By Khaemba Wafula

Due diligence is an essential aspect before transactions of property happen. The duty of investigating the title to the property that a purchaser is interested in falls on the purchaser and their advocate. It is crucial to establish that the vendor has a good title over the property to ensure the acquisition of such property is not contested on the grounds of fraud. Kenya has adopted the Torrens registration system, derived from Sir Robert Torrens, the third Premier of South Australia and pioneer and author of a simplified land transfer system which he introduced in 1858. [1]  This system emphasises the accuracy of the land register, which must mirror all currently active registrable interests that affect a particular parcel of land.  The purchaser undertaking a search should be satisfied that the results of the search presents the actual status of ownership of the property. However, this is not always the case.

The courts have recently dealt with cases where purchasers entered into contracts guided only by a certificate of the official search only to realise that the land was erroneously registered or the information indicated on the document was incorrect. The court in Re Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (Deceased) [2] stated that a search at various registries alone was insufficient to curb the risk of acquiring defective property titles [3]. The brief facts of the case were that the potential purchaser conducted an official search at the registry and entered into an agreement to buy the suit property, not knowing that the registered proprietors had illegally acquired confirmation of grant and left out other beneficiaries. The court faulted the interested party for not going the extra mile to do a search at the court registry or investigating the mother title to understand the history of the property [4].

Recently, the Environmental and Land Court gave a judgement reiterating the same position in the case of National Land Commission v Afrison Export Import Limited & 10 others [5]. The Applicant, in the matter, carried out a search as part of due diligence before commencing the process of compulsory acquisition as provided for by Section 119 of the Land Act. The search indicated that the 1st and 2nd Interested Parties were the registered proprietors and had nil encumbrances as of 19/1/2018. Later on, a second search on 7/8/2018 indicated that two undischarged mortgages were registered against the title in favour of the 11th Interested Party and KPTC on the same land. The court agreed that a search may not always be a true reflection of the position because of the contradictory results of the two different searches on the same land seven months apart [6]. The court was alive to the fact that a search and the records held at the lands registry can be manipulated to achieve particular objectives, which in most cases, are intended to deceive those relying on the search to transact on the land. The court stated that one must investigate further than just a mere search [7].

The Court held that apart from an official search, a diligent purchaser must conduct the following searches to exhaust all avenues of information;

Search at the court registry

A search conducted at the court registry is crucial to dealings of land that are part of a succession suit. A search at the court registry will establish if a piece of land has any encumbrance registered against the title and if the property is a subject of an ongoing suit. This should be able to guide a purchaser on whether the title of the vendor is good or not.

Search at Survey Department

Registration of any land starts at the survey department during land adjudication. This department can offer information about a parcel of land since it was allocated to the first owner by the government up until the current owner. The survey department generates land references and title numbers and draws index maps, cadastral maps and deed plans showing where land is located and registered. The Survey of Kenya office at Ruaraka, Kenya, has all the cadastral and index maps for the whole country and deed plans for leaseholds are prepared at the survey office.

Historical search

No legislation backs up historical searches, but it is known to be effective when one wants to get to the deep history of a parcel of land. A historical search is mainly based on The Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, famous as the “Ndungu Commission” or “Ndungu Report”. This was a Kenya Government Commission established in 2003. The Commission was formulated to inquire into the extra-legal allocation of public lands and lands reserved for public purposes to private individuals and corporate entities and to provide recommendations to the Government for restoring those lands to their original purpose or other appropriate solutions.

A search obtained from this report would be able to inform a purchaser if the land they are buying was once public land that was grabbed or erroneously allocated to civil servants and allies to politicians post-independence up to the end of the Moi era.

Search at the county government registries

It is prudent for purchasers to consult county government registries since they are responsible for urban planning and approvals of buildings within their jurisdiction. This would mostly apply to leasehold lands within municipalities and cities. This might help one to know if the land they intend to buy is set aside for public use or if it interferes with any reserve.

County governments have also been empowered to construct feeder roads within their jurisdiction. They have information on the parcels of land that sit on existing roads and those that could be affected by the expansion or construction of feeder roads.

Search at road construction agencies

Kenya Urban Roads Authority (KURA), Kenya National Highway Authority (KENHA) and Kenya Rural Road Authority (KERRA) are the road construction agencies in the country. These agencies have information regarding land set aside for roads and the extent of road reserves depending on the different classes of roads. It is crucial to run a search through these agencies to ensure the land does not sit on a road or road reserve. This will avoid future disputes and demolitions of erected buildings when the agencies are clearing the path during road construction.

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[1] Gillissen, A. J. (1974). Sir Robert Torrens and the Torrens System of Registration. Australian Surveyor, 26(2), 142-144.

[2] In Re Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (Deceased) [2019] eKLR.

[3] In Re Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (Deceased) [2019] eKLR..

[4] In Re Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (Deceased) [2019] eKLR

[5] National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR.

[6] National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR para 182.

[7] National Land Commission v Afrison Export Import Limited & 10 others [2019] eKLR para 183.