LIMS was first an idea advanced by a student at the University of Nairobi in his Master Thesis.
The prototype which was a web-based system was tested using Buru Buru Block 78 and 79 or Phase IV and V titles within Nairobi County.
It must be appreciated that like the forerunner of the Kenyan common Law, United Kingdom did the digital land transaction migration way in 2003 when they set their first digital HM Land registry at Croydon.
Last month, the Land registry opened its doors to the public after a two-week closure. Vide a notice on April I, the ministry intimated that payments would be online and services like transfer of ownership, issuance of consents to transfer, charge, Lease among others would be created automatically upon application.
All property owners within Nairobi with titles under the Registered Lands Act (Repealed) and Registration of Titles Act (Repealed) were able to access their title details online, a mirror to the fact that such titles had been reduced to the soft copy equivalent of the originals. Based on these steps alone, 80 per cent of conveyancing transactions are moving digital, and the conveyance environment is likely to be paperless.
LIMS was first an idea advanced by a student at the University of Nairobi in his Master Thesis. The prototype which was a web-based system was tested using Buru Buru Block 78 and 79 or Phase IV and V titles within Nairobi County. It must be appreciated that like the forerunner of the Kenyan common Law, United Kingdom did the digital land transaction migration way in 2003 when they set their first digital HM Land registry at Croydon.
They, however, retained the services of advocates in drafting and commissioning land related documents. The working of digital registry is premised on two main approaches namely: the fully digital approach and the semi-digital approach. The fully digital approach is to be used by persons whose titles have been reduced to soft copy equivalent of the original. For this purpose all details regarding these titles are online and can be accessed through the e-citizen portal.
The semi digital approach on the other hand is used by persons whose title documents have not been dematerialized. This is because there are title regimes that still exist in hard copy. Such transactions are to proceed through scanning and uploading of the original documents online.
The procedure of transfer is to be the same only that executed documents are to be drafted by advocates. The ministry has stated that it will not do away with the manual registry. Their position being that the manual entries will serve as a back up to the digital system.
Article 10(2) (a), (b) and (c) and Articles 232(1) (d) of the Constitution provide for public participation. Matters that are likely to have an impact on the citizens of a state, at the very minimum citizenry contribution, notice and perspective, such as this matter. However the ministry in digitizing land transactions did not seek the contribution of various stake holders- an omission that makes the entire process constitutionally defective.
Further, section 34 of the Advocates Act mandates only Advocates to prepare and attest the execution of land conveyance documents. Digitization of the registry opens a loophole for contracts to be drawn and uploaded by persons who are not advocates. This compromises the integrity of the entire process.
Further, LIMS has not been subjected to quality systems assessment for possible hacks into the system according to the Standards Act Chapter 496 Laws of Kenya and Standardization Marks (Permit and Fees) Regulations, 1977.
In addition, Regulation 2 of the Advocates (Professional Indemnity) Regulations states that every advocate practicing either on his own behalf or in partnership shall purchase a professional indemnity cover of not be less than one million shillings. The purpose of the cover is to shield the risk of possible fraud, rogue land dealers who drags innocent public into contested or forged land transactions. An advocate covered under the policy transfers the risk to the insurance company.
On the other hand, an innocent citizen dealing in land through the digital platform is hugely exposed to uncovered risk which could translate to huge financial losses, eroding public faith and confidence in land transactions. As such, digitisation of the Land Registry should be stayed pending thorough systems, audit and standardisation procedures to check for any loop-holes that may compromise land transactions. Digitisation is a noble idea, but not timely in Kenya.
Isaac Kelvin Onyango, lawyer, Oseko & Ouma Advocates LLP
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