A notice by the Ministry of Lands that it will issue new title deeds to replace those issued under repealed laws as it transitions to a new registration system has raised concern among landowners.
As a follow up to a gazette notice published on December 31 by Lands Cabinet Secretary Farida Karoney informing landowners in Nairobi of changes in their land reference numbers, Ardhi House on Tuesday said it will cancel and replace all title deeds issued under old laws.
The laws include the 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of Titles Act (Cap. 281), the Land Titles Act (Cap. 282) and the Registered Land Act (Cap. 300), which were repealed by enactment of the Land Registration Act.
Replacement of the title deeds will follow a process set out by the Land Registration (Registration Units) Order, passed by parliament in 2017.
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There will be changes in the parcel numbers, which Karoney told the public to be on the look out for.
The changes have already started in Nairobi where over 5,000 new titles will be issued.
For instance, in the Nairobi, the parcel of land identified as L.R. No. 209/7229 is now Parcel Number 1 in Nairobi/Block1 while L.R. No. 4393/12 in Nairobi/Block2 is now Parcel Number 1 in Nairobi/Block2.
Since enactment of the Land Registration Act, registration of land transactions has been going on under the transitional provisions since 2012.
Title deeds bear the title of the law that they are issued under, just below the coat of arms. Title deeds issued before 2012 bore the title of the now-repealed Registered Land Act, but titles issued after 2012 bear the titles of both the repealed and the new law.
The conversion begins with the Ministry of Lands preparing cadastral maps, graphical indices of parcels and a conversion list which will show the old land reference number and the new one.
The announcement has caused concern among sceptics who see it as opening for dispossession when the land is converted.
The ministry and the Law Society of Kenya, however, say the process is foolproof and there will be no change in existing freehold and leasehold tenure.
Land Registration Act 2012 needs georeferencing of land parcels to produce cadastral plans and maps to eliminate overlap of the land parcels.
There are about 11 million title deeds in the hands of Kenyans, 6 million of which were issued between 1963 and 2012.
“We cannot migrate all those titles at once. We are starting with Nairobi and even then we are doing it in batches,” Karoney said.
The ministry has started the process of migrating 29 out of the 250 blocks that make up the city.
“As we go digital in a county, we are going to migrate the titles until we finish all of them. That is why we are starting with Nairobi because it is going go fully digital in a month,” the CS said.
The process of the conversion is supposed to continue until the end of 2022 and will be done free of charge.
The landowner will be required to apply to the Ministry of Lands for the new titles. The application will include providing the original title and copies of their other identification documents.
Ardhi House is, however, silent on the time it will take to produce the new titles.
Advocacy group, Land Development and Governance Institute (LDGI), said confidence the public has on the government will inform how the process will be received.
“Does the public trust that when they deliver their titles and don’t get the replacement the same day they will be comfortable getting it at any other time? That is where you hear a lot of noise from Kenyans,” Ibrahim Mwathane who heads LDGI said.
Mwathane says the aspect of public trust will be the most fundamental in the exercise. He said it unfortunate that “there is that perception of a deficit of trust in the ministry”.
“I think I can understand where the Kenyans are coming from. But I am sure the CS and her team know that there is that perception. This is a very demanding and sensitive exercise, any error can be misconstrued and can undermine confidence and consequently deter people from supporting the exercise,” he said.
Mwathane said another concern Kenyans have is the government’s capacity to carry out the exercise.
“This is a very massive exercise and it will be extremely demanding. One would expect that it would be phased out. I want to believe what has started is the first phase which will be like a pilot so people learn lessons and hopefully once the lessons are learned there will be an improvement going forward,” Mwathane said.
But the CS said the new titles will be produced almost immediately. “The trust problems that have plagued the sector have been created over 57 years. Part of what we are doing is to set up systems that will restore public confidence. That is why digitization is a priority. The best way to assure the landowners is to put in place a system that is not only accessible to them but is also kept away from fraudsters,” she said.
Karoney said yesterday that they will work overtime to complete the process.
“We are doing it gradually because we do not want the process to be overwhelming. Migrating all those titles is not easy so you have to phase it out,” she said.
Ardhi House has attempted to build confidence in the exercise with Karoney saying fears and speculations over the exercise are unfounded.
“The entire process will be carried out in a transparent manner. The conversion process does not involve a change of ownership,” she said. “The transition to the use of Registry Index Maps will curb fraud as landowners will easily note changes as opposed to deed plans that contain survey data on one parcel of land.”
There are questions about the fate of titles on contested properties with cases pending in courts or titles that were acquitted for infrastructural development. The ministry has not given plans on how it was planning to handle the conversion of such titles.
CS Karoney said the ministry is still consulting stakeholders in the land sector to find a way forward and shall issue further communication in due course.
But landowners whose titles are held by banks as collateral will have to talk to their banks so the financial institutions can facilitate their application for the title replacement. Some of the titles are held by hospitals and courts and shall only be replaced on the application by a proprietor, who will have to liaise with the third party to facilitate the replacement process.
Land that is under caveat shall automatically be migrated to the new register.