Introduction To The National Land Information Management System
Pursuant to the enactment of the Land Registration (Electronic Transactions) Regulations, 2020, the President of the Republic of Kenya in April of 2021 launched the Ardhi Sasa System which was developed by the Ministry of Lands and Physical Planning in consultation with the National Lands Commission and other stakeholders. It is currently operating in Nairobi with the exclusion of sectional properties to which regulation are being worked on by the Ministry of Lands and properties under the Central registry which is still manual.
Merits
The system seeks to ensure that Land transactions are genuine and legal hence minimizing complaints from the public.
It provides an updated verified database of Land records that are easily available.
The system seeks to eliminate fraud, corruption and manipulation of critical Land records by ensuring an authorised user is notified by SMS should an unauthorised person try to gain access to the account as there is the requirement to log in to your account through a system generated USSD CODE every time one accesses the system.
Interested parties will be able to gain access to Land information and processes undertaken by the government. It equally allows for the lodging of online applications for various services offered by both the Ministry and the National Land Commission.
Services such as searches which are relevant while undertaking due diligence can now be done through the platform.
The digitized Land recording system is aimed at streamlining Land transactions. Various stakeholders are therefore able to handle transactions expediently with minimum delays and inconveniences both to the financial institution and its clients.
The system crosscheck’s identity information from the registry of persons. If your identity details do not tally with the information at the registry of persons then one is locked out of the system. This enhances certainty of the users of the system which helps to curb fraudulent transactions by imposters. In a scenario where an Advocate conducts a search through their account and is not able to successfully verify the title as belonging to the Title holder and it then happens that the Title Holder’s account is yet to be verified, particularly, financial institutions may be putting themselves at risk by offering out a facility. To protect its interest financial institutions may require a Deed of Indemnity from a borrower to cushion itself in case the status of the title turns out otherwise.
At the moment, the system does not recognise Sectional Properties (flats / apartments). However, they will be on boarded overtime after regularization i.e. once the sectional plans are registered. This is in line with the New Sectional Properties Act, 2020 under Section 13 (2) which provides that all long term subleases that intend to confer ownership of an apartment, maisonette, flat, townhouse or offices that were registered before commencement of the Act should be properly geo-referenced and approved by survey department within 2 years after its enactment. This has the effect of doing away with the sub-leases.
Demerits
System malfunctions. Security breaches may occur where confidential information is accessed by unauthorized persons.
Human error where inaccurate data is fed into the system.
A user may also experience system delays when there is a lot of user traffic on the website.
The system does not make provision for foreigners and foreign Professionals who have been admitted to practice in Kenya, noting that it only provides for registration through the use of a Kenyan National Identification Number.
There is inadequate public awareness on the use and benefits of the system.
In as much as the cross check system enhances certainty of the users of the system, if a user’s identity details do not tally with the information at the registry of persons, one is not able to transact on the system.
The system does not recognise properties with incomplete data records e.g, properties that lack documentation showing how the proprietor came to own the property either by way of letters of allotment or transfers. Properties recognized as Public Land and captured on the Report of the Commission of Inquiry into Illegal and Irregular Allocation of Land (Ndung’u Report) and the Revocation Gazette Notice No. 6862 will also be excluded.
Where the registered proprietor to a property is a foreigner or a foreign company, it will be impossible to transact with the property until is there is created into the system a mechanism to verify Identity information.
Verification of Titles
Before one is able to transact on the Ardhi Sasa System, there is a requirement that titles ought to be verified. One makes an application by lodging a copy of the title and give details of the proprietor. A user thereafter receives a notification notifying them of the status of the verification.
The process is yet to be streamlined with other relevant departments and there is a lot of delay occasioned in verification of titles especially sectional titles.
Once the process of verification is complete, Land transactions on the platform will be smoothly conducted with ease. In addition, it is also advisable that the titles currently being held by financial institutions should undergo the process of verification in order to protect the interest of these institutions. In the event that a Financial Institution discovers that a title does not exist in the system after verification, if it was yet to issue out the loan facility, it is in a position to decline to give out the facility. However, if verification relates to a title already held by the financial institution, there is an option of either instituting a suit for the recovery of the debt or instituting criminal proceeding for using a forged title to obtain money (obtaining by false pretenses, forgery), or both.
Verification of Execution
The general rule as provided in Section 45 of the Land Registration is that all conveyancing instruments must be verified by the Registrar with the exception of instruments that are electronically signed as highlighted under Section 25 of the Business Amendments Act, 2020. The Act has allowed the use of advanced electronic signatures in execution of instruments.
Advanced electronic signature has been defined as a signature which is uniquely linked to the signatory and capable of identifying the signatory. It can be created using means that the signatory may maintain under their sole control; and linked to the data to which it relates in such a manner that any subsequent change to the data may be detectable. Based on the above definition, verification of electronic signatures has been dispensed with under the Ardhi Sasa Platform.
Operations Under The Ardhi Sasa System
Whether there is need to amend the Land Laws to Provide for Digital Form
Looking deeper into the provisions of the law, the Land Registration (Electronic Registration) Regulation 2020, provides that the standard forms applicable in electronic land transactions to be the same as those set out in the Sixth Schedule of the Land Registration (General) Regulations, 2017.The forms are subject to such modifications by the Chief Land Registrar, to enable their use electronically.
For the purposes of preparing an instrument for electronic registration or filing, an authorized user shall:
a) Enter all the required information in the applicable electronic form;
b) Cause the instrument or documents to be executed by use of advanced electronic signature of parties; and
c) Attach the relevant supporting documents required under the Act.
Where it is not possible to execute the instruments by way of an advanced electronic signature, an authorized user may enter the required information in the applicable electronic form, print the same for execution and attestation, scan and upload it onto the system and attach the relevant supporting documents.
Based on the foregoing provisions of the law, it is clear that the Land Laws in Kenya have been sufficiently amended to cater for the successful implementation of the Ardhi Sasa System by providing similar applicability of standard forms on the digital platform. How efficient the same will be is rather relative and perhaps, requires time before its implementation is fully seen.
Whether Ardhi Sasa has stricken a balance between Technology and Land Transactions
In ensuring that no loopholes would slow down the carrying out of land transactions, the following legislations have been enacted to help streamline all operations under the National Lands Management System-
Survey (Electronic Cadastre Transactions) Regulations, 2020 which requires Director of Survey to maintain an Electronic Cadastre to be part of NLIS.
Stamp Duty (Valuation) Regulations, 2020 which requires the Chief Government Valuer to maintain an Electronic Valuation System (EVS) capable of electronic submission and storage of documents, monitoring the progress of the valuation processes and management of electronic communication.
Land (Extension and Renewal) (Amendment) Rules, 2020. This provides for application for extension/renewal to be done electronically.
Physical and Land Use Planning (Electronic Development Control and Enforcement System) Regulations, 2020 has established an electronic development control and enforcement system as a module within the National Lands Management System. It requires Director-General to maintain in the system an electronic database for the approved physical and land use plans, development control instruments including handbooks, codes, zoning ordinances and manuals and registers of documents submitted by applicants for development permission.
In conclusion, the Ardhi Sasa system is aimed towards achieving effective service delivery while enhancing innovation. Despite the various teething problems, the benefits outweigh the challenges due to its progressive nature. Further, it is clear that the Business Laws Amendment Act, 2020 declared intent to support digitization by providing simple and clear rules which companies and consumers can effectuate with electronic records and signatures.
