Restricted Searches: Closed or open registry system for Kenya?

Right from inception, Kenya’s land registry system has remained open. This meant that anyone with an interest on a registered piece of land could apply and obtain an official search in the various land registries without restriction. Many jurisdictions operate such systems. They allow individuals and institutions to obtain information on the proprietorship and encumbrances on any registered land parcel to use in transactions of their interest, whenever they may wish, provided they pay for any required statutory fees, unrestricted.

However, after a long period of operating an open registry system, the government clawed back and introduced the practice where to conduct an official search against a land parcel, one needed provide a copy of the title deed to the parcel. This means therefore that one must know the owner to a parcel before they undertake a search against it. This practice, which actually contradicts constitutional requirements for transparency, citizen right to information, and the key objective for property searches, has gone on for quite a while now.

LAND WATCH NOTE

1. LAND INFORMATION MANAGEMENT

Rising water levels

I am seated in one of the conference rooms in Lake Naivasha Resort, one of the heaviest investments in conferencing facilities in Naivasha in recent years. It’s off Moi South Lake Road, Naivasha. Ahead lies other top-notch tourist facilities including Enashipai, Sawella, Sopa and Simba. My peek through the window captures a beautiful skyline, enhanced by the Lake edge cutting through a landscape rich with savanna shrubs and beautiful acacia trees. It has been quite a while since I spent some generous time around here. Clearly, something has changed lately. The ground between the hotel and the water edge has shrunk……and tremendously so. The water levels are much higher today, and one can see the tops of submerged trees, evidence of the much ground gradually covered by the rising lake water.

Threat to investments

Competing needs

Public land in Kenya currently stands at approximately 13% of our stock. This is small. Yet it is needed for a wide range of uses. A reasonable proportion of it is reserved for use by government institutions such as Ministries and their departments at national and county level. Some is committed to state agencies under the various ministries. Some public land is reserved for use by our legislative and judicial institutions.

Notably, public land reserved for institutions and agencies in the education, agriculture and health is quite vast. This includes land under Universities, Research and Technical Training Institutes, Secondary and Primary schools. In agriculture, a lot of land is under research institutions dedicated to crop and animal production, disease control and a raft of other specialized uses. Hospitals, health centers and Medical Training Institutes take up lots of land reserved for the health sector.

Provision on controlled land

Only last month, this column highlighted the legal provision requiring that transactions for properties that are within 25 kilometers from Kenya’s inland borders or the first and second rows of the high water mark of the Indian Ocean obtain consent from the Lands Cabinet Secretary. According to the provision, non-citizens, without such consent, could not transact on such properties. Kenya is not alone on this. The Province of Alberta, Canada, also operates provisions to control land ownership by non-citizens.

But our courts have now outlawed the provision. A ruling by the Environment and Land Court sitting in Malindi has proclaimed it unconstitutional. While making orders on the consolidated petitions 19 and 291 of 2016 by the Malindi and Mombasa Law Societies respectively, the Court declared that the amendments introduced to the Land Act through the Land Laws (Amendment) Act 2016 to control land transactions are unconstitutional. These orders, among others issued in response to the consolidated petitions, were issued on 29^th October 2021. The Attorney General, the National Assembly and the National Land Commission were the respondents. What were the arguments?