LANDS REGISTRATION (ELECTRONIC TRANSACTIONS) REGULATIONS, 2020

These Regulations are aimed to guide land registration and administration processes which are to be undertaken electronically through a digitized platform known as NLIS (National Land Information System).

The National Land Information System (NLIS) 

The National Land Information System is an online platform developed by the Government of Kenya through the Ministry of Lands and Physical Planning in collaboration with the National Land Commission.

It integrates land registration, land administration, surveying and mapping, physical planning, property valuation functions and other land related records.

Legal Framework for Electronic Land Transactions

• The Constitution of Kenya, 2010

Article 60 of the Constitution of Kenya provides for the principles of land policy that:

Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the Principles set out therein.

• The Land Registration Act, No. 3 of 2012

The Land Registration Act (the “LRA”) provides for the maintenance of an electronic land register by the Registrar. 

1. Section 9 of the LRA requires the Registrar to maintain a register and any document required under the Act in a secure, accessible and reliable format including electronic files and an integrated land resource register. 
2. Section 10 requires the Registrar to make available to the public the land register (including by electronic means).
3. Section 110 empowers the Cabinet Secretary (CS) after consultation with the National Land Commission (NLC) to make the regulations for the better carrying into effect the purposes and provisions of this Act. Under section 6 (h), the Cabinet SecretaryCS is required to coordinate the development and implementation of a National Land Information System in collaboration with the National Land CommissionNLC.

Salient Features of the Land Registration (Electronic Transactions) Regulations, 2020.

It is important to note that Tthe Regulations currently only apply to Nairobi registry.

An electronic land registry and electronic community land register shall be maintained by the Chief Land Registrar. The electronic land register shall include:; the property section; the proprietorship section; the encumbrance section; the user of the land; and any other feature required under any law or otherwise considered necessary by the Cabinet Secretary.

The Registrar will perform the following electronic registry transactions:;

• issue a notice, certificate or any document which is required to be issued by the Registrar under the Act;
• certify a form, document or extract of a document required to be certified by the Registrar under the Act; 
• send any document issued or certified by the Registrar to the electronic addresses provided by a user for that purpose; and
• for the purposes of registration refer to the electronic cadastre in order to verify information relating to a parcel.

Users of the System

The users of the system can be individuals and legal persons. In order to be allowed access to the platform, one is required to register, enter into a user agreement and subscribe to the terms and conditions prescribed by the Chief Land Registrar.

Authorized user is granted permission to access, query any information or submit any application, instrument or document in relation to any transaction in accordance with these Regulations on behalf of another person.

• Electronic Pre-Registration Process

An authorized user shall obtain and maintain client instructions in respect of each electronic transaction.

For the purposes of preparation of an instrument or document for electronic registration or filing, an authorized user shall use the e-forms, electronic signatures and upload the supporting documents into the system.

The authorized user shall then submit the instrument for valuation of stamp duty in an electronic form and the payment of the stamp duty shall be through the Kenya Revenue Authority payment platform.

• Electronic Registration Process 

1. Submitting of documents-An authorized user shall submit the application, instruments or documents for registration in the system and pay the prescribed fee, where applicable.
2. Notice of electronic filing-An instrument or document shall be deemed to be received for registration when the system generates a notice of electronic filing with a tracking number for the electronically filed application, instrument or document. The tracking number shall determine the priority of registration of the instrument.
3. Registration-The Registrar shall issue an electronic Certificate of Title or Lease which shall contain unique serial numbers and security features which can be used to verify the authenticity of the certificate. 
4. The registered instruments and documents shall be available for download by the authorized user. 

Points to note:

• Manual records can only be used whenever the Registrar requires the production of it and where necessary, the registrar shall refer to the backup of manual records.
• Substantially defective documents and documents submitted for registration without the relevant supporting documents are bound to be rejected by the registrar on application thereof. An authorized user whose application has been rejected may appeal in the prescribed manner.

Commentary:

The NLIS once operationalized should make a substantial improvement in accountability and service delivery in terms of time, convenience and cost effectiveness. 

We anticipate, however, that the operationalisation will take much longer to kick off because there has to be training and capacity building to ensure the uptake, use and sustainability of the NLIS. The capacity building should be available to the users of the system to facilitate a faster uptake of the system among the general populace.

This e-alert is meant for purposes of information only and should not be relied on without seeking specific subject matter legal advice. For any enquiries relating to the above or land transactions generally, please do not hesitate to contact us on info@ckadvocates.co.ke