The land register

Jurisdictions keen on managing land efficiently maintain a land register. This is a record of people who own land, and their respective land parcels. The details include the type of interest held, and the term of years, if leasehold. Liabilities such as a mortgages or charges to any institution, any other beneficial interests, or even burdens carried by a title, are noted on the register. For optimal use and best effects, the information on a register should be current.

In most countries, land registers are held and maintained in land registries held at the national and/or local level. The information held in land registers is of great use to land professionals such as surveyors, planners, valuers, conveyancing lawyers and real estate practitioners. It supports utility companies responsible for water, oil, power, road, rail, internet and aviation infrastructure. It’s also of interest to courts, banks and tax management agencies. Citizens resort to the register when transacting on land or property. All these users can only get to know the lawful owner, the interests enjoyed and the liabilities against any land parcel by looking at or getting a copy of the information on the register. In Kenya, this procedure is referred to as obtaining an official search, or getting a land title search. It is done in the registry within which a land parcel is registered.

Open systems

Worldwide, this official procedure varies with jurisdiction and the applicable law. In some countries, searches may be done by anyone interested in getting the information provided they pay the requisite government fees. Registries that operate such systems are referred to as open registries. The publicity provided by such systems to the land register is considered as a powerful tool against error and fraud since anyone can freely make an enquiry. Furthermore, the users cited above have easy access to this official information. This greatly expedites their projects and business transactions.

Private systems

On the other hand, some countries operate secret, or private systems. In these countries, the applicable law provides that only the registered proprietor, and any other person authorized by such proprietor, may inspect or obtain information on the land register. Others require someone to demonstrate that they have a legitimate interest in a property before they are allowed access to information on the register. Therefore, applications for an official search in such jurisdictions must be accompanied by a letter explaining why the information is necessary, else attach authority from the owner. Subsequently, this limits use of the information.

Official searches in Kenya draw their legal authority from the Land Registration Act. This provides that a person who requires an official search in respect of any parcel shall be entitled to receive the particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee. But in April 2017, the government waived fees on official searches, in a policy move to ease doing business in Kenya. This essentially implies that Kenya, in principle, operates an open system, which indeed has been the practice for a long time.

Kenya running a de facto private system

However, not long ago, procedure in land registries was tweaked to require applicants to provide a copy of a title deed, or lease, before they could be allowed to undertake an official search. This implies that one must then know the owner. Indeed, in the new online system, ardhisasa, one is required to seek the permission of a land owner before obtaining a search through the system. Kenya is therefore currently running a de facto private system while the law explicitly provides for an open one. This can be legally challenged.

Whatever the reasons, Kenya should operate a system that expedites business and optimizes on available land records. It must also align to the applicable law.

Dated: 9^th March, 2022