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.

The new “Ardhisasa” online system seeks to cement the practice, by requiring anyone intending to conduct an official search against any registered land parcel to obtain prior permission from the proprietor. The practice is also contrary to the principle of transparency, and the constitutional right to information held by the state. In practical terms, it constricts land governance.

For instance, valuers, investigation agencies, construction companies and investors who wish to make official searches for very legitimate reasons such as establishing the ownership and status of a parcel for reasons such as valuation for forced sale by a lending institution, criminal investigations, compensation or negotiations for investments, will be limited. The practice restricts opportunities for business prospection on property.

Moreover, the restriction could give Kenyans the perception that the state has designed a system that helps to hide the identities of some property owners against public interest. This unnecessarily hurts public perceptions on “Ardhisasa”, and in reality undermines its potential. The Institute therefore proposes that in order to tap into the full capacity and potential of the new system for effective land governance, official searches against all properties within the system should be left open as used to happen before. This is the greater good and any other associated concerns should be addressed separately.

Issued on 15th June, 2021 by the Land Development and Governance Institute (LDGI) as part of its 21st Land Watch Note on the "Status of Land Information Management in Kenya" : See www.ldgi.org or www.ldgi.co.ke