Applying ICTs to the Data Capture Element of Land Registration: Lessons Learnt and Recommendations

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. It follows the previous blog post titled: Testing ICTs and Affordable Mapping Tools for Demarcation of Land Under Real-World Scenarios.

In our research conducted in 2017, we aimed to test whether:

  1. Cheap and widely available tools that can be used for land demarcation exist.
  2. These tools can reach the demarcation threshold required by the Kenyan government in terms of accuracy and attribution.
  3. Communities, using these tools, can replicate the work of a professional surveyor.

We find that cheap and widely available tools that can be used for land demarcation indeed exist. Kenya is a major technology hub of Africa. Mobile-cellular telephone subscriptions are higher than 80 percent and the percentage of individuals using the Internet was as high as 26 percent in 2016. These new technologies “help marginalized communities communicate, conduct business, receive nearly real-time feedback from crisis areas, alert populations about health risks, fight corruption, climate change, and alleviate poverty.”[1] Given the central role of communication costs in collective action, the growing abundance of cheap, broadly distributed and sophisticated information and communication technologies can affect the nature of collaboration in community-based development initiatives.[2]

When we tested a series of off-the-shelf GPS and mobile tools to see whether they can achieve the accuracy and attribution standards required by law, we found that environmental factors greatly affect the nature of measurements of different terrains. Lower accuracy and precision were observed in the forest with high canopy cover and low field of view for all devices. The measurements improved significantly as the environmental factors (canopy and terrain) improved, in the village and lowlands. Relatively high canopy cover and low field of view had the greatest effect on the measurements.

We find that these tools cannot reach the accuracy threshold required for demarcating fixed boundaries as these boundaries require three to four-centimeter accuracy under the Kenyan law. However, apart from the heavily forested areas, most devices were able to collect location data within three to five meters, as required for general boundaries.

Furthermore, we found that a pairing of mobile and GPS dependencies may provide the most optimal and cost-effective measurements in the face of environmental and terrain challenges and limited network connectivity.

Working with communities and a professional surveyor, we find that communities can lead the process of land demarcation and can replicate the work of a professional surveyor both in terms of accuracies and attribution required in rural areas (general boundaries). Smartphones can store the necessary attribute data from the field in a digital format, fulfilling the requirements to document people, land and associated rights.

We find that these tools provide an excellent alternative to the system that is currently used in rural areas where most parcels are registered only through pen and paper, and sometimes by measuring tape, and the information is stored in paper format at the County offices. The tools are also much cheaper and easy to use than the professional grade surveying equipment.

Some bottlenecks can be removed by using these affordable technologies:

  • Lack of affordable tools.

The tools are widely available, affordable, and easy to use by communities.

  • Local communities have no access to information.

With these tools, information can be easily collected, stored and shared.

  • Local communities are not able to value their land.

Applications can be built to streamline the valuation of land based on the data input.

  • The registration process is unclear or unknown to the communities.

The tools can be used for information sharing.

  • The relationships between Kenyan national, community and individuals in terms of property rights is difficult for communities to comprehend.

This is a systemic issue that the tools cannot address on their own.

  • Antiquated procedures sustained through inertia in the titling process and an inability to explore, let alone adopt new technologies to replace old methods.

This is still an issue in Kenya, however, the tools provide for an excellent alternative to the current system of paper-based data storing, etc.

  • Technical tools used to capture vital information on mapping are often too expensive, difficult to operate, rely solely on connectivity, and require extensive training/maintenance and complex processing solutions. In some cases, the skills needed to record information accurately often built up over many years of experience including formal qualifications.

Training is relatively simple and most processes repeatable to a satisfactory standard, and the possibility of having units available at sub-county level that can be rented out to communities makes it cost effective and affordable.

As practitioners, we see the need for simplification and streamlining of the functionality of various hardware and software used for documentation of community lands. The use of affordable and widely available ICT tools can empower local people to rightfully claim land and thus eradicate future land disputes and conflicts amongst them. There are ample opportunities for policymakers, lawmakers, technical experts, and administrators to use these insights to influence and shape their land rights agendas, as well as support efforts to better include local people and accurately map boundaries in Kenya.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Alan Mills

 

[1]Kovacic, Primoz. 2014. Digitally Enabled Collective Action in the Areas of Limited Statehood, Implications of Information and Communication Technology for Collective Action on Hazard Mitigation and Environmental Management in Mathare, Kenya. Masters Thesis

[2]Kovacic, Primoz. 2014. Digitally Enabled Collective Action in the Areas of Limited Statehood.

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Testing ICTs and Affordable Mapping Tools for Demarcation of Land Under Real-World Scenarios

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. This blog post follows the previous blog post was titled: Testing ICTs and Affordable Mapping Tools for Demarcation of Land under Ideal Conditions.

In the previous post, we looked at how some available and affordable ICTs and GPS units behave under ideal environmental conditions. We measured each tool’s relative accuracy and precision over a known trigonometric point in Nairobi. In this blog post, we examine how these same tools behave under varying environmental factors.

Study Locations

Beyond their technical specifications, the performance of each tool to collect location data is affected by a variety of environmental factors, in particular, those narrowing the field of view to obtain mobile connectivity or be in the line of sight of GPS satellites.

For the purpose of this study, simple accuracy and precision tests were done in 2017 in Taita Hills, Kenyan Coastal Region. The hills provide a number of locations within a compact study area that gives a variety of environmental conditions, namely:

  1. Forested land in the hills (high altitude).
  2. Village communities consisting of subsistence farming in the hills (between highlands and lowlands).
  3. Savannah, relatively flat farmland with an open canopy (lower altitude).
  4. Urban environment represented by the town of Voi (lower altitude).

Point Measurements under Varying Conditions

Our particular interest was how canopy cover, terrain, mobile connectivity (for mobile devices), and survey conditions, affect accuracy and precision measurements of boundary points of parcels.

The purpose of this exercise was not to conduct rigorous scientific measurements of each tool but rather to test how the environment affects the measurements of locations with a specific focus on the demarcation of land.

Eight sites with varying environmental conditions were selected for testing. At each site, a reference point was measured with Leica Real Time Kinematic GPS which is capable of very precise measurements (up to a millimeter). Each device was then placed on top of the reference point where location data was continuously collected for about 10 minutes. We find that environmental factors significantly affect the nature of measurements. Lower accuracy and precision were observed in the forest with high canopy cover and low field of view for all devices. The measurements improved significantly as the environmental factors (canopy and terrain) improved, in the village and lowlands. Relatively high canopy cover and low field of view had the greatest effect on the measurements.

Variable network connectivity conditions were observed in the village and in the forest; however, as the first test in Nairobi showed, network connectivity did not have a significant effect on improving accuracy and precision of measurements.

A much higher relative accuracy and precision were obtained by the two GPS devices (Bad Elf and Garmin) compared to the mobile devices. These two devices have superior GNSS chipsets to those of the mobile phones.

If we place top ten measurements for each device on the horizontal line that indicates the distance measured from the reference point, we see that the measurements have higher accuracy (proximity to reference point) and precision (proximity to each other) under the more favorable environmental conditions (canopy cover and terrain).

How do these findings affect individual parcel measurements?

If the previous tests give practitioners a rough idea of what to expect in terms of each device’s relative accuracy and precision as they relate to various fieldwork conditions, the next test indicates how this affects the capture of boundary points and the demarcation of individual parcels.

For this experiment, ten parcels with varying environmental conditions were measured with a Survey grade GPS unit (Leica1200 with RTK) for reference. At each reference boundary point, the location was obtained using one of the devices, and specific records of the terrain, canopy cover, network availability, time of data capture, and ability to collect a point on each application were recorded.

Ten parcels were measured using Garmin e-Trex and Bad Elf GPS units, Samsung S7, Infinix Zero 4 Plus, Samsung Tablet, and an iPhone, and overlaid on top of parcels measured with professional grade Leica GPS. Below are the results from some of the parcels.

If we compare the areas of parcels measured with each device, we see that the difference in the areas measured changes based on environmental factors. In these measurements, we combined the canopy cover and field of view into one indicator called Canopy Cover expressed in percentage points. As demonstrated in this chart, the results improved when the field of view increased and canopy cover decreased.

According to one professional surveyor:

Canopy cover and field of view are two things that influence the GPS measurements the most.

Did these selected affordable tools reach the threshold in terms of accuracy?

The answer is yes and no.

These tools cannot reach the accuracy threshold required for demarcating fixed boundaries as these boundaries require three to four-centimeter accuracy under the Kenyan law. Apart from the professional grade GPS unit, none of the tools reached this level of accuracy. However, apart from the heavily forested areas, most devices were able to collect location data within three to five meters, as required for general boundaries.

Next blog post will look at whether the communities can replicate the work of a professional surveyor using these technologies.

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Testing ICTs and Affordable Mapping Tools for Demarcation of Land Under Ideal Conditions

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: Technical Thresholds Required for Demarcation of Individual and Community Land in Kenya.

The idea of communities demarcating their own land is predicated on a series of assumptions:

  1. That cheap and widely available tools that can be used for land demarcation exist.
  2. That these tools can reach the demarcation threshold required by the Kenyan government in terms of accuracy and attribution.
  3. That the communities, using these tools, can replicate the work of a professional surveyor.

To test these assumptions, we conducted a series of experiments in 2017 in Taita Hills, Taita Taveta County.

We first examined the process of demarcating land both for new grants and for subdivision of land. We described these in the previous blog post. Specifically, we focused on the accuracy and attribution of spatial data required by the professional surveyor and government offices.

Second, we completed a series of tests of affordable and ubiquitous technologies for capture and demarcation of land to see whether they achieve the thresholds required. We tested these tools under varying environmental conditions to see how they affect the measurements. We will describe the findings in several upcoming blog posts, starting with this one.

Finally, we assessed whether communities can replicate the demarcation of land by the professional surveyor using these tools. We did this experiment by allowing community members to follow the professional surveyor and replicate his work.

The first test of the tools was done under what can be considered ideal conditions with a clear field of view and good mobile network connectivity. We found that even under these conditions there’s a certain level of accuracy and precision of location measurements that each tool can achieve. Accuracy refers to the closeness of a measured value to a standard or known value and precision refers to the closeness of two or more measurements to each other.

When we placed our GPS units and mobile phones above a known trigonometric point to demonstrate what type of accuracy and precision can be achieved in ideal circumstances, we found that accuracies and precision of tools vary.

As we can see, the points taken with GPS units (BadElf and Garmin) fall between 1 and 3 meters from the known trigonometric point while the points taken with mobile devices fall between 1 and 5 meters.

The measurements of GPS devices are relatively precise, especially the measurements of the Bad Elf GPS unit. The precision is indicated by the closeness of points on the horizontal line. We also noted that access to the network data (with or without data) does not affect the accuracy or precision of the measurements of mobile phones.

Next blog post will describe testing in so-called real-world scenarios.

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Technical Thresholds Required for Demarcation of Individual and Community Land in Kenya

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: Registration of Private Land in Kenya.

Following the fit-for-purpose principle, the accuracy of data capture of boundary points can be considered as a variable based on building density, topography and other requirements. In our research, we were interested to see whether affordable tools can reach the standards required by the Kenyan law for the demarcation of individual and community boundaries.

There are several ways in which boundary of a parcel can be represented and demarcated. The boundary can either be a physical, man-made or natural feature, and the accuracy of it varies whether the boundary is considered as fixed or general.

Fixed boundaries are high precision boundaries and used mostly in urban areas. Permanent marks (beacons) are put on the ground to demarcate land whereby their details, including coordinates, are kept at the respective survey offices and can be replaced in case they are lost or tampered with on the ground. The accuracy required for the demarcation of new boundary points for fixed boundaries is ± 4 centimeters.

General boundaries are less precise boundaries defined by natural features such as rivers, streams, trees, rocks, ridges, etc. The accuracy of these boundaries is as low as ± 3 meters depending on the corridor/area. These boundaries are mainly found on agricultural lands and in rural areas.

The process of land demarcation touches on either creating new grants or on the subdivision of existing grants for both fixed and general boundaries. Creation of new grants represents a transfer of rights between government lands to private lands, while the subdivision of existing grants points to divide the land into smaller pieces.

The process of land demarcation for fixed boundaries:

New grants

  • National Land Commission (NLC) gives allotment letters to individuals.
  • An individual is required to pay a certain amount for allotment to become valid.
  • Once the amount is paid, beaconing is done by the surveyor as per required accuracies (± 4 centimeters).
  • Computation files and survey plans are prepared and signed by a licensed surveyor and submitted to the Director of Surveys for checking and authentication.
  • Deed plans are prepared, the new Land Record (LR) numbers are offered and submitted to the Survey of Kenya for checking and authentication.

Subdivision

  • A subdivision scheme plan is prepared by the surveyor.
  • The plan is then signed by a registered physical planner and a copy of the existing title deed is attached to it.
  • Once the subdivision scheme plan has been approved and a copy of the title deed attached, National Environment Management Authority (NEMA) publishes a public notice to which it attaches a copy of the Part Development Plan (PDP) and sends it to the Ministry of Lands and Physical Planning.
  • Once the subdivision scheme plan is approved, the land may be subdivided. This is granted by the respective county government.
  • The surveyor delineates the land and puts in the beacons at boundary points (accuracy ± 4 centimeters).
  • A computation file and a survey plan are prepared and signed by a licensed surveyor.
  • They are then submitted to the Director of Surveys for checking, corrections, and authentication.
  • Deed plans are prepared and the new LR numbers are offered and submitted to the Survey of Kenya for checking and authentication.
  • A copy of the old title deed is submitted to the lands department where it is revoked and new titles are released.

The process of land demarcation for general boundaries:

New Grants

  • The government decides to adjudicate a certain area.
  • Director of Surveys sends land adjudicators to the area for confirmation.
  • Adjudicators collect names and other relevant information, such as an approximate area of each parcel, of the owners of these lands, etc.
  • Adjudicators delineate the land usually using a measuring tape and a pen and paper (accuracy ± 3 meters).
  • Title deeds are prepared and distributed to new owners.

Subdivision

  • Search is facilitated at the local county survey office for the Land Reference number (LR) for the plot in question.
  • Information on the owner of the land and the approximate area of the land in question are collected.
  • A subdivision scheme plan is then prepared.
  • The title deed (if applicable), LR number, information on the owner and on land, and the subdivision scheme plan are gathered and attached to the application for the consent to subdivide.
  • The mutation form (indicating the information on land, the title deed (if applicable), and IDs of the owners) is prepared, filled, and signed.
  • Documents are submitted to the district board for checking and authentication.
  • The mutation form is forwarded to the land registrar for registration and titling where the old title deed is revoked and new title deeds with new LR numbers are offered.
  • Once the consent to subdivide is granted, the surveyor goes to the ground to delineate the land (accuracy ± 3 meters), often using measuring tape and pen and paper.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher, Alan Mills

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Registration of Private Land in Kenya

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: Affordable Tools for Demarcation of Land are Widely Available.

In one of our previous posts, we wrote about the requirements and the process of registering community land in Kenya. In this post, we describe the process and requirements for the registration of private un-surveyed and surveyed land in Kenya.

Registration of Private Un-surveyed Land

Registration of Private Surveyed Land
Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher, Alan Mills

[1][2][3][4][5][6]

[1] A search is a document from the land registry showing the details of the land, the current owner, size, and if they are any encumbrances or restrictions. This stage is very important as it shows if someone else owns the land of if the land has been registered before. It takes three to five days.

[2] This certificate is proof that there are no outstanding fees to be paid to the Municipality.

[3] For Agricultural Land, the LCB must give its consent. This Application is made using a prescribed form.

[4] The property is valued, amount endorsed on the transfer form and this is what is assessed for stamp duty.

[5] This service is not officially charged. You are only required to pay for the valuer’s transport services to get to the property.

[6] Stamp Duty is now exclusively applied for on the iTax portal. See procedure here.

[7] Stamp duty is valued at 4% (of the value of the property) for urban land and 2% for agricultural land.

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Affordable Tools for Demarcation of Land are Widely Available

We cannot do the all the work alone. There are not enough of us.

Joe Kheti, Kenyan Surveyor

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: Registration of Community Land in Kenya.

According to some studies, an estimated 70 percent of the property in emerging economies is undocumented and a majority of smallholder farmers around the world farm without the protection of having legal rights to their land documented by government records.[1] According to the World Bank, 62 percent of people in Sub Saharan Africa live in rural areas. In Kenya, the number is 74 percent.[2] Undocumented rural land in Africa is estimated at approximately 90 percent; in Kenya, the number is 60 percent.[3]

In February 2017, the Land Surveyors Board of Kenya states there were 108 licensed surveyors in the country with the population of about 48.46 million (or 1 licensed surveyor per approximately 450,000 people) and an area of 580,367 km².[4] One complaint that is often heard among surveyors is that there are not enough of them to adequately document all the land in Kenya.

At the same time, Kenya is a major technology hub of Africa. The “availability of mobile technology, access to the Internet, and provision of government services (referred to as e-government) and open data initiative all contribute to a growing information ecosystem in the country”.[5] The International Telecommunication Union states that in 2016 mobile-cellular telephone subscriptions in Kenya were 81.28 per 100 people and percentage of individuals using the Internet was as high as 26 percent. The number is likely higher in 2019 (this research was done in 2017).

Information and communication technology tools are widely used in development in Kenya, with more focus on the poor and the marginalized as the producers and innovators with ICTs.

Initiatives and innovations that target “land matter”, as it is often called in Kenya, have been somewhat scarcer than initiatives and innovations in other sectors. However, there are some activities currently planned or ongoing in the country that touch on land management. For example, the Kenyan government plans to digitize all of its 57 land registries, introduce digital mapping, and complete the national spatial infrastructure by 2022.[6] The country also aims to use space technology to help ascertain property boundary rights registration and issuance of land title deeds to millions of applicants.[7]

While these are mainly top-down initiatives, our research looks at off-the-shelf, easy to use, hand-held mobile and GPS units and their potential role in the community’s participation in land demarcation and land registration. We believe that the learning curve for these tools is less steep than perhaps for other technologies since these tools are ubiquitous and often used in other aspects of life in Kenya, such as communication, entertainment, access to information, Internet, and mobile banking.

Selection of Tools

The idea of communities demarcating their own land is predicated on a series of assumptions. One of the assumptions is that cheap and widely available tools that can be used for land demarcation exist. In our research (conducted in 2017) we selected the following tools for testing:

These GPS and mobile tools were selected because they are among the most commonly used brands in Kenya, had the newest chipset technology at the time, their cost is permissible for use by the communities or local NGOs, and have the most commonly used operating systems in Kenya (the following tools were not used in the research: [8] [9] [10]).

More coming soon.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Alan Mills

 

[1] See: https://nextbillion.net/four-bottom-up-solutions-to-strengthen-land-rights-emerging-markets/

[2] See: https://tradingeconomics.com/kenya/rural-population-percent-of-total-population-wb-data.html

[3] See: http://www.ardhi.go.ke/?p=718

[4] See: http://www.lsb.or.ke/membership/licensed-surveyors/

[5] Kovacic, Primož and Jamie Lundine. 2014. “Mapping Kibera. Empowering Slum Residents by ICT.” In Bits and Atoms: Information and Communication Technology in Areas of Limited Statehood, edited by Steven Livingston and Gregor Walter-Drop, 115-129. New York: Oxford University Press

[6] See: https://www.delivery.go.ke/flagship/registrydigitization

[7] See: https://www.nation.co.ke/news/Ministry-to-use-space-technology-in-land-mapping/1056-4115066-1olvpy/index.html

[8] Trimble TDC100: Due to issues with the shipment and customs this device did not arrive on time for testing.

[9] Smartphone with improved GNSS: Not able to test the tool, due to a delay in shipment.

[10] Samsung Tablet A 8 Inch: Not included in the research in the end.

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Registration of Community Land in Kenya

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: The Process of Land Adjudication in Kenya.

The Land Registration Act 2012[1] aimed to ‘revise, consolidate and rationalize the registration of titles to land [and] to give effect to the principles and objects of devolved government in land registration.[2] Unlike the former regime where each legislation created its own registry thus making the land registries distinct and confusing,[3] this Act provided for the creation of land registration units by the National Land Commission in consultation with the national and county governments.[4] In each of the created land registration units, a land registry was maintained[5] comprising of:

  • the land register;
  • the cadastral map;
  • parcel files containing the documents that support existing entries in the land register;
  • any plans which will, after a date appointed by the Commission, be geo-referenced;
  • the presentation book with a record of all applications numbered consecutively in the order in which they are presented to the registry;
  • an index, in alphabetical order, of the names of the proprietors; and
  • a register and file of powers of attorney.[6]

The aim was to improve efficiency and reduce the time required for conducting historical searches. The other register to be maintained is the Community Land Register but this is subject to the provisions of the intended legislation on Community Land.[7] Accessibility was also enhanced using electronic means.[8]

The Community Land Act[9] was signed into law by the president of Kenya on 31st August 2016 and it commenced operation on 21st September 2016. The Act specifically provides for the recognition, protection, and registration of community land rights; management and administration of community land; and the role of county governments in relation to unregistered community land.

In addition, the Act gave communities the opportunity to collectively use and manage land communally owned by forming community assemblies and Community Land Management Committees.

Although regulations under this Act are yet to be issued, this was another step to safeguard community interests through legislation. Communities can now freely enter agreements with investors to enable environmental, social and economic impact assessment; rehabilitation of land; capacity building; and transfer of technology.

Below is a summary of the process and requirements for the registration of community land in Kenya:

PROCESS RELEVANT OFFICE
A community[10] claiming an interest in or right over community land shall register its rights[11] under the Land Registration Act. They must also have a plausible justification for why they are registering the community land as a collective, e.g. common ancestry, similar culture, etc.
The community land in Kenya shall vest in the Community. Members of this community must be listed during the registration process.

The community shall elect representatives to manage and administer the registered community land on behalf of the respective community.

Before submission of the community formation and registration documents to the registrar of societies, the local chief must authenticate these documents by applying an official stamp to the application documents and letter. Chief’s Office
The elected community representatives must then present these authenticated documents at the Registrar of Societies. The Registrar of Societies then provides the community with a registration certificate after due diligence. This means the community is officially registered, but their interest in the land has not been documented. Registrar of Societies/ Registrar Community Land
The registered community identifies a surveyor, who is duly licensed to practice as a land surveyor. The surveyor provides an index map of the country and dials down to the specific area of land of interest on the official map of the area. The surveyor gets a general map of the area from Survey of Kenya, Folio Register (FR) which is represented by the FR number. Survey of Kenya – Registered Surveyor

(Department of Survey/independent surveyor)

 

With the FR map, the Survey of Kenya indicates the reference points for the parcel, these guide the surveyor in placing new coordinates on the ground relative to the official control points. Once the points are marked, beacons are planted to mark the new points. A list of coordinates demarcating the boundaries is then established in relation to these points. Survey of Kenya
There is an official template called the deed plan that shows the reference point, the new points, and the resultant maps. The deed plan is taken to the land control board for scrutiny and verification. The board may invite any other interested parties or neighbors to authenticate a claim to ensure no claimants are ignored in the process. Land Control Board
If no complaints are raised and the whole process is verified, the board verifies and authenticates the maps. The licensed surveyor then takes the map to the Survey of Kenya. Once confirmed, the parcel is given a new number (parcel number). This number is taken by the Survey of Kenya to the land registrar. The registrar registers the ownership of the land and the community receives a title for the land. At this point, the land is legally owned by the community. Ministry of Lands

The next blog post in a series: Affordable Tools for Demarcation of Land are Widely Available.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher, Alan Mills

[1] No. 3 of 2012.

[2] Preamble.

[3]For instance, the Government Lands Act (GLA) created registries only in Nairobi and Mombasa while the former Land Titles Act (LTA) created one only in Mombasa. Only the Registered Land Act (RLA) had registries in administrative districts.

[4] Section 6 of the Land Registration Act.

[5] Section 7 of the Land Registration Act.

[6] Ibid.

[7] Article 63.

[8] Section 10 of the Land Registration Act requires that each of the Registrars to make the register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe. This is in line with Article 35 of the Constitution on the right of access to information held by the State.

[9] Article 63 (5) of the Constitution.

[10] The community is a consciously distinct and organized group of users of community land who are citizens of Kenya and share common attributes.

[11] Unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.

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The Process of Land Adjudication in Kenya

This is the next in the series of blog posts on research into applying ICTs to the data capture element of land registration. The previous blog post was titled: A Short Note on Land Laws in Kenya.

While the previous blog post briefly describes the classification of land in Kenya according to the new constitution, the following posts will focus on practical ways of registering and acquiring titles to land in Kenya. In our research and work, we were specifically interested in the processes of land adjudication, land registration, registration of community land, registration of private surveyed land and registration and transfer of private un-surveyed land, and the process of land demarcation.

There are various ways to acquire title to land and they include[1]: allocation; land adjudication process; compulsory acquisition; prescription; settlement programs; transmissions; transfers; long-term leases exceeding 21 years created out of private land; or any other manner prescribed in an Act of Parliament.[2]

The Constitution of Kenya acknowledges the existence of Community Land, however, as of now, the unregistered Community Land is held in trust by the County Governments on behalf of communities.

Land Adjudication is “the process of final and authoritative determination of the existing rights and claims of people to land.”[3] In Kenya, the Land Adjudication Act[4] provides the guidelines for the land adjudication process. These involve determining and recording of rights and interests of individuals residing on registered Community Land for the purpose of facilitating the registration of titles.

Ideally, the government must work together with the communities when it comes to the land adjudication process. To ensure that community members and the public are informed about the process of land adjudication we break the process down below:

1.     A formal written petition is delivered to the Commissioner of Lands with a request to have an area earmarked for adjudication. This petition is copied to the County Commissioner.
2.     Land Adjudication Board convenes at the Ministry of Lands to deliberate and approve the adjudication petition.
3.     A directive is issued to the Department of Survey based on the results of the Board deliberations to visit the site, conduct reconnaissance of the terrain, and give recommendations.
4.     The reconnaissance mission provides its professional recommendations to the Land Adjudication Board for consideration.
5.     Based on these recommendations, the Board deliberates and, if satisfied, approves the adjudication request.
6.     The Survey Department proceeds to formally survey the areas earmarked for adjudication (adjudication areas).

i. Landowners in presence of Land Adjudication Officers identify their land boundaries.

ii. The boundaries are demarcated by Adjudication officers using enlarged aerial photographs, ground survey methods or both.

iii. Land adjudication committees are set-up to ascertain and arbitrate rights and interests in the land.

7.     After the survey work is complete, the Survey Department generates a Registry Index Map (RIM) of the area and a Land Adjudication register which contains parcel numbers, the name of the owner, size of land and a map sheet number.
8.     The map is given to the Ministry of Lands which issues Land Reference Numbers (L.R. Numbers).
9.     These, together with the Map of the area are returned to the community for public examination. If all parties agree, the Director of Land Adjudication signs a certificate of finality and the L.R. Numbers are issued to individuals.
10.  For the owner to get a title after completion of adjudication process they need to provide the following:

i. Original and copy of the national identity card

ii. Personal identification number from the Kenya Revenue Authority

iii. Recent and clear passport photographs

iv. Ksh 500 for registration; Ksh 500 for adjudication; Ksh 250 for the title

The next blog post will focus on the process of land registration, specifically on registration of Community Land.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher

[1] Section 7 of the Land Act of 2012.

[2] See Community Land Act of 2016

[3] See: http://www.fao.org/docrep/005/X2038E/x2038e08.htm

[4] Cap 284 Laws of Kenya

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A Short Note on Land Laws in Kenya

Previous blog in a series: Land Tenure Issues in Taita Hills

Land remains a contentious and problematic issue in Kenya, particularly land held in areas predominantly perceived as the traditional home of a community. Land reforms in Kenya were mainly run under systems set up by colonialists from as early as 1885. Through the years land laws have evolved, however, structures and methods have remained largely centralized with minimal progress towards developments in adjudication and titling.

Research in Taita Hills revealed that the operation of law is a mundane process. Informal mechanisms are still used from the inheritance of ownership to dispute resolution. The community is not fully educated about their rights to land and the processes involved. This has led to continued perceptions of land injustice and only recently has formal adjudication addressed some of these issues. Title deeds are yet to be issued and many areas around Kenya remain contentious and ripe for land dispute.

The New Constitution in 2010 enhanced previous land reform efforts by establishing a legal framework for the administration, use, and management of land in Kenya. It outlined definitions of land and land systems in Kenya as well as set out a land legislative obligation on Parliament[1]. The parliament of Kenya enacted new land laws, including:

  • The Land Act 2012[2],
  • The Land Registration Act 2012[3],
  • The National Land Commission Act 2012[4]
  • Community Land Act of 2016[5]

These legal regimes replaced the past regimes which included, amongst other laws, the Land Titles Act, the Registration of Titles Act, the Registration of Land Act, the Government Land Act and the Indian Transfer of Property Act.

These new land laws have constitutional backing unlike in the previous regimes’ which provided no framework on land legislation and where land laws were enacted not as a constitutional requirement but out of necessity.[6]

The Land Act 2012 sought ‘to revise, consolidate and rationalize land laws; and to provide for the sustainable administration and management of land and land-based resources’.[7] This Act was amended following the introduction of the Land Laws (Amendment) Act 2016. The Act brought about amendments to the Land Act 2012, Land Registration Act 2012 and the National Land Commission Act 2012. The amendments were necessary to correct errors and inconsistencies in the statutes and to clarify certain definitions, as well as to introduce some pertinent changes to land law and conveyancing in Kenya. This Act applied to all land declared as public, private and community land under the constitution.

In 2010, the Constitution of Kenya classified land as:[8]

  • Public land[9] – reserved for public use or environmental protection. It is administered and managed by National Land Commission (NLC) on behalf of the people of Kenya.
  • Community land[10] – held by communities on basis of ethnicity, culture or similar community interest. It is administered under the Community Land Act No. 27 of 2016. Any unregistered land that is community land is held in trust by the county governments for the community.
  • Private land[11] – held by natural or legal persons. The Ministry of Lands is tasked with the registration of any interest in private land. It is classified into the following land tenure system:
    • Freehold land tenure system which gives the holder absolute ownership of the land for life. A freehold title deed generally has no restrictions as to the use and occupation of the land. However, there are some conditional freeholds which may restrict the use of land for agricultural uses only.
    • Leasehold land tenure system which is the interest in land for a specific period subject to payment of land rent to the government and land rates to the county governments. Once a lease expires, the land reverts to the owner or the leaseholder can apply for a renewal or extension of the lease.

Since our research applied new technologies to the data capture element of land registration, we first looked into various methods of acquisition of titles to land in Kenya. These are coming up in the next blog posts.

Authors: Primoz Kovacic, Michelle Gathigi, Justus Muhando, Brian Odongo Christopher

 

[1] Article 68 of the Constitution.

[2] See: No. 6 of 2012. http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf

[3] See: No. 3 of 2012. http://kenyalaw.org/lex/rest//db/kenyalex/Kenya/Legislation/English/Amendment%20Acts/No.%206%20of%202012.pdf

[4] See: No. 5 of 2012. http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/National_Land_Commission_Act___No_5_of_2012_.pdf

[5] Article 63 (5) of the Constitution.

[6] Chapter Five.

[7] See: http://www.parliament.go.ke/sites/default/files/2017-05/LandAct2012.pdf

[8] See: https://eregulations.invest.go.ke/menu/117?l=en&embed=true&includeSearch=true

[9] Article 62 (4) of the Constitution of Kenya, 2010.

[10] Article 63 of the Constitution of Kenya, 2010.

[11] Article 61(2) of the Constitution of Kenya, 2010.

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Land Tenure Issues in Taita Hills

As a part of our research into applying ICTs to the data capture element of land registration, we conducted a series of interviews in Taita Hills touching on major issues people face when it comes to land tenure. The interviews were done in Wongonyi, Ghazi, and Kishushe village, and other locations throughout Taita Taveta County.

Research in Taita Hills revealed that the communities are not fully aware of their rights to land and the process of land registration. This leads to a continued sense of insecurity and injustice when it comes to land ownership in the area.

In recent years, a formal adjudication was carried out in some parts, however, the results of the adjudication processes are yet to be seen and, in many adjudicated areas, title deeds are yet to be issued.

These are some of the most pressing issues in the area:

  • There is a discord between the traditional landholding and inheritance systems and the government issued legal adjudication process. The respondents understood the value of the title deed, they saw it as a permanent and government-issued record of ownership but did not attach much importance to the legal process of demarcation or subdivision itself.
  • The ownership to the land had often been passed down from parents to children through oral tradition and without any formal process of subdivision or registration. The knowledge of boundary points of properties is oftentimes held in the collective memory of the community, often by the elders. If the knowledge is lost, there’s no way of retrieving it.
  • The larger part of the area under research had undergone the land adjudication process in the past. Some respondents confirmed receiving title deeds while others indicated that their property has yet to be adjudicated.[1] Many landowners whose land has been adjudicated say they had only been given plot numbers with the promise of titles deeds to be issued later. [2]
  • Nevertheless, the sale or transfer or subdivision of land in Taita Hills has continued since. The transactions carried out were often recorded on a piece of paper and without any other formal records. In some cases, the only proof of land transactions were plot numbers and names written on a piece of paper.
  • Without formal records to the ownership of land, confusion and conflict occurred. There were several examples of how missing records lead to disputes. For example, in some cases the children who lived outside the community returned to what they thought was their ancestor’s land, only to find that the land has been “transferred” to someone else. The children demanded that “new owners” show the proof of official transfer documents and when they couldn’t produce them, they asked them to leave the premises, causing tensions within the community. Similar examples touch on land that was in the past donated to churches, hospitals, schools, and other institutions. The land was donated without written or formal agreements and for an unclear period of time, causing similar tensions as in the previous example.
  • Another potential cause of tension can occur in the future. Once the adjudication process occurs and title deeds are finally issued to the owners, they are usually issued in the names of original owners (at least the ones captured during a survey completed decades ago) and not necessarily the people who occupy the land at that particular time. This can lead to more tension in the community.
  • Finally, most community members did not know which government offices handle land matters. The term ‘land office’ was used to denote an institution that is all-encompassing when it comes to land matters but people did not know its actual responsibilities. In fact, the chief’s office emerged as the preferred initial point of contact for all land matters. On top of that, the respondents did not understand the processes of land adjudication and titling or the costs involved or of the documentation required for various procedures.

There are several solutions that can be put in place to mitigate some of these problems. Creating proper digitized land records is, of course, one of them. In the future blogs, we’ll discuss some of the easiest and most cost-effective options to do just that.

[1] According to the Lands Office in Voi, Taita Taveta County the area has been adjudicated as a large adjudication zone in a process that began in the late 1980s and ended in the early 2000s. The same was confirmed by the village elders and the elderly who confirmed having participated in the process of adjudication.

[2] It is worth noting that some of the titles issued were defective because the names of owners were incorrect.

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