Is the Doctrine of Sanctity or Indefeasibility of Title Legal Fiction? (Part 1: Understanding the Doctrine of Indefeasibility of Title)

Real estate in Kenya has proven to be a lucrative investment, outperforming traditional asset classes like equities and bonds with high returns. However, real estate investment has been termed as a dangerous minefield. Echoing the rather stern warning by the Court of Appeal in Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others (2015) eKLR , “ …the land market in Kenya was/is a minefield and only a foolhardy investor would purchase land with the alacrity of a potato dealer in Wakulima Market.”

Indefeasibility of Title

Article 40 of the Constitution guarantees that every person has the right to either individually or in association with others to acquire and own property. Section 26 of the Land Registration Act, 2012 goes ahead to provide that a title document issued by a land registrar shall be taken by all Courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, easements, restrictions and conditions contained in the Title. However, the section provides a proviso that if a title has been acquired on the grounds of fraud, misrepresentation, illegality, unprocedurally or through corruption it can be challenged.

Section 26 of the LRA which is a replica of section 23(1) of the Registration of Titles Act(repealed), fortifies the doctrine of the sanctity of title. This doctrine is derived from the Torrens System of Registration where essentially the State guarantees the indefeasibility of a registered title unless it can be proven that the title was obtained through fraud or misrepresentation.

It is against this backdrop that when a property owner is issued a title document, they gain the assurance of sole ownership, free from claims by third parties, and financial institutions can confidently offer loans and mortgages.

However, is the opposite true?

Over the years we have witnessed a surge in evictions and threats of eviction justified and at times in the guise of the Government reclaiming public land that was previously illegally or irregularly allocated as private land. Despite the legal assurance provided by legitimate titles issued by the Ministry of Lands, numerous homeowners and business owners have been confronted with the harsh and distressing reality of sudden eviction and demolition, resulting in the loss of their cherished and means of livelihood and sustenance. For instance, in 2021, the then Cabinet Secretary for Environment and Natural Resources, Keriako Tobiko, issued eviction notices for several estates in Lang’ata on the grounds they were developed on public land reserved for Ngong Forest.

The excision and conversion of public land to private land has been a long-standing sore point.  The Ndung’u Land Report shed light on the extent of land-related injustices and irregularities. The report underscored the urgent need for land reforms to address historical grievances and ensure equitable distribution and utilization of land resources.

Subsequently, the Government took action and established the National Land Commission (NLC), a constitutional commission mandated to manage public land on behalf of the national and county government. The formation of the NLC was a pivotal step towards promoting transparency, accountability, and fairness in land administration and adjudication processes. While the Commission’s main responsibilities include resolution of historical land injustices, managing public land, and safeguarding the land rights of individuals and communities, the challenges related to historical injustices and unlawful allocation of public land remain largely unresolved.

It should be noted in line with section 9 of the Land Act, 2012 and Article 62(4) of the Constitution, public land can be converted into private land through the process of allocation. However, this process is subject to the rigorous processes outlined in section 12 of the Act.

In light of the above, the lingering question remains, is the sanctity of a title absolute? Does a property owner who purchases a property without notice of its defect and is subsequently issued with a legitimate title have any available remedies under the law? In the second part of this newsletter, we will delve into a deeper discussion of what the law provides and specifically what Courts have held regarding the indefeasibility of title.

Written by Cynthia Kitolo
Legal Officer & Advocate of the High Court of Kenya

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