Winners and losers in title deeds conversion drive

The Cabinet secretary for Lands and Physical Planning, Ms Faridah Karoney, published a notice in the Kenya Gazette on December 31, 2020, in which old Nairobi land reference numbers were converted to new numbers.

This move is causing anxiety among land owners in Nairobi.

In the Registration of Titles Act (RTA) Cap. 281, (repealed), parcels of land were registered using land reference (LR) numbers. Each title carried a deed plan, which showed only the subject parcel. All technical, legal and administrative processes for RTA titles were carried out in Nairobi.

Leaseholds

Most parcels in urban areas are leaseholds registered using RTA, and all transactions require conveyancing lawyers, which makes transacting in RTA titles an expensive, elitist process.

In the Registered Land Act (RLA) Cap. 300, (repealed), parcels of land were grouped together into blocks, each showing all the pieces that have been surveyed and registered in a Registry Index Map.

There were two types of RLA registrations, differentiated by the method of survey and the accuracy of the resultant plans: RLA “fixed” boundary survey is more accurate and is derived from a properly georeferenced survey plan; while in RLA “general” boundary survey, hedges, bushes and similar features suffice as boundaries of each parcel. 

The new generation titles to be issued in registries in many parts of the country do not require the services of a conveyancing lawyer, and are, therefore, more convenient for the ordinary mwananchi.

Many conversions done

The policy of government has always been to convert RTA to RLA “fixed”, and many conversions have already been done over the past two decades, even before the law required it.

Now, Section 15 of the Land Registration Act, (LRA, 2012) requires that a cadastral map be prepared for every registration unit.

The ministry’s gazette notice is, therefore, a commendable effort to migrate to this new registration regime. An argument advanced by the ministry is that this conversion is also an effort to reduce fraud, hasten service delivery, decentralise land services, hasten digitisation and reduce threats to property rights.

Fraudster’s paradise 

In the previous dispensation, fraudsters used the conversion process to steal private land by creating double titles for the same space. They used the fake titles as collateral for loans from financial institutions. It is only at the point of either construction or repossession in case of default, that the double registration is discovered. 

The ministry must be wary of fraudsters who will use this conversion process to legitimise illegally acquired parcels. Not every Kenyan is aware of the significance of this exercise, and there will always be crooks who will know how to cover their tracks during such a massive undertaking. 

In this mass conversion of Nairobi parcels, care must be exercised to ensure we are not facilitating wholesale fraud. The institution on the spot and which is best placed to guarantee the security of our land investments is the Department of Surveys at Ruaraka, which assigned both the old and the new numbers to each parcel. 

Considering the short time given by the Cabinet secretary for this work, it will be a Herculean task for the ministry to deliver on its promise.

Proprietorship names

Apprehensive Kenyans would have been reassured if the minister had attached proprietorship names to the two sets of numbers for each parcel. 

Since coming to power in 2013, the Jubilee administration has made titling of land the cornerstone of its “Land Reform Agenda to provide a lasting answer to the historical land question”. Millions of titles have been doled out throughout the country, mostly in rural adjudicated farmlands.

Simultaneously, an ambitious programme of digitisation of land records was also undertaken, resulting in the disruption of services at the registries, which closed, sometimes for weeks on end.

These disruptions cost billions of shillings in lost business transactions, disputes and missed government revenues.

Parcel numbers

Digitisation of land records cannot be complete without connecting data to the space they are attributed to. Just when the country thought that we were finally about to get information on our land “at the click of the button from the comfort of our homes”, we have been hit by a massive undertaking — the conversion of parcel numbers. 

Could this further delay the launch of National Land Information Management Systems (NLIMS) which has been in the works since 2004 when then minister for Lands and Settlement, Mr Amos Kimunya, launched the National Land Policy formulation process?

The cabinet secretary for Lands has a full “in tray” when it comes to land reforms. Two-Thirds of this country is still community land. The new Community Land Law, which put a stop to all transactions in community lands is not being implemented yet.

Community lands

Meanwhile, fraudsters are having a field day in those vulnerable lands. The Cabinet secretary must put in place machinery to adjudicate and register community lands. 

Those lands play a vital role in hosting most of our infrastructure such as railways and highways. The theft of community lands for speculative purposes not only dispossesses the communities but also increases the cost of development projects. 

Another item in the Cabinet secretary’s “in tray” is the unnecessary burden of leasing of public lands in all urban areas, as the National Land Commission (NLC), with skilled manpower and a huge budget sits idle next door. 

In my opinion, neither the ministry, nor the commission should be leasing public land on behalf of both the national and county governments. The respective levels of government should be administering and managing public lands vested in them.

Thousands of parcels of land acquired by various public agencies are still in the hands of the compensated former land owners. Neither the commission nor the ministry is doing anything to vest those lands in government, raising concern that the former owners could still use those lands in fraudulent ways.

Revoked titles

More than 6,000 titles revoked by the commission in 2013-2017 have yet to be expunged from records, with a very present danger of camouflaging them under a new registration regime.

To add more load to the Cabinet secretary’s “in tray” is the newly enacted Sectional Properties Act, which requires that all privately owned sectional properties must have their titles “reviewed”.

This is yet another necessary and massive undertaking with a limited timeline. Thousands of people will be flocking to Ardhi House soon to apply for reviewed titles for their apartments.

The ministry must put appropriate infrastructure in place to deal with the anticipated gridlock in the already overcrowded Covid-19 non-compliant building known as Ardhi House. 

I wish the ministry and the Cabinet secretary good luck in all their endeavours, but care should be taken to forestall the risk of failure or getting overwhelmed by taking on too many massive programmes all at once.

Proper planning and distribution of works to relevant institutions and county governments should have preceded these multi-faceted, highly technical and massive projects.

Socio-economic upheavals

It is understandable there are political timelines to meet and legacies to cement. History has, however, taught us that sensitive undertakings that are rushed for political expediency have a tendency to end in pain, agony, loss and tedious litigations to resolve disputes, not to mention socio-economic upheavals and frustrations.

Political appointees and technocrats must deploy abundance of caution not to cut corners around the law in their zeal to meet political timelines, even in necessary, and long overdue land reforms.

The writer is a licensed land surveyor and consultant. He is also a former commissioner, NLC.

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