The Land Registration (Electronic Transactions) Regulations, 2020 (the “Regulations”) took effect in July 2020. These Regulations seek to revolutionise the current land registration process in the country by introducing the electronic land registry. You can find a copy of the same here.

Prior to the Regulations, the property records of each registration unit throughout the country have been kept at the Lands Registry of that registration unit in physical form in the deed files. The Regulations now require Registrars to maintain an electronic land register which provide the following information about the land:

  1. the property section;
  2. the proprietorship or ownership of the property;
  3. any encumbrances i.e. any rights or interests by other parties that are registered against the title to the property such as charges and leases etc.;
  4.  the user of the land. This could be agricultural, residential, commercial etc; and
  5. any other feature required under any law or deemed necessary by the Cabinet Secretary.

Every person (natural, legal or community) who wishes to carry out a transaction on the system will be required to sign up to the system providing the following information:

  1. the name;
  2. the national identification card number/alien card number/ incorporation or registration number;
  3. the personal identification number; and
  4. contact details including the postal address, email address, the telephone number and any other detail that the system may require.

The Pre-Registration Process

The Regulations allow advocates to sign up as authorised users by providing additional information in the Form eLRA1. Additionally, authorised uses will be required to obtain and maintain instructions in respect of each electronic transaction as per Form eLRA2. This second form is filled by the advocate and the client. The client is required to to execute the form confirming their instruction to the advocate with respect to a specific transaction. This forms part of the pre-registration process.

In line with Regulation 87 of the Land Registration (General) Regulations, 2017, the Chief Registrar is empowered to make the necessary modifications to the forms set out in the Sixth Schedule to facilitate their use in the electronic system. The forms set out in the Sixth Schedule are the ones currently used for registration of various transactions.

In order to prepare an instrument for electronic filing, an authorised user is required to do the following:

a. enter all the necessary information in the applicable electronic form;

b. cause the instrument or documents to be executed by use of advanced electronic signatures of the parties. An advanced electronic signature is generated through a secure signature creation device. Such signatures must fit the following criteria:

i. they are uniquely linked to the signatory;

ii. they can identify the signatory;

iii. they are created by means that the signatory can maintain under their sole control; and

iv. they are linked to the data to which they relate in such a manner that any subsequent change to the data is detectable.[1]

c.attach all other relevant supporting documents.

Where the option of an advanced electronic signature is not available to the parties, the authorised user may fill in the required information electronically and thereafter download and print the filled form for execution and attestation. Once signed, this form will be scanned and uploaded on the system and submitted together with the relevant supporting documents.

Where necessary, the authorised user shall submit the instrument in electronic form for assessment of stamp duty. Once the instrument is assessed, the authorised user shall be alerted on the assessed duty payable through the contact details provided at the beginning of the registration process. The Stamp Duty (Amendment) Regulations, 2020 amend the Stamp Duty Regulations to provide for electronic submission for assessment of duty, payment of duty and stamping of documents.

The Registration Process  

Once the instruments are ready for registration, the authorised user submits the instruments for registration and pays the prescribed fee. As the instrument is submitted to the system, a notice of electronic filing is generated with a tracking number for the application.

Similar to the current system where priority of registration is determined by the time noted in the presentation book at the Lands Registry, priority of registration is determined by the tracking number assigned to the application. Manual presentation of the documents at the Lands Registry may be requested in case the Registrar requires the production of an original.[2]

Upon registration there shall be an electronically generated notice providing that the instrument has been registered. Regulation 23 further empowers the Registrar to issue an electronic certificate of title or lease which shall contain unique serial numbers and security features to be used for verification of authenticity. The registered documents would thereafter be made available for download for the records of the users. All instruments filed and registered electronically will have the same effect as other instruments that have been registered manually.

While the system is yet to be operationalised, the Regulations are welcomed as this represents a step in the right direction of easing the conduct of land transactions in the country. This system is set to provide various vital advantages to stakeholders. Firstly, the impact of COVID-19 has led to a major shift in the way work is carried out. With the social distancing regulations and the encouragement to work from home in a bid to flatten the curve, the implementation of electronic registration system will help conveyancing practitioners continue their operations with the reduced risk of exposure and without jeopardising the health of registry officials as well. Further, the accessibility of the system will enable practitioners to register transactions relating to properties from any region in the country with the convenience of the platform. The system also significantly reduces the need to physically visit registries which would greatly save a practitioner’s time and money.

There are concerns which have been raised regarding the security of the documents and the data stored in the system. The security concern can be seen to have been dealt with as the system is set to offer an additional security measure in form of a One Time Password (OTP). This will be sent in form of a text message to the user’s telephone number, this number is provided n the setting up of the user account, to verify every log-in.[3]

Another major concern relates to the fact that some instruments may still require manual presentation at the Lands Registry despite the electronic system. As provided above, Regulation 19, the Registrar may require that the authorised user manually presents the documents at the Lands Registry. This will lead to a duplication of the process thereby reducing the efficiency that the electronic system is set to provide. Further, Regulation 25 provides that where a transaction cannot be performed using the system, parties may be required to utilise the manual registration process. Another concern is that the Regulations are currently set to only apply to the Nairobi Lands Registry. This means that it may take some time before the system can be used for all registries throughout the country.

Even as these concerns may be provisional until the system is fully operationalised, it is certain that the land sector is set to undergo a major transformation that will hopefully reduce the time of registration of various transactions.

We note that this article has been published prior to the implementation of the electronic registration system. We shall issue an updated article to critique the efficiency of the system once the same is operationalised.

Article by Christine Wambui

Christine is an Advocate in the Banking and Finance and Real Estate Practice Areas.

[1] Section 2, Kenya Information and Communications Act, No. 2 of 1998, Laws of Kenya.

[2] Regulation 19, the Land Registration (Electronic Transactions) Regulation, 2020.

[3] Regulation 9(2), the Land Registration (Electronic Transactions) Regulations, 2020.

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