Choose between open and secret land registry systems

Jurisdictions keen on managing land efficiently maintain a land register. This is a record of people who own land and their respective parcels, including the type of interest held and the term of years, if leasehold. Liabilities such as a mortgages or charges to institutions and other beneficial interests or even burdens carried by a title are noted on the register. The information should be current.

The registers are mostly held and maintained in national and/or local land registries. The information therein is of great use to land professionals such as surveyors, planners, valuers, conveyancing lawyers and real estate practitioners. It supports utility firms responsible for water, oil, power, road, rail, internet and aviation infrastructure, as well as courts, banks and tax management agencies, and also citizens when transacting on land or property.

These users can only know information about a land parcel from the register. In Kenya, that is referred to as obtaining an official search or getting a land title search. It is done in the registry within which a land parcel is registered.

In some countries, anybody who pays the fee can conduct a search. Such registries are referred to as “open”. The publicity they provide to the land register is considered a powerful tool against error and fraud. Besides the easy access to official information, it expedites projects and business transactions.

Secret or private systems

Others operate secret or private systems. The law provides that only the registered proprietor, and any other person authorised by them, may inspect or obtain information on the land register. Others require one to demonstrate that they have a legitimate interest in a property before being allowed access to the register. Application for official search must be accompanied by a letter explaining why the information is necessary or authorisation by the owner. That limits use of the information.

Official searches in Kenya draw their legal authority from the Land Registration Act. A person who requires an official search in respect of any parcel is entitled to receive the particulars of the subsisting entries in the register, certified copies of any document, the cadastral map or plan filed in the registry upon payment of the prescribed fee. In April 2017, however, the government waived fees on official searches in a policy move to ease doing business.

Procedure tweaked

This implies that Kenya, in principle, has been operating an open system for a long time.

However, not so long ago, procedure in land registries was tweaked to require applicants to provide a copy of a title deed or lease to undertake an official search. That means one must know the owner. Indeed, in the new Ardhisasa online system, one is required to seek the landowner’s permission before obtaining a search. Kenya, therefore, runs a de facto private system while the law explicitly provides for an open one. This can be legally challenged.

The country should operate a system that expedites business and optimises on available land records. But it must also align to the applicable law.

Mr Mwathane is a consultant on land governance. [email protected].