All Kenyans have a right to access information held by the state as provided for in Article 35 of the constitution. Access varies depending on the sensitivity of the information requested, but the state has an obligation to publish certain information about its activities, and all citizens are entitled to request information from public entities.
The information held by the state is the basis of all legitimate (and legal) transactions in Kenya as this information is obtained and held in accordance with the laws of the land. The nature of the information that the public requests from government entities also varies. At the individual level, members of the public are more concerned and ordinarily seek information concerning ownership of different types of assets and property. This information is necessary when conducting economic transactions between individuals as well as with institutional and organizational entities.
In addition to the provision relating to accessing information held by the state, Article 6 of the constitution also mandates the government to ensure reasonable access to its services in all parts of the country.
One of the ways in which the Kenyan government has ensured that the information held by the state is available to all citizens, and that services are reasonably accessible as provided for in the constitution, is by digitizing government records and automating government services. In this regard, a notable success of the last ten years is the government’s e-Citizen portal that was launched in 2014 by the ICT Authority of Kenya. On e-Citizen, Kenyans can create an account using their ID card number, and additional personal information is populated on an online form using data from the Integrated Population Registration Service. Upon registration, a user can apply for various government services including applying for a passport from the Immigration Department, applying to enter a civil partnership through the Office of the Attorney General, or to obtain a birth or death certificate through the Civil Registration Department.
Government ministries and agencies have also developed platforms that are linked to e-Citizen, and in December 2022 the government gazetted e-Citizen as the official government digital payments platform. In February 2023, the Kenya Ports Authority announced that it had moved its cargo handling services to the e-Citizen portal. Kenyans can (for now) remain confident in the current administration’s efforts to continue the work of digitizing government records and automating government services that begun under the Jubilee administration.
Digitized Transport Information Management
Another government online platform that has made information and services more accessible to citizens in the last ten years is the National Transport and Safety Authority’s Transport Information Management System (NTSA TIMS).
The NTSA TIMS portal was launched in 2016, and since then motor vehicle transactions have benefitted from the incidental improvement in accessibility of information, and in efficiency. Kenyans pay a small fee to access information on vehicle ownership by conducting a search using a vehicle’s registration number, information that is necessary when buying a car. The system is also linked to e-Citizen, Kenya’s main online portal for government services.
Beyond the efficiency and improved accessibility that are a result of having an online system, a key value that Kenyans draw from the NTSA TIMS portal is that of the reliability of the records. Because of the NTSA TIMS portal, the chances of an individual buying a stolen car have substantially reduced as anyone can verify the ownership of the vehicle at any point. The records on the platform also include the ownership history of each vehicle. If at some point a bank or insurance company or a transport and logistics company was the owner of the vehicle, this information will be available as part of the results of conducting a search. Where the vehicle is owned by more than one person, a user can also see the co-ownership details.
This information introduces an extra layer of transparency that informs the negotiations for purchasing a vehicle, and consequently reduces the chances of a buyer being taken advantage of. Once a buyer sees an insurance company among the previous owners of the vehicle, it may mean that at some point the vehicle was in an accident and was written off, the client reimbursed, and the car restored for resale thereafter (it may also mean that the car was part of the insurance company’s fleet). While this does not mean that the vehicle is not fit for purchase, the buyer may, however, get a fair price that takes into consideration that the vehicle has been involved in an accident before. Additionally, knowledge of the number of past owners helps in making sound judgement about the purchase; a vehicle with less than two previous owners is more attractive than one with five previous owners.
ArdhiSasa Digitizing land and property
Based on the fairly reliable functionality of the NTSA TIMS platform, and the success of e-Citizen, Kenyans were justifiably enthusiastic when the Ministry of Lands began digitizing land records in 2018, and later unveiled the ArdhiSasa platform in April 2021. ArdhiSasa is the equivalent of the NTSA TIMS portal, holding records for property (land), including sectional properties (apartments). The ArdhiSasa online portal allows citizens to access land information held by the government and the processes undertaken by the Lands Ministry. The portal was developed jointly by the Ministry of Lands and the National Land Commission (NLC), and key partners in government. Users of the platform can conduct land searches, apply for replacement of title deeds, transfer property, apply for a subdivision, and apply for a change of user. Users can also apply for approval of development plans, property valuation, and for repeat surveys.
Kenyans were justifiably enthusiastic when the Ministry of Lands began digitizing land records in 2018.
The digitization process commenced with the records in the Nairobi and Central Lands Registries. The Mombasa County Government has also expressed its intentions to digitize land records and records of other properties in the county with the aim of improving efficiency in collecting land rates, and mitigating incidences of land fraud. The county government held talks with the Ministry of Lands in March 2023 to discuss how the two entities can collaborate in the digitization and updating of land titles. While the digitization of land records is a national government function to be undertaken by the Ministry of Lands as the custodian of these records, the deliberate effort by the county government to initiate this process for Mombasa is the kind of political goodwill that this process requires. Moreover, county governments collect land rates from property owners and a digital record of all properties in the county will enhance this function.
Previously, the Ministry of Lands has stated that cases of double titling are among the factors that have slowed down the process of digitization. In January 2023, the Lands Ministry reported that the digitization of land records is still on course, and that over a 100,000 properties have been uploaded to the platform—about a third of the 250,000 registered parcels and 70,000 sectional units that account for all land records within Nairobi. Ultimately, the process of scanning manual records to upload them to the digital database while inputting additional information for each entry to populate the database is a human resource-intensive activity. Undertaking this task while trying to verify the accuracy of the records to ensure ministry officers are not uploading falsified records adds another layer of difficulty. Continuous investment in the form of budgetary allocation from the National Treasury remains crucial to populating the ArdhiSasa database with all land and property records across the country. The ministry’s commitment to involving stakeholders (including the Law Society of Kenya, the Institution of Surveyors of Kenya, the Kenya Bankers Association, and others) in the process of improving the platform is also a welcomed show of goodwill.
Kenya has in the past grappled with various challenges that have reduced the public’s trust in how the state manages and administers land and land information, and this national land information management system (ArdhiSasa) couldn’t have been timelier. One of the challenges was that of illegal and irregular allocation of public land that resulted in conversion of lands held by public institutions (including forest lands) to private property to the benefit of a few individuals. The 2004 Report on the Commission of Inquiry into the Illegal and Irregular Allocation of Public Land, commonly referred to as the Ndung’u Land Report, lists “poor and chaotic record keeping system” in the Ministry of Lands registries among the factors that enabled grabbing of public lands by wealthy and politically connected individuals. The report notes that this state of record-keeping at land registries made it hard for Kenyans to trace and keep track of the history of transactions relating to particular titles, and was in some instances the condition that enabled the falsification and withholding of land records so as to conceal illegal allocations of land. The report recommends computerization and digitization of all land records (including facts relating to the history of each parcel of land), and that all land records should be made available for inspection by the public.
Another challenge in land administration and management in the past was land fraud that often took the form of double titling. Land fraud had at some point in our history become so rampant that it warranted the establishment of a Land Fraud Unit under the Investigations Branch of the Directorate of Criminal Investigations (DCI).
The banking sector, property and real estate
In recent years, another outcome of the increasing land fraud cases has been the reluctance of banks to accept title deeds as collateral when clients apply for loans. Lenders end up having to undertake a lot of due diligence, including having bank officers undertake land searches as the institutions fear other professionals in the sector may be compromised. Banks have also complained about Ministry land records not being up to date. The greater inconvenience for the lending institutions, however, comes when borrowers default on loans and banks seek to initiate clauses that allow for repossession of property that was used as collateral only to realize that they cannot recoup their money.
Banks play a vital role in financing the acquisition and development of property and the reliability of property records can either enhance or diminish this role. The banking sector would benefit greatly from a fully functional ArdhiSasa portal that would reduce the human and financial resources spent in conducting due diligence (that is sometimes not sufficient), and ensure transparency in property transactions, similar to the transparency and efficiency Kenyans and financial institutions enjoy from the NTSA TIMS portal.
The banking sector would benefit greatly from a fully functional ArdhiSasa portal that would reduce the human and financial resources spent in conducting due diligence.
Additionally, by improving the efficiency of land and property transactions in Kenya, these assets will become more liquid, and individuals will be more willing to trade with the property they hold. This could unlock more funds from the banking system, funds that will be injected into the economy and contribute to the government’s economic recovery agenda. As more Kenyans trust the ArdhiSasa system, they will be more willing to buy and sell land and property, thereby driving the growth of our real estate market.
Global financial institutions and development partners (the IMF, the World Bank, the European Union, etc.) will also feel more assured when funding land-intensive development projects if the process of land acquisition is more transparent, and if project implementers can ascertain beyond all doubt the persons and communities that will be affected by the projects and therefore follow due process in compensation. Moreover, collating information on land and property ownership and making it accessible to the public on one platform will be crucial in ensuring that communities procedurally give their free, prior and informed consent before commencement of these projects.
The national government and all county governments also stand to benefit from the digitization of all land and property records in the country through improved revenue collection. A digital record of all properties will significantly improve the efficiency with which land rates are paid to county governments and land rents are paid to the national government. The government’s plan for the next financial year has included proposals in law to step up revenue collection to service the country’s debt, and in this regard it cannot overlook the role of ArdhiSasa.
With the knowledge that a functioning ArdhiSasa system can eliminate cases of land fraud while improving accessibility to land information and efficiency in land transactions, it is important that the Lands Ministry—and the top government leadership—make this the priority for the next five years. Only then can we maximize the potential of our financial services and property sectors, and spur investments on land and property.
