As per Section 26 of the Land Registration Act, a certificate of title will be held as conclusive evidence of proprietorship. The section provides as follows;
“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
Section 24(a) of the Land Registration Act on the other hand provides as follows: -
“the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;
Kenya has adopted the Torrens system of registration which system places emphasis on the accuracy of the land register and provides for the indefeasibility of Titles. The system assures proprietors of land indefeasibility and sanctity of the title. The Torrens system provides for the following principles: -
- The Mirror Principle - the Titles register reflects accurately the status of each title.
- The Curtain Principle - The Certificate of Title contains all the information about the Title, and one does not need to be concerned about what is not recorded in the Titles Register.
- The Indemnity Principle - The Proprietor is indemnified from any loss because of any inaccuracy caused by the Registrar of Lands.
However, the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR, emphasised that one must go to the root of the title to satisfy themselves as to the validity of the title.
In the Dina Management case, the Mombasa County Government enforced its rights by entering a beachfront property owned by Dina Management and demolishing the surrounding wall to establish a public right of access to the beach. Dina Management asserted its ownership of the beachfront property that it had bought from Bawazir and Company, which had acquired it from the first-ever allottee of the property, President Daniel Arap Moi. The Environment and Land Court held that the alienation of the property was unprocedural and unlawful.
Dina Management claimed that it was not involved in the irregular procedure of obtaining the title and that it had done its due diligence before acquiring the title.
The Supreme Court looked past the principles under the Torrens System by finding that the purchaser could not acquire an indefeasible Title to the Land despite being allocated the land by the Commissioner of Lands.
The Supreme Court also ruled in favor of the Claimant in that presenting the instrument of title as evidence of ownership is insufficient in cases where the registered proprietor's root title is contested. The registered proprietor must go beyond the instrument and demonstrate that the acquisition was lawful, official, and free of any encumbrance in addition to proving the validity of the title.
Considering the Supreme Court decision in this case, there is a compelling need to review the ruling. The decision fundamentally alters the principles underlying the Torrens system, raising significant concerns for bona fide purchasers and the real estate and banking sector as a whole.
The Torrens system, which underpins our real estate registration process, is designed to provide certainty and security in land transactions. It ensures that the title registered is conclusive and free from hidden defects, thereby protecting the rights of bona fide purchasers.
In many cases, purchasers undertake extensive due diligence to ensure the legitimacy of a property transaction. This process often involves coordination with various governmental institutions, which can be complex and outside the control of the purchasers themselves. Despite these efforts, the Supreme Court decision fails to provide recourse for bona fide purchasers who may be adversely affected by undisclosed claims or defects in title even after conducting rigorous due diligence.
This alert serves the purpose of general guidance and is not intended to constitute specific legal advice. For legal advice concerning this alert, please contact our Partner Harpreet.Ubhi@CMS-DI.com.
*Contributors
Lillian Kiswili, Principal Associate
Sarah Mueni, Trainee Lawyer
