Indefeasibility of title? Not that indefeasible in Kenya?

By: Ainsley Brown · October 21, 2009 · Filed Under Environmental Law, Politics, Property · Comments Off 

First posted on Commercial Law International on Oct 15, 2009.

By Charles Wanguhu

The caveat emptor rule dictates that an individual seeking to purchase land should ensure that he is dealing with the rightful owner. Therefore upon inspection of the register kept at the ministry of lands, an individual seeking to ensure the ownership of land would request the registrar for an official confirmation of search, the advantage of the official search is that it is given priority registration over all other transactions for a period of 14 days from the issue of the search.

However in the Mau forest in Kenya the government aims to evict thousands of families who are said to be on forest land. This is despite the fact that some of the settlers have valid title for the property which was a result of excision of forest land by the previous administration. A similar operation in 2005 resulted in thousands of people being displaced and claims of human rights violations by the evicting forces.

The new administration however views the issuance of the titles as void as in their view they were illegally obtained from the former administration. However, under the Principle of Indefeasibility the title of an innocent Purchaser cannot be set aside, even by the claims of a previous rightful owner. This is so, because the Register of Titles is conclusive evidence of the Purchaser’s rightful ownership of the land.

In the case of Maathai & 2 others v City Council of Nairobi & 2 other 1994 a case in which the Nobela laureate Waangari Maathai sought to stop the sale of a piece of land by the city council the court in its deliberations held that:

Registration of Titles Act Cap 201 of the laws of Kenya which provides inter alia, that the certificate of Title issued by the Registrar to a purchaser of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the indefeasible owner thereof …. and the title to that proprietor shall not be subject to challenge.”

The Kenyan government while well intentioned in conservation of forests has opened a pandoras box and thereby creating uncertainty in dealings in land. By ignoring the indefeasibility of first registration land transactions have become a gamble. A commission of inquiry into illegal/irregular allocation of public land revealed that a number of foreign embassy and consulates are actually built on former public land. It would be interesting to see whether the government would take similar measures against these missions as they are attempting to do with the families in the Mau forest.

An AFRICOG report available here looks at some of the recommendations of the Commission of inquiry and looks at the possibility or impossibility in implementing the recommendations.

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