There are various circumstances that give rise to the need to rectify title documents and the register. It could be that there is an error or omission on formal details such as the address or correct name of the owner of the property, or to remove the name of deceased joint owner. In other situations, the court could order rectification of the register where the registration of a transfer or other disposition is found to be void. Kenyan land laws provide for the procedure to be followed when making such rectifications.

Applying to the Registrar

A land owner can rectify any inaccurate information on their title documents as a result of errors, omissions or a change of name and/or address by making an application to the Registrar in the prescribed form. In their application, they need to give details of the rectifications they want to make, the grounds for rectification and give proof of evidencing the grounds given. If the property is co-owned, the application should be accompanied with their consent as well.[1]

Upon successful application, the Registrar will rectify the register as required.

Rectification by Notice

The Registrar can rectify the register if upon resurvey, the area or dimensions show in the register is found to be incorrect,[2] and where they find that the title document was obtained by fraud.[3] The Registrar will issue a notice in the prescribed form which shall be served upon the affected parties. In the case of a resurvey, the notice will indicate the rectification being made. The Registrar will also place a restriction prohibiting further dealings on the resurveyed land pending the expiration of the notice issued.[4]

Where the notice concerns a case of fraud, the notice shall inform the concerned parties of the grounds for rectification and set a date for hearing, allowing the affected parties to present any documents or other information that will assist rectification of the register. In the absence of any party attending such a hearing, the Registrar will order rectification of the register after the expiry of ninety days.[5]

During such hearing, the Registrar can issue summons to the affected parties directing them to appear at the hearing.[6] At the conclusion of the hearing and determination of the matter the Registrar will issue an order of rectification if deemed necessary. The fraudulently title documents will be taken and destroyed.

Court Orders

The final instance where title documents can be rectified, is by order of the Court. This often occurs where the court finds that a registration was made, obtained or omitted by fraud or mistake.[7] In such an instance, the successful litigant will apply to the Registrar for rectification in the prescribed form, attaching the decree with the order for rectification.[8]

With proper guidance, the process of rectification can be fairly simple. If you have matter on the same, you can reach out to us for assistance.

For more information, please contact:

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com

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[1] Land Registration Act (2012), Section 79(1)

[2] Land Registration Act (2012), Section 79 (1)(c)

[3] Land Registration Act (2012), Section 79 (2)

[4] Form LRA 90

[5] Form LRA 91

[6] Land Registration (General) Regulations, Clause 93(2)

[7] Land Registration Act (2012), Section 80(1)

[8] Land Registration (General) Regulations, Clause 94

A title deed/ certificate of title is recognized as the main way of proving ownership of land in Kenya.

The Kenyan legal system has adopted the Torrens System [FA1] which necessitates the land register to have the accurate record of all current interests ( E.g partial owner, tenant, licensee, collecting profits from activities in the land , e.t.c) in land.in summation, the registered land owner acquires conclusive title over the land, which can only be defeated by proof of fraud or misrepresentation that the buyer is party to.[1]

The Torrens system ensures that only the interests of a person who has acquired title in a legal manner are protected and puts in place parameters to solely  protect the proprietary interests of land owners. However, this does not stop phonies from conning innocent potential land owners into purchasing illegally or corruptly acquired land.

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Section 26 of the Land Registration Act clearly states that a certificate of title is prima facie proof that person named as proprietor is the absolute and indefeasible owner of the land except where the land was acquired through fraud or misrepresentation which the person is proved to be a party, or the certificate of title was acquired un-procedurally, illegally or through a corrupt scheme.

So how are innocent parties (bona fide buyers without notice )protected by the law?[FA2] 

For one to claim that they were a bona fide buyer without notice, they need to show:

• that they honestly bought the property in exchange of some consideration, and
• that they were not aware of any defects.

In the landmark case Katende v Haridar & Company Limited the court held that for a purchaser to successfully rely on the bona fide doctrine, he must prove that:

1. He holds a certificate of title
2. He purchased the property in good faith
3. He had no knowledge of the fraud
4. He purchased for valuable consideration
5. The vendors had apparent valid title
6. He purchased without notice of any fraud; and
7. He was not party to any fraud.

The courts have held the position that proving these elements are a question of fact and not law. The innocent purchaser therefore needs to show evidence to the effect that they compensated the seller and that they were not aware of any fraud after carrying their proper due diligence. In order to prove the first, the purchaser needs to show

• proof of payment on the basis of an agreement of sale between the seller and purchaser.

For the final part,

• the innocent purchaser needs to show that they carried out an official search at the registry showing the seller as the registered proprietor of the land, and that they followed the required process to have their interests registered.

In fact, in David Peterson Kiengo & 2 Others v Kairuki Thuo, the court found that a purchaser is not required to do anything more than search the official register to establish ownership. The rationale is that, in part, the Torrens System is a guarantee that the land register is an accurate of land ownership and in the event that there is an error on it, the land owner holds a claim against the State and not a bon a fide purchaser without notice.

In the event an innocent buyer effectively proves that they are a bona fide purchaser, then the Court can uphold their claim over the land despite the impropriety relieve them from any   action against the State for recovery of damages and not against the innocent buyer.

Given the fact that this can result in an unfair result to the original owners of the land, Courts are hesitant to make such a finding. The innocent buyer is often put to strict proof and failure to show proper documentary evidence of the transfer process could lead to their ownership rights being extinguished and the courts ordering rectification of the land register as per Section 80 of the Land Registration Act. In such instances, the innocent buyer’s respite lies in instituting a claim against the fraudulent seller for fraud or misrepresentation under contract law for recovery of damages. [FA3] This often proves difficult as it becomes difficult to trace the fraudsters.

It is our view that the only sure way to curb against falling victim to such fraudulent schemes is ensuring that proper due diligence is carried out prior to executing any sale agreement or transfer. We cannot overemphasise the importance of seeking proper legal services prior to making any purchase to safeguard yourself from such risks.

For more information, please contact

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com

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[1] Charles Karathe Kiarie & 2 Others –vs- Administrators of Estate of John Wallance Muthare (deceased) & 5 others

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 [FA1]Torrens system

 [FA2]Has the meaning changed?

 [FA3]Add hyperlink for Contract law for recovery of damages

Introduction

The death of a family member often comes with its fair share of tragedy, and one of the most common issues family members are left grappling with, is how to dispose of the deceased’s property. This is partially because when it comes to succession matters, the law is technical as to when and how title over property transmits from the deceased to a beneficiary of their estate. Consequently, in ensuring that the appropriate process is followed, it is important not only for a person planning on disposing of the inherited property but also for the person intending on acquiring property that is subject to a succession matter or dispute to know the correct procedure for the transmission of title to the property.

Grant of Representation

Only a personal representative or executor in the even the deceased left a valid will, has the authority to dispose of the deceased’s real property.[1] It is therefore important for the administrator of the estate to obtain a grant of representation. If the deceased left a will, the executor shall apply to the court for the grant through a petition for grant of probate. However, if the deceased does not have a valid will, or has a will but did not appoint an executor, the proposed administrator will apply for a grant through a grant of letters of administration.[2]Once the administrator has the grant, he should apply to be registered as an administrator of the deceased’s estate.[3] 

A person who sells any of the deceased’s property before obtaining a grant will be found guilty of intermeddling which is a punishable offence.[4] Further, the transfer of a deceased person’s property will only be registered once the grant of probate or letters of administration has been confirmed respectively.[5] It is important to note, that any dealings with the deceased property such as among others the sale, transfer, or lease without prior confirmation of grant will be void.

Registering the Disposition

An administrator having confirmed the grant can proceed to have registered, any transfer, discharge of charge, and surrender of the lease relating to the deceased’s property.[6] The administrator can therefore proceed to dispose of the deceased’s property either by distributing it to the beneficiaries or by selling the property to a third party.

The administrator should then submit the transfer in the prescribed form together with: a copy of the grant of letter of administration or grant of probate duly certified by the court; a copy of the certificate of confirmation of grant of probate or grant of letters of administration duly certified by the court; the certificate of lease or title over the land; land rates clearance certificates; land rent clearance certificate where applicable; any consent required for the transfer; and any other legally required document.[7]

This process is important in ensuring that a beneficiary or purchaser acquires valid indefeasible title over the property. Nevertheless, if a person inherits property from a close relative or, the transferor of the property, unfortunately, passes away before the sale is completed, it would be prudent to seek proper legal advice to ensure that you can acquire a valid title over the property.

For more information, please contact:

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com

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[1] Land Registration Act, Section 61(1)

[2] Law of Succession Act (2012), Section 53

[3] Land Registration (General) Regulations LN No. 278 of 2017, Clause 56

[4] Law of Succession Act (2012), Section 45

[5] Land Registration (General) Regulations LN No. 278 of 2017, Clause 53

[6] Land Registration Act, Section 61(2)

[7] Land Registration (General) Regulations LN No. 278 of 2017, Clause 57 and 58