Why lawyers are pushing for return to manual land transfers

Lawyers are pushing for a return to manual land transfers following claims of persistent malfunctioning of the Sh1 billion digital land information management system that President Uhuru Kenyatta launched in April.

In a memorandum sent to the Cabinet Secretary for Lands and Physical Planning Farida Karoney, the lawyers are claiming the electronic system has stalled multi-billion-shilling land transactions in Nairobi, arguing it is complicated to use and has been experiencing constant failures.

The use of the new system applies only on properties situated in Nairobi region, though the Ministry plans to roll it out in other counties.

The lawyers say the new digital system has had a crippling effect on their practice of land-conveyancing, resulting in loss of income and frayed relationships with clients.

Through the Law Society of Kenya (LSK) Nairobi branch chairman Eric Theuri, the advocates also say the faulty online portal also has a ripple effect on the banking sector, in respect of ability to advance and secure loans.

In the memorandum dated June 22, 2021, Mr Theuri says to date no single transaction has been successfully completed in the electronic system dubbed Ardhisasa.

“We are reasonably apprehensive that continued usage of the system without a manual alternative will continue to cause massive inconvenience and loss of business to our members, clients and the general public,” argues Mr Theuri.

In several interviews with the Nation, Lands Cabinet Secretary Faridah Karoney has maintained that the electronic transactions system was working as expected, without any significant downtimes.

“The system is effective. It’s a highly available system and has not been down,” she said in an April 28th interview, adding that the system had been undergoing tests for three months before the launch, with Ministry officials checking on its effectiveness.

Lawyers have in the past come under criticism for their perceived efforts to derail the automation of land transactions, which could deny them a portion of land conveyance income they currently earn from manual transfers.

Verification of land titles

But the LSK says that it conducted a survey to gauge advocates’ experience on usage of the portal and the results showed the lawyers have been facing challenges in upgrading of their proffesional transaction accounts.

Another challenge identified during the survey is on verification of land titles by the Ministry.

He said verification is being rejected because the titles need to be converted, which is an ongoing process being conducted by the Ministry. The net effect of this is that no transaction can happen over the properties, hence infringing on the proprietors’ rights to property.

The lawyers say a further hindrance to transactions is that the results of a search are only issued once verification of titles has been completed, and upon the proprietor granting his or her consent to the said search.

Mr Theuri adds that some tabs in the digital system, such as change of user, are not operational and that titles held by companies under the Limited Liability Partnerships (LLP) cannot be acted upon because the portal does not allow registration of the trading companies, including law firms.

The lawyers’ land transaction business has as a result been affected because the online portal does not recognise the law firms’ registration number.

Nairobi Registry land titles with incomplete records or inaccuracies are not uploaded in the electronic system, yet the Ministry has not offered a clear guidance on what the affected land owners should do, the lawyers argue.

“Whereas we support government’s efforts to restore sanctity of land titles by adoption of technology to usher in a land regime that is efficient, transparent and accountable, this should not be implemented in a manner that not only causes a near collapse of conveyancing practice but also affects business due to inability to access loans as well as affect land owners’ ability to utilise their land as they deem fit,” said Mr Theuri.

He added that documents that were physically lodged for registration before the launch of the new system on April 26 have not been processed.

Manual and electronic services

“The reason being that the registry officials are still required to use the electronic system that is constantly off or down hence registrations are at a stand still in the Nairobi registry,” said Mr Theuri, stating that the platform also has constant failures and non-responsiveness.

Further, loss of documents at the registry is rife as majority of cases Deed, Correspondence and parcel files cannot be traced and access of the registry has become impossible to the general public as well as advocates.

To ensure the practice of property conveyance does not grind to a halt, the lawyers have demanded that the Ministry adopts a hybrid system of document registration that allows manual and electronic services until the challenges get resolved.

They also want the Ministry to develop a service charter with timelines of a service delivery in the electronic system. For instance, that verification of titles should be done within a maximum period of three days.

Another demand is that searches applied through advocates accounts should be exempted from proprietor’s consent as it was in the earlier land information management system.

In the memorandum, also copied to the Kenya Bankers Association and Kenya Private Sector Alliance (KEPSA), Mr Theuri further charges that the Ministry last month stopped registration of long-term leases yet the process of enacting regulations to implement the Sectional Properties Act (2020) is yet to be completed.

He says the LSK Nairobi branch will move to court within the next seven days if the demands and proposals are not addressed.

In court, they will challenge the freeze on registration of long-term leases as well as seek orders to suspend implementation of the digital land conveyance system, pending provision of a clear implementation matrix supervised by the court.

The lawyer argues that the digital system is complicated and not user-friendly especially to the elderly, non-tech savvy clients and is not supportive to clients in the diaspora.