ARDHISASA PLATFORM & ITS EFFECT ON REGISTRATION OF SECURITY PERFECTION DOCUMENTS

Kibatia & Company Advocates aims to provide compliance support and legal advice to Clients on an ongoing basis which is direct, practical & innovative.

To this end, we hereby give the legal alert on the following:

ARDHISASA PLATFORM & ITS EFFECT ON REGISTRATION OF SECURITY PERFECTION DOCUMENTS

Introduction:

The Ardhisasa platform was launched on 27^th April 2021 to smooth out transactions relating to land by allowing citizens, shareholders, and interested parties; to interact with the land information held and processes undertaken by the Government electronically. The system is also aimed at doing away with the inefficiencies that had long plagued the lands registry, including double registration of documents. The Government aims to fully digitize land records and transactions by December 2022.

This platform is a second attempt by the Ministry of Lands at digitizing the lands registry with the first being the Land Information Management System (LIMS) which was hosted on the e-citizen portal. Before being replaced by the NLIMS, the LIMS system could only process a Land Rent Demand, undertake the payment of Land Rent, and process a Land Rent Clearance Certificate.

SERVICES UNDER THE ARDHISASA PLATFORM

Services to be offered through the platform include:

1. Land Registration – charge, caution, certificate of title/lease, payment of stamp duty, replacement of title, restriction and transfers;
2. Land Administration – Payment of land rent, Subdivision, Extension of Lease, Change of User, Consent, Lease Preparation, Extension of User and Renewal of Lease;
3. Physical Planning – Approval of Part Development Plans, Certificate of Compliance etc.;
4. Survey and Mapping – Subdivision, Amalgamation, New Grant, Re-survey, Sectional Property, Extension of Lease, Change of Use;
5. Valuation – Asset Valuation, Estate Administration etc.;
6. Adjudication & Settlement Services; and
7. National Land Commission Land Allocation Service.

ACCESS TO THE PLATFORM

One of the conditions for access to the ArdhiSasa Platform is that it will only be available during the business hours of the business days set out in Regulation 4 of the Land Registration (General) Regulations, 2017.

Further, one needs to create a user account and provide the necessary documents as prompted, either as an individual or a company. One can also upgrade their individual registration account to a professional user account in order to be able to initiate services for other users as a professional, for instance in the registration of Charge documents.

To register a security perfection instrument, one will need an Advocate to access the portal, prepare the relevant documents, and upload them for registration by the Registrar; upon payment of the relevant duty and providing all the necessary consents needed. The Registrar is then expected to register the instrument and note the charge.

ENABLING LAWS

The shift from manual to electronic land transactions was preceded by various enactments chief of which is the Business Laws (Amendment) Act of 2020 and The Land Registration (Electronic Transactions) Regulations, 2017. These enactments are the enablers of the shift to an electronic system with the former allowing for use of electronic signatures in land transactions through amendments to the Law of Contract Act, Cap 23 Laws of Kenya.

EFFECTS OF ARDHISASA ON REGISTRATION OF SECURITY PERFECTION INSTRUMENTS

As previously noted, the Ardhisasa Platform intends to improve the ease of access to the Lands Registry. This is also expected to be the case once the digitisation of the records held by the registry is complete.

Further, an electronic system is expected to solve the perennial issue of lost or misplaced registers or files in the lands registry that has been an impediment to the process of registration of security perfection instruments.

COMPARATIVE ANALYSIS

ESTONIA

Regarded by many as a “digital economy”, the country of Estonia is at the forefront of “non-paper” conveyancing. Since 2011, no paper or email documents are accepted by the Lands Registry (link here). The entire process of land registration regarding Immovable Properties in Estonia is electronic. It is done through two systems, the e-Notary information system or the Immovables Portal (link here).

Since the law stipulates that most transactions be notarised, the e-Notary Information System, which began operation on 1^st July, 2006 is the major process used in Estonia.

The e-Notary process has the following stages:

• the notary prepares the documents through the e-Notary information system;
• the notary submits the documents, upon signing, through the safe data exchange layer, X-Road, to the land register information system where it is automatically registered. This data is available to the public online;
• registrars process the application;
• registrars make the decision available on this site; and
• a notice is then sent to the parties via email on the decision.

The Immovables Portal on the other hand has the same process as that of the e-Notary with the exception being that it deals with only the processes that do not require a notary to be validated.

TAKE NOTICE that the ArdhiSasa platform is currently covering only the land that had been registered under the now repealed Registered Land Act in the Nairobi Registry (Nairobi Blocks). All the transactions relating to the said properties must be initiated through the Ardhisasa Platform. This means that manual transactions are not allowed for the Nairobi Registry though manual transactions are still being carried out at the Nairobi Central Registry.

It should also be noted that as at the date of this article the system has not been working optimally. Users are currently only able to obtain a land search and pay land rent through the platform. Accessing other services such as creating charges, transfers, lodging of cautions e.t.c; through the system has proved to be difficult.  This has led to a huge backlog of pending transactions at the Nairobi Registry. The Law Society of Kenya together with other professional bodies have been lobbying to have the system fully operationalized.  We trust that the issues will be resolved soon.

OUR TAKE

If the implementation of the system is done flawlessly, then the users of the system will have a reason to smile, as they will be able to avoid the inefficiencies that were being experienced in the Manual paper conveyancing system.

We opine that the rollout of the system to other registries should be in a manner allowing for the manual registration of security perfection documents to continue during the transition period until the system is fully digitised.

Further, that the implementation of the system be in line with the best practices especially of the nations that have been able to set up and run such an electronic system.

We trust that you shall find this information useful and should you require further information or discussion on this matter, kindly get in touch with us on info@kibatiaadvocates.com.

Please note that this information is for public consumption and not intended to offer professional legal advice.