Owning land in Kenya is often equated with holding a title deed, but is the title deed alone enough to guarantee protection to a bona fide purchaser? This article explores this issue further.
- Is holding a title deed sufficient to prove ownership?
Not automatically. Under Section 26 of the Land Registration Act, a certificate of title is prima facie evidence of ownership, but it can be challenged if it was obtained through fraud, misrepresentation, illegality, or procedural impropriety.
The Supreme Court decision in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) reshaped how we understand land ownership. The decision underscored that holding a title deed does not automatically mean you lawfully own the land if the root of title is defective. Even an innocent purchaser may lose land if the initial allocation was unlawful.
- What is the “root of title” and why does it matter?
The root of a title refers to the original lawful allocation or grant of the land. It serves as the basis from which ownership is traced to establish a valid title. A Green Card (historical) search helps establish the root of a title for certain titles subject to confirmation by their specific land registry.
In Funzi Island Development Limited & 2 others v County Council of Kwale & 2 others [2014] KECA 882 (KLR), the Court of Appeal invalidated several registered titles because the initial allocation of trust land was unlawful and statutory procedures had not been followed.
- Is registration meant to confer indefeasible ownership?
Yes, but not absolutely. In the above-mentioned case, the Court of Appeal stated that indefeasibility could only arise where the allocation was legal, proper, and regular. Further, the court could not rely on indefeasibility to validate or legitimize an illegal or irregularly obtained title.
Registration only protects legitimate titles, and once fraud is established in the root transaction, subsequent transfers cannot stand.
- What due diligence should I conduct beyond examining the document?
- Conduct a physical site visit.
- Conduct an official search at the Land Registry.
- Conduct a Green card search, where applicable, to review the history of ownership (chain of title).
- Confirm survey boundaries.
Should you require any further information, do contact us at info@cfllegal.com.
