The Land Registration Electronic Transactions Regulations

Introduction

The Land Registration (Electronic Transactions) Regulations (2020) and Land Amendment Regulations 2020 together (the Regulations) were published on July 9, 2020 by the Cabinet Secretary for Lands and Physical Planning and took effect on July 14, 2020. You can access the Regulations by using the following link http://kenyalaw.org/kl/index.php?id=10652#jfmulticontent_c43998-4

The Regulations are meant to give effect to the Land Act, 2012 and the Land Registration Act 2012,with regard to the development and implementation of a National Land Information System and the maintenance of a land register and land documents in a secure, accessible and reliable format as well as operationalizing the use of electronic transactions in land matters.

We highlight below some of the changes brought about by the Regulations and their potential impact.

1. Land Registration (Electronic Transactions) Regulations (2020)

i. Electronic Land Registry

The Regulations provide that the Chief Land Registrar shall maintain an electronic land registry and that all registries shall maintain an electronic land register. The Regulations also provide that the Registrar may through the system issue notices, certificates and other documents electronically. The Regulations further require that the cadastral map be kept in electronic form.

The Regulations require that users register their particulars in the system before accessing the system. The Regulations also allow for legal persons or the community to act as users of the system.

ii. Pre-Registration Processes

The Regulations further provide that official searches will now be done electronically. Pre-registration processes such as filling of e-forms, e-signatures, uploading supporting documents, e-valuation and e-payment will be done electronically. Evidence of pre-registration will be an e-generated notice of filing with a tracking number. The purpose of the tracking number will be to determine the priority of registration. Importantly the effect of e-registration is that e-registered documents will have same legal effect as paper documents.

iii. Registration Process

The registration of an electronically filed instrument or document shall be completed upon the approval of the transaction and the making of corresponding entries into the register by the Registrar. Upon registration, there shall be an electronically generated notice to the effect that the document has been registered.

The electronic certificate of title or lease shall contain unique serial numbers and security features which can be used to verify the authenticity of the certificate.

2. Land (Amendment) Regulations, 2020

In addition, the Regulations have amended the Land Regulations, 2017 the (Principal Regulations) by providing for the use of electronic forms and by making the following key processes electronic:

• Transfers;
• Sub-leasing;
• Obtaining the consent to transfer;
• Sub-division;
• Amalgamation;
• Reparcellation; and
• Change and extension of user.

Commentary

The Regulations are a welcome development during the Covid-19 pandemic as we will be able to follow the laid down protocols by the Ministry of Health while still carrying out transactions. The Regulations if fully operationalized will help in streamlining the land sector in terms of efficiency and will ease doing business in Kenya. One of the major concerns that we anticipate is the issue of security of documents and integrity of land transactions. The concern has been dealt with in the Regulations as the Regulations provide that as an added feature of security there will be an OTP (one time password) that will be directly sent to the users telephone number to authenticate every log-in into the system. The Regulations further provide that the electronic certificate of title or lease shall contain unique serial numbers and security features which can be used to verify the authenticity of the certificates. We can however not guarantee that the above security measures will be able to protect and maintain the integrity of the system by avoiding things such as identity theft or unwanted entry into the system. Please note that the Regulations are still subject to forms approval by Parliament. We will update you once the forms are approved by Parliament.

If you have any inquiries relating to the above or land transactions generally, do not hesitate to contact Dennis W. Muhindi on dmuhindi@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied on without seeking specific subject matter legal advice.