In Kenya laws, Section 6 of
the Land Act (No. 6 of 2012) gives the mandate to the Cabinet Secretary of the
Ministry of Lands and Physical Planning to coordinate and manage the National
Spatial Data Infrastructure. This requires key development strategies including
technologies, regulation, policy frameworks among others.
In fulfillment of this
role, the land Ministry embarked on developing new system called Ardhisasa
through technologies, policies and putting up the necessary resources to
promote the sharing of geospatial data throughout government levels, private
and non-profit sectors, and the relevant stakeholders.
The ministry has been
keeping manual records since Independence and some survey records are more than
100 years old, exposed to tear and wear. This has made it possible for the
disappearance of the key records such as green cards, white cards and other
documents such as title deeds. Speaking to media in one of her what has now
become her routine interviews, Cabinet secretary for land and physical planning
acknowledged that the old storage method has been a problem. Karoney says
the old system was not only prone to loss of records but the aged paper made it
hard to read the details.
Introduction of National Land Information Management system.
NLIMS is an information
system that enables the capture, management, and analysis of geographically
referenced land-related data to produce land information for land
administration and management decisions. The system integrates all operations
of the Ministry of Lands’ line departments such as land registration, land
administration, physical planning, survey & mapping, valuation,
adjudication & settlement, national land commission and provides a
one-stop-shop where end-to-end transactions in relation to land are conducted.
Properties captured in Ardhisasa.
In the Ardhisasa, not all
properties will be captured as only property records available in the system
are those registered under the Nairobi Registry. Land registry commonly known
as central registry is in Ministry of land headquarters where the files are
being stored and transaction was being done before the digitization came with
recent reforms in the land reforms. The Ministry intends to update the system
to include properties registered at the Central Registry (covering the
Government Lands and the Land Titles Registries) and subsequently registries in
other forty seven counties in counties in Kenya.
It is worth noting that
currently, not all types of land records are in the system. The system as
structured only identifies properties with geospatial data. Information that
describes objects, events or other features with a location on or near the
surface of the earth. Geospatial data typically combines location information
(usually coordinates on the earth) and attribute information (the characteristics
of the object,” Karoney said
Confirming this Karoney
said that topographical survey was done and captured al the land details. “We
did topographical maps for the whole country and a cadastral — a collection of
land parcels in a digital platform, for Nairobi and then digitized non-spatial
data. “Phenomena concerned) with temporal information
“If you want to know
developments around my parcel, there is satellite imagery to tell of hospitals,
roads, rivers. I am really proud of what the team has built.”
Therefore, sectional
properties, such as apartments, flats are not in the system. The
Sectional Properties Act, 2020 mainly simplifies the process of registering
sectional properties in Kenya. It provides for; inter alia, the division of
buildings into units to be owned by individual proprietors who will have
individual titles for their respective units. A sectional unit is defined as a
space that is situated within a building and described by reference to floors,
walls and ceilings within buildings and the concept of sectional properties
entails a sectional unit together with a distinct share of the common area.
Nevertheless, at the
property owner’s request, the properties of this nature can be surveyed and fed
into the system. The system shall NOT provide for the following categories of
properties: –
Properties with incomplete
data records, e.g., To this end, the Cabinet Secretary, in consultation with
the National Land Commission and county governments, developed the National
Land Information Management System (NLIMS).
In the rolling out of the
system the Ministry has for the first phase made available all properties
registered under the Nairobi Registry. However, some properties registered
under the Nairobi Registry may not be available for the following reasons:
1) Properties with incomplete data
Properties may have
incomplete data records. records that lack documentation showing how the
proprietor came to own the property, e.g., letters of allotment or transfers
and;
“Land grabbers have taken
over public assets and have title deeds—issued by the government. Having
started the review, the parcels will not be on the platform,” the CS said.
You can’t cause a file to
disappear on the digital platform because there will be an audit trail. There
are also rights for every level of clearance.”
2) Properties registered as long-term leases based on architectural plans are not yet recognized by the system.
The Sectional Properties
Act also denies property developers leeway to use title deeds for land where
apartments stand as security for loans and other financing facilities
Long term leases have for a
long time been used to confer ownership of fractional units of land,
apartments, flats, town houses and offices in Kenya. The Land Registration Act
No. 3 of 2012 (LRA) provides under section 54 (5) that the Registrar shall
register long-term leases and issue certificates of lease over apartments,
flats, maisonettes, townhouses or offices having the effect of conferring
ownership, if the property comprised is properly geo-referenced and approved by
the statutory body responsible for the survey of land. Section 54 (6) further
provides that the Cabinet Secretary for Lands shall prescribe regulations for
registration of long term leases.
Long term leases are
usually registered on the strength of architectural plans / drawings. Such
drawings do not fall within the meaning of geo referencing. The SPA stipulates
that registration of sectional units should be accompanied by sectional plans
as opposed to architectural drawings. Sectional plans have been defined under
the LRA to mean a geo-referenced plan of units or a part of land as the case
may be, prepared by a surveyor and approved by the statutory body responsible
survey of land. In compliance with section 13 of the SPA, the Cabinet Secretary
in charge of Lands published a notice to the effect that the Ministry will no
longer register long-term leases supported by architectural drawings intending
to confer ownership. The notice further specified that all sectional plans
submitted for registration shall;
·
be geo-referenced
·
indicate the parcel number
·
indicate units’ numbers
·
indicate approximate floor area of each unit
·
be signed by the proprietor
·
be signed and sealed by the Director of Surveys
·
clearly indicate the user of the unit
“If you have a transaction
or when in need of using the land, we will give you a surveyor, create the
geospatial data and then you can proceed with your transaction,” Karoney said
in one of the interviews
Before 2012, there were
five laws governing the sector but the same were consolidated into the Land
Registration Act – the only legal framework presently in use.
3) Public land
Properties recognized as
public land and captured on the Report of the Commission of Inquiry into
Illegal and Irregular Allocation of Land (Ndung’u Report) and the Revocation
Gazette Notice No. 6862.
This report is simply on Illegal and Irregular
allocation of public land provides an insight into a critical, recent episode
in the struggles over ‘land’ and ‘graft’ in Kenya.
Forestlands, National
Parks, Game Reserves, Wetlands, Riparian Reserves & Protected Areas:
4) Settlement
Schemes & Trust Lands:
Trust land, including
settlement scheme land purchased by government with international loans from
European settlers for settlement by African smallholders or carved out of Trust
land has been similarly abused. These are land these land were not adequately
allocated.
Commission found that,
overall, whilst the establishment of settlement schemes and their subsequent
allocation in the early years of independence generally conformed to the
original objectives, in later years there was extensive deviation, with much
land having been allocated for purposes other than settlement and agricultural production
5) Urban,
State & Ministries’ Land
The Commission indicated
that numerous methods were used to grab land falling under this category. There
was found to have been widespread abuse of presidential discretion with regard
to alienated urban land, with ‘in many instances’ (both) Presidents Kenyatta
and Moi making grants to land to individuals without any consideration to the
public interest, for political reasons, and without proper pursuit of legal
procedures,
CS Farida Karoney on land
that may have been grabbed: ‘We have separated public land from private land.
We will assess how people acquired titles for public land and a decision on
what to do will follow thereafter”
Conclusion.
The notice of 7th May 2020
reiterates the requirement to convert all long-term sub-leases intended to
confer ownership to apartments, villas, offices etc. which do not conform with
section 54 (5) of the Land Registration Act, 2012 and section 13 of the
Sectional Properties Act, 2020.
In reaction and to ensure
proper compliance with the above law’s provisions, the Ministry has started the
process of converting the land. Also, in a bid to ensure compliance with the
above-mentioned legal provisions they have stated that they intend to convert
long-term leases previously registered on the basis of architectural drawings,
to conform to the current land regime. Registration and issuance of titles for
such units will only be done where the units are properly geo-referenced and
approved by the statutory body responsible for the survey of land.
At premier we shall keep
you updated on further developments on the Ardhisasa and sectional properties
process. In the meantime, we remain available to answer any queries you may
have in regard to the Ardhisasa and latest land reforms in general.
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