal with documents previously registered under the repealed laws. The title documents issued under each law, and the survey map supporting the titles, would be different and dependent on the requirements under the applicable law. Even for the best of land professionals and officers in land registries, this is difficult and confusing. This fundamentally justifies the ongoing conversion process.

  1. Conversion process
    • Land Registration (Registration Units) Order, 2017

Through a Special Issue of the Kenya Gazette[14], and in keeping with the provisions of the Land Registration Act which provides for a single statute registration regime, the Cabinet Secretary for Lands gazetted the Land Registration (Registration Units) Order on 22nd November, 2017. Through this order, the Cabinet Secretary revoked the 1981 Registered Land (Districts) Order (Legal Notice No 124/1981), constituted sixty one (61) Land Registration Units across the country and designated corresponding Land Registries. With continued adjudication and registration of land rights in community land zones especially at the Coast, Northern and North Eastern parts of Kenya, the Cabinet Secretary will be expected to constitute more Registration Units, and also open up Land Registries to serve such Units.

Cabinet Secretary Farida Karoney and CAS Alex Mwiru in one of the stakeholder sensitization forums on conversion and NLIMS

2.2 Cadastral map and conversion lists

The November 2017 Order also provided that upon establishment of a registration unit, the office responsible for land survey, in Kenya the Director of Survey, would begin activities, including surveying where necessary, to enable the implementation of the Land Registration Act. Registration units could be divided into sections or blocks and numbered consecutively. Where an area had existing titles issued under the repealed Registration Acts, the Director of Survey would prepare cadastral maps together with a conversion list, indicating the new and, where applicable, the old numbers for parcels of land within each registration unit, registration section or block. Upon completion, the Director of Survey would forward cadastral maps and corresponding conversion list to the Registrar, who would in return forward these to the Cabinet Secretary.

2.3 Gazette Notice

Subsequently, the Cabinet Secretary would, within thirty days of receipt of the conversion list and cadastral maps from the Registrar, publish in the Gazette, and in at least two newspapers with nationwide circulation, the conversion list and the cadastral maps.

In addition, the Order requires the publication by the Cabinet Secretary to specify a date, not more than four months from the publication date, after which the land registry shall be open to the public for transactions or dealings relating to parcels within the registration unit. The Order also provides for a complaints mechanism for anyone aggrieved by the information in the conversion list or the cadastral maps, and provides specific forms (Form LRA 96), with which to lodge a complaint to the Registrar, for action within ninety (90) days. An appeal to the court may be made within thirty (30) days, by anyone aggrieved by the Registrar’s decision.

Moreover, the Order provides that once the commencement date for transactions in the registration unit fall due, any registers maintained in any other registry or registries previously dealing with the parcels within the registration unit shall be closed for any subsequent dealings. The closed land registers, and any supporting documents, shall be maintained in both physical and electronic formats in the new registration unit. This precaution helps to retain historical memory, which is handy in the event of complaints occasioned by direct data transference errors or inadvertent omissions.

 

2.4 Replacement of title deeds

Following the closure of the old registers, the Registrar is obliged by the Order to publish in at least two newspapers with nationwide circulation, and announce in radio stations of nationwide coverage, a notice inviting registered land owners to make applications for the replacement of the title issued to them from the closed registers. On replacement of the old title documents issued from the closed registers, the registrar shall cancel the old title documents and retain them for safe custody.

The Order provides a specific form (Form LRA 97) to be used by land owners applying for the replacement of their old title documents. The completed application form will need to be accompanied by the person’s original title document, a certified copy of their national identity card or passport, or similar details of directors, in the case of companies. The form also provides for the applicant’s photograph and KRA PIN number. For the affected land parcels, other than the land reference number which will change, all the subsisting entries/interests in the old registers shall be migrated to the new registry and noted in the new registers and maintained accordingly. In lay language, this means that the ownership, size, shape, boundaries and the specific interests of one’s land parcel will not change. Only the previous number will.

  1. Countrywide title replacement process

3.1 Nairobi Land Registration Unit

It would appear that the government has now moved on to the next stage of complying with the Land Registration Act and kicked off in earnest a nationwide process of closing the old registers and replacing old title documents. Through a Special Issue of the Kenya Gazette[15] dated 31st December, 2020, the Cabinet Secretary for Lands Farida Karoney issued a notice notifying the public of conversions within the Nairobi Land Registration Unit, following receipt of the relevant cadastral maps and conversion lists from the Registrar. The notice carried details of the changes in Land Reference Numbers (L.R.Nos) to parcels registered under the old laws, and their respective new numbers as contained in the newly prepared cadastral maps.

The notice further invited the public to lodge any complaints relating to the details published, in the event that a landowner noticed any errors to their parcels of interest. This notice also clearly indicated that from the 1st of April, 2021, transactions relating to parcels within the registration unit would be carried out in the new registers. The notice further advised that the relevant cadastral maps can be accessed at Ardhi House, the head office to the Ministry of Lands and Physical Planning. These maps are essentially maintained and kept under the custody of the Director of Surveys, nowadays at Ruaraka, Nairobi.

 

3.2 Public outcry and official reassurance

Having been released during the holiday season, and owing to the limited circulation of the Kenya Gazette, the 31st December, 2020 notice by the Cabinet Secretary went largely unnoticed. But some people took the trouble to circulate it through social media outlets. It is only then that people took notice. And their reaction was fast and angry. Many decried the lack of public sensitization. Others read conspiracy by government to repossess their land without their knowledge. Most curious speculation about the notice went around within social networks. Sadly, few people were willing to believe that government intentions were genuine.

 

But the Ministry, through the Cabinet Secretary, moved quickly to assuage public fears and concerns through press conferences, press releases and on radio. The Ministry’s website www.lands.go.ke also went live with detailed background information on the process, the process steps involved and the requirements for the replacement of old title documents.  A very elaborate question and answer (Q&A) sheet was also hung on the site, with simplified explanations on the reasons and mechanism of converting and replacing titles.

 

The Ministry also complemented this information with pullouts that were circulated through some newspapers. The dispatches from the Ministry clearly indicate that the process will be done sequentially. And that Gazette and public notices will precede the commencement of the process for every registration unit. The dispatches also provide an ambitious timeline of December 2021 to complete the countrywide process.

Screen shot of the extension of the timeline for land laws as reported by the Daily Nation in February 2012

3.3 Public forums and feedback

In early February 2021, the Kenya Alliance of Resident Associations (KARA), held a public forum for its members on the matter of conversion of titles. KARA invited the Ministry of Lands and Physical Planning to share information on the process, and respond to concerns from its members.

 

The Ministry, represented by the Lands Secretary, the Ag Chief Land Registrar and the Ag Director of Surveys, engaged participants on the conversion process, the National Land Information Management System (NLIMS) and other current priorities under the Ministry. Their presentations added an institutional perspective to the technical requirements discussed in section 2 above. The conversion/replacement process steps were summed up to be:-

 

  1. Preparation of cadastral maps with conversion lists indicating old and new numbers within a registration unit and their corresponding sizes/acreages.
  2. Publication of cadastral maps together with conversion list in the Kenya Gazette and two daily newspapers. Notice will indicate when new register will open to the public for transactions
  • Lodging and consideration of complaints within 90 days of receipt
  1. Closure of old registers and commencement of transactions in the new register
  2. Applications for replacement of title documents in the closed register

 

The forum was also informed about the measures which the Ministry has taken recently in order to ensure accountability and enhance confidence in the conversion initiative[16]. These are:-

 

  1. A catalogue of frequently asked questions has been posted on its website
  2. A help desk to handle related issues has been set up at Ardhi House
  • Media campaigns were conducted for one week to sensitize Kenyans on the process
  1. The Ministry has sponsored its social media platforms to reach out to more stakeholders
  2. The Ministry is working with the Law Society of Kenya to develop a manual to offer guidelines to the process
  3. The Ministry has been highlighting and discussing the process during its ongoing stakeholder engagement forums on the National Information Management System (NLIMS).

Specific concerns

The forum, attended by the President of ISK and the writer as resource persons, helped to bring out some helpful feedback, some of which is shared below. The Ministry could use it to inform reflections and planning, and hopefully improve the process subsequently.

 

  • Need to intensify public sensitization: The Ministry was requested to escalate sensitization on this matter. To this effect, it was urged to consider liaising with key professional bodies such as the Institution of Surveyors of Kenya (ISK), the Law Society of Kenya (LSK), the Kenya Institute of Planners (KIP) and the Architectural Association of Kenya (AAK) which can help to sensitize their members, and even the public, through their national and regional offices. In addition to using mass media, the Ministry could similarly use its regional and county offices to take the message to people much faster.

 

  • Direct, real-time exchange of titles: The audience challenged the Ministry to first prepare the new title documents, and then exchange them directly with the old ones over the respective service counters as landowners come for them. This would enhance confidence and save time.

 

  • Minimize process costs through efficiency: The Ministry was urged to establish mechanisms that would minimize the logistical costs of travel and waiting or queuing at the Registries. This calls for clear communication on the requirements, and efficiency at the service desks. In this regard, the Ministry was invited to project and inform Kenyans on the anticipated duration an individual would take to replace their ownership document.

 

  • Involve the Judiciary: It was observed that some title documents are held by the judiciary, which also continuously receives title documents where required as bail for suspects. The institution of the judiciary should therefore be kept abreast with the current changes.

 

  • Irregular/problematic titles: It was pointed out that some title documents were irregularly issued against public land and reserves, while others are duplicated. The replacement exercise should therefore involve mechanisms for identifying such titles, and have them subjected to due process before replacement.

 

  • Need to develop public trust and confidence: It was observed that owing to past experiences, members of the public do not quite trust the Ministry. Indeed, many people are still quite anxious and suspicious. Therefore, to cultivate confidence in the process, the Ministry was advised to use practical demonstrations to allay public anxiety. This could include use of audio-visuals and narratives on radio and television by members of the public who will have successfully replaced their documents. Such aids or narratives should clearly bring out the requirements, points of service and process timelines. Some of the landowners who replace their documents could also be used as champions to share their experiences.

 

 

  1. Conclusion

 

Conversion in the public interest and reduces costs

The title conversion initiative is anchored in our land policy, constitution and law. It is therefore a commitment Kenyans tied themselves to. Moreover, it will greatly simply and reduce costs to land administration in Kenya, since it will be done under one law and will use a uniform an easy- to-use cadastral map (the Registry Index Map). Moreover, property owners will in future have the convenience of dealing with the lands offices and registries nearest to them.  This contrasts with the current practice where we have to deal with multiple laws, and some landowners have to travel vast distances to transact dealings in far flung registries. So this conversion is in the public interest and the Ministry of Lands and Physical Planning is doing the right thing. In fact, going by the text of the law, it is late. This exercise should have started a lot earlier.

 

Monumental task against a tight timeline

However, Kenya is now home to over 11.1 million[17] registered land parcels. Therefore, rolling out a countrywide process, where the interests to a majority of these parcels have to be migrated to new registers, and the physical ownership documents replaced, is monumental and daunting. Looking at the task magnitude, the provided timeline of December 2022 is quite ambitious, given the current capacity levels in the pertinent technical departments of the Ministry.

 

 

 

Low public confidence

But the greater challenge to this process remains the attitude and low confidence in the Ministry by owners to registered land. The Cabinet Secretary and her team will need to embark on an aggressive drive to turnaround perceptions about the Ministry. Practical demonstrations and use of champions able to convince the doubting public that this process means well and has no intrigues should be employed. The public must be won over with the message that the process will not be saddled with intriguing delays, misplacement or loss of their land ownership documents in the respective registries, as some have experienced in the past. No landowner wishes to be exposed to anxiety, especially through a voluntary process, and on documents as important title deeds. Unless this is done, many landowners may sit back and not apply for the replacement of their old documents.

 

Use stakeholders and political leaders

As the Ministry puts in place mechanisms to build public confidence, it will need to keep close to the key stakeholders, and also political leaders. Such stakeholders and leaders will help the Ministry to underscore the greater good in all this, and also appeal to landowners at grassroots level, to turn out in big numbers to replace their documents. This will help the government conclude this task within some reasonable period. Without these measures, the country may be on this for a long time, and perhaps end up resorting to replacing documents only during transactional moments, when landowners step out for official dealings with their titles in the various land registries.

 

Ibrahim Mwathane is a practicing Licensed Surveyor and a consultant in land governance, a past Chairman of ISK, a Fellow member of the Institution of Surveyors of Kenya and a holder of Head of State Commendation Awards (2005 and 2009). He is currently the Chair of the Land Development and Governance Institute and a columnist with the Business Daily newspaper.

 

 

[1] Republic of Kenya, The Constitution of Kenya, 2010, Government Printer, Nairobi, August 2010

[2] Republic of Kenya, Ministry of Lands, Sessional Paper No 3 of 2009 on National Land Policy, Government Printer, Nairobi, August 2009

[3] Republic of Kenya, The Land Registration Act, 2012, Government Printer, Nairobi, May 2012

[4] Republic of Kenya, The Land Act, 2012, Government Printer, Nairobi, May 2012

[5] Republic of Kenya, The National Land Commission Act, 2012, Government Printer, May 2012

[6] Daily Nation Report on timeline: https://nation.africa/kenya/news/politics/mps-get-60-day-extension-to-debate-key-land-bills-801456

[7] Republic of Kenya, The Land Laws (Amendment) Act, 2016, Government Printer, September 2016

[8] Republic of Kenya, Indian Transfer of Property Act, 1882, Government Printer, Nairobi (Repealed)

[9] Republic of Kenya, The Land Titles Act, Cap 282, Government Printer, Nairobi, November 1908 (Repealed)

[10] Republic of Kenya, The Government Lands Act, Cap 280, Government Printer, Nairobi, May 1915 (Repealed)

[11] Republic of Kenya, The Registration of Titles Act, Cap 281, Government Printer, Nairobi, November 1920 (Repealed)

[12] Republic of Kenya, The Registered Land Act, Cap 300, Government Printer, Nairobi, September 1963 (Repealed)

[13] Term used to refer to land reserved for the settlers of European origin during Kenya’s early colonial history

[14] Republic of Kenya, Special Issue, Kenya Gazette Supplement No. 175/Legal Notice No 277, Government Printer, Nairobi, 22nd November, 2017

[15] Republic of Kenya, Special Issue, Kenya Gazette, Vol. CXXII-No 242, Gazette Notice No 11348, Government Printer, Nairobi, 31st December, 2020

[16] Cabinet Secretary’s speech to the KARA Bi-monthly Talk Series Forum-86 on “Land Title Conversion” held at Serena Hotel on Tuesday 9th February, 2021.

[17] See www.lands.go.ke, home page.