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{
"id": 964933,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/964933/?format=api",
"text_counter": 269,
"type": "speech",
"speaker_name": "Makueni, WDM-K",
"speaker_title": "Hon. Daniel Maanzo",
"speaker": {
"id": 2197,
"legal_name": "Daniel Kitonga Maanzo",
"slug": "daniel-kitonga-maanzo"
},
"content": "3. On public participation, the regulation making authority submitted that it appointed a Taskforce on Electronic Land Transactions under the Land Registration Act, 2012, Land Act, 2012 and the Community Land Act, 2016 vide Gazette Notice No.7859 Vol. CXX No.90 dated 3rd August 2018. The taskforce was mandated to study and review land sector-related laws with a view to formulate guidelines for electronic registration of land transactions and conveyancing systems and submit draft guidelines on the same. The Ministry submitted through its Explanatory Memorandum that it conducted public participation with various stakeholders including the NLC, the Council of Governors, the Law Society of Kenya, the Institute of Surveyors of Kenya, the Kenya Institute of Planners, the Town and County Planners Association of Kenya, the Kenya Property Developers Association, the Kenya Bankers Association and the Land Development Governance Institute. The taskforce also published a public notice inviting members of the public to participate and submit their views and proposals in public hearings hosted by the taskforce. The hearings were held between 2nd and 11th October 2018 in Mombasa, Nakuru, Uasin Gishu, Nairobi, Embu, Kakamega, Kisumu, Machakos, Garissa, Nyeri, Kisii and Marsabit counties. The Committee concluded that the Ministry did not demonstrate that it conducted sufficient public participation in the development of the Regulations, contrary to Section 5 and 5A of the Statutory Instruments Act. 4. On Regulatory Impact Statement, the Land Registration (Electronic Land Transactions) Regulations, 2019 require a Regulatory Impact Statement within the meaning of Sections 6, 7 and 8 of the Statutory Instruments Act since they are intended to prescribe guidelines for electronic land transactions, land being a critical sector throughout Kenya. The provisions of the Regulations are pertinent to the right to own property, land in particular, and right of access to information. The regulation making authority failed to submit a regulatory impact statement contrary to Sections 6, 7 and 8 of the Statutory Instruments Act, 2013. 5. Regulation 5 makes provisions for registration in the prescribed forms which have not been provided for in the Regulations or the Schedules. 6. Various provisions of the Regulations give the Chief Land Registrar very broad powers that are subject to abuse. For instance: (i) Regulation 6(1) gives the Chief Land Registrar power to approve or refuse to approve a person as a user and had the potential of abuse and infringement on the rights to property and access to information. The Regulations should have specified the circumstances under which the Chief Land Registrar may refuse to approve a person as a user; and, (ii) Regulation 6(5) allows the Chief Land Registrar to impose additional conditions for approval as a user. The Regulations have not specified the said conditions or rationale for imposing them. This gives the Chief Land Registrar too much discretion that may be abused. 7. Regulation 10 requires the Cabinet Secretary to constitute a committee of nine representatives from various stakeholders to hear and determine appeals against the decision of the Chief Land Registrar. The Committee recommends that several committees ought to be constituted for expeditious resolution of disputes. 8. On lack of clarity on payment procedure, Regulation 15 provides for payment procedure through existing Governments payment platforms, oblivious of the fact that there are no clearly defined payment platforms. 9. On limitation of liability, Regulation 19(2) speaks to the limitation of liability of the Cabinet Secretary and the officers of the Ministry responsible for land. Members opined that Regulation 19 as presently drafted completely limits the liability of the National Government, making only the Cabinet Secretary and Ministry officials liable. In addition, the provisions of Regulation 19(2) have been adequately addressed in the Land Act, 2012 and the Land Registration Act, 2012 and, therefore, should be excluded in the Regulations. The electronic version of the Official Hansard Report is for information purposes only. Acertified version of this Report can be obtained from the Hansard Editor."
}