The Developer's Digest, July to August 2015 Issue

FOCUS ON POLICY
FOCUS ON POLICY
REGISTRATION OF PROPERTY IN KENYA
Findings of the Study Review of
Registration of Property (Land) in Kenya
A study conducted by the Kenya Institute
for Public Policy Research and Analysis
(KIPPRA)
BACKGROUND
Clearly defined property rights are the
cornerstone of the property market
and thus economic development. Such
clarity facilitates efficiency by promoting
voluntary exchange of property to
the highest bidder. However, clarity
of property rights without protection
through an efficient registration process
is not a sufficient condition to guarantee
market efficiency.
Over the years, Kenya’s rankings in the
World Bank’s Doing Business annual
report have declined from position 71 in
2006 to 131 in 2014 and further declined
to 136 in 2015. As a critical factor of
production, land has a major role in an
economy. The process of registering
land forms part of the key indicators
reviewed annually by the World Bank
Doing Business rankings.
This indicator embodies the procedural
process that an investor must follow
while purchasing and selling property.
In view of this, the Kenya Institute for
Public Policy Research and Analysis
(KIPPRA) conducted a study in April/May
2015 to review the process of registering
property (land) with regards to time,
costs, and associated procedures and
challenges in selected counties in Kenya.
Although the government has
introduced land reforms, including
policy and regulatory changes, to
enhance efficiency in land transactions,
the process of registratering land
does not seem to have improved,
warranting the need for review from a
policy perspective. On 16th June 2015,
preliminary findings on “Registration
of Property in Kenya” were presented
during a policy dialogue at the Panafric
Hotel.
Participants during the dialogue included
lawyers, architects, property developers,
representatives from the National and
County Government including Ministry
of Land, Housing & Urban Development
and Nairobi City County; other
government agencies including The
Board of Registration of Architects and
Quality Surveyors of Kenya (BORAQS)
and National Housing Corporation
(NHC); the civil society including Land
Development and Governance Institute
and Kenya Land Alliance and private
sector representatives and professional
organizations including Kenya Private
Sector Alliance (KEPSA), Kenya Property
Developers Association (KPDA),
Architectural Association of Kenya (AAK),
Institute of Surveyors of Kenya, Kenya
Bankers Association (KBA) and Kenya
Association of Manufactures (KAM).
During the policy dialogue, Prof.
Joseph Kieyah of KIPPRA presented the
regulatory land reforms in Kenya, linking
them to the study’s findings.The study
revealed a multiplicity of procedures and
agencies associated with registration of
property and the lack of clarity of roles of
Ministry of Lands and the National Land
Commission.
Furthermore, the study affirmed that the
procedure associated with registration
of property remains largely unchanged
despite the recent regulatory reforms
and in some instances introduced
more registration delays and increased
bureaucracy.
The key policy issues identified during
the policy dialogue included: The
importance of establishing appropriate
land rights on all forms of land
(especially community land); the need to
establish an effective dispute resolution
mechanism; the need for clarity of
roles of key players; the importance of
a clean efficient and effective digitised
land registries with clean titles; the
importance of rationalizing functions to
ensure efficiency and the importance of
a appropriate regulatory framework.
_ Prof. Joseph Kieyah and Anne Gitonga
INTRODUCTION
One of the factors that influence an
investor’s investment choice is access to
land. The categories of land include:
- Private
- Public
- Community land
JUSTIFICATION OF THE LAND
Given the importance of land and
persistent land challenges, Kenya has
carried out a number of reforms in the
recent years. Kenya has however been
performing poorly Doing Business
rankings over the years, and is ranking
at 136 out of the 189 economies in the
2015 report.
Procedures of registering property have
for instance remained constant over
the last nine to ten years. The duration
has also remained unchanged. This
study will therefore review the process
of registering property in Kenya with
the aim of identifying opportunities for
improvement
WORLD BANK INDICATOR:
Registration of Property
Reviews procedures, time and costs
associated with transferring property;
- It follows the procedures followed by
an investor purchasing property and
subsequently transferring the property.
Review is based on a number of
assumptions key amongst them are:
• The property is 100% domestically
& privately owned.
• The property has no mortgage
and is free of titles disputes.
• Land has a building and is located
in a peri-urban commercial zone.
The key challenge of these assumptions
are:
• They serve a certain clientele;
• Ignore a larger population which
deals with property registration on
a daily basis;
• May fail to hold in certain
economies.
METHODOLOGY
LEGAL FRAMEWORK
1. The Constitution of Kenya (2010)
• Compulsory Acquisition doctrine
• Regulatory
• Interface between categories
2. Establishes the principles of land
policy
3. Statutory Framework:
- Registration;
• Land Registration Act
• Survey Act
- Substantive Issues:
• Land Act
• National Land Commission Act
• Urban Areas and Cities Act
POLICY REVIEW: LAND
REFORMS FRAMEWORK
The reforms were aimed at enhancing
efficiency in land administration and
management. Howeverm they are
outdated and complex land laws
addressed through simplification and
the enactment of the Land Acts of 2012.
Land administration has changed
with the establishment of the National
Land Commission and the County
Land Management Boards. There is a
grave need to establish of land titling
centre to facilitate the processing and
digitization of land titled.
NEED FOR FURTHER
REFORMS
Key informants expressed the need for
further reforms on;
• Enhancing efficiency in the
conveyance process to reduce the
duration.
• Establishing a monitoring and
evaluation mechanism for land
registration.
• Enhancing human and capacity
resources to implement reforms
which may require capacity
building.
• Cleaning up for the registry to
address incidences of multiple
land allocation and/or duplication
of titles.
• Clarity on the application of the 99
leasehold periods; the transfer of
existing titles under TLA and GLA
and other transition aspects (given
the systems used in the different
registries are very different).
REGISTRATION OF LAND:
THE PROCURE
1. Registration legal framework
• Registration of Documents
• Title Registration
(Sanctity of title doctrine)
2. Private Land in Kenya consists of land
held by a person under freehold tenure
and leasehold tenure.
3. Title land can be acquired through
allocation, land adjudication, compulsory
acquisition, prescription, settlement
programs, transmissions, transfers and
long term leases exceeding twenty one
years created out of private land.
Kenya Property Developers Association... Development brings Development!
Kenya Property Developers Association... Development brings Development!
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