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Detailed Exposition Of Torrens System As Incorporated In RTA And LRA

August 25, 2014

DETAILED EXPOSITION OF TORRENS SYSTEM AS

INCORPORATED IN RTA AND LRA

Hassan Asaria – Advocate (Kenya) & Barrister-at-Law (U.K. & Cnd)

(e-mail: nylex3@gmail.com)

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TORRENS SYSTEM OF TITLES NOT UNDERSTOOD IN KENYA

TITLE CAN NEVER BE NULLITY AB INITIO UNDER RTA & LRA

CONSTITUTION MERE BARE BONE OF LAWS NEED TO BE FILLED

STRUCTURE OF PAPER:

It discusses same most of topics as previous articles by the author. However, while article is brief
for general knowledge, this is in detail like a thesis with case laws and therefore ideal as
reference for members of Bar and Bench.

Although the Registration of Titles Act (Cap 281) (RTA) has been replaced by Land Registration
Titles Act (3 of 2012) (LRA), the discussion herein is based on RTA. This is because LRA is
substantially similar to RTA as most of principles of Torrens system, like RTA, are also
incorporated in it. A table in Section 2(c) herein for a quick reference contains cross reference of
relevant sections between RTA and LRA.

Layout of this Paper: It has been arranged for an easy reading with an Master Index (Appendix
A), Index with Digest of content for quick reference (Appendix B) and at the bottom List
of cited cases or authorities with Digest (Section 19)

NAIROBI: June 15, 2014 artrevsesubmdetail15jun14-FINAL this
slightlyupdated19aug14

C O N T E N T S

Appendix: A

MASTER INDEX

Reference: LRA replaced RTA , RLA and other land Acts. RTA = Registered Titles Act (Cap
281), Registered Land Act (Cap 300) and Land Registration Act (3 of 2012)
Appendix A: Master Index

Appendix B: Index with Digest of contents for quick reference

SECTIONS:

1. Brief introduction of Law – concept of Torrens system as incorporated in RTA and LRA
2. Profile of new Land Registration Act (3 of 2012) – Saving provision RTA v LRA: RTA
continue to apply to past transactions – LRA similar to RTA incorporating cardinal
principles of Torrens system.
3. RLA compared with RTA and LRA – unlike RLA, common law and equity do not
apply to RTA and LRA and both first and subsequent titles indefeasible.
4. Philosophy of RTA and Torrens system of title – doctrine of indefeasibility of title and
concept of ‘curtain and mirror
5. Common law and equity do not apply to RTA – title from void instrument valid – forger
can transfer a valid title – Common law doctrine “non dat qui non habet’ does not apply
to RTA:
6. UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO: Last buyer’ title
ORIGINAL GRANT as such buyer not concerned about past irregularities and
illegalities
7. For quick reference excerpts from selected cases
8. Under Article 40(6) of current Constitution tendency of Court to declare title nullity ab
initio
9. Registrar’s duty to scrutinize instrument before registering – registration procedure
internal department matter.
10. Register and not certificate constitutes title because title by registration
11. BURDEN OF PROOF OF FRAUD HIGHER AND DEGREE OF DILIGENCE LOWER
– a. because of concept of indefeasibility of title. b. Burden of proof is on who alleges
fraud.
12. RTA overrides other Acts and laws so that concept of Torrens system not undermined.
13. Buyer entitled to property and original owner compensation – how quantum of damages
computed.
14. A bona fide buyer not liable for loss and cost of suit to anyone including First to
Defendant
15. No rectification of title once bona fide buyer is registered – limitation registrar’s Powers
16. Under RTA possession passes with registration of transfer

17. Exception to indefeasibility of title – there cannot ever be two concurrent titles.
18. LIST OF CASES AND AUTHORITIES CITED IN PAPER WITH DIGEST
19. DETAIL EXPOSITION OF LAW ON INTER[PRETAION OF CONSTITUTION
WITH REFERENCE TO TORRENS SYSTEM – WHY UNDER ARTICLE 40(6)
TITLE CANNOT BE NULLITY AB INITIO

Appendix: B

INDEX WITH DIGEST FOR QUICK REFERENCE
Sec
01 Brief introduction of Law – concept of Torrens system – title can never ever be nullity ab initio –
trf from void instrument valid – bona fide buyer entitled to property and original owner prop.
DETAIL EXPOSITION OF LAW

02 Profile of new Land Registration Act (3 of 2012) : (a) Saving provision RTA v LRA: Under
s.107(1) of LRA, RTA continue to apply to all prior transactions, and (b) LRA similar to RTA as it
incorporates most of basic principles of Torrens i..e indefeasibility or title being absolute upon
registration, buyer takes title at its face value and is not concerned about the past records, to ensure
title is absolute, its not subject to common law, equity and any conditions or contingencies, in the
event of conflict with other laws, it prevails, title cannot be rectified, once bona fide buyer for value
has acquired it, register and not certificate is title, and because Govt being sole custodian and
responsible to scrutinize records, it is obliged to compensates original owner who is deprived of
property or and also indemnify anyone who suffers loss due to the negligent of officials. Under s.106
of LRA, transactions that arose prior to repeal to continue to be subject to RTA

.
03 RLA compared with RTA and new LRA: Unlike RLA, RTA and LRA (a) are pure breed of
Torrens system, (b) common law and equity do not apply to them - as such title from a void or forged
instrument is valid and (c) apart from first all subsequent registration are also indefeasible.
Philosophy of RTA and Torrens system of title -doctrine of indefeasibility of title; In Regal
Constellation Hotel Ltd Re 2004 CanLII 2006 Ontario C.A.) Pge13 para 42 (case is
attached) “The philosophy of land titles system embodies three principles, namely, the mirror
principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds
04 that a purchaser need not investigate the history of past dealings with the land, or search behind the
title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of
the register and compensates any person who suffers loss as the result of an inaccuracy.” These
principles form the doctrine of indefeasibility of title and is the essence of the land titles system.
“ S.23(1) assures buyer indefeasible and sanctity of title - under s.22(3) last buyer's title deemed
original grant thereby extinguishing all past titles - as such buyer not concerned about past records and
entitled to property - under s.24(2) original owner's right to property is converted to right to

compensation - recent C of A case reaffirms all the doctrines of Torrens system.
05 Common law and equity do not apply to RTA: As such, common law doctrine “non dat qui non
habet’ does not apply to RTA and therefore transfer from void instrument or forger valid – buyer’s
title better than that of original owner
UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO: This is because under s.
22(3) of RTA last buyer's title deemed ORIGINAL GRANT thereby extinguishing all past title
06 including of original owner - also because common law doctrine of seller cannot give better title than
he has does not apply to RTA forger can transfer valid title - In a Uganda case with similar facts to
subject suit of irregular issue of provisional cert of title and forged transfer, it was held buyer's
title valid, original owner's right to possession converted to right for compensation - and
provisional certificate replaced previous certificate.
07 This section has detail excerpts from selected cases for quick reference
08 Under Article 40(6) of current Constitution tendency of Court to declare title nullity ab
initio: By taking literal meaning of Article 40(6) which states, ‘The rights under this Article do not
extend to any property that has been found to have been unlawfully acquired’. However no such
provision in repealed Constitution which applied to subject suit - current Constitution no retrospective
effect. FOR DETAIL EXPOSITION OF INTERPRETATION OF CONSTITUTION SEE AT THE
BOTTOM SECTION 19
09 Registrar’s duty to scrutinize instrument before registering - Registration procedure internal
department matter: under s.32 RTA interest in instrument passes upon registration - under repealed
GLA, passed upon execution - recent C of Appeal judgment confirms, , "Govt is the sole keeper of all
the records and guarantees indefeasibility of title against entire world and if anyone suffers loss due to
the malfeasance of Land Department, Govt compensates" - hence buyer not concerned of past
Register and not certificate constitutes title because title by registration: In Breskvar v Wall
(1971) 126 CLR (High Court Aus) - “The Torrens system of registered title ...is not a systemof
10 registration of title but a system of title by registration. That which the certificate of title describes is
not the title which the registered proprietor formerly had, or which, but for registration would have
had." Under s.32 of RTA interest passes only upon registration - s.23 deems certificate conclusive
merely as proof in the court to avoid registrar producing record in the court - s. 71 provisional cert as
effective as original - see Uganda case with similar facts as subject suit confirming this. Hence, if a
cert is lost, destroyed and duplicate issued by forgery, it does not affect the status of the register of title
in any respect.
Burden of proof of fraud higher and degree of diligence lower to preserve doctrine of
indefeasibility - Burden of fraud on who alleges - 1st Def alleged fraud but in breach of pleading
11 rules did not adduce even one iota evidence of fraud by way of witness or document, thereby costly
trial was unnecessarily prolonged - To be diligent, a buyer is not required to do anything more than
follow a normal procedure. A bona fide buyer is liable only for ‘willful blindness’. A person who
presents for registration a document which is forged or has been fraudulently or improperly obtained is
not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted
upon - Plaintiff followed all normal procedure and because of due diligence it took over 6 months
instead of normal 2-3 months to complete transaction
12 RTA overrides other Acts and laws so that concept of Torrens system not undermined: Relevant
s.1(2): Its to preserve 'sanctity of title' - What it means is that, if a provision of any Act is repugnant to
RTA, unless it itself expressly refers to the RTA, the provision of RTA would prevail over that Act.
Buyer entitled to property and original owner compensation - how quantum of damages

computed: s. 22(3) last buyer's title deemed original grant thereby extinguishing all past titles
including of original owner - s.23 bestows on buyer indefeasibility of title - as such s.24 specifically
provides for compensation to original owner deprived of property due to malfeasance of registrar -
13 thereby owner's right to property is converted to right for compensation - effectively owner suffered
suffers no economic loss as paid full damages as in the case of compulsory acquisition - like
in compulsory acquisition prop taken in public interest, under RTA also orig owner's prop taken in
the interest of public at large as it is to prevent each buyer going through arduous and costly exercise
to scrutinize title - e.g. it is like, instead of millions of passengers each time flying on a plane
scrutinizing if plane was in good condition or pilot was sober, this responsibility is put on the owner of
plane. As such under RTA, it is the responsibility of registrar to scrutinize each document before
registering it -. How quantum damages computed: e.g. its like, damages is payable to all passengers of
the bus if accident due the negligence of driver - hence Registrar liable to all aggrieved parties. As
decided in Virender Gudka & others v A.G HCCC Nrb Env (480 of 2011) eKLR [2014]
consequential losses also payable.
14 As bona fide buyer not liable for loss and cost of suit to anyone including to First Defendant:
This because (a) subject suit is bona fide and not vexatious or malicious, (b Plaintiff is registered
owner on record and also was in actual possession of prop, (b) First Defendant forcefully ejected
Plaintiff, (c) as a result there was reasonable cause of action and legitimate right to institute an action
and – (d) there was no malice on the part of the Plaintiff,
No rectification of title once bona fide buyer is registered – limitation registrar’s powers: In
Power Technics Ltd. v A.G, Registrar of titles and Commissioner of Lands HCCC 178 of 2011 (Nrb
15 High Court) [2012] eKLR at para “19. A plain reading of section 60 will show that the powers of the
registrar are limited to correcting errors and misdescriptions of land or boundaries or where entries or
endorsements to any grant or certificate of title are made in error. If substance of law, the issue has to
be referred to the court as in the instant suit.”
Under RTA possession passes with registration of transfer: This is because, with transfer and
issue of certificate of title, the possession also is deemed to have passed to the buyer.” I cannot see
16 how a person could possibly be described as “the absolute and indefeasible owner without the
possession…. The Act gives the registered proprietor his title on registration and, unless there is any
other person lawfully in possession, such as a tenant, I think that title carries with it legal possession.
As a corollary, since First Def was no longer proprietor, he was deemed not to be in possession.
Despite this presumption, there is plenty of evidence to show that Plaintiff was in effective possession
and first Def had discarded for 24 years and thereby abandoned possession.
Exception to indefeasibility of title – there cannot ever be two concurrent titles: Other
jurisdictions by special legislation have provision providing that buyer’s indefeasibility of title is
17 subject to “the estate of a proprietor claiming under a prior instrument of title”. This is not a general
exception or else it would entirely defeat the concept of last buyer having indefeasible title. It has a
limited application where by error same land is included in two titles in which case the prior one
prevails and subsequent one is paid compensation. It applies in limited instances where there is error
in survey. However, in Kenya’s RTA there is no such provision and moreover s.22(3) of Act by
unequivocally stating “The title of proprietor under such fresh certificate of title shall be as valid and
effectual as if he had been the ORIGINAL GRANTEE in the grant of the land contained in the
certificate” thereby extinguishes all past titles and interest including of the original owner.
18 LIST OF CASES AND AUTHORITIES CITED IN THIS PAPER WITH DIGEST
19 Detail exposition of law on interpretation to Constitution with reference to Torrens
system:Constitution merely few pages document that encompasses all the laws of a nation. Hence it

tractor etc. that is about past irregularities and illegalities. if anyone suffers loss due . Canada and Uganda. To facilitate this. the prescribed procedure for registration of documents and issue of title are therefore internal department matter and buyer is not concerned if records are irregular or that matter forged. Such a purchaser cannot. Messer (1891) AC 28 or 248 (Privy Council) – indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Under s. – it is merely a skeleton or framework of laws and legislature and court are required to put flesh into it – Bill of Right gives citizen right to own property and RTA and LRA indefeasibility of title – as such property of an innocent buyer cannot be deprived without compensation – court erred in declaring title of prop of an innocent buyer nullity ab initio – no such provision in repealed Constitution – no retrospective effect of current Constitution. Also upon registration. bus. This is reinforced by s. This is to expedite transactions and reduce cost by each buyer not having to scrutinize all past records. 1. as indicated. Govt is obliged to compensate the aggrieved party. Australia. What this tantamount to is that in essence each transfer of land involves surrendering back and issue of a fresh grant from the State.” Because buyer takes the title at its face value. registrar is made the sole custodian of records and is required to scrutinize each instrument before registering it. BRIEF INRODUCTION OF LAW . buyer takes the title at its face value as it appears on the face of mirror and is not concerned about what is behind the curtain. fide buyer for value is accorded absolute or indefeasible title against entire world including the original owner. in Kenya the principles and concept of Torrens system has not been mooted out in a real sense inside or outside the court. truck. Hence legislature and court has derive appropriate meaning according to the issue by taking into context all other legislations. car.. BRIEF INTRODUCTION: RTA and LRA are basically similar because concept of Torrens system of registration of titles is incorporated in in them. a. be affected by the defects in his vendor’s title. For instance. As a result if anyone suffers loss due to the malfeasance or negligence of officials. These cardinal concepts of Torrens system are enshrined in both RTA and LRA. In Gibbs v. As such. Hence. in the absence of fraud. The cardinal principles of Torrens system: Like “curtain and mirror’ principle. Hence reference herein to RTA substantially applies to LRA. 23(1) which accords indefeasibility of title to the buyer upon registration against entire world including original owner. it would merely say “vehicle” which could mean motor bycicle. Torrens system not understood: It is respectfully submitted that unlike in other jurisdictions such as New Zealand. 22(3) of RTA the title of last buyer is deemed ORIGINAL GRANT thereby extinguishing all previous interest and titles including of original owner. This tantamount to buyer not to be concerned about the past. they are not quite understood in Kenya c b.states in a wide philosophical way.

Contrary to the objective and cardinal principle of indefeasibility of title under RTA or Torrens system. Because of indefeasibility of title in rem. that is. Long and short is that if a provisional or duplicate certificate is issued irregularly or by forgery. the common law doctrine “non dat qui non habet” the buyer cannot transfer better title than he has does not apply. unlike RLA. as a fairness. d. certificate is optional and is issued under s. the original owner who is deprived of property is compensated fair market value so that he did not suffer any economic loss. Further. 31 a copy of instrument certified by registrar conclusive evidence that it has been registered. c. common law does not apply to both RTA. This makes title from a void instrument valid. e. there has been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer. 22(1) only at the request of owner and payment of a fee. it is does not affect the status of register itself in any way at all as title is separate entity. Under s. he is compensated a full market value. By ignoring the cardinal doctrine of indefeasibility of title and not awarding property to the bona fide buyer. he is also compensated full market . Unfortunately. and also to make easier to prove ownership in the court without the necessity of calling registrar to produce records. 32 of the Act no interest in an instrument passes until it is registered. As such certificate is merely for a mode of proof to show that the name of person in it is at present registered as the owner (which is rebuttable). It is like a passport which is lost and is replaced and replacement of which does not affect the status of citizenship. to the malfeasance of officers at the Land Title Registry. This is because under s. there has been tendency for the court in Kenya to declare title of a bona fide buyer nullity ab initio for past irregularities and illegalities not realizing that common law did not apply to RTA. as indicated. Since public at large benefits from the property and so that single citizen does not take entire brunt. what court in some cases has done is to render the RTA like a car without an engine or abolished the doctrine of indefeasibility of title.24 of the Act. When a duplicate or provisional certificate of title is issued. under RTA only upon registration . And LRA. In view of this. This is because court felt that it would be unfair to deprive original owner of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt. it instantly replaces the original or previous one and is effective in all respect as the original. This is a special head of damages in addition to normal duty of care under the common law. while not quite grasping these principles of RTA or Torrens system. RTA overrides Common Law – forger can transfer valid title: To preserve the doctrine of indefeasibility. bona fide buyer is entitled to the property. or a forger can transfer a valid title until it is intercepted by a bona fide buyer. Whereas under GLA (repealed) interest passed upon execution of a document. Owner deprived of property suffers no economic loss: Both under compulsory acquisition and under RTA property is taken away in the interest of public at large. Govt is obliged to compensate him under s. register is the title and certificate not title in itself as title is derived only by registration. Register and not certificate title: Under RTA title is by registration.

value. like individual. it was because of malfeasance on the part of Govt officials. If due to his act or negligence another person suffers harm or loss. he let malfeasance occur. avoid colossal cost and unnecessary stagnation of economy. have been depriving innocent buyers of their properties without any compensation. This is based on the general and most precious concept for co-existence in this world. Govt also owes duty of care to all the citizens and is liable for its negligence. it is made liable for its negligence in not maintaining a highway bridge which collapses causing injuries. It is like – because of duty of care that Govt owes. Registrar obliged to pay compensation not for the act of defrauder but his own malfeasance: To make the registrar liable for negligence or malfeasance of his officials at the Land Title Registry is not something unusual. This is also because Constitution accords right to own property. However. registrar as an exclusive custodian of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that a buyer takes the register of title at its face value and is not concerned about the past records. This is absolutely unfair and against the Constitution. As such. Since taking the property benefited public at large. Hence under common law tort. if registrar is required to pay compensation. In this respect. f. Under RTA. In property grabbing cases. If there was no malfeasance in his department. If a defrauder succeeded in grabbing the land. Govt is not excepted and is also liable for its action like a private individual. He is therefore not paying compensation because of the act of the defrauder or forger. innocent buyer’s property unfairly taken away without compensation: Both compulsory acquisition and depriving of property under RTA are fair and in compliance of Constitution as long as property of an individual is taken away for the benefit of public at large and it is ensured that individual who is deprived did not suffer any economic loss and was paid full value. it is sad that court while not quite understanding this concept of compulsory acquisition and protection of right of ownership of property under the Constitution. How it benefits country at large if owner is deprived of his property under RTA ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades. also in cases of ‘PROPERTY GRABBING’. As enlightened above. it would be unfair that a single innocent individual took the entire brunt for the negligence of . Govt’s only course was to follow the culprit and not take easy way to deprive helpless innocent citizen of his property or compensation. he is obliged to pay compensation because knowing very well that public was required to put full faith in the accuracy of records. everyone owes a duty of care to another person. by law he is obliged to make loss good. It is like – instead of millions of passengers each time before boarding a plane carrying out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol. it is purely based on this concept of duty of care. As indicated. by law responsibility of safety of passengers is put solely on the owner of the airline. Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties. the defrauder would not have succeeded. g.

Three selected local cases reinforcing concept of Torrens system: In support of these principles of RTA or Torrens system. If defrauder was able to grab the land. HCCC No. Such a narrow interpretation of law goes against the Bill of Right not mentioning the doctrine of indefeasibility of title. the register was inaccurate by reason of malfeasance by land officials. Also it erroneously held that since Commissioner of Lands held the land in trust for the public use. As a result. If. he should be paid full compensation for the loss particularly citizens at large benefited from his property. ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ by taking a literal meaning instead of construing it in the context of legislation such as RTA and Bill of Right in Constitution protecting individual’s right to own property. it was purely because of malfeasance of officials for which no one but only Govt is liable. the duty of care that trustee owes is higher than ordinary individual. the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property . h. it would suffice to quote following three cases which succinctly sums of all the doctrines: i. However. In depriving the property. Uganda High Court at Kampala (Land Division): The Registration of Titles Act of Uganda is basically similar to that of Kenya. the public at large ought to take the entire brunt and not an individual innocent citizen. C. 2012): In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. Apart from this. the court erroneously holds title nullity ab initio under Article 40(6) of new Constitution which provides. for the time being. in the realm of trust law. the innocent buyer was also deemed one of the beneficiaries. as it turned out. As a fairness. as explained elsewhere herein. i. This is also a title fraud case in which there were irregularities in issuing of duplicate or provisional certificate of title as NO GAZETT NOTICE WAS PUBLISHED AND ALSO FOREGED TRANSFER WAS REGISTERED. 87 of 2009. numerous other cases will be found herein. Since public at large was the beneficiary. It was held that despite irregularities and illegalities in issue of provisional certificate and registering forged . it would be unfair to profit public at large at the cost of an individual innocent citizen. would frown upon innocent citizen being deprived of compensation.R. “They were not obligated to do anything more than search the official register to establish ownership. the title of of such land even if acquired by an innocent buyer would be nullity ab initio. the repealed Constitution in fact did not have provision such as Article 40(6) and new Constitution does not apply retrospectively. Constitution whose main objective is to protect citizen. Patel v Commissioner Land Registration & 2 Other (Judgement Jan 2013). Govt. like in case of compulsory acquisition. DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. However. It was stated. ii. Also under the Rule of Natural Justice.

it is not subject to common law.e (i) Upon registration title to be absolute or indefeasible in rem. transfer. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): In this recent case the Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt. equity. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. Profile of New Land Registration Act (No. “Unless the contrary is specifically provided for in this Act. any condition or contingency. 107(1) states. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. in the event of conflict with other . (ii) Buyer takes the title at its face value and is not concerned about the past records. Govt compensates. any right. The s. 107(1) LRA they continue to a apply to all the transactions immediately prior to repeal. Hence all the discussions and authorities quoted herein with reference to RTA is equally applicable to LRA as well. Saving provision RTA v LRA: Although RTA and RLA have been replaced by LRA. (c) Buyer is not concerned about past irregularities and illegality. it is very much similar to RTA.. (d) Bona fide buyer notwithstanding infirmity of his author’s title. (b) If anyone suffers loss. RLA = Registration of Land Act (Cap 300) and LRA = Land Registration Act (3 0f 2012) 2. it replaces the old one. power. title. since buyer was a bona fide buyer and was not concerned about the past illegalities. under saving provision of s. similar to RTA: All the basic features features of Torrens system are in RTA and also have been incorporated in new LRA i. and (e) The burden of proof of fraud was on who alleges it and standard of proof was more than a mere balance of probabilities”. (iii) to ensure title is absolute. It was also stated that under Torrens system in fact register is the title and not certificate. as a keeper of records guarantees indefeasibility of title against entire world. a. Once duplicate or provisional certificate is issued. or obligation acquired. coming into force of exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act’. established. DETAIL EXPOSITION OF LAW RTA = Registration of Titles Act (Cap 281). his title was indefeasible and valid in rem. LRA. interest. (iv) to preserve the doctrine of indefeasibility. accrued. b. 3 of 2012): Since most of basic principles of Torrens system of registration titles have been incorporated in new LRA. and iii.

g. 40. 82. trusts etc. 66. This is because Registrar deprived of property or 83. it prevails. 82 and equity. CORRESPONDING SECTIONS RTA AND LRA INCORPORATION TORRENS SYSTEM RTA AND LRA: AT GLANCE RELEVANT CORRESPONDING SECTIONS TORRENS SYSTEM THAT ARE INCOPRPORATED # Issues RTA LRA Comments Sections Sections 01 LRA prevail if conflict 1(2) 5 To preserve doctrine of with other laws indefeasibility Act prevails if conflict with other laws Title 22(3). c. No such provision .26(1)(b) of LRA states title Last trf deemed original can be challenged. 41 makes it subject common law title absolute and preserve 81. 40 principles of Torrens 02 title system Unlike RTA. 67 S 163 of RLA expressly to Common law to ensure 39. and title not absolute. Under saving provision of s. if obtained grant irregularly. 24. equity. and (vii) because Govt being sole custodian and responsible to scrutinize records. 04 Govt compensate party 24 81. 84 being sole custodian of suffers loss due to records and is obliged to negligence of officers scrutinize each doc before registering it. 24. laws. However s 80(2) title cannot be rectified if Buyer not concerned about bona fide buyer in possession past and acquired by valuable consideration Buyer entitled to prop and orig owner to compensation 03 Both first and all 22(3). 32 indefeasible as RLA subject indefeasible to common law. s. 05 RTA and LRA not subject 22(3). (v) title cannot be rectified once bona fide buyer for value has acquired it. it is obliged to compensates original owner who is deprived of property and also indemnify anyone who suffers loss due to the negligent of officials.106 of LRA. 32. transactions that arose prior to repeal to continue to be subject to repeal acts e. These are cardinal AbsoluteIndefeasibility of 22(1)32 26. 80. RTA and RLA. 25 Under RLA only first title subsequent titles 23(1). 25. (vi) register and not certificate is title as title being by registration – cert optional and merely for proof to avoid need to call land records into court.

doctrine of indefeasibility in RTA and LRA 06 Register is title and not 22. LRA and English Registration of Title Act 1925 (‘ERTA’) all provide systems for registration of land titles. errors cannot be rectified if bona etc. as modified by equity” “ which encompasses equitable doctrines of implied. equity and constructive trust. – no rectification if fide buyer in possession and bona fide buyer registered acquired for valuable consideration 09 Issue duplicate cert for lost 71 33 s. 163 of RLA expressly provides that the Act is subject to the “common law of England. 24 Interest vests upon certificate – because title 31. constructive and resulting trusts. certified docs sufficient proof 08 Power of Registrar and 59. This is because. RTA. (ii) While RTA and LRA overrides common law and equity which makes title from a void or forged instrument valid. The main differences between RLA and RTA-LRA are: (i) While RLA is hybrid of English (ERTA) and Torrens System of title. continue to apply RLA etc. common law and equity do not apply to RTA and unlike RLA in the case of both first and subsequent titles indefeasible:RTA. 36 registration and not upon by registration execution as was under GLA 07 Certificate proof merely as 23. On the other hand.60. both RTA and LRA override common law and equity as do not have provision such as s. Muthiora (19 of 1982) CA Nrb at pages 713. 35. However a major difference is that under Torrens system title becomes absolute or is indefeasible in rem upon registration whereas under ERTA title is not absolute or is conditional as it is subject to common law. RLA. 71 of RTA: Provisional or or destroyed one duplicate cert valid to all intents as the lost one. 3. 23.163 of RLA. RLA compared with RTA and LRA – unlike RLA. This makes registration under RTA absolute like that of company shares – what appears on the face of register is what is recognized and not equitable interest. 61 79. 32 34 To avoid cumbersome evidence in court process of calling Land Registry records to court. 32. Both have lot of similarity. RLA is subject to common law and equity. RLA and LRA are basically pure breed of Torrens System. As a result title is not absolute (except for original grant) because those equitable interest and rights that are not registered are also recognized ” See Kanyi v. 31. 80 Under s 80(2) of LRA title court to rectify title. Both ERTA and Torrens system evolved in same era in early 1900. (iii) Since RLA is subject to . 10 LRA saving prov for — 5 Transactions before repeal repealed Acts e. s.g.

Torrens system doctrines incorporated in RTA: The doctrines of Torrens system are enshrined in RTA under – (a) s. and to satisfy themselves of its validity. and enters his deed or transfer of mortgage on the register. except for the first registration. “As I understand Gibbs v. its doctrine that buyer cannot transfer better title than he has (“non dat qui non habet) also do not apply. the curtain principle. b. a. 22(3) deems the title of last registered owner as an ORIGINAL GRANT thereby extinguishing all past titles and interest including that of original . Doctrines of Torrens system: The cardinal principle is contained in the classic statement in Gibbs v. (b) s. Philosophy of RTA and Torrens system of title – doctrine of indefeasibility of title and concept of ‘curtain and mirror:. shall thereby acquire an indefeasible right. namely. those equitable interest and rights that are not registered are also recognized. and the insurance principle. not only first registration but all subsequent ones are also indefeasible. 4. as indicated. appear to be equally plain.” These principles form the doctrine of indefeasibility of title and is the essence of the land titles system. it is immaterial if it is defective as buyer takes the title at its face value. unlike RLA. Hence. 163 of RLA. in the absence of fraud. common law and equity do not apply and therefore. notwithstanding the infirmity of his author’s title. That end is accomplished by providing that everyone who purchases. Such a purchaser cannot. Messer (1891) AC 247 PC at 254 para 3 “.” Once the transfer is registered. common law and equity. since RTA and LRA do not have provision such as s. subsequent registrations could be defeasible or not indefeasible. which holds that a purchaser need not investigate the history of past dealings with the land.The main object of the Act. indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument.” In Regal Constellation Hotel Ltd Re 2004 CanLII 2006 Ontario C. This is because. where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy. On the other hand. and the legislative scheme for the attainment of that object. title from a void or forged instrument is valid. where the register is a perfect mirror of the state of title. in order to investigate the history of their author’s title. Since common law do not apply. 23(1) which makes title of last registered owner indefeasible or absolute against entire world including the original owner..A. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register. be affected by the defects in his vendor’s title. in bona fide and for value.) Pge13 para 42 “The philosophy of land titles system embodies three principles. Messer. the mirror principle. from a registered proprietor. or search behind the title as depicted on the register.

etc. (c) s 24 obliges govt to compensate owner deprived of his property because of malfeasance at the Land Registry. as a keeper of records guarantees indefeasibility of title against entire world. However. Mayor. (c) Buyer is not concerned about past irregularities and illegality. the doctrine that seller cannot give better title than he has “non dat qui non habet’ does not apply. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. and s. and therefore title derived from a void instrument is valid or a forger can transfer a valid title to a bona fide buyer who has no knowledge of fraud.” As common law does not apply to RTA. of Wellington (supra)N. said (of the 1915 Act): “One of the main purposes of the Land Transfer Act was to abolish this rule of the common law in favor of the rule that he who purchases a registered title in good faith from the registered proprietor obtains for himself an indefeasible title unaffected by any defect in the title of his vendor. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): the Court of Appeal unequivocally affirmed principles of Torrens System of titles: (a) Govt. Recent Court of Appeal affirming doctrines: Numerous other similar authorities will be found herein. until it is voided. under GLA.Z Salmond J. On the other hand. and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities 5. Govt compensates. If in the meantime bona fide buyer for value is registered as . c. and thereby obliging registrar to scrutinize each instrument before registering it and making it unnecessary for the buyer to check past records. Common law and equity do not apply to RTA and LRA – title from void instrument valid -forger can transfer a valid title: 1.32 provides that interest in an instrument would pass only upon registration thereby constituting register as title and not certificate. forger’s title is valid. owner. (d) Bona fide buyer notwithstanding infirmity of his author’s title. This also tantamount to buyer need not be concerned about the past record.. (b) If anyone suffers loss. Common law doctrine “non dat qui non habet’ does not apply to RTA: In Boyd v. and in essence it means “each transfer of land involves surrender back to the Crown and a fresh grant from the States”. interest passes upon the execution of instrument and parties themselves are responsible to scrutinize past record.

Registrar of Titles Misc .. . The property was later sold to a bona fide buyer. even if title of the latter could be impeached . In Assets Company Ltd v Mere Roihi and Others (1905) A. This purpose is thus expressed by the Privy Council in Gibbs v... Such a purchaser cannot.. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor.Z In issuing grant to Native lands... and thereafter the original owner’s right to the possession is converted to the right to compensation from the government. There was irregularity in issue of the grant. even if title of the latter could be impeached . Upon the Natives challenging the titles of bona fide buyer it was held. indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument.. Transfer from void grant valid: Even when original grant void. v.” The effect of registration.C. becomes the root of a valid title. Edie et al Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B. Messer (supra) “.owner. cannot affect the title of the Company. In Thomson v.“. Ltd. where duly entered on the register. “. in the absence of fraud. registration is conclusive. and confers good title on the Company. will.” and at 17 para 2 “. Messer (1891) AC 28 PCpge 257 last para .” Asset Co. be affected by the defects in his vendor’s title. in the absence of fraud by the Company or its agents. there were several irregularities. The common law rule of non dat qui non habet is wholly abolished in favor of purchasers of registered titles in good faith”. Mugambwa (who is a professor at Murdoch University in Australia and has 20 text books to his credit) at pge 73 para 4 mentions a case in Uganda – Lwanga v. 176 House of Lords (Privy Council) at pge 18 para 1 “. subsequent bona fide buyer’s title is valid and indefeasible. Canada at page 22 para 61. at pge 2 last para. Buyer better title than original owner: Assets Company Ltd v Mere Roihi and Others (1905) A. although such defects may possibly entitle the Natives to Compensation for any injury caused to them by improper registration. “As I understand Gibbs v. Mere Roihi and others (1905) AC 176 (Privy Council) – In N. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor.C.” 2. in a bona fide purchaser.The sections making registered certificate conclusive evidence of title are too clear to be got over” 3. the Eadies are entitled to rely on the same protection of indefeasibility of title as if the grant had been valid. “However.. he achieves an indefeasible title against the entire world including the original owner. It was held. is to validate the purchaser’s title notwithstanding defects in the vendor’s registered title.Although a forged transfer which is void at common law.”In the text book Principles of Land law in Uganda by John T. Subsequently lands were sold successively to the bona fide buyers for which transfers. therefore. That is the intention and the effect of the LTA... and that in the proceedings in the Native court even if proved. 176 House of Lords (Privy Council) at pge 18 para “. registered and certificate of titles issued.C.

shall thereby acquire an indefeasible right. It is in fact the registration and not the antecedents which vests and divests title. but also because a registered proprietor who has been unlawfully registered can nevertheless transmit a sound title. 651 and “.Thus a forger succeeds in getting himself registered as the proprietor and thereafter executes a disposition for value in favor of a bona fide purchaser …. 25 of 1965 – Court of Appeal at Nairobi (Sir Clement de Lestang. The husband sought to set aside the mortgage. Spry and Law. notwithstanding the infirmity of his author’s title” 7.” Gibbs v Messer (1891) AC 248 Privy at page 254 para 3 Council..A. Frazer v.. However. This was one of the paradoxes of registered conveyance. Francis at pages 597.then prima facie that purchaser cannot be ousted at the instance of the true owner.G. P. from a registered proprietor. of Kenya – Civil Appeal No. A. May 24 and .” The law and Practice of Registered Conveyancing by Ruoff & Ropper 3rd ed at page 68 para 1g: Under section 24 of the Act. 649. not only because of the express statutory provisions protecting possession. The result of these cases is that an “innocent” purchaser or lender’s interest is valid even if obtained pursuant to a fraud. the appellants irrevocably lost their land once the rogue sold to an innocent person who acquired a title superior to theirs. that the registration by fraud was yet capable of becoming a good root of title to a bona fide purchaser for value Forger can transfer valid title: The Law and Practice Relating to Torrens Title in Australasia Vol I by E. Walker (1967) 649 ALL E. as well as the title to the new bona fide owner who had acquired title through foreclosure of the property. a person deprived of land can claim compensation from the defrauder and govt... “…every one who purchases in bona fide and for value. It was held that “… the title of bona fide purchaser could not be impeached since a person who was registered through fraud could pass a good title to a bona fide purchaser for value unless purchaser was not a bona fide purchaser or was privy to the fraud. Case No 7A of 1977 (Unreported) (1980) AC 248 in which A forged the signature of B and transferred the property in his name and later sold and transferred it to a bona fide buyer. and a fraudulent purchaser or lender’s interest is invalid. JJ.R at pge 651 para I: In this suit wife forged husband’s signature mortgaged it.A). Other local supporting cases: Dinshaw Byramjee & Sons Ltd v. and who enters his deed of transfer or mortgage on the register. Ag. For example. attract the consequences which the Act attaches to registration whether that was regular or otherwise…. in Australian case in Breskvar v Wall (1971) 126 CLR (High Court Aus) the appellants were not deprived of their land when it was registered in the name of a rogue because by appropriate legal action they could have recovered the land from him. Their Lordships cannot accept this argument … Even if non-compliance with the Act’s requirements as to registration may involve the possibility of cancellation or correction of the entry—the provisions as to this will be referred to later— registration once effected must 6.

s. “This is an assertion that the title of each registered proprietor comes from the fact of registration. and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities” 1. that whatever irregularities may have occurred in the registration of earlier instruments. irregularities and illegalities. so as that each freeholder is in the same position as a grantee direct from the Crown’..23(1) RTA assures a buyer indefeasible title against entire world including the original owner upon registration. (b) If anyone suffers loss. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. (c) Buyer is not concerned about past irregularities and illegality. 12 of13 – Ruling on: 8th Nov 2013: In this recent suit the Court of Appeal expressly affirmed principles of Torrens System of titles: (a) Govt. The registered trustees created a charge. Last buyer’ title deemed ORIGINAL GRANT – buyer not concerned about past irregularities and illegalities: Original grant is issued by Govt after settling all the past issues of land once and for all so that first grantee and subsequent buyers or owners are not concerned about the past issues. as an important benefit of the new system. He noted. “. UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO: 1. “The title of the proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if he had been the original grantee in the grant of the land contained in the certificate’. as a keeper of records guarantees indefeasibility of title against entire world. To that end s. all previous titles and interest are deemed extinguished including that of the original owner and thereby buyer is not concerned about the past irregularities or illegalities. What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. Held: At pge 202 para 5: ‘It is clear. the transfer and charge created by registered proprietors of the land became on registration a valid and effectual instrument’. 1966): E. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. therefore. Govt compensates. A Law Reports Pge 198): A trust owned two parcels of land registered under RTA. As a result. “cutting off the retrospective or derivative character of the title upon each transfer or transmission. As responsibility to scrutinize each instrument before its registration is put on the registrar. Thenceforward all future buyers take the title at its face value and are not concerned about past history. Appointment and removal of trustees wrongful or irregular and invalid. In Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge 14 last para). (d) Bona fide buyer notwithstanding infirmity of his author’s title. June 8. June 8. that is made the .22(3) of RTA provides. as indicated.

The Torrens system is intended “to give certainty to title” as it appears in the land titles office. bearing the name of a real person. hallmarks of the land titles system.C.C.. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor. even if title of the latter could be impeached . and who then obtains registration” In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B. In this case by error part of land of Edie was included in the subsequent grant of Thomas.. Buyer not concerned about past: In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.A..and is not liable to an action for ejectment or recovery of the said lands by the rightful owner..) Pge13 para 43. Canada at page 19 para 25 “.. 176 House of Lords (Privy Council) at pge 18 para 1 “. which. subsequent bona fide buyer’s title is valid and indefeasible. which already been duly established upon the register.” In Assets Company Ltd v Mere Roihi and Others (1905) A. are therefore.’ Even when original grant is void. Why buyer given property and original owner compensation: Also in Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge12 para 1. the register appears to authorize. his title indefeasible. and at pge 19 para 25 “…registered owner of lands described in a certificate of indefeasible title signed by the Registrar has title to those lands from the moment the signature of the latter is affixed thereto. Canada at page 18 para 24. rather than a retrospective approbation of it as derivative right.C. is that the existing certificate. found only in the necessity of protecting those who subsequently deal in good faith and for value in a manner. HELD: “As buyer not concerned past irregularity and illegality. This is because original owner’s right to possession of property is converted to right to be paid compensation. That one who is named as owner in an uncancelled certificate of title possesses an “indefeasible title against all the world”... obviously. 3. it is declared to be subject. source of the title. but must also examine every transfer back to the original grant from the Crown for errors in transcription into the successive certificates The legislation was designed.”…. “Certainty of title and the ability of bona fide purchaser for valuable consideration to rely upon the title as registered.’ . is.” In Regal Constellation Hotel Ltd 2004 CanLII 206 Ontario C. upon its face.The justification for destroying an existing legal estate or interest. without going behind it to examine the conveyance. in other words.. is conclusive evidence of his title in favor of any person dealing with him in good faith and for valuable consideration …The argument made involves this. to avoid just such inconvenience and risk. by the statute.. 2012: Defrauder registered himself by irregular means as the proprietor and sold it to a bona fide buyer not aware of fraud.” 2. At pge 18 para 24 . They were not obligated to do anything more than search the . In local case of DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO[2012]eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. as it is of all legislation establishing what is known as the Torrens system of land titles. “. that a person contemplating a purchase of land included in a certificate must not only examine that certificate and make a proper search for the interests to which. good against all the world…. “The general and primary conception underlying the statute.

the register was inaccurate by reason of malfeasance by land officials. Unless there is evidence of fraud on the plaintiff’s part. Errors. which is not proved. as it turned out. “…Counsel for the plaintiff submitted that the irregularities being talked about by the 1st defendant.77.64.R. on a search before the sale were duly registered as proprietors. and none was adduced by the defendants. 4. In this Uganda case there were also irregularities in issue of duplicate or provisional cert of title as NO . 1. Uganda case facts similar to subject suit and buyer’s title held valid: C. the second implication is that the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property. HCCC No. were done before the plaintiff bought the suit properties from the person who. the plaintiff remains a bona fide purchaser. illegalities and even frauds in earlier registrations cannot entitle the 1st defendant to cancel a registration of a person who is not privy to those errors. that even if they occurred. revoked or made void. They did their bit. the plaintiff was not party to the errors committed in the office of the first defendant by her officers. “Indefeasible” means “that which cannot be defeated. It was also held duplicate or provisional certificate of title replaces previous one and is as effective as original. in this Uganda suit also provisional certificate of title was forged and there was irregularly in issue of provisional certificate of title without publication of Gazette notice and thereafter property was transferred by a forged transfer. They had no obligation to go beyond the register to investigate Njendu’s title and satisfy themselves of its validity. official register to establish ownership. …… Further. …. 87 of 2009. a. …. It was held. FOR QUICK REFERENCE DETAIL EXCERPTS FROM SELECTED CASES:. and that. Like in subject suit.” What this tantamount to is that buyer is entitled to the possession and original owner compensation.176 ( C ) and 181 of the Registration of Titles Act and which is the hallmark of the torrens system of title by registration practiced in Uganda. Patel v Commissioner Land Registration & 2 Other (Judgment Jan 2013). If. Uganda High Court at Kampala (Land Division): The Registration of Titles Act of Uganda is basically similar to that of Kenya.Uganda HCCS 87 of 2009 Judgmt Jan 2013): Uganda’s RTA is basically similar to Kenya’s RTA.R. Patel v Com Land Registration & 2 Other . even if all the records including actual register of title were irregular or forgery because buyer is not concerned about them as buyer takes the title at its face value as it appears in front of mirror and is not concerned about the past or what is behind the curtain. To condemn the plaintiff on account of errors he was never privy to would be to abolish the indefeasibility of title principle which is protected in Sections 59. Section 91 of the Land Act was never intended to abolish this age old concept of indefeasibility of title. C. This Uganda Case basically has similar facts as subject suit:. This is a title fraud case with facts basically similar to subject suit of Asaria v Rai and Others. even if there were errors or irregularities in the issue of the special (duplicate) certificates of title and transfer to Damulira Stephen.

as a keeper of records guarantees indefeasibility of title against entire world. GAZZET NOTICE WAS PUBLISHED AND TRANSFER WAS ALSO FORGED. 12 of13 – Ruling on: 8th Nov 2013: In this suit one of the beneficiaries fraudulently sold the property to a buyer who was aware of fraud. Held: It was held that despite irregularities and illegalities in issue of provisional certificate and registration of forged transfer. (c) Buyer is not concerned about past irregularities and illegality. It was held that despite irregularities and illegalities in issue of provisional certificate and registering forged transfer. Recent CA case affirming principles of Torrens system: Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. (b) If anyone suffers loss. the third Premier of South Australia and pioneer and author of a simplified system of land transfer which he . Errors. . Govt compensates. which is not proved. …. illegalities and even frauds in earlier registrations cannot entitle the 1st defendant to cancel a registration of a person who is not privy to those errors. (d) Bona fide buyer notwithstanding infirmity of his author’s title. even if there were errors or irregularities in the issue of the special certificates (means prov cert) of title and transfer to Ddamulira Stephen. nonetheless.”The Registration of Titles Act is entirely a product of the Torrens system of registration. … The Special and Duplicate (original) Certificates of title are all based on one folio of the register (white page). acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities” EXCERPTS: AT PAGES 10 AND 11 OF THIS CA CASE: i.” Further. also buyer was a bona fide buyer for value without the knowledge of fraud or irregularities. It deals with a situation where there are two or more conflicting registers (folios) in respect of the same piece of land. It was also stated that under Torrens system in fact register is the title and not certificate.” b. his title was indefeasible and valid in rem. The word ‘Torrens’ is derived from Sir Robert Torrens.. Here there are no two conflicting certificates of titles but a replacement of the same certificate of title. the buyer not being aware of them had valid title. It is my interpretation of the law that Section 64 (1) read together with Section 176 (e) RTA on priority of titles is quoted out of context.” … “A special (provisional) (duplicate) certificate of title once issued under Section 70 of the Registration of titles Acts simply replaces the Duplicate (original) Certificate of title which is lost or presumed lost. the plaintiff was not party to the errors committed in the office of the first defendant by her officers. the Court of Appeal expressly affirmed the principles of Torrerns System of titles: (a) Govt. since buyer was a bona fide buyer and was not concerned about the past illegalities. Although property was not awarded to the buyer because he was aware of fraud. To condemn the plaintiff on account of errors he was never privy to would be to abolish the indefeasibility of title … and which is the hallmark of the torrens system of title by registration practiced in Uganda. Once duplicate or provisional certificate of title is issued. It does not deal with a situation where under Section 70 of the RTA a duplicate certificate of title is issued. it replaces the previous one..

” iii. Nyati H. Nai.A. Joel Ngugi Magu & 2 Others Civil Appeal No. Joseph Arap Ngok V... The object of this philosophy was summarized in the classic Privy Council decision in Gibbs V.” (iv) .C. called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value.. appear to them to be equally plain. at pg 254 as follows:-“The main object of the Act. that the title of a bona fide purchaser for value and without notice of fraud could not be impeached.”We have taken this long route in order to explain that it has always been the law under the Registration of Titles Act and based on the Torrens system. Salima Enterprises & 2 others Civil Appeal No. the burden of proof is on the party who alleges it and the standard of proof is more than a mere balance of probabilities. 114 where inreversing the High Court the predecessor of this Court held that the appellant was the absolute andindefeasible owner of the suit property and was entitled to take proceedings in trespass. there are numerous decisions in this country where it has beenapplied as demonstrated in cases following. Such is the sanctity of title bestowed upon the title holder under the . This is a system that emphasizes on the accuracy of the land register which must mirror all currently active registrable interests that affect a particular parcel of land. In Hannah Wangui Ithebu &Ano. . a criminal act. Theuri [1973] E. guarantees indefeasibility of all rights and interests shown in the land register against the entire world and in case of loss arising from an error in registration the person affected is guaranteed of Government compensation. and the legislative scheme for the attainment of that object. That end is accomplished by providing that everyone who purchases. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register. Moya Drift Farm Ltd V. . This is what the judges in the Uganda case of Lwanga V. Because of the seriousness of allegation of fraud. for that reason. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. introduced in 1858. is treated as matter of evidence. Justice Moijo ole Keiwua & 5 others. Cause No. 7A of 1977 (1980) HCB 24. Civil Appeal No. as the keeper of the master record of all land and their owners. ii. Government. shall thereby acquire an indefeasible right. V. “Section 23(1) of the Act gives an absolute and \ indefeasible title to the owner of the property. Registrar of Titles. 60 of 1997 where this Court categorically declared that:-. in bona fide and for value. and to satisfy themselves of its validly. notwithstanding the infirmity of his author’s title.. Msa 295/1976 sets out the standard of proof for an allegation of fraud. “It follows from what we have said that there has never been any controversy with regard to theapplication of Section 23 of the Registration of Titles Act and even though the phrase “Torrens system”may not have been expressly used. Mutsonga V. 185 of 1997 that even where it is shown that past registrationswere obtained illegally the title of the last bona fide purchaser for value was indefeasible under Section 23 (1) of the RTA. and enters his deed of transfer or mortgage on the register. 86 of 1999 [2005] e KLR the High Courtrelied on the decision of the Court of Appeal in Permanent Markets Society & 11 Others V. Messer [1891] AC 247 P. from a registered proprietor. Fraud. in order to investigate the history of their author’s title. This statutory presumption of indefeasibility and conclusiveness of title under the Torrens system can be rebutted only by proof of fraud or misrepresentation in which the buyer is himself involved. This position was restated by the Court in Dr. Misc.”.C.

Because of this. It was stated. otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy. the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property. Commercial Bank of African Ltd & Ano. and.Russel & Co. V. Samuel Gitau & KCB. does this leave us? There is no elegant way to resolve this issue. 274 of 2009. KP&L & Nairobi City Commission Court of Appeal Civil AppealNo. It is our law and law takes precedence over all other alleged equitable rights of title. the entire system of registration of land in Kenya. [1986] KLR 633. it is erroneous to argue as learned counsel for the applicants did that there is need for the Supreme Court to settle the law on fraud and indefeasibility of titles.: In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. the register was inaccurate by reason of malfeasance by land officials. Ltd V. Job Kipnandi Chebon V. This is because Govt is the sole custodian and protector of Lands Office records and obliged to scrutinize each document before registering or filing it and also to ensure accuracy of all the records at all time. With this plethora of authorities. V. Edwin Wambua & Others. then. Buyer entitled to possession and original owner compensation: DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO[2012]eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. What this tantamount is that as buyer takes the records and register of title at the Land Title Registry at its face value. as it turned out. 155 of2006. Wreck Motors Enterprises Ltd V. It is in keeping with the objectives of the Registered Lands Act. The person whose name is recorded on the register holds guaranteed title . Makana Transporters Ltd & 3 Others. Nairobi 111 of 2010 and Elijah Arap Bii V.” See also Njilux Motors Ltd V. irregular or forged. He is not concerned at all even if all the records and signatures are illegal. In fact the Act is meant to give such sanctity of title. This is a special head of claim in addition to normal claim for duty of care under common law EXCERPTS FROM THIS CASE At Para 13: “Where. shaba Trustees Ltd. The Registered Lands Act is based on the Torrens’ System. The whole idea is to make it unnecessary for a party seeking to acquire interests in land to go beyond the register to establish ownership. indeed. & Another CivilApplication No. 2012: (case is attached): This case unequivocally confirms that Buyer is entitled to the possession and original owner compensation. 206 of 1998. Civil Appeal No. if anyone suffers loss due to misfeasance or otherwise of officers. Act. The State maintains a central register of land title holdings which is deemed to accurately reflect the current facts about title. There is only a pragmatic way of doing so. Govt is required to compensate that person. Mombasa HCCC No. “They were not obligated to do anything more than search the official register to establish ownership. Ltd. [1986] KLR 633. that ‘fraud” ought to be defined by that court…” c. indefeasibility of title is the basis for land registration. Rose Njoki Kingau & Ano. Under this system. Commercial Bank of Africa Ltd. Russet Co. If.

” (iv) At para 22: …”Yet. eventually. Joseph Ng’ok v. Justice Moijo Ole Keiwua. and Kenakena Investments Ltd on the one hand. Madison who was registered. this statement of the law suggests the prima facie resolution of the case: In as long as. these other parties have an upper hand in retaining possession and ownership of the properties in question. Court of Appeal. I must return where I began. That does not make the result here any easier for the Thuos. Kenya Ltd. They had no obligation to go beyond the register to investigate Njendu’s title and satisfy themselves of its validity. They were not obligated to do anything more than search the official register to establish ownership. Subsequently same plot was allocated to three respondents who were registered as proprietors under RTA. without notice and did not participate in Njendu’s fraud. their titles will be secure and guaranteed by the State. Ole Kipury.” I believe that the results here are in keeping with the overall policy objectives of the Land Registration Act. the principle of indefeasibility has two implications for the instant case. the final resolution of this case mirrors that of the two Applications under consideration… d. They did nothing wrong. J. and enters his deed or transfer of mortgage on the register. as it turned out. in order to investigate the history of their author\’s title. at this stage.” Yet. and the legislative scheme for the attainment of that object. They did their bit. appear to be equally plain. It is a hard result for the Thuos. Messer (1891) AC 254: . They are merely victims of a fraudster. and to satisfy themselves of its validity. Commissioner of Lands and Madison Insurance Co. whose stability. i. It is the other parties to the cases who were directly “victimized. they are vicarious victims to the fraudster because they never saw nor dealt with him. That this is the essence of the Torrens System was stated as early back as 1891 in the case of Gibbs v. Since the State guarantees the accuracy of the register. the register was inaccurate by reason of malfeasance by land officials. I also believe.” iii. It was held that since . Upon registration title indefeasible: Dr. Civil Appeal 60 of 1997 (27/97 Nrb) (case is attached) – Appellant applied for the allocation of a plot which was approved but he did not get himself registered.B. in bona fide and for value. ” ii. the assumption is that David Peterson Kiengo. This is not an elegant solution. from a registered proprietor. Nkiiri Victor Michuru. That end is accomplished by providing that everyone who purchases. the second implication is that the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property. and Fountain on the other are bona fide purchasers for value without notice. through the operation of the law. For me. J. notwithstanding the infirmity of his author\’s title. At Para 14: “Practically.The main object of the Act. it is not enough that I say that the “law made me do it. Muturi.L. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register. it cannot be demonstrated otherwise. At Para15: “In my view. it makes it unnecessary for a person to investigate the history of past dealing with the land in question before acquiring an interest. in fact. to the property. maximizes the welfare of the polity. They sold and transferred to Goodwood Properties Ltd who in turn sold and transferred to respondent. The only saving grace is that they have a course of action against the State for recovery of damages if. shall thereby acquire an indefeasible right. If. It means that if the parties who acquired interests to the properties from Njendu can demonstrate that they did so in good faith.

the issue before this Court turns on a legal point: whether the title deed issued to the Appellants in respect of the suit land conferred upon the Appellants an indefeasible and unpeachable title. Appointment and removal of trustees wrongful or irregular and invalid. Held: At pge 202 para 5: ‘It is clear. A. the transfer and charge created by registered proprietors of the land became on registration a valid and effectual instrument’. and much though I might dislike or disapprove of it (and I must say that indeed I disapprove of it) I am bound by it. the Parliament made that law. 86 of 1999 – [2005] eKLR High Court at Nairobi: it was alleged that Appellant with collusion of Land Registrar had been registered as the first owner of the land. Madision under s. In its wisdom. f. Cap 300 Laws of Kenya. The Land Registrar Muran’a & Other Civil Appeal No. this could not defeat the registration of Appellants. Madison was a bona fide buyer and there was no evidence of fraud. which could not be challenged on any ground including fraud” …” under Section 23 of the Registration of Titles Act (which is in parimateria to the Registered Land Act) a Certificate of Title issued by the Registrar to any purchaser of land is to be taken by all courts as conclusive evidence that the person named therein as proprietor of land is the absolute and indefeasible owner thereof and his title is not subject to challenge except on the ground of fraud or misrepresentation to which he is proved to be party”. A Law Reports Pge 198: A trust owned two parcels of land registered under RTA. 185 of 199: “Essentially. JJ.. Spry and Law. “Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.Unfortunately. common law does not apply to RTA. otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy”. June 8. Ag. … “ However. Such is the sanctity of title bestowed upon the title holder under the Act.G. 25 of 1965 – Court of Appeal at Nairobi (Sir Clement de Lestang. It was held at page 2 and 3 by Justice Visram applying Court of Appeal dictum in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC Appeal No. May 24 and June 8. . and I am duty bound to apply it”. as the first registered owners of suit land….23(1) of RTA had indefeasible title. As explained elsewhere herein. e. whereas under RLA only first registration is indefeasible. In fact the Act is meant to give such sanctity of title. as it did. the Appellant’s registration as owners of the suit land was a first registration and under Section 143(1) of Registration of Land Act. The registered trustees created a charge. such registration could not be defeated even by proof of fraud.A). that is the law. under RTA subsequent registrations also are indefeasible unlike RLA. therefore. that whatever irregularities may have occurred in the registration of earlier instruments. of Kenya – Civil Appeal No. So even if the lower court was correct in finding that the defendants ‘conspired to fraudulently deprive the plaintiff (of suit land). It is our law and law takes precedence over all other alleged equitable rights of title. In Hannah Wangui Ithebu & Other v Joel Nguigi Magu. Dinshaw Byramjee & Sons Ltd v. 1966): E. P.

Otherwise it is the task of the court in each generation to give flesh and spirit to the bones (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819. ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. upon the registration his title is deemed conclusive and indefeasible notwithstanding the infirmity of his author’s title. As this was against the cardinal principle of Torrens system that upon the registration of transfer buyer’s title becomes indefeasible against entire world including the original owner or his vendor notwithstanding the infirmity of his author’s title. JUDGE IN IQBAL’S CASE ERRED BY RELYING ON GIBB’S CASE NOT KNOWING THAT IT IN FACT IT HAD BEEN OVERULED. The property was awarded to the original owner based on Gibbs v Messer (1891) AC 248 at page 254 para 3 that buyer did not deal with the owner who was registered at the time and dealt with the defrauder. the Gibbs case had been overruled Under Torrens system. as a bona fide buyer is not concerned about the past irregularities. Hence.R at pge 651 para H and I. Both original owner and buyer asserted that he had indefeasibility of title by virtue of s. UNFORTUNATELY HON. The buyer unaware of the forgery. Article 40(6) states. Buyer’s title comes into existence upon registration and therefore it is irrelevant as to with whom he dealt.g. registered the transfer. Walker (1967) 649 ALL E. “The High Court has added further support to this position by the dictum that: The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. most appropriate interpretation of this Article 40(6) would be that it would apply to a defrauder and there could not be intention . This cardinal principle of Torrens system is enshrined in sections 22(3) and 23(1) of RTA and also incorporated in new LRA. Like all the provisions of Constitution. forged his signature and sold the plot to a bona fide buyer. Bill of Right in the Constitution securing right to own property and payment of compensation to citizen deprived of property. it has been declaring title nullity under Article 40(6) of current Constitution by taking literal meaning. THE DETAIL EXPOSITION OF LAW FOR INTERPRETATION OF CONSTITUTION IS GIVEN AT THE END HEREIN:Apart from court declaring bona fide buyer’s title nullity ab initio on the ground of common law doctrine “non dat qui non habet”. Provisions are like dry bones. (2008) 3 KLR (EP) 325) Hence this article has to construed in context of other relevant legislation such as RTA. this is also a general philosophical statement which has to be read in the context of other provisions such as of RTA. As explained elsewhere herein. indefeasibility of title of bona fide buyer. title is by registration. 8. skeleton or a initial frame of a house and it is the duty of court to fill in flesh. LRA.23(1) of RTA upon registration of transfer. Under Article 40(6) of current Constitution tendency of Court to declare title nullity ab initio. How court erred in Iqbal Rai’s case denying bona fide buyer land or compensation – also how Iqbal’s case different from subject case: Iqbal Rai v Mark Lecchini HCCC 1054 of 2005 (Nrb): In this Iqbal’s case. a defrauder stole the identity of the owner. Gibbs case was overruled as confirmed in Frazer v.

the compensation is payable. In the local Court of Appeal case. 27 provides that instrument is deemed registered only when registrar enters a memorial in the register. as well as the title to the new bona fide owner . the interest or title passed upon the execution of instrument and registration was substantially for priorities. Because of this. His certificate duly authenticated under his hand and seal was made evidence in all Courts of Law and Equity of the particulars therein set forth. Hence impliedly buyer is not concerned about the prescribed procedure of registration. Registrar’s duty to scrutinize instrument before registering because – Registration procedure internal department matter - h.32 of the RTA states that the instrument is not valid until it is registered.. Whilst under RTA or Torrens system parties remain responsible for the preparation of documents.It was stated. Under the Old System conveyance or GLA (now replaced by LRA). Govt compensates”. 12 of13 – Ruling on: 8th Nov 2013:. and if satisfied with the title he was to issue a certificate of title and register it. the s. if due to any negligence anyone suffers loss. It should be noted that. S. Ltd. husband’s signature and later mortgaged the property. it is the act of an officer in the Land Titles Office which effects the transfer of title to any registered legal estate or interest. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No.” i.In this case it was stated. Walker (1967) 649 ALL E. AssetCo. Also new or current Constitution under Article 50(2)(n) does not have retrospective effect 9. and there being entered in the Register Book. 22(3) of RTA makes last title deemed original grant and s. “In every district there was a District Land Registrar whose duty it was to examine into title of every person applying for registration. Instead registrar is required to scrutinizeeach instrument before registering it. The husband sought to set aside the mortgage. 23 bestows indefeasibility of title thereby buyer is not concerned about past irregularities and illegalities and takes the title at its face value. The compliance of procedure is registrar’s concern also because s. Non compliance of procedure does not invalidate title: In Frazer v. The powers and responsibilities vested in state officials thus give rise to the possibility of loss through mistakes occurring in the Land Titles Office for which loss. the government compensates the aggrieved party which includes the original owner who is deprived of the property. As such the procedure for registration stipulated under the Act is internal matter for the Land Titles Department only. repealed Constitution did not have such provision. Why registration procedure internal department matter?: This is to fulfill main objective of Torrens system to avoid each buyer checking records that may go back for decades.R at pge 651 para I. “Govt is the sole keeper of all the records and guarantees indefeasibility of title against entire world and if anyone suffers loss due to the negligence of Land Department. and except in cases after provided the certificate was conclusive evidence that person named in was entitled to the land mentioned in it for the estate or interest therein mentioned . to deprive innocent buyer of his property or compensation. Mere Roihi and others (1905) AC 176(Privy Council) at pge 3 para 3 . in a jointly owned property wife forged. appellant. v.

which would be destructive of the whole system of registration. 31 a copy of instrument certified by registrar to be conclusive evidence that it has been registered. IT REPLACES THE PREVIOUS ONE. his title was indefeasible and valid in rem. rather than a retrospective approbation of it as derivative right. “Their Lordships cannot accept this argument. Under RTA the interest in a instrument by virtue of s. and provisional certificate replaces previous one: C. Register and not certificate constitutes title because title by registration: Under RTA or Torrens system register is the title and certificate is merely proof of title. Uganda High Court at Kampala (Land Division) (case is attached): The Registration of Titles Act of Uganda is basically similar to that of Kenya. since buyer was a bona fide buyer and was not concerned about the past illegalities.R. This Uganda case confirms that buyer not concerned about the past. It is the title which registration itself has vested in the proprietor. It is obvious that the . It is the duty of registrar to scrutinize each instrument before registering it. HCCC No.” 10. Consequently. 87 of 2009.” What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. 32 passes only upon registration and under s. or which but for registration would have had. (case is attached) . That which the certificate of title describes is not the title which the registered proprietor formerly had. The s.27 the instrument is deemed registered as soon as it has been marked by the registrar with the folio and volume. “This is an assertion that the title of each registered proprietor comes from the fact of registration. This was summed up succinctly by Barwick CJ in Breskvar v Wall (1971) 126 CLR (High Court Aus) pge 4 para15. The title it certifies is not historical or derivate. What is referred to here as title is registration and not certificate of title which is merely a piece of paper to establish proof. This is a title fraud with irregularities in issue of provisional certificate. It was held that despite irregularities and. a registration which results from a void instrument is effective according to the terms of the registration. “.” In Breskvar v Wall (Supra) at pge 14 last para (case is attached). On the other hand under GLA (repealed). Also under s. Patel v Commissioner Land Registration & 2 Other (Judgement Jan 2013). He noted. so as that each freeholder is in the same position as a grantee direct from the Crown’. It was held that.23 states that the certificate of Title ‘shall be taken by all courts as conclusive evidence that the person named therein as the proprietor. It matter not what the cause or reason for which the instrument is void. “cutting off the retrospective or derivative character of the title upon each transfer or transmission. that is made the source of the title.“The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. as an important benefit of the new system. IT ALSO CONFIRMED THAT ONCE DUPLICATE OR PROVISIONAL CERTIFICATE OF TITLE IS ISSUED. It was also stated that under Torrens system in fact register is the title and not certificate. It is in fact the registration and not the antecedents which vests and divests title.. Even if non-compliance with the Act’s requirements as to registration may involve the possibility of cancellation or correction of the entry—the provisions as to this will be referred to later— registration once effected must attract the consequences which the Act attaches to registration whether that was regular or otherwise….. who had acquired title through foreclosure on the ground that registration of instrument did not comply the required procedure and therefore was a nullity. the interest in an instrument passed upon the execution of an instrument and it was the responsibility of the buyer to scrutinize it and all past records.

under s. if certificate is lost.purpose of sec 23 is to constitute certificate of title merely as a proof or evidence of title to make it convenient to prove title in the court and avoid having to call registrar to produce the records. Mere Roihi and others (1905) AC 176(Privy Council) at pge 27/28 para: Lord Lindley in delivering the judgment of the Board. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. Hence. Also the certificate is requisite for the purpose of registration of transfer and other instruments purely as a mechanism or procedural matter. Hence. not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead. the certificate held by original owner is worth as a piece of paper as it is not reflection of what is at present on register. BURDEN OF PROOF ON WHO ALLEGES – BURDEN OF PROOF HIGHER AND DEGREE OF DILIGENCE LOWER: a.22(1) buyer can at any time after he has been registered as owner apply for the issue of a certificate upon payment of a fee. If a passport is lost and a new one is issued. dishonesty of some sort. It is like passport.The want of that prudence. On the other hand. only register itself constitutes the title. “ . Since it is optional. whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts. in fact a high degree of probability is required. v. the provisional certificate shall be available for all purposes and use for which the grant or certificate of title so lost or destroyed would have been available and as valid to all intents as the lost or destroyed certificate”. but often used. As per s. title being by registration.” “.71 of the Act categorically states. does not of itself prove fraud on his part. destroyed or a duplicate is obtained by a forgery. it does not affect in any way the status of register of title. to affect the party with notice.. original owner’s does not.e. It does not constitute citizenship. whereas buyer’s name currently appears as the registered owner at the Land Registry. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon. What certificate is deemed to say is that the owner whose name appears on the certificate is in fact at present on the record as the registered owner at the Land Title Registry. said that the sections of the then New Zealand Acts to which his Lordship referred: “…… appear to their Lordships to show that by fraud in these Acts is meant actual fraud. Degree of diligence lower because of concept of indefeasibility of title: : In AssetCo. while first Defendant holds original certificate. to denote transactions having consequences in equity similar to those which flow from fraud. and had made further inquiries which he omitted to make. for want of a better term... As such to establish who is the owner. The operative or key words in this section are ‘evidence’ and ‘court’. S. The mere fact that he might have found out fraud if he had been more vigilant. In the subject suit. … I . i.” In other cases it has been upheld that. it is necessary to search the title. 11. according to the decisions and the principles which have hitherto been acted on. the old one is deemed cancelled and new one is as effective as the original. Ltd.. 32 of the Act. must be brought home to the person whose registered title is impeached or to his agents. he is not registered as the owner at the registry. caution and wariness is not sufficient. Further it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value. The certificate held by Plaintiff indeed reflects the true status with the name of owner at the registry.

unless it itself expressly refers to the RTA. Gross negligence without mala fides will not be regarded as fraud…” Francis. Stamp Duty and Indian Transfer of Property. nor. A provision of on these lines is common to all the Torrens statutes. or. and having only omitted that caution which a prudent. must be actual and not constructive or equitable fraud. In Mutsonga v. may be summed up as follows:. it would defeat the cardinal principle of ‘sanctity of title’ or ‘conclusiveness of title’.” This provision protects land registered under this Act from any other law. … In fact the Act is meant to give such sanctity of title. RTA overrides other Acts and laws so that concept of Torrens system not undermined: Under s 1(2). the provision of RTA would prevail over that Act. am of the opinion that the party having acted bona fide. the position.. it would defeat the cardinal principle of ‘sanctity or conclusiveness of title “Section 23 (1) of the Act bestows sanctity of title upon the title holder under the Act. Advocates. 12 of13 – Ruling on: 8th Nov 2013. it seems. (4) The presentation for registration of a forged or fraudulently obtained instrument does not constitute fraud if the person presenting it honestly believes it to be a genuine document. Burden of proof is on who alleges fraud and burden is higher: Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. then. whether freehold or leasehold which is under the operation of this Act”. it overrides inconsistent provisions of all other Acts such as Government Proceedings. of what constitutes fraud. otherwise the whole process of registration of titles . RTA being a special legislation. No definition is given.(1).” If the title was subject to other laws. Torrens Title in Australasia. to the general exception from indefeasibility in cases of fraud. Vol. is any such definition possible. and cautious person might and probably would have adapted. A bona fide buyer is liable only for ‘willful blindness’. if a provision of any Act is repugnant to RTA. is not to be fixed with notice of this instrument…. in Australia. Grossnegligence without mala fides will not be regarded as fraud in New Zealand. This is because. something more than a mere balance of probabilities is required…” 12. for the purposes of these provisions. Africa by Krishan M. S. no Act in so far as it is inconsistent with this Act shall apply or be deemed to apply to land. (3) Fraud must involve an element of dishonesty or moral turpitude. High Court Mombasa No: 295/1976 Reported in 1984 page 425 at pge 439 para lines 25-30 (case is attached): “The next issue is whether or not the defendant had the parcel registered in his name fraudulently? Charges of fraud should not be lightly made or considered …. 602 and 603 (extract not attached) summarizes the position in the following manner: “With regard. 1(2) states “Except so far as is expressly enacted to the contrary.: In this suit it was stated that the burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities” Under RTA or Torrens system. (2) Fraud.” b. procedure and practice which is inconsistent with its provisions. if title was subject to other laws. Land Law in E. Nyati Corrum: Kneller J. What it means is that. To be diligent buyer is not required to do anything more than follow a normal procedure. wary. it seems. This is so that concept of indefeasibility of title is not undermined. They must be strictly proved and although the standard of proof may not be so heavy as to require beyond reasonable doubt. the burden of proof is higher than in ordinary civil case. it seems. either by statute or by judicial decision. Maini pg 167. 1 at pp.

” In Breskar v Wall HC Aust.C.” ii.and is not liable to an action for ejectment or recovery of the said lands by the rightful owner. Held: (i) The joint effect of s.22(3) of RTA last buyer being deemed original grantee. 23(1) upon registration buyer has indefeasible title against entire world including the original owner. namely. Hence Torrens system prevailed over the Stamp Act.”Any other conclusion would violate the general principle of sanctity of title of the register. although it was void because of illegality under the Stamp Act.. (ii) . 1(2). In Regal Constellation Hotel Ltd Re 2004 CanLII 2006 Ontario C. it was alleged that transfer did not comply with Stamp Act and therefore transfer was void. In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.. the title of original owner is instantly extinguished in view of: (a) As under s. which is the foundation of legislation based on. s 23 and s. where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy..24 party who suffers loss including original owner who is deprived property due to the negligence of registrar is paid compensation by Govt. DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. Last buyer’s titled deemed original grant extinguishing all past titles including of original owner: This is because upon the registration of a buyer as a proprietor. 13. as the Registration Title Ordinance is. good against all the world…. all past interest and titles including of original owner being extinguished (b) Under s.A. 68 of the Indian Evidence Act. 1872. 2012: In .registered owner of lands described in a certificate of indefeasible title signed by the Registrar has title to those lands from the moment the signature of the latter is affixed thereto. Original owner’s recourse only for compensation and not possession: i.) Pge13 para): “The philosophy of land titles system embodies three principles. Canadaat page 19 para 25 “. Buyer entitled to property and original owner compensation – how quantum of damages computed: a. (1971) 126 CLR 13 Dec 1971 among other defenses in a case of forged transfer. the mirror principle. and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” These principles form the doctrine of indefeasibility of title and is the essence of the land titles system.32 of RTA was to override s.” b. 365: In this suit there was a default of mortgage and issue was whether Indian Evidence Act 1872 applied to the title under RTA. However. or search behind the title as depicted on the register. and (c) Under s. What this means is – “Where an owner is deprived of title as a result of forgery or other fraud. upon the Torrens system of registration’. the curtain principle. it was valid because under Torrens past illegality does not invalidate title.. and the insurance principle. 70. his or her right to recover the land is converted to right for compensation and the former owner is not entitled to have his titled restored and is statute barred from commencing an action to recover Torrens title land against registered proprietor. which holds that a purchaser need not investigate the history of past dealings with the land. “…Thus the effect of Stamp Act …is irrelevant to the question of whether the certificate of title is conclusive. where the register is a perfect mirror of the state of title. Visandjee [1960] EA 361.” In Popatlal vs.

That does not make the result here any easier for the Thuos. since bona fide buyer upon registration achieves indefeasible title against entire world including the original owner. Also contrary to the objective and cardinal principle indefeasibility of title under RTA or Torrens system. this suit. that is. Apart from compensation payable under common law for negligence. the register was inaccurate by reason of malfeasance by land officials. which is separate and different from any action the victim may have at common law. to be compensated for all losses he has suffered. This is not an elegant solution. maximizes the welfare of the polity. As held in Virender Gudka & others v A. I also believe. as explained elsewhere herein at length. through the operation of the law. compensation is payable to the original owner losing the property as a consequence of fraud or by registering other person as proprietor in consequence of any error or miss-description in any grant or certificate of title or any entry or memorial in the register. Section 27 of the Act states that an instrument is deemed registered when registrar enters a memorial in register and inserts his signature. Hence it is the act of an officer in the Land Titles Office which effects the transfer of title. e. Damages payable to all injured parties: : In computing quantum of damages. d. this common law doctrine does not apply. This provision provides for compensation for loss generally to any aggrieved party. all have to be compensated as is in the case of passengers who are injured in a bus accident due to the negligence of a driver. I must return where I began. They did nothing wrong…. The powers and responsibilities vested in state officials thus give rise to the possibility of loss through mistakes occurring in the Land Titles Office. there has also been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer thereby . The action is a special action.” c. the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property”……at para 22: “Yet. it is not enough that I say that the “law made me do it.. as it turned out. that as RTA overrides common law. It is a hard result for the Thuos (original owners). whose stability. “If. Registrar liable because sole custodian of all records: Whilst under Government Lands Act (repealed) interest in land passed upon the execution of an instrument. Hence forger can transfer a valid title or title from a void transfer can be valid. Yet. If more than one party is injured due the act of a culprit.” I believe that the results here are in keeping with the overall policy objectives of the Land Registration Act. For me. the principle is that – victim to be put in his original state.24(1) of RTA Government is obliged to pay compensation for mistakes of its officials. However. under s.32 interest passed upon the registration. these other parties (buyers) have an upper hand in retaining possession and ownership of the properties in question.G HCCC Nrb Env (480 of 2011) eKLR [2014] consequential losses such as loss of profit and cost of increase in cost of construction also payable. under RTA s. Contrary to cardinal principles of Torrens system Court’s tendency to award property to original owner on emotional basis: The court has been justifying declaring title of bon fide buyer nullity ab initio under the common law doctrine that seller cannot transfer better title than he has “non dat qui non habet’ not knowing. The only saving grace is that they have a course of action against the State for recovery of damages.

This is because court felt that it would be unfair to deprive original owner of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt. More supporting cases why buyer entitled to property and original owner property: . It is like – instead of millions of passengers each time before boarding a plane carrying out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol. Contrary to the objective and cardinal principle of indefeasibility of title under RTA or Torrens system. Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties. by law responsibility of safety of passengers is put solely on the owner of the airline. Since public at large benefits from the property and so that single citizen does not take entire brunt. avoid colossal cost and unnecessary stagnation of economy. as indicated. How it benefits country at large ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades. This is because court feels how original owner could be deprived of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt. he is compensated a full market value. avoid colossal cost and unnecessary stagnation of economy. This is also because Constitution accords right to own property. by law responsibility of safety of passengers is put solely on the owner of the airline. Under RTA. registrar as an exclusive keeper of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that buyers take the register of title at its face value and are not concerned about the past records. h. In compulsory acquisition country at large benefits: So that one individual does not suffer or take entire brunt. so that deprived owner does not suffer any economic loss. as a fairness. It is like – instead of millions of passengers each time before boarding a plane carrying out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol. destroying the cardinal principle of indefeasibility of title and making the Act defunct or like a car without its engine. Under RTA. he is paid full compensation at a fair market value. How it benefits country at large if owner is deprived of his property under RTA ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades. he is also compensated full market value. Since it benefits country at large. Owner deprived of property suffers no economic loss: Both under compulsory acquisition and under RTA property is taken away in the interest of public at large. Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties. Same principle applies when depriving original owner of his property under RTA. f. there has been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer. under Constitution. the Govt is obliged to pay full compensation at fair market value to the individual concerned. he is also compensated full market value. registrar as an exclusive custodian of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that a buyer takes the register of title at its face value and is not concerned about the past records g.

480 of 2011 – {2011} eKLR: Land compulsorily acquired by Govt for road use – it was subsequently subdivided. therefore.”See text book “The Australasian Torrens System by James Edward Hogg” at pge 847 para 3 “…If a person is rightfully entitled to any interest in land and has lost his property owing to another person having obtained a registered interest which is. compensation may be paid to those who suffer a loss. indefeasible. That such a system may from time to time impose hardships is obvious and. (c) Also followed was Peterson Kiengo v Kariuiki Thuo - Machakos HCCC No. 263 of 2011 –{2014} eKLR: JKIA land was allocated and title issued to JKIA for public use of road and airport.750 m for damage to property. as against the rightful owner.23(1) of RTA and s. 12 of13 – Ruling on: 8th Nov 2013): In this recent Court of Appeal. ii. That one who is named as owner is an uncancelled certificate of title possesses an “indefeasible title against all the world”.C. loss of profit etc. Canada at page 4 para 25: “[T]he Torrens system is intended “to give certainty to title” as it appears in the land titles office.. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. allocated and title under RTA issued to the Plaintiff – Road Authority to construct road overnight demolished a highrise building and 30 godowns on the ground title was issued illegally. 26 of new LRA 3 of 2012. Title under RTA issued – no evidence of fraud – issue of double allocation: HELD: (a) By virtue s. HELD: (1) As no evidence of fraud on the part of Plaintiff.…. Registrar liable to compensate Petitioner bona fide buyer value of property and pay both parties cost. his title indefeasible (2) Govt adduced no evidence of compulsory acquisition and survey plan did not show if subject land was included. 180) and 220 of 2011 {2012} eKLR – Govt guarantees indefeasibility of title. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. . For this purpose an Assurance Fund has been created in each jurisdiction. provision is made for pecuniary compensation by way of damages being. Vekariya Investments Linited –v. 1114 of 2002 {2006} eKLR – if double allocation prior one prevails and land awarded to JKIA – as both parties innocent and fraud emanated from Land Title.” This tantamount to buyer entitled to the possession.Kenya Airport Authority & 2 others HCCC Milimani Const and Human Rights Petition No. both parties had indefeasible title (b) As held in Gitwany Investment Limited v Tajmal Limited and 3 others Nairobi HCCC No. In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B. in addition to preserving actions against the wrongdoer. i. in certain cases. the legislature has provided an assurance fund out of which. Registrar liable for malfeasance of land officials and liable to pay compensation to aggrieved party.” iii. and (3) judgment for the Plaintiff that Plaintiff entitled to the land and Govt to pay Kshs. Viranda Ramji Gudka & 2 others Nairobi HCCC (ELC Civil Suit) No. made payable to the person so deprived of his property. Subsequently land subdivided and allocated irregularly to predecessor of Petitioner. iv. theexpressly affirmed all the principles of Torrerns system of titles and also unequivocally stated that a bona fide buyer notwithstanding infirmity of his author’s title. buyer takes title at face value and not obliged to scrutinize past record. in appropriate cases. and buyer entitled to property and original owner compensation.

viii. title of bona fide buyer was nonetheless held valid and thereby buyer was entitled to the possession of property. and I am duty bound to apply it”.Uganda HCCS 87 of 2009 Judgment Jan 2013) (case is attached): Uganda’s RTA basically similar to Kenya’s. It was held that both original owner and bona fide buyer were innocent.” It should be noted that in the Gitwany case there were two or double allotments. the Parliament made that law. and (d) Article 40(6) which states that if title acquired unlawfully. This was because buyer was not concerned about the past irregularities and illegalities of which he was not a party. The land was later sold to a bona fide buyer who was not aware of another original record. this Court of Appeal case affirmed title of bona fide buyer to be indefeasible under s. v. government is liable to pay two types of compensations: A text book “Principles of Land Law in Uganda by John T. Despite forged Provisional Certificate and forged transfer like in the subject suit. mistake or misfeasance of the registrar. vii. In its wisdom. C of L and A. Text book – Land Law in Uganda: Under the Torrens system. the prior allotment or title prevailed but the subsequent title holder was compensated. Max Motors Ltd. Justice Visram emphatically stated “…such registration could not be defeated even by proof of fraud….23(1) of RTA. 185 of 199 (case is attached): despite illegality in past title. Geoffrey Njage. …. 86 of 1999 – [2005] eKLR High Court at Nairobi: (case is attached) : This case follows the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC Appeal No. In this suit. HCCC 1114 of 2002 (Nairobi) (case is attached). It was stated that “In fact the entire mess in which those parties find themselves in. vi. Hence.Unfortunately.G. it is invalid means title of party who colluded in fraud and not of an innocent buyer.R.500.. The Land Registrar Muran’a & Other Civil Appeal No. and also facts of Uganda case are similar to the subject suit. Patel v Com Land Registration & 2 Other . and much though I might dislike or disapprove of it (and I must say that I indeed I disapprove of it) I am bound by it. The property was awarded to the original owner and Commissioner of Lands was ordered to pay bona fide buyer Kshs151. Famous local case holding Registrar liable of malfeasance: Gitwany Investment Ltd – vs – Tajmal Ltd. two titles and two records of same land. . a person who suffers loss as a result of the registration of another as proprietor may bring an action for damages against the registrar. Hannah Wangui Ithebu & Other v Joel Nguigi Magu. kept nor issued by any other party other than that office. Uganda’s case of C. an action may be instituted where a person suffers loss through any omission. is creation of and a matter that must be put squarely at the doorstep of the Commissioner of Lands … All documents leading to the issuance of title are prepared.000. The buyer developed the land constructing several high- rises buildings comprising of apartments and for which he also borrowed money from the bank. presumably in collusion with Land Registry another record of title was created and a defrauder was registered and was issued with the certificate of title.00 cost of development and Commissioner was also ordered to pay the cost of both the parties and also cost of removal of development.. Secondly. In this Hannah’s case. that is the law. Mugambwa’ 2002 Ed (who is a professor at Murdoch University in Australia and has 20 text books to his credit) pge 88 para 3 and 4 (extract of text attached) “Firstly.

BUT NO ACTION FOR COMPENSATION BE BROUGHT AGAINST TP OR ANY OTHER PERSON WHO IS A BONA FIDE PURCHASER FOR VALUE. In Breskvar v Wall (Supra) at pge 17 para 9 “.. This is because.nothing in the Act contained shall be interpreted to subject to any action of ejectment or recovery of damages any purchaser or mortgagee bona fide for valuable consideration of any land under the provisions of the Act although his vendor or mortgagor may have been registered as a proprietor through fraud or may have derived from or through a person registered as a proprietor through fraud.G.500. As indicated. 14. he let malfeasance occur. A bona fide buyer not liable for loss and cost of suit to anyone including to the original owner: a.151. . if X fraudulently transfers P’s land to himself and he is the registered proprietor. “For example. it is purely based on this concept of duty of care. This is based on the general concept under common law tort that everyone in life owes a duty of care to another person. Hence.” In Gitwany Investment Ltd – vs – Tajmal Ltd. buys a property about which later on it transpires that due to a fraud that emanated at the Land Titles Registry the original owner was adversely affected. In this respect. it was because of malfeasance or negligence of officers at the Registry. Registrar obliged to pay compensation not for the act of defrauder but his malfeasance: To make the registrar liable for negligence or malfeasance of officials at the Land Title Registry is not something unusual. X is the wrongdoer and P is entitled to sue him for compensation …. HCCC 1114 of 2002 (Nairobi) it was ruled that since fraud originated at the Land Registry and both the parties were innocent. Where an innocent bona fide buyer while relying on the face of title. if original owner suffered. if registrar is required to pay compensation. In the Principles of Land Law of Uganda by John T Mugambwa (who is a professor at Murdoch University in Australia and has 20 text books to his credit) page 88 para 2.00 million to the buyer and also pay costs of both parties. by law he is obliged to make loss good. If there was no malfeasance in his department. It is like govt being liable due to its negligence in not maintaining a highway bridge which collapses causing injuries. such buyer as matter of principle and fairness cannot be liable to the original owner for any loss that original owner may suffer. Geoffrey Njage. Govt is not excepted and is also liable for its action like a private individual. X would still be liable even where he transfers the land to TP.ix. C of L and A. the government must take the brunt of paying compensation of Kshs.000. A bona fide buyer is also not liable because 24(i) of RTA specifically absolves a bona fide buyer for value who is registered as the proprietor of any liability for damages suffered by the original owner deprived of the property. he is obliged to pay compensation because knowing very well that public was required to put full faith in the accuracy of records. He indeed is not paying compensation because of the act a defrauder or forger. If due to his act or negligence another person suffers harm or loss. the defrauder would not have succeeded. Max Motors Ltd. This is because of the principle of indefeasibility under s.61 and 181 of the Registration of Titles Act. The latter provision expressly absolves a bona fide proprietor for value from any liability for damages suffered by a person P .

the exercise of the registrar’s powers must be limited to the period before a bona fide purchaser. In Power Technics Ltd. J.A. At pge 66…”there seems little doubt that. they do not extend to adjudicating upon substantial conflicting claims. The appellant sued the respondent claiming that it was the registered owner of certain .P. Section 65 empowers the Registrar to do all things that are necessary to ensure that there is a fair hearing” In Asset Co. however. Mere Roihi and others (1905) AC 176 (Privy Council) at pge 9 para 1 “ …Large. TheuriPg. are protected...). Because forger’s name appear on the register as the owner. v. It has been held that there is no jurisdiction to rectify the register if to do so would interfere with the registered interest of a bona fide purchaser for value in the interest as registered. deprived for his estate or interest in consequence of fraud. As a corollary. P. to the public. No rectification of title once bona fide buyer is registered – Limitation Registrar’s Powers: Registrar no power if issue of substance: Under RTA registrar does not have power if issue of substance is not involved.” page 634 “. though the powers conferred on Registrar do involve the exercise of a judicial discretion.60 & 634 . Ltd. it cannot be rectified against him. V. and Lutta. “…In this scheme. error or miss- description. This is a limited jurisdiction that does not include cancellation of titles. v.) Civil Appeal 44 of 1972.”This is because before his title is voided. 80(2) of Land Registered Act (3 of 2012) title cannot be rectified if bona fide buyer was in possession and acquired for valuable consideration.. 16. The text book. good faith purchasers or mortgagees who have taken an interest in the land for valuable consideration and in reliance on the register. This is because. – EALR pg...G. 114 – (Court of Appeal at Nairobi No: 13 of 1973 (Sir William Duffus. he is the owner. Spry.” Under s. A plain reading of section 60 will show that the powers of the Registrar are limited to correcting errors and miss-description of land or boundaries or where entries or endorsements to any grant or certificate of title are made in error. forger’s title is voidable and not void.” In Regal Constellation Hotel Ltd Re 2004 CanLII 2006 Ontario C. for all purposes..A. 114 (Appeal from the High Court of Kenya – Miller. a forger can transfer a valid title to a bona fide buyer for value without the notice of fraud. Even where the Registrar exercises such powers granted to him the facts that are condition precedent of the exercise of such power must be shown to exist and the party against whom the power invoked must be given an opportunity to be heard. Once bona fide buyer is registered and thereby achieves indefeasible title in rem and even against the original owner. Under s. The Law and Practice Relating to Torrens Title in Australasia Vol I by E. J. the possession also is deemed to have passed to the buyer. with transfer and issue of certificate of title. a person deprived of his or her estate or interest in land may claim compensation from the government. v A. Under RTA possession passes with transfer:Unlike RLA. Francis) ‘page 66. or mortgagee acquires a title …”….) Pge 14 para 44) “. Registrar of titles and Commissioner of Lands HCCC 178 of 2011 (Nrb High Court) [2012] eKLR at para “19. since In Moya Drift Farm Ltd.A.. 186(a). it has been decided that they cannot be exercised to the prejudice of registered bona fide purchaser.It seems that these powers cannot be exercised so as to deprive of his interest any registered proprietor who is a purchaser or mortgagee bona fide and for valuable consideration…” page 655 ‘... in keeping with the motivating principles underlying the land titles system. as powers are. under RTA.” 15.

“. The appellant appealed.” What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. as an important benefit of the new system. 115 –“ Mr. it ought to be born in mind that Kenya’s RTA has not been amended to provide for this exception. Mugambwa is professor at Murdoch University in Australia and has to his credit 20 text books. I cannot see how a person could possibly be described as “the absolute and indefeasible owner” of land if he could not cause a trespasser on it to be evicted. What this unequivocally states is that.” 17. rather than a retrospective approbation of it as derivative right. but he submitted that this cannot be the law of Kenya. “the estate of a proprietor claiming under a prior instrument of title”. Under RTA such exception would also be contrary to the express provision contained in s.22(3) that “ The title of the proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if he had been the ORIGINAL GRANTEE in the GRANT of the land contained in the certificate. “This is an assertion that the title of each registered proprietor comes from the fact of registration. in which case the later one is rectified and is paid compensation. land on which the respondent was trespassing and who had refused the appellant entry. The judge found that the appellant was the registered owner of the land but that as it had no possession it could not claim in trespass. Exception to indefeasibility of title – there cannot ever be two concurrent titles: The indefeasibility of title is not absolute. However there are exceptions to the indefeasibility such as fraud. This is not a general exception as otherwise it would be make redundant cardinal doctrine of indefeasibility of title. at Pg. In Breskvar v Wall (Supra) at pge 14 last para. It claimed eviction and a perpetual injunction restraining trespass by the respondent. Among these. In the “Principles of Land Law in Uganda” at page 77 para 3 he mentions about this exception of indefeasibility. includes “Principles of Land Law in Uganda” and ‘Source Book of Uganda’s Land law”. I think that title carries with it legal possession. 23 of RTA. contending that possession was unnecessary in view of the Registration of Titles Act. as it would make nonsense of s.22(3) there never can be issue of two concurrent titles as latest registration constitutes final grant or title and all previous ones are deemed buried and of no consequences. However. “ The estate of a proprietor claiming under a prior instrument of title”. Hewitt conceded that it was formerly the law in England that a person had to have taken possession of land before he could take proceedings in trespass. If a subsequent . Held: the appellant was the absolute and indefeasible owner of the land and was entitled to take proceedings in trespass. He noted. Professor John T. unless there is any other person lawfully in possession.. encumbrances noted on the title.” This provision tantamount to invalidate all previous titles in vesting in LAST bona fide buyer indefeasible title in rem even against the original owner. Hence because of s. “cutting off the retrospective or derivative character of the title upon each transfer or transmission. so as that each freeholder is in the same position as a grantee direct from the Crown’.. that is made the source of the title. Other jurisdictions specifically have enacted law to provide as a further exception. such as a tenant. there can never arise a situation of there being at the same time two concurrent titles of the same land. This is designed where due to an error in survey or mistake on the part of registrar same land is included in two titles. I find this argument irresistible and I do not think it is necessary to examine the law of England. and tenancy under three years with tenant in possession. The Act gives the registered proprietor his title on registration and.

87 of 2009. 19(3) and registrar to be party 05 C. HCCC No.. common law do not apply to RTA – this is to preserve doctrine of indefeasibility – hence common law principle seller cannot give better title than he has (non dat qui non habet) do not apply – as such title frm void instrument valid or forger can trf valid title. Nyamweya held no notice under s. Registrar & Others (287 of 2010) HCCC Milmn Lnd Env {2012} eKLR: Justice P. LIST OF CASES SITED IN THIS PAPER. “to deprive him of title would be to abolish concept of indefeasibility of title. 02 The Australian Torrens System by James Edward Hogg: All the concepts of Torrens system of titles are discussed and explained. Ltd v Mere Roihi (1905) AC 176 – Privy Council: Title frm void instrument valid – to preserve concept of indefeasibility.R.13A of GLA required as RTA exempted under s. 04 Cecila Gakui Kinyua & Other v. Patel v Commissioner Land Registration & 2 Other (Judgment Jan 2013).e. Nayaga Gichenga.” – also held prov cert replaces prior one and as effective as previous one. the . LIST OF CASES CITED IN THIS PAPER 01 Asset Co. 02 Boyd v Mayor etc. THE ONLY EXCEPTIONS ARE FRAUD AND MISREPRESENTATIONS 18. then what is the purpose of the Torrens system? The objective is to save dealers in land from the obligation to inquire about the history of the legal land history – i. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. Uganda High Court at Kampala (Land Division): Uganda RTA basically similar to Kenya’s – this Uganda case had similar facts to subject suit as provisional cert was forged and no Gazette notice and forged transfer – HELD: As buyer bona fide unaware of fraud. buyer can never have an indefeasible title. Wellington (1915) – (Case not found): Unlike RLA. 12 of13 – Ruling on: 8th Nov 2013: In this recent case. burden of proof for fraud higher and degree of diligence lower – registrar’s duty to scrutinize each doc as such rules and provisions for registration internal dept matter – registrar’s power to rectify title cannot be exercised to the prejudice of bona fide buyer. The person whose name appears on the certificate is the owner…IN KENYA. 03 Breskvar v Wall (1971) 126 CLR (High Court Aus): Title frm void instrument valid as such forger can trf valid title – title by registration – as such register is title and not cert. APART FROM OVERRIDING INTERESTS MENTIONWD IN THE ACT AND INTERESTS ENDORESED ON THE CERTIFICATE. how the vendor acquired the land.

of Kenya – Civil Appeal No. 2012: Title of bona fide buyer valid despite past irregularities and illegalities – ORIGINAL OWNER’S RECOURSE COMPENSATION AND NOT POSSESSION 10 Deepak Kamani -v. buyer need not deal with registered proprietor – under s 32 of RTA interest passes only upon registration – once registered.under Gibbs case buyer was obliged to deal with registered owner – Gibbs overruled since title upon registration absolute. Njage. buyer need not have to deal with registered owner 13 Gibbs v. therefore.T. Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt. the transfer and charge created by registered proprietors of the land became on registration a valid and effectual instrument’.Kenya Anti. A. Max Towers. (d) Bona fide buyer notwithstanding infirmity of his author’s title.Corruption Commission and others Court of Appeal (152 of 2009): Constitution frowns technicalities to hinder justice being rendered – pleadings be amended than struck off. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. Dobie & Co (K) Ltd v. Joseph Muchina & Another – Civil Appeal 37 of 1998 (Nrb) eKLR: The court should exercise its power to strike out action for lack of cause of action or otherwise very sparingly.Kariuki Thuo[2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. Govt compensates. as a keeper of records guarantees indefeasibility of title against entire world. JJ. A Law Reports Pge 198: Held: At pge 202 para 5: ‘It is clear. title absolute. and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities” 08 D.A).. 11 Dinshaw Byramjee & Sons Ltd v. 09 David Peterson Kiengo & 2 Others -v. Messer (1891) AC 28 or 248 (Privy Council): Propounds concept of Torrens system and indefeasibility – sanctity of title – buyer take title at face value and not concerned about past – title from void instrument valid – buyer entitled to prop and original owner’s right to possession converted to compensation -under Gibbs case buyer obliged to deal with registered owner only – however Gibbs case overruled as confirmed in Frazer v Walker – as title upon registration absolute. May 24 and June 8. 12 Frazer v. 1966): E. registrar ordered . (b) If anyone suffers loss. 25 of 1965 – Court of Appeal at Nairobi (Sir Clement de Lestang. (c) Buyer 06 is not concerned about past irregularities and illegality. Walker (1967) 649 All E. R or 1AC 585 (HC Aus: Title valid despite past irregularities and procedure not followed – confirms Gibbs v. Ag.G. June 8. Tajmal Ltd. 14 Gitwany Invest Ltd v. P. Messer(1891) AC 28 overruled . subject suit only one title – in Gitwany case since both buyer and orig owner innocent and since fraud emanated at Land Title Registry. that whatever irregularities may have occurred in the registration of earlier instruments. Spry and Law. C o L and AG – HCCC 1114 of 2002: whereas Gitwany suit had two records of title.

.A.22(3) of RTA which states that last buyer's title deemed original grant 26 Thomson v.13A of GPA violates citizens right under Article 48 of the Constitution 23 Mutsonga v. .G & 58 HCCC 548 of 1995 – No notice under GPA required to enjoin later on another party in the suit 16 Govindji Popatlal -v. v.23 and s.that is the law’ 18 Iqbal Singh Rai v Marck Lecchini HCC 1054 of 2005 (Nrb): Court erred in depriving bona fide buyer of prop or compensation by following Gibbs v.A.each registered owner in same position as a grantee from the Govt. – EALR pg.E. Australia & Land Law in Uganda: He has written over 15 books on Land Law incl on Uganda – See extracts frm his book – see also correspondence with him by Plaintiff – according to him there are specific exceptions to indefeasibility e. HCCC 504 2008 Nrb [2012) eKLR . Eadie et al.Nathoo Visandjee – Civil Appeal No. despite notice defective.L. 114: Under RTA possession passes with the registration of transfer . s. 41 of 1959 – Court of Appeal Nairobi June 1960 . Civil Appeal 60 of 1997 (27/97 VR): s.1(2). 21 Dr. burden of proof for fraud higher than ordinary civil suit 24 Moya Drift Farm Ltd. High Court Mombasa No: 295/1976 Reported in 1984 page 425 at pge 439 para lines 25-30: To preserve doctrine of indefeasibility.see comments on Gibbs and Walker’s cases herein 19 Prof John Mugambwa – Murdoch University. Nyati Corrum: Kneller J. 23(1) of RTA gives bona fide buyer absolute sanctity of title upon registration 22 Kenya Bus Service Ltd & Another v Minister of Transport A. Theuri Pg.tantamount to buyer not concerned about past irregularities and illegalities. Joel Magu & Registrar (86 of 1999) HCCC Appeal {2005} eKLR: “Bona fide buyer’s title cannot be defeated because of past illegality . to pay Kshs 151 million compensation to buyer and costs of both parties. . Joseph Ng’ok – v – Justice Moijo ole Keiwua & five others C.32 was to override other Acts inc Indian Prop and Evidence Acts etc.” 17 Hannah Wanagui Ithebu & Other v. what would be purpose of indefeasible title if buyer did not have possession 25 Regal Constellation Hotel Ltd..Requirement of notice to Govt under s. suit cannot be dismissed as long as Govt had all the pertinent info and was not prejudiced. fraud but there cannot be general exception as it would entirely defeat the concept of Torrens system of title. 114 – (CA Nrb 13 of 1973) CA 44 of 1972. Messer (1891) AC 28 or 248 (Privy Council) not knowing Gibbs case had been overruled . which is the foundation of Torrens system of registration.this is because.G.“Any other conclusion would violate the general principle of sanctity of title of the register. 15 Gitau & 23 Others v A. Re 2004 CanLII 206 Ontario Court of Appeal: Buyer not concerned about past .g.Howse & MC George Ltd HCCC 2545 of 1993 (Nairobi): Under GPA. 20 Josephat Mureu Gabiguta –v.this is enshrined in s.R (1960) pg 361: Joint effect of. 2006 BCSC 868 at page 21: Buyer's title valid even if original grant from Govt invalid .

so that doctrine of indefeasibility is not undermined. This Article states. that ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. and thirdly. Salpar Singh. 94 of 2005 (Unreported) where the court stated at paragraph 64 that -“The Constitution protects a higher value. 20.G HCCC Nrb Env (480 of 2011) eKLR [2014] consequential losses also payable also payable by registrar for malfesanace at Registry 28 Wreck Motors Enterprises Ltd -v. The court taking its literal or face meaning have been holding bona fide buyer’s title nullity ab initio contrary to the cardinal principle of indefeasibility of title thereby rendering RTA a car with an engine. RTA does not have such provision.23(1) of RTA was indefeasible. 19. 22(3) buyer’s title is deemed as new GRANT thereby extinguishing all past titles and interest. secondly under s.163 of RLA expressly provides that Act is subject to the “common law of England as modified by equity”. NCC & Chemo Ent. Erred also by declaring title nullity by misconstruing Article 40(6) of Constitution: (for detail see 23). a forger can transfer a valid title as explained in detail elsewhere herein. How court has erred in interpreting this Article is explained in detail later on. It also tantamount that buyer is not concerned about the past record. his title under s. 22(1) of RTA assures indefeasibility of title in rem to a buyer. SECTION: 19: KENYA CONSTITUTION – APPLICATION AND PRINCIPLES OF INTERPRETATION – DETAIL EXPOSITION 21. To preserve the doctrine of indefeasibility. CONSTITUTION MERELY SKELETON OR FRAMEWORK OF LAWS – COURT TO PUT FLESH AND SPIRIT TO IT – TO BE INTERPRETED BROADLY AND READ WITH ANCILLARY LAWS – BILL OF RIGHT TO OWN PROPERTY – COURT ERRED HOLDING TITLE UNDER RTA NULLITY AB INITIO UNDER ARTICLE 40(6) – NO SUCH PROVISION IN REPLEALED CONSTITUTION – NO RETROSPECTIVE EFFECT OF CURRENT CONSTITUTION. firstly. s. An example of how court has demolished cardinal principle indefeasibility of title in RTA rendering RTA as a car without an engine: This by misconstruing Article 40(6) of Constitution and declaring RTA nullity ab intio: In the case of Chemei Investments Limited v The Attorney General & Others Nairobi Petition No.e. title from void transfer would be valid i. . as the common law and equity did not apply to RTA. Whereas s. CA 71 of 1997: Two Letter of Allotments were issued – however 2nd allottee was registered and was issued cert who sold it to a bona fide buyer – as 2nd allottee was registered.Com of Lands. the court has held title nullity ab initio based on common law doctrine that seller cannot transfer better title than he has. 22. 25 & 28): While court not realizing that common law and equity did not apply to RTA. Court erred in interpretation of Constitution and declaring title nullity ab initio under Common law and Constitution: 19-A Title nullity under common law: (for detail see 23.27 Virender Gudka & 3 others v A. This is absolutely contrary to the cardinal principle of RTA.

It is indeed bare bone of laws or is like a mere framework of a building. had been wrong in holding title nullity ab initio in respect of illegality prior to current Constitution. where it is demonstrated to a degree higher than the balance of probability that such registration was procured through persons or body which claims and relied on that principle has not himself or itself been part of a cartel which schemed to disregard the applicable law and the public interest. all such instances could be deemed unlawful. As such. The detail exposition on law in respect of retrospective is given herein in section 23(l). This provision indeed is very general.that of integrity and rule of law. Until finishing work is completed. wide and ambiguous. Bill of Rights under the Constitution protecting right of property of citizen. it is barely few pages and therefore cannot spell out or encompass all the detail laws of land. it is absolutely incumbent that provisions of Constitution as explained in detail herein has to be liberally and broadly construed to befit appropriate circumstances. it has to be looked in the context of detail laws that have been promulgated or enacted. Hence to interpret a provision such as Article 40(6). therefore. if application for registration was not signed. Unfortunately court has construed Article 40(6) by taking only the literal meaning of it and instead of declaring the title of actual defrauder nullity also has ruled innocent buyer’s title nullity. or property was undervalued for stamp duty or to expedite registration. since its language is . “not to be convicted for an act or omission that at the time it was committed or omitted was not an offence. These values cannot be side stepped by imposing legal blinders based on indefeasibility.” The repealed Constitution in fact did not have provision such as Article 40(6). a favour was asked of official. that the creation of such title was in accordance with the applicable law and secondly. Also term ‘unlawfully’ is wide. The court. There are degrees of unlawful acts – from a felony to merely spitting in the street. I therefore adopt the sentiments of the court in the case of Milan Kumarn Shah & 2 Others v City Council of Nairobi & Another (Supra) where the Court sated as follows. though frame or structure is a critical part of building. 19-B. and provisions regard to payment of compensation when property is expropriated. namely registration of titles Acts such as RTA and LRA. The constitution leaves on legislature and court to finish the building by putting flesh into the framework. The term ‘acquired’ could imply any transfer – current or past one. Although Constitution is a brief document.” No retrospective effect of Article 40(6) of current constitution: (see for detail section 23(l) herein): Article 50(2)(n) of current Constitution provides that every accused has right. or any owner or only the defrauder. For instance in the case of transfer of property. Court to add flesh and spirit to the bones or laws – provisions of Constitution general and vague: The Article 40 (6) of the Constitution states ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. firstly. This responsibility has been expressly assigned to the legislature and court by filling flesh and spirit to bare bone provision of Constitution. the building cannot be used for occupation. 19-C Constitution merely framework or bare bones – legislature and court to fill it with flesh and spirit: While Constitution is a supreme or paramount document of dogma and law. ‘We hold that the registration of title to land is absolute and indefeasible to the extent..

If court purported to read only literal meaning. to interpret an Article or provision. (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights. but recognized or conferred by law. tractor. (b) revise land use laws in accordance with the principles set out in Article 60 (1). it is critical to look at it in the light of subordinate statute enacted by legislature. allotment. it would be against the spirit of the Constitution and unjust. it is paramount that Article 40(6): ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ has to be read with the provisions of legislations. title. Hence. When it states that each citizen has right to own a property. This Article indeed confirms that the provisions of Constitution are mere bare bones or framework and as provided under Article 259(1). and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land. Hence correct meaning and purpose of a provision of Constitution could only be derived in the light of subordinate legislations. it relies on legislature and court to formulate detail laws within the spirit and parameter that has been laid down based on Article 259(1) which provides that “This Constitution shall be interpreted in a manner that— (a) promotes its purposes.philosophical and broad. The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State. it encompasses all aspects of life for governance of an ideal nation. How broad could a provision be – for instance. (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter”. 19-D. it imposes serious responsibility of ‘DEVELOPING THE LAW” on the shoulder of legislature and court. such as of tenure. just as an analogy. Article 68: “Parliament shall— (a) revise. (ii) to regulate the manner in which any land may be converted from one category to another. bus or car. it is the responsibility of legislature to interpret it broadly and develop laws to add flesh to it. ARTICLE 40(6) APPLIES ONLY TO ACTUAL DEFRAUDER AND NOT TO INNOCENT BUYER: . (2). This confirms the duty of legislature and court to develop the laws. mortgage and lease for legislature to enact. values and principles. Because it is merely a skeleton or framework of laws. The vehicle could mean motorcycle. economic and cultural policies. left to the discretion of legislature and court to designate appropriate vehicle for the purpose. It is therefore. consolidate and rationalize existing land laws. Article 19 of Constitution: “(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social. (c) permits the development of the law”. say it used a term that a vehicle be used for transportation. and the human rights and fundamental freedoms in the Bill of Rights. Hence. (b) advances the rule of law. it leaves rest of ancillary detail. such as registrations of titles Acts about sanctity or indefeasible of title granted to last bona fide buyer which tantamount to that such innocent buyer’s title can never be nullity ab initio because of past illegality. Hence court should not take this duty lightly by merely taking a literal meaning of a provision and depriving innocent owner of his property that Bill of Right has specifically assured him. However. except to the extent that they are inconsistent with this Chapter”.

if property is acquired compulsorily or if owner’s right to it is prejudiced by any provision of the Constitution. Hence title from a void instrument can be valid or a forger can transfer a valid title. Court of Appeal. the High Court has rendered RTA or Torrens system like a car without an engine. not only first registration. As indicated. On the other hand. 163 was subject to common law and equity. To take merely a literal meaning of language of a provision would tantamount to doing injustice. ii. Civil Appeal 60 of 1997 (27/97 Nrb) – In this suit despite past illegality. The Land Registrar Muran’a & Other Civil Appeal No. under RTA and LRA past irregularity or illegality do not affect last buyer’s title.19-E What to be taken into account in interpreting a law: The Article 20(3)(b) states “Adopt the interpretation that most favors the enforcement of a right or fundamental freedom”. Dr. since equity and common law also applied to RTA. the title of last bona fide was held indefeasible. as RTA and LRA do not have provision such as s. To that end. By extricating this main component. while s. it is absolutely incumbent that provisions. it is absolutely critical to take into account the detail laws promulgated or enacted under it. Justice Moijo Ole Keiwua and Others. 23(1) of RTA. 23(1) assuring indefeasible or absolute title to a bona fide buyer. Unfortunately. The ruling stated. It implies that legislature and court to use their wisdom and discretion to achieve objective of Constitution. despite this decision of superior Court of Appeal. namely. 163 of RLA. 22(3) of RTA should be born in mind which declares last registered owner’s title as a fresh or new grant thereby extinguishing all previous titles and interest. they override common law and equity and therefore. other registrations could be defeasible or are not indefeasible. In Hannah Wangui Ithebu & Other v Joel Nguigi Magu. As RLA under s. the citizen has to be compensated or appropriate relief is to be given. though recent cases have begun to recognize the principles of Torrens sytstem: i. In declaring title nullity ab initio. such as s. unlike RLA. 86 of 1999 – [2005] eKLR High Court at Nairobi: Justice Visram unequivocally reaffirmed the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC Appeal No. Despite of such a clear cut ruling of superior Court of Appeal in the following two cases confirming that upon registration. since Constitution is merely a skeleton or frame of laws. concept of indefeasibility of title which makes title absolute in rem. it had been declaring title of last bon fide buyer nullity ab initio for past illegality or irregularity based on seller cannot vest better title than he had. foremost of all the intention of legislature and purpose of law should be taken into account. High court incorrectly applying common law doctrine. but all subsequent ones are also indefeasible or absolute. last bona fide buyer had indefeasible title in rem despite past illegality. Joseph Ng’ok v. to understand true meaning of a provision. Full detail of Hannah’s case is given elsewhere herein. The purpose is absolutely clear as Bill of Rights provides right to own the property by a citizen and also impliedly protection of title be assured. 185 of 199 that despite past illegality title of a last bona fide buyer was indefeasible under s. the High court had been erroneously holding that. This is because those equitable interest and rights that are not registered are also recognized. In construing a law. have been declaring titles of bona fide buyer nullity under RTA. and therefore title can never ever be nullity ab initio as far as last bona fide buyer is concerned. Based on this. “Section 23(1) of the . except for the first registration.

he is not concerned about the past irregularities and illegalities. 2012): In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. the register was inaccurate by reason of malfeasance by land officials. Following are recent cases affirming doctrines of Torrens system. iii. and (e) The burden of proof of fraud was on who alleges it and standard of proof was more than a mere balance of probabilities”. It is our law and law takes precedence over all other alleged equitable rights of title. If.Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. (b) advances the rule of law. (b) If anyone suffers loss. and the human rights and fundamental freedoms in the Bill of Rights. as it turned out. values and principles. “They were not obligated to do anything more than search the official register to establish ownership. a. It was stated. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): In this recent case the Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt. Such is the sanctity of title bestowed upon the title holder under the Act. acquires indefeasible title – ‘called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. as a keeper of records guarantees indefeasibility of title against entire world. and (d) contributes to good governance. therefore. …(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and. Specific provisions of Constitution with regard to interpretation: 19-F Interpretation – Article 259 of Constitution: “(1) This Constitution shall be interpreted in a manner that: (a) promotes its purposes. (c) Buyer is not concerned about past irregularities and illegality. Recent cases recognizing concept of Torrens system: I it is a relief that at last courts have begun to understand and apply the doctrines of Torrens system. Govt compensates.DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July. (d) Bona fide buyer notwithstanding infirmity of his author’s title. and as such (ii) buyer entitled to the property and original owner fair market compensation like in compulsory acquisition. Act gives an absolute and indefeasible title to the owner of the property. otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy”. in particular the concepts of – (i) as buyer takes the title at the face value. the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property b. (c) permits the development of the law. In fact the Act is meant to give such sanctity of title. among other things—“ Article 20(3) (b) “adopt the interpretation that most favors the enforcement of a right or . The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.

liberally and purposely or teleologically to give effect to those values and principles.’(In the words of the court. Dr. i. among other issues.” On her part. Vol 1 p 1. the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation in Kenya:” By Ongoya Z. that a Constitution is a living piece of legislation. In this judgment I shall proceed to apply the rule of construction of the Constitution of Kenya in a broad and liberal manner. Following are excerpts from an article published in Kenya Law Reports: “The Law. therefore.. lady justice Kasango J held “I therefore reject the contention that the Constitution of Kenya is to be construed in the same way as any other legislative enactment.e. the questions of Constitutional interpretation. Timothy Njoya and 6 others Vs the Attorney General and 4 Others [2004] 1 KLR 232. “Constitutional provisions must be read to give effect to the values and aspirations of the people. it is a living instrument with a soul and consciousness. Broad and Liberal Interpretation: In the case of Crispus Karanja Njogu Vs Attorney General Nairobi.” Similarly. … those to my mind are the values and principles of the Constitution to which a court must constantly fix its eyes when interpreting the Constitution. 2004. (2008) 2 KLR (EP) 624 the three judges each considered the issue of the proper approach to Constitutional interpretation separately. In the case of Rev. Ringera J (as he then was) held that: “The Constitution is not an Act of Parliament and is not to be interpreted as one.fundamental freedom”… 20(4)(b). Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation. Promote the spirit. High Court Criminal Application No 39 of 2000 in which the court held the view that Constitutional provisions ought to be interpreted broadly or liberally ‘and not in a pedantic way i. members of the tribunal of inquiry established to investigate the conduct of puisne judges in matter number 1 of 2004 had occasion to make a ruling raising. In their ruling. nonetheless. Elisha 2008: (Article’s excerpts attached) 19-G Interpretation of Constitution: When courts decide Constitutional cases. restrictive way..” It is. It is a living document. they do more than interpret a statute. G. The court must appreciate throughout that the Constitution. of necessity has principles and values embodied in it. We will interpret the Constitution in a liberal and broad manner within the precincts of common sense and the object of the particular section”) ii. the Constitution is vague or imprecise or has glaring lacunae and the courts are called upon to provide the unwritten part. It is the supreme law of the land. purport and objects of the Bill of Rights”. be different from those in case of an Act of Parliament. East African Law Journal. apparent that the majority judgment in this case accepted the liberal approach as the proper approach to Constitutional interpretation. it embodies certain fundamental values and principles and must be construed broadly. Although this judgment in many other .”(Muigai. tribunal members opined that “rules of interpretation in case of a Constitution which is not an Act of Parliament may. The Constitution is a charter containing the pact that is the “social contract” At times.

i. In the case of homographs. in a strict sense. strictly literal interpretations of statutes can lead to logically deduce absurdities. in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions. However. Circumstances of use: Although it points to a kind of middle ground between the plain meaning (or literal) rule and the mischief rule. there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. Doctrine of Absurdity: In law. the court also needs to heed to s. or British rule: Is a form of statutory construction traditionally applied by English courts. where a word can have more than one meaning. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819.” The golden rule allows a judge to depart from a word’s normal meaning in order to avoid an absurd result. Chung Fook v. (2008) 3 KLR (EP) 325) Principles of interpretation – Excerpts from Wikipedia Encyclopedia: 19-H Statutory interpretation is the process by which courts interpret and apply legislation. iii. legislative history. but applying this would lead to a bad decision. But in many cases. also known as “Scrivner’s Error”. the golden rule is not. Sometimes the words of a statute have a plain and straightforward meaning. if the word only has one meaning. respects has received mixed reactions from the Kenyan public. Like the plain meaning rule. ordinary meaning. The Absurdity doctrine is a doctrine in legal theory. To find the meanings of statutes. judges use various tools and methods of statutory interpretation. a compromise between them. The other two are the “plain meaning rule” (also known as the “literal rule”) and the “mischief rule. 264 U. Some amount of interpretation is always necessary when a case involves a statute. rather than literal reading of a law or of original intent. ii. including traditional canons of statutory interpretation. the judge can apply a completely different meaning. Golden rule. the golden rule dictates that a judge can depart from this meaning. 443 (1924). the judge can choose the preferred meaning. Court to add flesh and spirit to the bones or law: The High Court has added further support to this position by the dictum that: The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. and purpose. when this may lead to an irrational result that is unlikely to be the legislature’s intention. iii. It was significant in that it marked the end of the era of strict plain meaning interpretation of statutes and the beginning of the looser American Rule that the intent of the law was more important than its text. was a landmark Supreme Court case. It is contrasted with.1(2) of . the foregoing restatements served as a departure from the so-called Elman doctrine.S. White. 19-I RTA and LRA overrides other Acts: Apart from taking into account these factors in construing meaning of Article 40(6). the golden rule gives the words of a statute their plain. and the Doctrine of Absurdity is that commonsense interpretations should be used in such cases.

What it means is that. As the legislature has enacted RTA in compliance with the spirit to develop detail laws. “Except so far as is expressly enacted to the contrary. This is a special type of compensation in addition to normal common law under the negligence. to aid in the interpretation of its provision such as Article 40(6). PRIME OBJECTIVE OF CONSTITUTION. it would defeat the cardinal principle of “sanctity of title” or “conclusiveness of title”. it is incumbent on the court to take notice of provisions of RTA. which is enacted with the blessing of Constitution. RTA AND LRA IS TO PROTECT PROPERTY RIGHTS OF CITIZENS. and (b) in part of Kenya”. the obvious and most logical interpretation of Article 40(6) is that. has detail laws for registration of titles. every person has the right. This is why the legislature who had to formulate detail laws have enacted RTA to govern the registration of titles and have specifically provided therein. To that end.RTA which states. whether freehold or leasehold which is under the operation of this Act”. offering him protection of title. to acquire and own property— (a) of any description. and while assuring indefeasibility of title to the last bona fide buyer. if a provision of any Act is repugnant to RTA. unless it itself expressly refers to the RTA. it is respectfully submitted that the obvious and logical interpretation of “unlawfully acquired” in the Article 40(6) means the actual defrauder and not the innocent buyer. The RTA. if title was subject to others laws. Although the Constitution is supreme. The same concept or principle has been carried forward into new LRA. it applies only to actual defrauder and not innocent buyer. the provision of RTA would prevail over that Act. the supreme authority. 24 pay FULL COMPENSATION to the owner who is deprived of his property. however. in compliance with the spirit of Constitution also obliges the Government to under s. The Article 84 (6) of old Constitution (still applicable) in this respect re-affirms original power of High Court to give relief to those who are prejudiced by the provision of the Constitution. no Act in so far as it is inconsistent with this Act shall apply or be deemed to apply to land. the citizen has to be compensated or appropriate relief be given. either individually or in association with others. if property is acquired compulsorily or if owner’s right to it is prejudiced by any provision of the Constitution. Article 40(1) states “Subject to Article 65. 19-J Right to own property and protection of title: The Bill of Rights under Article 40(1) expressly provides citizen’s right to own property and thereby impliedly also protection of title or ownership. This provision makes RTA override all other Acts because. concept of indefeasible or absolute title to the last registered owner. Hence. In view of above. the provisions of RTA becomes very much relevant or helpful and ought to be taken into account. This is particularly when harm to the innocent buyer is due to the negligence of officials at the Land Registry and buyer having relied on the statute (RTA) promulgated by Parliament with the blessing of the Constitution. . Since the prime objective of both the Constitution and also RTA is to ensure that innocent buyer’s right is not prejudiced. This is because Article 40(6) do not expressly refer to RTA to override it. it would be gross injustice to give a narrow or literal interpretation to the Article 40(6) ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ and deprive a bona fide buyer of his property without any compensation or relief.

the Constitution under Article 84 of old Constitution reaffirms original power High court to grant relief to such citizen.” When anything is taken away from an individual citizen or his right is prejudiced in the interest of public at large. For an act or omission to be charged and tried as a crime. It cannot not apply to past transaction because previous repealedConstitution did not have this or such provision and also because provisions of current Constitution does apply retrospectively: . No retrospective effect of Article 40(6) of current Constitution: This Article cannot apply to past events and transactions: It states. In JAMES NYAGA V. This Article is carried forward in the new Constitution. It enjoins the State from punishing an act or omission. it awarded compensation to the bona fide buyer for his loss. A. “…Are the Applicants entitled to the remedies sought? Under s 84 of the of Constitution (still valid). Since all citizens would have benefitted. the court has inherent and unfettered jurisdiction to grant remedies available to ensure that the ends of justice are met. Article 19 of new Constitution provides that “ Until the Chief Justice makes the rules contemplated by Article 22. This principle is set forth in Article 50(2)(n) of the Constitution. It stated. adaptations.G MISC CIVIL 1732 OF 2004 (Nrb Law Courts [2007] eKLR: court declared bona fide buyer’s title nullity ab initio (it is submitted court erred in this respect) under Article 75 old Constitution (Article 40(6) new Constitution). “‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ cannot apply retrospectively as previous Constitution did not have such provision. the court will endeavour to balance the interests of the Applicants as against those of the general public… 19-L NO RESTROSPECTIVE EFFECT OF ARTICLE 40(6) of 2010 new Constitution which states.19-K Constitutional right for compensation: To protect interest of a citizen who is adversely affected by the provisions of Constitution. which was not an offence under Kenyan Law or International laws at the time of the commission or omission. the Constitution specifically provides that such individual be compensated as in the case of compulsory acquisition. In doing so. the prosecution must be prepared to present evidence proving the existence of each of the elements of the crime. it would be unfair that one individual takes the entire brunt. the Rules for the enforcement of the fundamental rights and freedoms under section 84 (6) of the former Constitution shall continue in force with the alterations. in pursuance of Article 84(6) old Constitution (still valid). to preserve the spirit of Constitution in protecting rights of innocent citizens. ii. “‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. qualifications and exceptions as may be necessary to bring them into conformity with Article 22. i. Generally no retrospective effect of current 2010 Constitution: The principle of legality affords to the accused person the right to be tried and punished only in accordance with an existing law. However. Acts or omissions that constitute crimes in Kenya are defined in the Penal Code.

iv. A Constitution looks forward and backward. in quest of its legitimate object of rendering political goods. “The general rule for non-criminal legislation was that all statutes other than those which were merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective. International law against retrospective application of law: This is because it would be a serious infringement of human rights. …… A Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. (o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been ether acquitted or convicted”. and do not contain even a whiff of retrospectively. at the time when it was committed. v.iii. it appears that this was the intention of the legislature. after the commission of the offence. provision is made by law for the imposition of a lighter penalty. Protocol II to the 1949 Geneva Conventions. a Constitution may and does embody retrospective provisions. and retrospective effect is not to be given to them unless. Supreme Court case – Constitution no retrospective effect: Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd and 2 Others – Application No. In this way. in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions. or (ii) a crime under international law. if. under the law. eKLR [2012]: It states. However. “not to be convicted for an act or omission that at the time it was committed or omitted was not – (i) an offence in Kenya. or provisions with retrospective ingredients. vertically and horizontally. Act has to be an offence at the time: Article 50(2)(n) Constitution provides that every accused has right. by express words or necessary implication. a Court of law must pay due regard to the language of the Constitution. “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence. If the words used in a particular provision are forward-looking. the Court ought not to import it into the language of the Constitution. article 6(2)(c)(1977) states. Such caution is still more necessary if the importation of retrospectively would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution. the offender shall benefit thereby . Nairobi. 20f 2011 Supreme Court of Kenya. as it seeks to re-engineer the social order. nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed.