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Updates to land laws and online processing of land transactions

By Anne Kinyanjui and Amrit Soar

We refer to the update on land laws issued in our alert of 09/12/2017 and our alert of 4/12/2017 on online processing of land transactions.

We have since established and wish to clarify the following:

(i) One of the orders made in the judgment delivered by the High Court of Kenya in Anthony Otiende Otiende versus Public Service Commission and 2 Others (Petition Number 54 of 2015) was to the effect that all regulations and forms promulgated under section 110 of the Land Registration Act, 2012 would stand null and void upon expiry of twelve (12) months from 19th December, 2016 if the Cabinet Secretary for Lands and Physical Planning (the “Cabinet Secretary”) did not consult the National Land Commission (“NLC”) and seek Parliamentary approval.

Whereas the Cabinet Secretary had consulted NLC on the forms and regulations in compliance with the order, Parliamentary approval had not been procured by the time the forms and regulations were gazetted. Accordingly, the Cabinet Secretary had only partially complied with the said order. We understand that the regulations were forwarded to Parliament but they could not be considered as Parliament went into recess. For this reason, the Ministry has sought an extension of time from the High Court for a further 180 days to allow for compliance with the order.

(ii) With regard to online processing of land transactions, we had shared with you a public notice issued by the Principal Secretary for Lands and Physical Planning which provided that the Ministry was upgrading to an Electronic Transaction Management System (the “ETMS”) and there would be no manual / paper based transactions processed in Nairobi and Central Registries from 04/12/2017.

We note that as at today the ETMS is yet to be actualized as the Ministry is still operating under the manual system. We shall update you when the ETMS is implemented.