- A. Background
The Ministry of Lands and Physical Planning announced the conversion of various land titles in Nairobi via special issue Gazette Notices on 31st December 2020, 26th January 2021 and 23rd February 2021. The Gazette Notices listed all the properties to be affected by the conversion process by specifying the ‘old’ Land Reference Numbers, the new Parcel Numbers and the size of the properties. The Gazette Notices also gave owners of the affected properties 90 days to lodge any complaints regarding the conversion of the affected properties with the Land Registrar. The last period for lodging complaints under the published Gazette Notices lapsed on 28th May 2021. However, if another Gazette Notice is issued, the owners of the properties listed on the Gazette Notice will have a similar 90 days to lodge any complaint.
- B. Introduction
Conversion is the statutory process of migrating all parcels of land from repealed land registration statutes to a unitary regime under the current Land Registration Act, No. 3 of 2012. The titles issued under the repealed statutes will be cancelled and replaced with titles under the new regime. However, the ownership of the properties, the parcel size and the interest conferred should not be affected by this conversion process.
The process is guided by various statutes including the Constitution of Kenya 2010, the Land Registration Act No. 3 of 2012, the Land Registration (Registration Units) Order 2017, Land Registration (Electronic Transactions) Regulations 2020, the Sectional Properties Act 2020, the Survey (Electronic Cadastre Transactions) Regulations 2020, the Physical and Land Use Planning Act 2019 and the Land Registration (General) Regulations 2017.
Ideally, titles issued after the enactment of the statues mentioned above should have been registered in accordance with the new regime. However, land registries in Kenya continued to operate under the transitional provisions of the Land Registration Act including issuing titles under statutes that were repealed by the same Land Registration Act. This, together with the titles issued before the enactment of the new statutes, is what prompted the conversion of titles. Land registries are now seeking to have all titles registered under the new statutes, and the process has begun with properties located in Nairobi.
It is important to note that titles which are subject to encumbrances will also undergo the conversion process if the titles were issued under the old regime. It is not clear how such titles will be converted. The process of conversion will need to be revised to clarify on the issue of existing encumbrances and how they will be treated once the old titles are replaced.
- C. The Process of Conversion of Titles
The process of conversion of titles is as follows:
- The survey department provides the cadastral maps together with a conversion list indicating the old land reference numbers, new parcel numbers and the parcel sizes for parcels of land subject to conversion;
- The Cabinet Secretary for the Ministry of Lands and Physical Planning publishes the conversion list and the cadastral maps of the affected properties in the Kenya Gazette and two national daily newspapers;
- Owners of the affected properties are given ninety (90) days to view the list and make complaints to the Land Registrar regarding the conversion, should they have any complaints;
- In case any complaint is lodged, the Land Registrar is required to register a caution on the affected property pending the resolution of the complaint;
- Once the 90-day period expires, and no complaint is lodged, the registers of the affected properties maintained under the repealed statutes are closed and a new register under the Land Registration Act is opened for the affected properties;
- Thereafter, the Land Registrar issues a notice to the public inviting the owners of the affected properties to apply for the replacement of titles. This notice should be published in two national daily newspapers and announced on radio stations of nation-wide coverage;
- Land owners then submit applications for replacement of title in accordance with the notice from the Land Registrar. The application would be accompanied by the original title and would need to be submitted within the timelines stated in the notice by the Land Registrar;
- Within 7 days of receiving applications for the replacement of titles, the Land Registrar is required to issue new titles under the Land Registration Act to the owners of the affected properties; and
- Finally, the replaced titles will be cancelled and kept in safe custody in the new registers.
- D. Replacement of Deed Plans with Registry Index Maps
The conversion process also involves the replacement of Deed Plans with Registry Index Maps (RIMs) as instruments of registration. This is aimed at reducing incidences of fraud because RIMs capture a wider area of land parcels in a designated area as opposed to Deed Plans which focus only on a specific land parcel in isolation.
Boundaries of land will also not be affected because RIMs are generated from the existing survey plans.
Additionally, sectional units will no longer be registered on the basis of architectural plans. Instead, respective sectional plans will be georeferenced and registered on the basis of sectional plans prepared by the Director of Survey.
Cadastral and RIMs maps can be viewed and purchased at the Survey of Kenya head office located in Ruaraka.
- E. Procedure of Lodging Complaints with the Lands Registrar
Any complaint in respect of the conversion list or the cadastral map is required to be submitted, in writing to the Lands Registrar in the prescribed form within ninety (90) days from the date of the Gazette Notice. The complaint should include:
- the name, address and telephone number of the complainant;
- nature of the complaint; and
- the grounds of the objection.
A complaint number will then be assigned to a complaint in order to facilitate further follow up and resolution. The law requires a Registrar to resolve the complaints submitted within ninety (90) days of their submission.
A complainant may apply to the Land Registrar for the registration of a caution pending the clarification or resolution of any complaint. The Land Registrar may also register a restriction to prevent any fraud or improper dealing in the land.
Once the complaint is resolved, the Land Registrar will order the removal or variation of the caution or restriction.
A person aggrieved by the decision of the Registrar can lodge an appeal in court within 30 days.
- F. Conclusion
The process of conversion is set to be carried out in phases, with a pilot programme currently underway in Nairobi. In this regard, the Ministry of Lands has already issued a number of Gazette Notices containing various parcels of land marked for conversion and is likely to issue more Notices. Land owners are encouraged to confirm whether their property is affected, and lodge complaints if any, within the prescribed timeline.
Article by Julia Kuria and Pauline Njau