The Sanctity Of Title Deeds In Kenya: Outliving The Era Of Evictions
In the recent past, we have witnessed a spate of evictions as well as threatened evictions all under the ostensible guise of reclaiming public land.
Caught in the crosshairs are innocent purchasers some of whom poured life savings into the purchase and development of their property.
The purchases were in many instances carried out after ‘due diligence’. Titles were subsequently processed and issued by the Lands department. It is on the strength of these titles that banks and other financial institutions have also gone on to issue loans and mortgages.
The decision by the property owners to develop their land as well as the confidence reposed third parties such as banks is all based on the solemn promise by the issuer of the title that what they hold is not just a mere piece of paper, but a document that confers an inalienable right to the related land.
A title like money is not just a piece of paper but a store of value and a solemn promise by the government that the document is authentic and undisputed in origin.
Section 23 of The Registration of Titles Act (repealed) provided as follows:
The certificate of title issued by the registrar is to be taken by courts as conclusive evidence that the person named therein as the proprietor of the land is the absolute and indefeasible owner thereof, such title is not subject to challenge, except on the ground of fraud or misrepresentation to which the person named in the certificate is proved to be a party.
This provision is replicated in Section 26 of the Land Registration Act No. 3 of 2012 which adds an additional rider to wit:
(b) where the certificate of title has been acquired illegally, unprocedural, or through a corrupt scheme.
The above promise and doctrine of indefeasibility are what is known as the sanctity of title. As a result of the doctrine, a property owner is fortified in his belief that his home is his castle, where even the King may not enter, to paraphrase William Pitt 1st Earl of Chatham.
However as is often the case and as mentioned above, property owners wake up to notices of eviction from a state agency citing the land as public and irregularly acquired.
With a stroke of a pen, the erstwhile valid titles are purportedly rendered null and void. Real estate investment in Kenya is without a doubt quite a dangerous minefield.
With that stroke of the pen, lifetime savings, health, and livelihoods are crossed out. It is unfortunate that this cycle has become quite common with few or no heads turning. In a classical Kenyan state of amnesia, the stories are quickly forgotten awaiting the next round of evictions and demolitions.
Our constitution in article 40 grants the right to own property. It goes on to provide a whole chapter on Land matters. The constitution classifies land into three; public land, private land, and community land.
Public land relates to land belonging to the state and its institutions. The National Land Commission (NLC) is the constitutional guardian and custodian of Public land in trust for the National and county government.
Private land on the other hand relates to land in private hands. Community land relates to landholdings among indigenous and pastoral groups.
While most Kenyans are familiar with the concept of compulsory acquisition whereby the government acquires private land for a specified public purpose, there is a popular and mistaken belief that Public land cannot be converted to Private land. Section 9 of the Land Act 2012 In line with the provisions of Article 62 (4) of the constitution provides that Public Land can be converted into Private Land through the process of allocation. This process is however subject to elaborate and rigorous statutory processes set out in Section 12 of the Land Act.
Unfortunately, this excision of public land and subsequent conversion to private land has long been marred by corruption, abuse of power, and outright greed. The Ndungu land report lists a litany of such instances.
The drafters of our constitution when setting up the NLC gave the commission the mandate to address historical injustices. Parliament also empowered the commission to investigate irregular allocations of public land among others. Unfortunately, the NLC had a limited time (5years) within which to carry out a no doubt gigantic task. The result has been that the issues o