LAND REGISTRATION SYSTEMS IN

KENYA
L AW O F P R O P E RT Y I N L A N D - L E C T U R E 3
E . M U LWA
 OBJECTIVES

We shall go through the following:

1. What is registration?
2. Advantages of registration
3. Torrens System and principles of registration
4. Registration Systems
 LAND REGISTRATION

• Land registration generally describes systems by which matters concerning

ownership, possession or other rights in land can be recorded (usually with a
government agency or department) to provide evidence of title, facilitate transactions
and to prevent unlawful disposal.
• The purpose of registration is to record property rights and interest in land making it
possible to ascertain those rights and interests.
 INTRO CONT

• Registration of the process through which interests in land are recorded so as to

facilitate the ascertainment and it makes effective any intended dealings or
transactions in relation to property and once duly carried out registration has the
effect of passing an interest in land in favour of the person so registered.
• Because of those virtues, registration has been identified with two main functions
that of serving as a documentary manifestation of land as a commodity making it a
commodity to be dealt with in the market while at the same it provides as a
mechanism for providing vital information regarding the quantum of rights held by
individuals with regard to a given property.
• It vests to you all the details one may need before they undertake any dealings on a
property and facilitates any transfer thereof.
 ADVANTAGES OF LAND REGISTRATION

• The advantages of land registration:-

1. Security of tenure- the registered owner of the land obtains an indefeasible title
against the whole world. It also gives the owner the right of indemnity from the
government incase of fraud on the register.
2. Reduction of unnecessary litigation- once the owner obtains a recognized title
against the whole world , they will be able to transact with the land without fear of
being sued to challenge the title.
 ADVS CONT

3. The prevention of defragmentation of land as registration helps to determine

whether or not a piece of land can be subdivided as land details such as acreage are
noted in the register.
4. Facilitation of government property tax administration as through the registration
process the government is able to identify the persons who are obligated to pay tax
on a specific piece of land.
5. Efficient administration of the loan system. A registered owner of a piece of land
has security of title and this security makes it possible for land owners to obtain
loans from financial institutions.
 ADVS CONT

6. Efficient facilitation of the land transfer system. A prospective purchaser will have
more faith in dealing with an owner whose land is registered.
7. Prevention of concealed dealings in land. Registration gives publicity to land
transactions. As the register is a public document which can be accessed by the
public, it is possible for any third party to ascertain the true ownership of the piece
of land.
 TORRENS SYSTEM
• A Registration system like this needs to be based on some principles and by far the most important
source from which these principles have been drawn is the so called Torrens System named after
Sir Richard Torrens who formulated the same in 1958 in South Australia from where it later
spread to other parts of the world.
• Most jurisdictions embrace this system because of its demonstrable superiority over other
systems. It is significant because it provides a new and improved information system on property
in the form of a register and the register contains all the material facts about a particular property.
• Other than that, in such a register would be entered all such information so that they can be
accessed and a document of title would be issued to the owner upon such property changing hands
through subsequent transactions. The document of title in respect of property would be
surrendered to the new owner and the information would be effected in the proper register so that
the necessary changes can reflect all the material details and indicate the true status as regards
among other things ownership of the property or any other interests which affect such ownership.
 TORRENS SYSTEM

• In effect it leads to a creation of a public record on property full of information of the

kind that would be of interest to anybody wishing to have any dealings in such
property. By creating a public record system there is the element of security of such a
title or title assurance which does offer a measure of protection to the person the
bona fide purchaser without notice who may wish to acquire such a property in
future.
• In contrast to an unregistered land system, there is no risks or uncertainties
whatsoever as to the ownership including whether there are claims acquired, whether
it has been charged all these things would be disclosed in the register. There are
guarantees that come with the registration since it is government maintained.
 PRINCIPLES OF REGISTRATION

• The mirror principle – this relates to the accuracy or certainty or conclusiveness that entries in the register in
as far as the true status of the title is concerned. We take whatever is found in the register as accurate and
conclusive on what it purports to inform us about; we expect to get all material details including true
position of ownership, the interests or other rights to which such ownership could be subject.
• The history of how this property has changed hands if at all the first time and at any time changing hands
might have taken place. Mirror principle stands for transparency in shedding light about what the position is
and once we have accepted the principle there is the element of confidence and assurance that we are not
having any hidden factors or interests that may be adverse to the interests of the parties concerned.
• Insurance Principle – this relates to the fact that since the state has undertaken to establish and maintain this
sort of system, the state by extension guarantees that there would be indemnity offered to compensate
anyone who may suffer loss as a result of mistakes in the register or merely by reason of the fact of
operating that system itself that in event of injury or damage arising out of such circumstance, there is a state
run system that will compensate any person who suffers loss to the extent of such loss.
 PRINCIPLES CONT

• Indefeasibility - This is to the effect that once registered as the owner of an interest and such interest duly
disclosed or entered in the register the rights acquired cannot be defeated by any adverse claims which are not
disclosed in the register. The register is a public document and open for inspection by the public so that the
presumptive position is that everyone will be deemed to know. Discoveries can be made of material details which
would affect a person in one way or another and it is good public policy that the openness allows you to know any
adverse interest before one goes very far with the transaction one can seek explanations. Once we’ve got all these
guarantees, we shouldn’t allow them to be defeated 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.
• 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.
• These were drawn from the system that Torrens came up with.
 DISADVANTAGES

1. The cost of putting the system together can be less appealing.

2. The system has the possibility of subjecting the title to certain unforeseen claims
3. The incidents of fraud are condoned in the course of registration if it is the first
registration
4. Given the nature of the system, you require highly skilled manpower to implement
it as well as other adequate resources.
 TYPES OF REGISTRATION

• There are two types of registration in Kenya:

1. Registration of Deeds/ Documents – it refers to a system in which the State records
the transfer of interest in land through deeds and documents in a register. The State
merely acknowledges that the transaction took place but does not vouch for the
validity of the transaction.
2. Registration of Titles- A system of registration where the State provides a valid
document showing the transfer of interest in land. The state goes further to
guarantee the validity of the transaction and the ownership of the land that is being
transferred.
DIFFERENT LAND REGISTRATION SYSTEMS/REGIMES IN
KENYA FROM THE COLONIAL PERIOD UNTIL 2012

There are six distinct land registration systems in Kenya based on registration of deeds
or issuance of tile deeds. They are:
1. The Registration of Documents Act
2. The Land Titles Act
3. The Government Land Act
4. The Registration of Titles Act
5. The Registered Land Act
6. The Sectional Properties Act
 REGISTRATION OF DOCUMENTS ACT

1. REGISTRATION OF DOCUMENTS ACT

• This is the oldest system of registration in the country enacted in 1901 in which a
simple register of documents is created.
• Any document can be registered under this act but it was mainly created for purpose
of registering documents relating to the transfer of land.
• The system allows for obligatory and optional registration of documents.
• Obligatory registration is for all documents/deeds relating to conferring, declaring,
limiting or extinguishing any right or interest in land. This registration must be done
within one month of execution/signing of document for it to be relied upon as
evidence in court.
 RDA CONT.

• Optional registration can be done for any person wishing to register a document. It is
done for the purpose of showing that the transaction took place but does not
guarantee the validity or legitimacy of the said transaction.
• The registrar has discretion to accept the document or not upon payment of the
requisite registration fee/ stamp duty. Assessment of the payable duty is done at the
registry.
• The type of documents that can be registered include wills, powers of attorney,
building plans.
 LAND TITLES ACT

2. The Land Titles Act

• This Act was enacted to address the question of land ownership arising from the ten mile
coastal strip. It allowed for British control of the strip subject to ownership /property rights of
inhabitants.
• It was introduced in 1908.
• It provided for registration in favour of individual title claimants provided they could prove
their claim over the property.
• A land registration court was established and the claimant could lodge their claims before
their court together with evidence of ownership of land.
• If the claimants successfully prove their claim, they are issued with documents of title
depending on the nature of ownership; certificate of ownership for freehold, certificate of
mortgage for leasehold properties and a certificate of interest for any other interest.
 LTA CONT

• Registration of an interest in this system is conclusive and brings to an end all rival
claims over the land.
• The LTA system introduced a register under which the document proving ownership
and the particulars of land would be noted and subsequently all documents showing
transactions relating to the same land are entered consecutively in the order in which
they are presented.
• Production of the register with all the subsequent transactions would make the holder
the owner of the land with an indefeasible title against the world,
• After the adjudication process, all unclaimed land was designated to the Government
for alienation.
 GOVERNMENT LAND ACT

3. The Government Land Act CAP 280

• The Government Land Act was enacted in 1915 and was an adaptation of the Crown Land
Ordinance of 1902.
• It was enacted to deal with the registration administration of all land owned by the
Government.
• It was enacted to cure the defects of the previous registration systems such as the RDA and
as a result all titles issued under the RDA system had to be converted to GLA and all future
land belonging to the government was to be registered under this act.
• it was enacted with the intention to introduce a fairly advanced system of registration of deed
plans and procedures touching on a wide range of transactions relating to government land
such as leasing or transfer of the same. This would ultimately usher in the English style of
land conveyancing.
 GLA CONT

• The registration system is similar to that of the LTA. A separate folio is opened for
each piece of land and transactions are registered against each parcels.
• The deeds(the documents detailing the transaction) are registered and a copy of the
said deed is kept in the registry. Short particulars of each transaction are then
recorded in a volume known as an Abstract Registry. The registered deed is the title
document.
• The State does not guarantee the title and it is necessary to investigate all deeds
registered against the parcel and track them to the initial government grant to ensure
a good title.
• There are two registries; in Mombasa and Nairobi.
 REGISTRATION OF TITLES ACT

4. The Registration of Titles Act (RTA)CAP 281

• The RTA was enacted in 1920 for the purpose of facilitating the process of transfer
of land by creating a registration of transfer system.
• It was a departure from the previous system of recording documents. This system
gave the owner an indefeasible title which was state guaranteed. Previous systems
provided for registration of documents which envisages occurrences but is silent on
the issue of validity as well as indefeasibility of the title.
• In this system, a title in the form of a grant or certificate is issued to the owner and a
duplicate is kept at the registry.
• Land is referred to using title numbers or by the land number given to that piece of
land by the Director of Survey.
 RTA CONT

• The RTA was intended to apply to the following lands:

1. All land that was subject of a government grant after 1920 or a certificate of title
issued by the recorder of titles after 1920.
2. Leaseholds that had been converted from 99 years to 999 years or freeholds
3. Titles that have been converted from LTA or Gla voluntarily
4. Grants that are made by local authorities in respect of trust land- land vested in a
local authority for the benefit of the persons ordinarily resident in the area.
 RTA CONT

• A register is kept for every piece of land. It is a duplicate of the Grant or certificate.
The original is kept by the proprietor.
• Any subsequent transactions are registered against the title and register. So for any
transaction to be registered, the original title must be presented at the Registry for the
recording process.
• The instrument containing the dealing or transaction is also presented and the
document is kept in the deed file.
• The state guarantees the validity of the title and provides for indemnity in case of
fraud.
• The Registry is located in Nairobi and Mombasa.
 REGISTERED LAND ACT

5. The Registered Land Act CAP 300

• The RLA was intended to address the African land question after the end of
colonization. It was enacted in 1963 to make provisions for the registration of title of
land owned by natives.
• The RLA was enacted for the following reasons:
1. It introduces a registration system in native areas to address the grievances of
indigenous people.
2. Conversion of titles or deed held under previous registration regimes
3. Individualization of titles held under customary law
4. Substantive law for land ownership to simplify the processor conveyancing
 RLA CONT

• The RLA introduced a system of indexing property showing registered land within a
particular area and all of the information relating to the said land including size, title
number , claim, encumbrances or burdens which may affect the land.
• It was designed to be conclusive final authority in land ownership and title deeds are
considered to be proof of absolute ownership.
• The general rule is that the title is unimpeachable except for cases of fraud or
mistake. This however does not apply to the first registration which cannot be
impeached.
 RLA CON

• The RLA relates to the following lands:

1. Titles that have been converted from other land regimes such as GLA, RTA or LTA
on a voluntary basis
2. Adjudications under the Land Adjudication Act and Land Consolidation Act claims
under the LTA after 1963
3. Titles registered under the Land Registration (Special Areas) Act of 1959 for land
held under customary law
 RLA CONT

• The title documents in this registration system are in the form of Land certificate for
absolute proprietorship and a certificate of lease for leaseholds
• The titles are issued on request of the proprietor upon payment of the requisite fees.
• The certificate must be produced to the registrar when presenting any instrument for
registration of transaction or dealing. A copy of the instrument is kept in a parcel file.
• Once the register is complied , it is conclusive evidence of the matters stated therein.
Therefore there is no need to trace backwards to discover how the owner of the land
became the proprietor.
 RLA CONT

• There is a register for every piece of land(absolute ownership) and a separate register
for every lease.
• The register is divided into three sections:
1. The property section- it contains the title of the land or lease and any plan
2. The proprietorship section- it contains the name and address of the owner and any
caution, inhibition or restriction affecting the owner’s right of disposal.
3. The encumbrance section- it shows the encumbrances affecting the land such as
charges
 SECTIONAL PROPERTIES ACT

6. The Sectional Properties Act no 21 of 1987(SPA)

• The SPA is an off shoot of the RLA and was enacted to deal with the registration of
vertical space.
• It is not an independent registration system but rather operates under the RLA and
provides for subdivision of buildings into units being owned by owners and common
areas being owned the proprietors of the units as tenants in common. The Act
provides for use and management of the units and the common property.
• It makes it possible for an owner to own property on floor without owning the
ground on which the building stands on.
• This system is applicable to land that is held as freehold or for leased land where the
lease has an unexpired term of more than 45 years.
 SPA CONT

• In the process of registration, several things happen. First of all, the registrar of lands closes
the register for the old title and creates several new registers – one for each unit as well as a
new register for the common property.
• A title deed is issued for each unit, and no title deed is issued for the common property.
• Registration also creates a corporation which is exempted from the requirements of the
Companies Act. This corporation has perpetual succession and a common seal and is
capable of suing and being sued in its corporate name. The body corporate does not hold
the common property beneficially but only as an agent for the proprietors who constitute its
ownership.
• This corporation is led by a board, and establishes the by-laws for the use of common
property as well as monthly contributions from each unit. The corporation can also lease
part of the common property to other parties.
 SPA CONT

• The members of the board are elected by the owners of units – with voting rights
being proportional to the total area of units held. The corporation is required to
insure both the units and common property against fire and occupier’s liability
 SPA 2020

• The Sectional Properties Act was amended 11th December 2020 and the new Act,
known as the Sectional Properties Act 2020, repealed the 1987 Act.
• The purpose of the amendments was to bring the Act into conformity with the
Constitution and the new Land Laws.
• A few of the changes introduced by the new SPA Act include:
1. It reduced the unexpired residue to not less than 45 years;
2. Each title would include the unit’s proportionate share in the common property.
3. All long term subleases would be converted into SPA titles;
4. Sectional properties status can now be terminated upon total or substantial
destruction of the properties as well as upon compulsory acquisition
 NEXT WEEK

• The New Land Laws 2012