Soon after the enactment of the new land laws, I wrote saying that the titles issued under the old ones were fully recognized which was good for business. I pointed out the relevant provisions in the new Land Registration Act 2012. But I soon began picking up counter signals. Colleagues in the valuation profession sent word that some lending institutions were wary of dealing with titles previously issued under the Government Lands Act Cap 280. They argued that the new Land Registration Act had provided that these titles would now be subjected to ‘examination’ before they are accepted for registration as certificates of leases or certificates of titles under the new law. This is true. That is what the new Land Registration Act, which is now the single law under which all titles in Kenya will be registered, states. Such institutions, and particularly banks, were arguing that if previous titles and certificates of leases issued under the Registered Land Act Cap 300 and the Registration of Titles Act Cap 281 were expressly deemed to be titles or certificates of leases issued under the new Land Registration Act, why not those under the Government Lands Act? Why had these been singled out for examination? Weren’t they also ‘full’ titles?

In all fairness, these arguments were wrong and made out of a misunderstanding of registration statutes and unfair to the affected investors, some of whose borrowing transactions remain unapproved to date. I remember meeting a colleague who had vehemently questioned that entry of the law and who went on to intimate that it was a mischievous clause that endangered the old titles issued under the Government Lands Act. I explained to her that she, like the banks and other financial houses, were wrong and were creating unnecessary panic in the industry. No wonder, it took the office of the then Commissioner of Lands, with technical advise from the Chief Land Registrar’s office, to issue a public circular clarifying that such titles were still acceptable and were regarded just as before in all transactions lodged in land registries. It is indeed a pity that some investors got adversely affected by this wave of thinking and have had perhaps to put their investment plans on hold.

Two registration systems

In the doctrine of land registration, we have two systems. One is the ‘registration of deeds’ and the other is the ‘registration of titles’. In the registration of deeds system, during transactions, a copy of each deed of transfer is deposited in the land registry. With numerous transactions, one can only be able to ascertain the correct state of ownership by examining the related bundle of deeds. In the registration of titles system, a register of all parcels of land and their respective owners is maintained in a land registry. Therefore, a look at the register always gives the details of all parcels registered in the registry, unlike under a deeds system where one must look at the bundle of deeds backwards.

Government Lands Act and Land Titles Act were under registration of deeds

The new Land Registration Act supports a ‘registration of titles system’. The previous Registered Land Act and the Registration of Titles Act also supported a ‘registration of titles system’. That’s why their titles are expressly deemed to be titles issued under the Land Registration Act. The Government Lands Act and the Land Titles Act were ‘deeds systems’. For their documents to be registered as titles or leases under the new law, basic examination, to confirm the chronology of deeds, must be done. This is procedural and doesn’t erode the quality of those titles or transactions.