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  • Writer's pictureRichard Kioko

Sanctity of title

Updated: Feb 17, 2023

In the recent past we have witnessed a spate of evictions as well as threatened evictions all under the ostensible guise of reclaiming public land. Caught in the cross hairs are innocent purchasers some of whom poured life savings into the purchase and development of their property.

The purchases were in many instances carried out after 'due diligence'. Titles were subsequently processed and issued by the Lands department. It is on the strength of this titles that banks and other financial institutions have also gone on to issue loans and mortgages.

The decision by the property owners to develop their land as well as the confidence reposed third parties such as banks is all based on the solemn promise by the issuer of the title that what they hold is not just a piece of paper. A title like money is not just a piece of paper but a store of value and a solemn promise by govt that the document is authentic.

Section 23 of The Registration of Titles Act (repealed) provided as follows:

the certificate of title issued by the registrar is to be taken by courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, such title is not subject to challenge, except on the ground of fraud or misrepresentation to which the person named in the certificate is proved to be a party.

This provision is replicated in Section 26 of the Land Registration Act No. 3 of 2012 which adds an additional rider to wit:

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

The above promise and doctrine of indefeasibility is what is known as the sanctity of title. As a result of the doctrine, a property owner is fortified in his belief that his home is his castle, where even the King may not enter- to paraphrase William Pitt, 1st Earl of Chatham.

However as is often the case and as alluded above, property owners wake up to notices of eviction from a state agency citing the land as public and irregularly acquired. With a stroke of a pen, the erstwhile valid titles are purportedly rendered null and void. Real estate investment in Kenya is without a doubt quite a dangerous mine field.

With that stroke of the pen lifetime savings, health and livelihoods are crossed out. It is unfortunate that this cycle has become quite common with few or no heads turning. In a classical Kenyan state of amnesia, the stories are quickly forgotten awaiting the next round of evictions and demolitions.

Our constitution in article 40 grant's the right to own property. It goes on to provide a whole chapter on Land matters. The constitution classifies land into three; public land, private land and community land.

Public land relates to land belonging to the state and its institutions. The National Land commission (NLC) is the constitutional guardian and custodianof public land in trust for the National and county government. Private land on the other hand relates to land in private hands. Community land relates to land holdings among indigenous and pastoral groups.

While most Kenyans are familiar with the concept of compulsory acquisition whereby government acquires private land for specified public purpose, there is a popular and mistaken belief that Public land cannot be converted to private land. Section 9 of the Land Act 2012 In line with the provisions of Article 62 (4) of the constitution provides that Public Land can be converted into Private Land through the process of allocation. This process is however subject to elaborate and rigorous statutory processes set out in Section 12 of the Land Act.

Unfortunately, this excision of public land and subsequent conversion to private land has long been marred by corruption, abuse of power and outright greed. The Ndungu land report lists a litany of such instances.

The drafters of our constitution when setting up the NLC gave the commission the mandate to address historical injustices. Parliament also empowered the commission to investigate irregular allocations of public land among others. Unfortunately, the NLC had a limited time (5years) within which to carry out a no doubt gigantic task. The resulthas been that the issues of historical injustices as well as illegal annexation of public land remain largely unresolved.

Back to our innocent purchaser holding his title deed which has since been declared void. What could he have done differently? How did his country betray him so badly, What are his remedies?

Courts have had occasion to expound on this doctrine of the sanctity of title and make determinations on the protection accorded by the doctrine as well as the scope of its application. First and foremost, the doctrine will not come to the aid of a land grabber as a shield in instances where the alienation of public land defeats public interest.

Maraga, J in Republic vs Minister For Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 expressed himself as follows:

“Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed...It is quite evident that should a constitutional challenge succeed either under the trust land provisions of the Constitution or under section 1 and 1A of the Constitution or under the doctrine of public trust a title would have to be nullified because the Constitution is supreme law and a party cannot plead the principle of indefeasibility which is a statutory concept. A democratic society holds public land and resources in trust for the needs of that society. Alienation of land that defeats the public interest goes against the letter and spirit of section 1 and 1A of the Constitution.”

Similarly, Justice Nyamu (as he then was) in the case of Mureithi & 2 Others (For Mbari Ya Murathimi Clan) vs Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443 held:

“Should the Land Acquisition Act give shelter to the land grabbers of public land or are the courts going to invent equally strong public interest vehicle to counter this. Should individual land rights supersede the communal land, catchments and forests? How for instance are the Courts going to deal with the land grabbers who stare at your face and wave to you a title of the grabbed land and loudly plead the principle of the indefeasibility of title? Are the Courts going to stay away and refuse to rise to the greater call of unravelling the indefeasibility by holding that such a title perhaps issued in order to grab a public utility plot such as hospital by an individual violates the public or national interest and therefore a violation of the Constitution. I venture to suggest that such titles ought to be nullified on this ground and, thrown into the dustbins.”
In my view there could be other constitutional challenges to reckless and unaccountable alienation of public land and other public resources based on the principle or concept of what is necessary in a democratic society.
A democratic society holds public land and resources in trust for the needs of that society. Alienation of land that defeats the public interest goes against the letter and the spirit of s 1 and s 1A of the Constitution in my view...The doctrine of public trust as defined above is certainly a ready enemy of alienation of natural resources and land grabbing now and in the future and should serve as a perpetual protection to public land, forests, wetlands, riparian rights, riverbeds and “kayas” just to name a few. The doctrine shall constitute the cutting edge of any actual or threatened allocation of public resources including public land.”

While the above scenario of a land grabber is straightforward and just, the question arises; what about bona fide purchasers who innocently purchase Land for valuable consideration without notice of defects in the title?

The court of Appeal in the case of Kenya National Highway Authority v Shalien Masood Mughal & 5 others [2017] eKLR held that the remedy for an innocent purchaser who loses his property lies in instituting an action for compensation from the responsible party. Justice Kiage in his concurring judgement held:

‘I therefore agree, as has been suggested by Waki, J.A., that a party offended by the misdeeds be -they fraudulent or negligent- that have the effect of making his otherwise good title of no effect is at liberty to seek appropriate compensation. In this case I would think the person or persons responsible for the misrepresentations and/or misdeeds that led to a hollow title ought squarely to bear that blame.’

It would therefore appear that the sanctity of title is a legal fiction that does not count for much and that the holder of a title is expected to count their losses and seek remedy from the party responsible for the misrepresentations/misdeeds.

In Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR the court of Appeal took a different approach to the issue and affirmed the sanctity of title held by bona fide innocent purchasers for value without notice of defects in title. The court by majority decision held:

From what I have said in the preceding paragraphs, I have no difficulty in arriving at the conclusion that the appellants discharged the burden placed upon them. They were the registered owners. As far as the evidence before the court goes, they obtained that registration lawfully. Their titles were, in the circumstances indefeasible as there was no proof of fraud.
Article 40(6) of the Constitution, which declares that the protection of the right to property does not extend to properties that are established to have been unlawfully acquired, does not apply to the appellants. No fraud or misrepresentation has been ascribed to them. It has not been demonstrated that they were privy to any such misconduct. They were, as I have said earlier innocent purchasers who had relied on the contents of the land registry records to acquire the properties. It would be contrary to the intent of law and wholly unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership and the history of the past transactions involving that land. It must be reiterated further that the only reason why the law requires the keeping of land records is to afford a notice to the whole world of the status of the property.
The appellants herein conducted searches and found that titles of the original owners were free of encumbrances, that the records held by the Commissioner of Lands and the Survey office showed that the width of the road was 60 metres (and not 80 metres), they took possession of the plots and developed them.
Again, no amount of due diligence would have created a suspicion that the plots that the appellants were buying had been alienated.’

From the foregoing it is discernable that while the law provides for sanctity of title, innocent purchasers are not guaranteed of protection as demonstrated by the divergent approaches by the courts. In some instances, courts have called on purchasers of land in their due diligence checks to look beyond the register and even appraise themselves of unregistered interests on land such as road reserves.

To quote a famous line by the court of appeal Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others [2015] eKLR:

"It was common knowledge, and well documented at the time, that the land market in Kenya was a minefield and only a foolhardy investor would purchase land with the alacrity of a potato dealer in Wakulima market. Perhaps the provisions of the new Constitution 2010 and the Land Registration Act, 2012 will have a positive impact for land investors in future."

Part of the reason why purchasers still get duped despite due diligence is the multiple land registration systems we have had in this country. In 2012, we collapsed all our land statutes into three. The Land Act and its precursorsall declare that the government shall indemnify a person for the contents of a search on the register.

It is on this reliance that the most common due diligence check is an official search. Lawyers and surveyors are also taught about historical searches and the concept of the good root of title. However, the devil is always in the detail, with the multiple registration systems, lack of synchrony with the survey department you find that Defects in title are not easy to trace. Little wonder that in the Ruaraka land case (National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR) the court faulted the National Land Commission for relying on a mere search. Mind you that is the constitutional custodian of Public Land.

The 2010 constitution introduced the requirement for geo referencing and cadastral maps. The drafters envisioned that with technology some of the shortcomings of our land systems would be reduced. In the recent past there has been talk of introducing block chain technology to improve the integrity of land records. Recently, the Land Information Management System (LIMS) regulations were tabled before the Senate and subsequently gazetted, all this, are attempts to bring sanity to land transactions.

In closing, reclamation of public land should follow due process as opposed to capricious announcements by officials of the executive.

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