Issuance of the Directive on the Conversion and Migration of Land Registers

Throughout the conversion process, the MOLPP has been publishing conversion lists and cadastral maps in various Gazette Notices. In this regard, the Cabinet Secretary on 16 May 2022 issued an internal directive to various officers including the Senior Assistant Chief Lands Registrar (the Directive) regarding the conversion and migration of land registers in line with Section 6 of the Land Registration Act and Regulation 409 of the Land Registration (Registration Units) Order 2017.

Where a discrepancy arises between the old land reference numbers and the new parcel numbers, aggrieved parties are required to either initiate a complaint with the Registrar of Lands or register a caution on the affected parcel within 90 days of the publication of the relevant Gazette Notice.

The Directive provides that upon the lapse of the statutory period of 90 days from the date of publication of the respective Gazette Notices (which period is meant for submission of complaints as aforesaid), all the land registers maintained under the repealed statutes for the properties appearing in the Gazette Notices will be closed and new registers opened under the Land Registration Act, 2012. Therefore, no further transactions will be carried out on the old registers.

While the move by the Cabinet Secretary is intended to implement the conversion process and encourage the use of the Ardhisasa platform, there are no transitional mechanisms or provisions for transactions that are ongoing using the old land reference numbers and therefore there are a number of concerns such as:

1. documents that have been assessed for stamp duty, franked and are awaiting registration.
2. properties that are undergoing change of user, subdivision and amalgamation and whose deed plans have been processed and are pending registration.
3. furthermore, a conversion cannot take place for any owner until an Ardhisasa account for the owner has been created. While account opening for Kenyan citizens and companies incorporated in Kenya are taking a fairly short period as the Ardhisasa system is linked to various government portals to verify their information, there is likely to be delays in opening accounts for non-Kenyan citizens who have to formally write to the MOLPP to have their details verified before their account is created.
4. transactions such as sale transactions that are ongoing cannot be completed until both the seller and buyer are registered on Ardhisasa and the new converted title is issued in favour of the seller. This would have a potential impact on completion periods as there is no time indication from MOLPP on how long it will take for the new title to be processed once the application is made on Ardhisasa.

We continue to follow closely on these developments with the Ministry of Lands.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Amyn Mussa, Akash Devani, Mona Doshi, Adnan Khan or the Real Estate and Construction team at [email protected].