Land registration nightmare persists at Ardhi House

Inspecting documents filling system at the ministry of lands

NAIROBI: Poor records are derailing efforts to make land registration in the country more efficient, and in turn making Kenya a less attractive investment destination.

A new report shows that despite the highly-publicised reforms at the Lands ministry spearheaded by suspended Cabinet Secretary Charity Ngilu, poor record keeping remains the biggest impediment to land registration.

In May last year, Ms Ngilu ordered the central lands registry in Nairobi closed for 10 days for an audit aimed at improving efficiency.

Later, Ngilu said: “The clean-up exercise was necessary in order to facilitate better service delivery to Kenyans. The exercise was very successful and we were able to retrieve and re-organise 1,322,800 files.”

So far, 13 registries across the country have gone through a similar exercise.

But a survey conducted by the Kenya Institute for Public Policy Research and Analysis (Kippra) between April and May this year shows that poor record keeping at the Lands ministry is the biggest obstacle - at 34 per cent - to land registration in the country.

According to Kippra, poor documentation in land registries is as a result of budgetary constraints, incompetent staff, outdated maps and low levels of digitisation.

Added to the long list is the fact that there are 17 different land registration procedures that can take up to three years to complete.

As a result, the country is losing its business attractiveness internationally, with the World Bank’s Doing Business 2015 Report putting Kenya at position 136 out of 189 economies.

The ripple effect of poor state of land records includes slow policy implementation, lack of clarity and duplication of roles by the multiple land agencies, land allocation and settlement disagreements, resistance to change and increased bureaucracy.

BREEDING GROUND

“Many files in land registries across the country are manual and in most cases are unavailable when required for transactions to commence. By the time they resurface, you are dealing with a different person altogether and you have to repeat your story all over again. This has made land registries a fertile breeding ground for corruption,” said Joseph Kieyah, head of Private Sector Development Division at Kippra.

Prof Kieyah related the personal agony he went through as he tried to have a piece of land registered in Naivasha. Apparently, the particular piece of land had not even been surveyed meaning the deed plan could not be created. Even with the help of competent conveyance lawyers, he still had to wait for four years for the deal fall through.

“If this can happen to someone who was being assisted by good lawyers all the way through, what about that man in the village who is not well versed with the process? The lacklustre manner in which land is being registered is compromising the ability of the market to convert property into viable economic assets,” he says.

He cited the example of the rapid growth in areas adjacent to Thika Road since completion of the superhighway. This growth, he added, has been made possible by the fact that much of the land had been duly registered and could be freed for further development.

Another example is the birth of the new town of Kitengela where nearby community-owned land was adjudicated and is now one of the most sought-after piece of real estate.

National Co-ordinator of the National Land Alliance Odenda Lumumba says Ngilu’s exercise at Ardhi House just defined the filing order that makes it easier to locate the files. However, he says it is what is in these files that counts rather than just good physical order.

“There are many records that have not been updated despite the land having been subdivided. Many titles are still in the fathers’ name leading to unnecessary disputes and social instability. This also distorts the market value since a buyer may not know exactly what piece of land he is buying from the existing records,” says Lumumba.

AMBIGUOUS

Players in the real estate sector say the poor state of record keeping has seen the retention of ambiguous regulations that add little value to the conveyancing regime.

Kenya Property Developers Association’s Muchai Kunyiha cites the “small matter” of obtaining a land rent clearance certificate that is usually written by an officer seated “a few metres away from where payment was made but can take weeks to process”.

While people have been more vocal about registration of both public and private land, administration of community land – the largest segment of property in Kenya at 67 per cent - has largely been ignored as the law is not clear on how such land should be transferred.

Kieyah says such land ought to be subdivided to individuals who should then choose what to do with it.

“The law does not specify who should transfer community land, leaving it to abuse by interested parties. Much of this land is akin to dead capital and is no different from a person burying Sh1 million in a hole rather than use it as collateral in a bank. Without titles, residents cannot transfer land they have occupied for decades. Although they are sitting on a goldmine, some of them are among the country’s poorest,” he said.

Kieyah stated that lack of definite property rights will see community land in areas with immense resources being disposed of on a willing buyer/willing seller basis, thus depriving host communities the benefits of underlying resources.

“We have already seen an influx of people interested in buying land in Turkana and Lamu counties since the discovery of natural resources such as oil. Ignoring the needs of local communities can lead to conflicts,” said Prof Kieyah.

Mwenda Makathimo, director of the Land Development and Governance Institute (LDGI), lays the blame squarely on the legislature for not harmonising land laws and put land matters under one roof. He says it is time the government realised that land registration is about business and needs to be free of any encumbrances that can scare away investors.

“The parliamentary committee on land has slept on the job by failing to ensuring clarity of roles by the many agencies. A number of land policies are driven by personal interests. They must understand that land is about doing business,” said Makathimo.

The country’s top leadership has time and again come out to assure Kenyans that land ownership documents would be processed within the “shortest time possible.”

While commissioning the newly established National Titling Centre at Ruaraka, Nairobi, in February, President Uhuru Kenyatta promised to end what he termed as “perennial land ownership problems” that have bedevilled the country since independence.

During the ceremony, the President said his government is on course to issuing three million title deeds in a country where only 5.6 million titles have been issued since independence.

“We have heard of people who have struggled for more than 50 years to get title deeds while other families have turned against each other because of land. We want this to come to an end,” he said.

According to information from the Lands ministry, other areas of focus within the land reform programme include the finalisation of ongoing land adjudication schemes, declaration of new adjudication sections and completion of newly declared adjudication sections.