THE OPERATIONS OF THE LAND REGISTRIES IN KENYA DURING THE COVID-19 PANDEMIC
Introduction
The coronavirus is a virus that affects humans and animals. Some of the severe coronaviruses that have been reported by various agencies before are severe acute respiratory syndrome (SARS) and the Middle East respiratory syndrome (MERS).
The first novel coronavirus case (COVID-19) was first reported in Wuhan City in China in December 2019. It has since spread more widely in China and many other countries. The World Health Organization (WHO) has categorized COVID-19 as a pandemic.
While the crisis continues to evolve rapidly and Governments around the world dealing with the immediate threat, the long-term impacts of the virus require analysis and planning.
Operations of the Land Registries in Kenya
The normal operations of the land registries have been adversely affected by the pandemic.
Since the announcement of the first case on 13th March 2020, the Ministry of Lands and Physical Planning (“the Ministry”) announced a raft of measures to mitigate the spread of the pandemic. The measures include:-
- Temporary closure of all the land registries;
- Establishment of customer care desks at all county land registries; and
- Continuity of work for registration of bank charges, registration of bank discharges, registration of court orders, and verification of court securities.
The Ministry has also ensured that the portal for online searches has remained available and steady for members of the public to continue accessing the service.
At the time of publishing this article, the Ministry had issued a notice that the registries will remain closed for a further 14 days from 29th April 2020 when it was anticipated that the registries would reopen. This takes the expected date for the opening of the land registries to 12th May 2020.
Impact of the Business Laws (Amendment) Act, 2020 on land transactions
The Business Laws (Amendment) Act, 2020 (“the Act”) came into force on 18th March 2020. The Act, as specified in its Preamble aims at amending various Acts to facilitate the ease of doing business in Kenya. The Act is accessible on the link: http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2020/BusinessLawsAmendmentAct2020.PDF.
Among the Acts that were amended and which relate to land are the Law of Contract Act, the Registration of Documents Act (“the RDA”), the Stamp Duty Act, the Survey Act, the Land Registration Act (“the LRA”) and the Companies Act.
The key highlights of the Act are:-
- Use of advanced electronic signatures that is uniquely linked to the signatory, capable of identifying the signatory, created using a means that is solely under the control of the signatory and uniquely linked to the data that any subsequent change to the data is detectable;
- Electronic filing of documents at the registry of documents under the Registration of Documents Act;
- Stamping of documents by marks embossed or impressed by electronic means;
- Electronic processing of documents such as plans;
- Electronic submission of documents to the Director of Surveys;
- Electronic authentication of documents by the Director of Surveys;
- The requirement to obtain and avail Land Rates and Rent Clearance Certificates was deleted; and
- Companies will no longer require a company seal such that they may enter into contracts and the contracts executed by the directors, the company secretary, or a person holding a power of attorney without the need for sealing with the company seal.
The amendments to the various Acts will ensure that land transactions are made cheaper, faster, and doing business becomes easier than before. The Ministry has simplified these reforms in a diagram that is accessible through the link https://lands.go.ke/wp-content/uploads/2020/04/DB-Reforms_Lands-Registration.pdf.
It is important to note that land rates and land rent, where applicable, are still payable under the law although the requirement to provide the certificates of thir clearance are not long required at the registration level. Investors should pay for applicable land rates and land rent to avoid penalties which include forfeiture.
Waiver of Registration Fees
On 22nd April 2020, the Cabinet Secretary, Ministry of Lands and Physical Planning announced that the Government had waived, for two years with effect from 26th March 2020 the requirement to pay registration fees of KShs 500. The waiver is intended to reduce the cost of land transactions and to facilitate the ease of doing business.
I am a Kenyan Advocate and the Managing Partner of B M Musau & Co., Advocates, a position I have held since 1999. My work encompasses regulatory reforms, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment and other general corporate areas
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