Economy

Lawyers reject automation of land deals in court suit

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Lands CS Farida Karoney. PHOTO | KEVIN ODIT | NMG

Summary

  • LSK argues move lacks backing of law and transactions will be null and void
  • The lawyers say only advocates are legally backed to facilitate land transfers, for which they charge a conveyancing fee.
  • State House earlier faulted the LSK’s demands, saying the society should be part of reforms to enhance flexibility and cut costs in the sector.

The Law Society of Kenya (LSK) has petitioned the court to stop the automation of land transactions in a switch that will lock out advocates who have been charging fees for the service.

The LSK term the switch illegal, arguing that the non-lawyers are supposed to prepare land transaction documents and that Parliament is yet to pass the law that supports online land transactions.

The lawyers say only advocates are legally backed to facilitate land transfers, for which they charge a conveyancing fee.

Online transfers, which favour land investors, threaten to cut off this revenue stream for advocates.

READ: Ministry switch to online land registry sparks row with LSK

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Legal backing

The LSK reckons that all transactions made through the online system without legal backing will be deemed null and void, quoting a High Court order that declared all leases, titles and certificates issued without the input of National Land Commission as illegal.

“Pending inter-parties hearing and determination of this petition this court be pleased to issue a conservatory order in the nature of injunction restraining the second and third respondents…from implementing and acting on the electronic conveyancing as per the notices on e-filing dated April 4 and subsequent notice published in Sunday newspapers on April 8, 2018,” reads one of the orders sought by LSK.

The second and third respondents are Land PS and Cabinet secretary, respectively.

The April 8 notice halted manual land transactions and announced a switch to online processing after automation of the registry.  

Land search

The processes automated include land search, transfer of ownership or lease, issuance of consent and valuation requests, making it convenient for Kenyans.

With the switch, users only have to create an eCitizen account to transact from anywhere provided they have Internet access.

This has enabled users to pay land rents electronically and be issued with clearance certificates online, along with payments for stamp duty, registration and consent fees.

But LSK cites section 34 of the Advocates Act which states: “No unqualified person shall, either directly or indirectly, take instructions, draw or prepare any document or instrument relating to the conveyancing of property.”

Cut costs

State House earlier faulted the LSK’s demands, saying the society should be part of reforms to enhance flexibility and cut costs in the sector.

LSK wants orders directing Ministry of lands to establish a taskforce comprising all stakeholders affected by the e-registration and conveyancing system to resolve the dispute.

The law society further notes that rural Kenya still face huge electricity and power challenges and that many Kenyans with no access to internet and online portal and risk being dispossessed of their lands.

It has sought to poke holes in the online portal noting that it’s riddled with inefficiencies and that it has not been proved hacking free.

LSK also claim that no public participation was done to get the views of the public or even sensitise the users before it was rolled out.

LSK further allege that the land ministry’s move to validate land details for online processing of land transactions has exposed the property owners to risk of fraud and loss of property.