PROPERTY LAW

CAT 2

GROUP 8

GROUP MEMBERS

1.Faith Ndubai- Law/mg/2877/09/21

2.Mwiti Ryan- law/m/1234/09/21
3. Wendy Musonye - Law/ m/0945/09/21
4. Rita Butitt- Law/m/1292/09/21
5. Victor Kuria- law/mg/2313/09/21
6. Joy Chebet- Law/m/3073/09/21
7. Ruth Jebet Kiplagat - Law/m/1096/09/21
8.Gracious Wabwoba- LAW/M/1383/09/21.
9. Esther Mwikali Somba - LAW/M/1238/09/21
10. Rasoo Mwari Chigumba - LAW/MG/2091/09/21
 Using case law, examples, and the principles of Land registration, critically elaborate on the
land registration process in Kenya, beginning from searches of parcels of land, evaluating the
benefits of technological advancements in the process, and finally the issuance of a title deed
among other documents upon finalization

Introduction

The land registration process in Kenya is a crucial aspect of land administration and
management. The process involves several stages, starting from searches of parcels of land, and
concluding with the issuance of a title deed as one of the relevant documents.1

Registration of land can be described as a process where rights or interests in land can be
ascertained through providing information regarding the quantum of rights in land and the
transferability of the same in the production and exchange process.2 It has the effect where once
done it passes interest to the one who has registered. Moreover, it aids in asserting the fact that
land is a commodity and can be passed from one person to another person and provides an
opportunity for information regarding pieces of land to be taken and stored.3

The system used for land registration in Kenya is known as the Torrens System. 4 This system
provides new and improved information about a piece of land. This is because, during
registration, information about the land is taken down and updated once the land passes from one
person to another. There are four guiding principles of this system, which are applied during
registration. The said principles are; the mirror principle, indefeasibility, curtain principle, and
the insurance principle.5

1
‘Guidebook on Procedures and Processes of Land Administration in Kenya’, Ronald Matende.
2
‘Guidebook on Procedures and Processes of Land Administration in Kenya’, Ronald Matende.

3
Ibid.
4
‘Land Registration: A review of Rationale, Mechanics and Typologies’, Ronald Matende.

5
‘The Torrens System’, History Digitized.
However, normally before transactions and registration, the prospective proprietor conducts due
diligence on the piece of land to ascertain information about the land, including but not limited,
to the existence of the land and its owners. 6 One of the ways that due diligence is conducted is
through land searches. Searches are made possible by the mirror principle, and by the fact that
the register is open to the public.

The prospective owner, being satisfied with the information attained, would follow the procedure
of purchase of land and apply to the registrar of land who will issue a document of title to the
owner upon such property changing hands. The document of title in respect of property would be
provided to the new proprietor and the register would be updated to reflect the change of
ownership among other things.

Admittedly, technological advancements have been very vital in the undertaking of the
registration process of land in Kenya, due to the many benefits attributed to it. 7 Take, for
instance, the adoption of Geographic Information System (GIS) technology, which has made it
easier to map and digitize land records. Moreover, online platforms and databases such as Ardhi
Sasa allow stakeholders to access information remotely, reducing the time and resources required
for manual searches.

Some of the benefits accruing to it include; an increase in efficiency as the technology

streamlines the land registration process, reducing paperwork and manual errors. There is also,
transparency as the online platforms provide easy access to land records. This helps in reducing
corruption and ensuring a fair and accountable land registration process. Finally, the GIS
technology ensures accurate mapping of land parcels, minimizing boundary disputes and
providing precise information on land attributes.

The land registration process entails:

Obtaining a legal search of the property- the required documents to carry out an official
search are a copy of the title, a copy of the National Identity card of the seller and buyer. The
6
‘Guide to Buying Property in Kenya’, Knight Frank.
7
‘From Manual to Digital; Digitization of Land Records in Kenya’, Winny Mutinda.
search is done at the applicable lands office . The two are required to fill the required land search
form and pay the search fee. This process takes roughly two to three days.

Simply, a land search is the process of searching for specific information regarding a given plot
of land or property. It entails making a methodical and planned effort to find information that
might not be immediately obvious or easily accessible. Prior to making any decisions on the
purchase, development, or use of land, this procedure is essential.

Land Search involves the process of searching and determining the history and the actual legal
land owner. It is very crucial for any person (whether natural or juridical to determine the history
and former or current legal owner of the land as registered by the Land Registry before
purchasing the proposed land. The Environment and Land Court in the 2019 case National Land
Commission v Afrison Export Import Limited & 10 others

Facts: On the one hand, the copy of the search that the applicant (NLC) presented revealed that,
as of January 19, 2018, L.R. No. 7879/4 had no encumbrances and was registered in the names
of the first and second interested parties, respectively, Afrison Export and Import limited and
Huelands limited. However, as of July 8, 2018, the search presented by the First and Second
Interested Parties indicated that they were the registered owners and that, in favor of the 11th
Interested Party (Patrick Thoithi Kanyuira), KPTC, there were two undischarged mortgages
recorded against the title.

The two searches were conducted in the same year, pertaining to the same parcel of land and
coming from the same registration. It seems unfathomable that a search conducted in January of
2018 would reveal no encumbrances, but a search conducted in August of the same year reveals
two mortgages with dates of 11/7/1986 and 29/12/1981, respectively. The two contradicting
searches demonstrate how a search can be conducted and the records kept at the Lands Registry
modified to achieve specific goals, most of which are meant to mislead individuals who depend
on the search to conduct transactions on the subject land.8

The Environment and Land Court under paragraph 182 of its judgement stated that,

8
Victor Wanjohi, Why is it important to do a Historical Land Registry Search in Kenya [2023].
“A search on any title at the land registry is very important before one can act on it. The search
indicates the owner(s) of a particular property and any encumbrances or other relevant entries
registered against that land. Once a search is issued by the Lands Office, it should be conclusive
evidence of proprietorship in light of the fact that our title registration system is based on the
Torrens System of registration. However, a search may not always be a true reflection of the
position as will be demonstrated below where two searches carried out in the same year showed
different results...”

Further, the Court held that a mere land search is not enough and the prospective buyer should
authenticate the land by conducting a historical search. Given the inherent risk associated with
the Torrens mechanism of registration-based search mechanism, further actions must be taken to
confirm the legitimacy of the search and property ownership.

A land search helps to ascertain the following: history of land ownership, actual size of the land,
location of the land, the validity or existence of the title deed and property clearance (any legal
documentation or tax involved).

The Land Registration Act provides that any person who requires an official search in respect of
any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified
copies of any document, the cadastral map, or plan filed in the registry upon payment of the
prescribed fee.

A normal search can be done online via the eCitizen Portal, while for a historical search, one has
to go to the Land Registry where that land is registered.

A search is conducted through the following ways:

1. An online search through the eCitizen portal or;

2. Manually at the local Ministry of Lands office at the County level.

Online Land Search

It can be done through a smartphone or a laptop. The following are the steps to be taken:
1. Log into the https://ardhisasa.lands.go.ke/home if you have an account and if you don’t
have one you can create an account.
2. Click on the Ministry of Land and Physical Planning and select the Land Search option.
3. Fill in the title number and complete the online land search form. The online search form
on the website is illustrated below;
4. Confirm that all the details are correct, then submit the form.
5. Proceed to pay with the available payment methods you prefer e.g debit card, mpesa
6. Once the payment is confirmed, the applicant can proceed to print the results. If you
choose not to, the information will always be available on the portal whenever you log in.
Manual land search
It is the accepted method of carrying out a land search prior to the introduction of technology
that allows the search to be done online. First, the applicant will go to the county where the land
is located and find the local land registry.

The Applicant must have a physical copy of:

1. Deed of Title

2. Document with Seller's KRA Pin Number

3. The National ID of the seller

The applicant should then pick up a Land Search Form (form RL 26) and fill it out. He should
make sure to attach a copy of the KRA Pin, National ID, and land title.

Once the search is in place, the next procedure is the transfer process. The documents involved
in this stage include: An agreement of sale and transfer documents. The transfer documents
include:
 The original certificate of title or lease if applicable for the property.
 Consent to transfer.
  Land rent clearance certificate from the relevant County Authority
 The transfer instrument, duly executed by the seller
 Certified copies of the sellers I.D and PIN certificates
 An affidavit of spousal consent to sell by the seller’s spouse or an affidavit by the seller
stating that no spousal consent is relevant for the transaction.

The next step is the payment of stamp duty. Stamp duty is payable according to the stamp
duty act. . This stage has two stages assessment and valuation stage and the actual payment. The
following documents are key in the assessment and valuation stage.

 The application form for valuation.

 A copy of the official land search
 The executed transfer document.
 A certified copy of the deed plan/ route sketch /site map
 The buyer and seller's passport pictures.

After valuation a report known as valuation report is given by the valuator. This paves way for
payment of stamp duty where the report is attached to the above listed documents and one pays
the stamp duty. After this one then proceeds to land registration where he or she is required to
present the following documents;

1. The transfer document in three copies

2. The official search certificate.
3. Consent to transfer from the Land Control Board or Commissiooner of Lands.
4. A Land Rent Clearance Certificate. Used to show that all outstanding land rents have
paid.
5. A Land Rates Clearance Certificate. Used to show that all land rates have been paid.
This is usually obtained from the county government lands office.
6. Certified copies of the I.Ds and PIN Certificates, together with passport pictures.
7. Spousal Consent where applicable.
upon successful registration one the purchaser receives a certified title deed and a registered
transfer form. A person is issued with a title deed after he or she has completed all the necessary
requirements including payment of certain fees. It is then important to note that issuance of a title
deed is the last step when it comes to land registration process. One is required to pay 500
shillings for registration. Once the registration is successful one obtains an original title deed
after 2 weeks, registered transfer forms and pay in slip of stamp duty.

In the Matter of the National Land Commission [2015] eKLR the Court stated that the
relevant provisions of land registration are provided under Part II of the Land Registration Act.
The process of registration is undertaken by various agencies, starting with the NLC, establishing
the registration units; and culminating with the Registrar, registering the title documents.

In the case of Hubert L Martin and 2 others vs Margaret J Kamar and 5 others (2016)
eKLR. The Court held that when faced with a case of two or more titles over the same land has
to make an investigation so that it can be discovered which of the two titles should be upheld.
This investigation must start at the root of the title and follow all processes and procedures that
brought forth the two titles at hand. It follows that the title that is to be upheld is that which
conformed to procedure and can properly trace its root without a break in the chain.

The case law stated above explains the importance of following all the processes and procedures
involved in the land registration process.

Title deed

A Title deed is a document that proves ownership and legal rights over a piece of land. It
contains important information about the land such as the size, names of owners, location,
boundaries et cetera. It is issued by the Ministry of Lands and registered at the Land registry.

Section 24 of the Land Registration Act states that

(a) The registration of a person as the proprietor of land shall vest in that person the absolute
ownership of that land together with all rights and privileges belonging or appurtenant thereto;
and

(b) The registration of a person as the proprietor of a lease shall vest in that person the
leasehold interest described in the lease, together with all implied and expressed rights and
privileges belonging or appurtenant thereto and subject to all implied or expressed agreements,
liabilities or incidents of the lease

Section 26 of the Land Registration Act also states that certificate of title is conclusive proof of
proprietorship. In the case of Harrison Kiambuthi Wanjiru & another v District Land
Registrar Nairobi & 3 others [2022] eKLR, the courts held that the action of the first
defendants to cancel the title of the plaintiff was ultra vires however the second and third
defendants were bonafide purchasers.

There are three types of title deed namely; Freehold, Leasehold and Sectional title deeds. Under
the Land Registration Act they are consolidated under certificate of title that is section 30 of the
Act.9

An application for certificate of title is governed by The Land Registration (Forms) Regulations
under section 30 which states that:

1)A person who has an interest in land for which a certificate of lease or a certificate of title is to
be issued may apply to the Registrar for the certificate in Form LRA 19 set out in the Sixth
Schedule.

(2) An applicant under paragraph (1) shall pay the prescribed fees.

(3) The application under paragraph (1) shall be accompanied by—

(a)all instruments evidencing ownership in respect of the land or interest in land which are in
possession of the proprietor except any document which is already in possession of the registry
pursuant to an ongoing transaction; and
9
Land Registration Act, Cap 300, section 30.
(b)an official search in respect of the land or interest in land issued within the preceding thirty
days.

(4) Upon Compliance with paragraphs (1), (2) and (3), the Registrar shall issue a certificate of
lease or a certificate of title, whichever is applicable.10

Benefits of technological advancement in the registration process

An example of a technological advancement in the land registration process is Ardhisasa. The

National Land Information System also called Ardhisasa, was launched in the year 2021, it offers
many services among them; land registration, registration of transfers and charges, land
administration e.g., payment of land rent, physical planning applications, valuation, survey and
mapping.

Following its launch, the use of Ardhisasa was rolled out in the Nairobi Registry, and it has been
overseeing transactions carried out on the land in Nairobi.One is required to have an individual
or corporate account to transact on ardhisasa.

One is to provide during registration:

i. identification and contact details (personal email address and official mobile number) which
details must be current. Identification details provided by individuals and companies must
tally with the details in the Integrated Population Registration System (IPRS) and the
Business Registration Service (BRS) respectively as the systems are interlinked.

Once an account is created, one is required to upload details of their property for verification
which process entails an audit of the manual records for a specific parcel and confirmation of its
veracity. It is only upon completion of verification that one can transact online through
Ardhisasa.
The launch of Ardhisasa comes amidst other digitization processes such as;

10
Land Registration (Forms) Regulations, No 3 of 2012, section 30.
 i) conversion of titles issued under the repealed land laws to titles that conform to current land
laws; and
ii) conversion of long-term leases for developments to sectional titles under the Sectional
Properties Act, 2020

Setting up a foundation of electronic land registration by the Ministry of Lands and physical
planning through the different digitalized platforms has provided benefits that have also
addressed the challenges posed by the manual registration process. This includes:

1. Speed up the process

Unlike the manual system, where one had to visit the registrar in person, the E e-citizen portal
has allowed one to do this in the comfort of their home as the requirements are just a device and
internet for the registration process.
Transactions can be completed faster by use of electronic fund transfer (EFT) which enables a
secure and swift transfer of funds thus benefiting both landowners and government agencies.

2. Reduced corruption
There was a lot of corruption ongoing with the manual process where people were impersonated
to be agents of the registrar which led to many people getting scammed. The technological
advancement made by online platforms has allowed one to do the registration process unaided as
it is a simple procedure to complete the whole registration process.

3. Transparency
The electronic Cadastral system has promoted transparency where it has provided information on
land ownership, use, and value of a particular land. It provides crucial economic, social, and
environmental conditions for the land. The system has helped to reduce fiduciary acts that were
committed in the manual registration process.

4. Cost saving
Automation reduces administrative costs associated with manual processes. Citizens save time
and money by avoiding unnecessary visits to land offices. This has benefitted foreigners by
reducing the cost that they may sustain while traveling to register land.

5.Enhanced security.
Digital records are less susceptible to loss and damage compared to paper based documents.
For example one is able to avoid the instance of tear and wear since the paper based mechanisms
oftenly experience this issue.

6. Eco friendly or Eco conscious.

Technology promotes less paperwork hence reducing environmental impact.
When we opt for technological practices we are able to avoid environmental degradation hence
this approach is deemed suitable.

7. Geospatial technology.
The GIS(Geographic Information Systems) and satellite imagery aid in precise land mapping.
Therefore this gives accurate description or representation of boundaries, land sizes and
topographical features to avoid future land disputes.

8. Cloud based collaboration tools.

By using online platforms, the real estate agents, buyers and sellers can collaborate seamlessly
using cloud based platforms.
This means that all documents, information and any other relevant piece of property can be
shared between parties hence promoting efficiency between them.

The following principles should also be adhered to in the land registration process:

1.Mirror Principle- The register should reflect all matters that the property has the benefit of and
all the matters that the property is subject to, it should be aclear and comprehensive account of
the ownership and rights that benefit and burden a piece of land. The idea being that a purchaser
should only need to look at the register of title to understand who owns a property and what third
party rights will bind the property

2. Insurance Principle –This has to do with the state's commitment to setting up and maintaining
this kind of system, which implies that the state also guarantees that indemnity will be provided
to compensate anyone who may suffer loss due to errors in the register or simply from running
the system itself. This means that in the event of injury or damage resulting from such
circumstances, there will be a state-run system that will compensate any person who suffers loss
to the extent of such loss.

3. Indefeasibility - This means that once an interest has been properly revealed or registered in
the register, the owner's rights cannot be revoked by any adverse claims that are not stated in the
register. Everyone will be assumed to be aware of the register because it is a public record that is
available for public view. Findings of significant information that could have an impact on an
individual can occur, and it is good public policy that transparency enables you to be aware of
any conflicting interests before moving forward with a transaction and request clarification.
Once we have all of these assurances, we shouldn't let them be undermined by any hidden claims
and the registers should be open for any one to see. The idea of public notice provided for by
keeping a Policy of an open register should work towards strengthening the rights of an
individual with an interest.

4. Curtain Principle – this relates to the requirement that the register should disclose precisely the
nature of the interests and who are the owners. There should be no position of where one holds
interests in a hidden way and all trusts should not be kept in the register and where for instance
land is registered on a trust it would be a requirement that such land should not be held blindly
under such a trust and must be registered in the names of specific persons and subject to
appropriate restrictions the names of the owners being registered
Figure 1 letter of consent on freehold land
Figure 2. a land rent clearance certificate
Figure 3 Land Rates clearance Certificate
 REPUBLIC OF KENYA IN THE MATTER OF THE OATHS AND STATUTORY
DECLARATIONS ACT, CAP 15 LAWS OF KENYA

AFFIDAVIT OF NEGATION OF SPOUSAL CONSENT

I, [.] of National ID or Passport Number [.] and of Post Office Box Number [.] in the Republic of Kenya
make oath and state as follows: -

(1) THAT I am an adult female or male of sound mind hence competent to swear this Affidavit.

(2) THAT I am the sole spouse of [.] who is the registered proprietor of ALL THAT property known
as [.] (the “Property”).

(3) THAT I am aware that my spouse, the said [.] is in the process of transferring the Property to [.]

(4) THAT I make this affidavit/statutory declaration to state and confirm that the Property is not
part of our matrimonial property.

(5) THAT I further swear this Affidavit/Statutory Declaration to dispense with the requirement for
spousal consent for purposes of transferring the Property.

(6) THAT I swear/declare this Affidavit/Statutory Declaration conscientiously believing the same to
be true to the best of my personal knowledge and belief and in accordance with the Oaths and
Statutory Declarations Act, Cap 15 Laws of Kenya.

Sworn by the said, ]

………………………………………. ]

] _____________________________

at Nairobi this _____ day of ____ 20 __ ]

]
Before me: ]

Commissioner of Oaths ]

Certificate of Attestation

I, …………………………………………, a duly appointed Commissioner for Oaths CERTIFY that

the above-named deponent appeared before me on the ……………. day of

……………..………………,20…. and (being known to me/being identified

by ………………………………………….) acknowledged the above signature or mark to be hers
and that she had freely and voluntarily executed this instrument and understood its contents.

………………………………….………………..

Commissioner for Oaths

Drawn By:- Gikera & Vadgama Advocates

56 Muthithi Road

Behind TRV Office Plaza

Westlands

NAIROBI

IN THE MATTER OF THE LAND ACT, No. 6 of 2012

 IN THE MATTER OF THE LAND REGISTRATION ACT, No. 3 of 2012 AFFIDAVIT OF
CONSENT OF SPOUSE

I, Bazu Wabazuu of Postal Office Box ABC Nyeri Postal Code 10100 in the Republic of Kenya

DO HEREBY make oath and state as follows:-

1. THAT I am a female of sound mind and holder of Identity Number 1234567.

2. THAT I am the spouse of Pesa Mingi who is the transferor herein.
3. THAT the transferor has not used any compulsion or threat or exercised undue influence on me to
induce me to execute this affidavit of consent.
4. THAT I acknowledge that I have been advised to take and have taken independent legal advice
regarding the nature, remedies and effect of this transfer.
5. THAT I understand the nature and effect of this transfer and hereby give my full consent to the
registration of this transfer
6. THAT I make this Affidavit pursuant to the provisions of the Land Act, 2012 and the Land Registration
Act, 2012.
7. THAT the facts deponed to herein are all true.

SWORN at NYERI ]

on this……………day of 2020 ]

by the said Bazu Wabazuu ] ________________________________

BEFORE ME ] Bazu Wabazuu

COMMISSIONER FOR OATHS ]

I …………………………………………, a duly appointed Commissioner for Oaths CERTIFY that the above-
named deponent appeared before me on the ……………. day of …………………… 20 and (being known to
me/being identified

by ………………………………………….) acknowledged the above signature or mark to be his/hers and that

he/she had freely and voluntarily executed this instrument and understood its contents.
…………………………………………………..

Commissioner for Oaths’ signature