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Lawyers wrong on digitising Lands

A shareholder of Embakasi Ranching Company peruses documents at their offices in Ruai. PHOTO | JEFF ANGOTE
A shareholder of Embakasi Ranching Company peruses documents at their offices in Ruai. PHOTO | JEFF ANGOTE  

Maya Angelou, a great American poet, singer, memoirist, and civil rights activist once said, “If you don’t like something, change it. If you can’t change it, change your attitude.”

For years, Kenyans have complained about the level of graft at the Ministry of Lands. They didn’t like the poor customer service, red tape and the sleaze. Virtually every citizen wanted change at the ministry.

We made promises to digitise, well aware that in countries where land registries have been automated, technology has always paid off by destroying archaic record keeping methods.

Finally, and against a lot of opposition from vested interests, the government has seen it fit to digitise Lands.

The Law Society of Kenya (LSK), a body that is known for pushing for all kinds of reforms, has inexplicably resisted the change. Many Kenyans are of the opinion that if the lawyers don’t like the change, they should change their attitude.

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Where government has digitised, the level of productivity gains from automation was unprecedented.

In 2010, the digitisation of Lands banking hall improved revenue collection from Sh800 million to Sh9 billion within a year.

We couldn’t do the same with the Ministry’s back-end services due to threats on the lives of those implementing digital registries.

Lawyers had no qualms with what went on at the ministry as long as they benefited from the chaos.

They never raised a finger as Kenyans suffered at the hands of crooks that stole their land and subjected them to harrowing legal battles in court.

Land cases clogged our courts and as a result denied justice to many who couldn’t be heard due to backlog in courts. Kenyans have simply yearned for change because they didn’t like the status quo.

So far what has been done is the digitisation of title deeds for online title search, online payments of land rent and consent for leasehold properties (correspondent files to check on caveats, collateralised land and cautions).

These transactional services are part of what lawyers refer to as verification and certification of conveyancing instrument, which are done by clerical officers in law firms. Indeed, anyone can do these searches online and does not require either a legal mind or any changes to the existing law.

Lawyers will still prepare the contract to execute conveyancing instruments but they must file them online. Three other services — valuation, assessment of stamp duty and actual transfer — are still done manually but even these will eventually be automated to streamline verification between valuation, stamp duty assessment and payment to the exchequer.

This dark spot can easily be dealt with by emerging technologies to enhance transparency.

In not too distant future when the legal framework is in place, smart contracts will have to replace the current practices with standardised conveyancing instruments.

Section 34 (1) of the Advocates Act must be repealed to remove the false belief that only lawyers can effect land transfer.

While such legal practices were necessary in the past, times have changed. The advent of new technologies with trust mitigation systems is enabling inclusive transactions to take place.

In Rwanda, automation has made it possible for the transfer of commercial and industrial properties to take a single day in one location.

The legal practice should not hold the entire country to ransom. The poor can’t afford housing due to excessive professional fees in Kenya.

It is time to liberalise professional services like in other countries. In 2007, the United Kingdom passed the Legal Services Act (LSA).

The LSA allowed what is known as alternative business structures (ABS) where ‘non-lawyers’ invest in law firms, share profits, and even take the firm public.

It is time for Kenya to conduct such a review and possibly create mechanisms to inject new legal business models that are inclusive and receptive to change.

It’s the lawyer’s turn to change attitude.

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