1. What is geo-referencing?
The interpretation section of the Land Act provides that ‘geo-reference’ means reference to an object by a specific location on, above or below the earth’s surface. The Land Registration Act provides that ‘geo-reference’ means the reference of an object using specific location on, above or below the earth’s surface. Geo-referencing boundaries in the context of Kenya’s land laws should therefore mean relating boundaries of a parcel of land to a specific or unique location on, above or below the earth’s surface. A map prepared from geo-referenced survey points and parcel boundaries can hence be referred to as a ‘geo-referenced map’.
2. When/where is geo-referencing required?
I. According to the Land Registration Act 2012:-
a) For Cadastral Maps: According to section 15 of this Act, the authority responsible for the survey of land (supposedly the Director of Surveys/County Survey offices) shall prepare and maintain a cadastral map for every registration unit. The parcel boundaries on such maps shall be geo-referenced and surveyed to such standards as to ensure compatibility with other documents under the Act and any other laws.
b) For long term leases and certificates of lease for apartments and flats: The land registrar, according to section 54(5) of this Act, is expected to maintain a register of sectional properties for purposes of the Sectional Properties Act. The Registrar shall register long-term leases and issues certificates of lease over apartments, flats, maisonettes, townhouses or offices having the effect of conferring ownership, if the property is properly geo-referenced and approved by the statutory body responsible for the survey of land.
II. According to the Land Act 2012:-
a) For the database of public land: Section 8(a) requires that in the management of public land, the land commission shall identify public land, prepare and keep a database of all public land. The law requires that this database shall be geo-referenced and authenticated by the statutory body responsible for survey.
b) For compulsorily acquired land: Section 107(8) of this Act requires that all land to be compulsorily acquired shall be geo-referenced and authenticated by the authority responsible for survey at both national and county government.
3. What does the geo-referencing of maps and boundaries cure in Kenya?
i. Challenges under the repealed Registered Land Act(RLA)
Under the Registered Land Act, the Registry Index Map (RIM) maintained by the Director of Surveys, was used to support the registration of title. Under these non geo-referenced maps, unless the boundaries to a parcel were regarded fixed (based on an accurate coordinate-based/geo-referenced survey), they were deemed to indicate ‘the approximate boundaries and the approximate situation’ only of the parcel. Due to challenges in technology and the pressure for mass titling, this provision led to the setting out of boundaries and the preparation of maps which were not based on coordinated/geo-referenced surveys. In some cases, casual pacing was used to demarcate and set out boundaries and sketch maps were thereafter prepared to support the registration of such land parcels. In several registration blocks, such maps have not been able to reliably support the identification of property for valuation, forced auctions and the laying out of service infrastructure like water, roads and sewer. In several cases, there has been disparity between the sizes of parcels laid out on the ground and that stated on title deeds. This has caused major problems during subdivisions or when banks wish to use such titles as collateral. Some land owners have at times ended up in conflict with buyers after the balance of land left behind after sale differed grossly with what they’d expected.
Moreover, the resolution of boundary disputes based on such maps has proved unreliable since owners expect map-based solutions yet the maps are ‘not deemed an authority on boundaries’. Boundary disputes have therefore continued to be filed in rural land registries for properties registered under RLA. Such disputes are particularly prevalent in Narok, Kajiado, Nyanza, Western and many parts of Eastern region of Kenya where cadastral Registry Index Maps are of very low accuracy. Maps in most of Central Kenya are a lot more accurate since aerial photography was done and better maps prepared after the initial demarcation. But even here, the non geo-referenced maps continue to pose major challenges in dispute resolution where boundaries genuinely get lost or are deliberately interfered with. All these maps can only be scanned and not digitized for use in a computer medium. Without the required ‘intelligence’ of coordinates/geo-reference, they cannot be effectively manipulated and matched onto their respective owners in a modern computer database.
A geo-referenced plan enables accurate property identification and information processing by computer
ii. Use of unreliable sketches/diagrams in sub-leases for the registration of high-rise developments:
Prior to the enactment of the Sectional Properties Act 1987, vertical developments of flats and offices could only be registered as sub-leases against the mother titles. In such cases, the original property owner continued to hold the mother/head title whose determination would imply a pre-determination of the sub-leases. Payment of annual land rates would also be tied to the head title, creating a situation where liability could accrue for the individual unit owners without their knowledge. They also aren’t able to freely transact with their units without reference to the original owner. But the Sectional Properties law enabled the issuance of individual titles for a floor or a unit within a high rise building. This improved the kind of title one could derive from such developments since buyers/owners were able to hold titles totally distinct from the original head/mother title. They could henceforth freely transfer their properties or use them as collateral and pay their annual rates separately.
However, the application of the Sectional Properties Act, with its far superior features, has been undermined by the continued use of sketch maps/diagrams submitted for registration under the Registration of Documents Act. This Act does not prescribe the need for accurate plans/maps. In such cases, not only are the unit owners getting ownership documents inferior to what they could but the filing of non geo-referenced sketches representing each floor or unit has continued. In the event of specific disputes relating to the vertical and horizontal positions of such units, relocation would be indeterminate and based on memory and negotiation and not specific reference to any surveyed boundaries. This, for such high value properties, is inappropriate. Moreover, like the sketches for rural properties discussed above, the sketches maintained under this law cannot be effectively supported in a computer database and therefore undermine the country’s efforts to develop a modern land information management system.
4. How will geo-referencing improve the property industry?
From the above, the effective geo-referencing of property boundaries and maps will:-
i. Improve the quality of cadastral maps for use by planners, surveyors, valuers, infrastructure providers and other property map users
ii. Minimize boundary disputes for rural and urban properties
iii. Make it possible and easy to use GPS in the identification of properties and property boundaries around the country.
iv. Increase confidence in stating the sizes of land parcels on title deeds of rural properties.
v. Enhance the value of high rise developments where supported by geo-referenced maps.
vi. Help to protect and prevent encroachment on public land, particularly forest reserves and parks, due to perimeter boundary uncertainties.
vii. Where the perimeter is mapped through geo-referencing, help to protect unregistered community land.
viii. Help to support the development of a modern Land Information Management System (LIMS) which will improve Kenya’s land administration and management.
ix. Make it possible to integrate Kenya’s cadastre with the National Spatial Data Infrastructure (NSDI) which is currently under development.
x. Helps to harness today’s GPS and digital equipment and technology and for the rapid demarcation and preparation of plans/maps as opposed to earlier rigorous and slow manual methods.
5. What needs to be done for effective implementation?
To effectively implement geo-referencing:-
1. The Director of Surveys must provide GPS stations and other coordinated survey stations in vantage points around the country for geo-referenced survey of properties by public and private surveyors. But the geo-referencing of properties within urban areas can easily proceed since there is sufficient survey control in most such places.
2. Where necessary, the Survey Act and the Sectional Properties Act (and any other related Statute) should be aligned with the new laws.
3. Practice regulations, standards and procedures should be developed to guide geo-referencing in all circumstances.
4. Procedures for submission of relevant survey records in Ardhi House and County Survey offices and registries must be perfected for clarity and speed.
5. Professionals in the public and private sectors must be sensitized on the procedures and advantages of geo-referencing in the immediate and long-term.
6. The use of sketches and diagrams to support the registration of sub-leases under the Registration of Documents Act must be ceased. The offices of the Chief Land Registrar, County Land Registrars and Registrars under the Land Registration Act should begin to comply with Section 54(5) of the Act in the registration of apartments, flats, maisonettes, townhouses or offices.
