Why You Need an Advocate in Land Transactions

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Case Study: Why You Need an Advocate in Land Transactions

Introduction

Land ownership and land rights remain both a historical and emotional subject in Kenya. Land is also considered one of the most important factors of production in economics.

In the past, proving ownership of land was relatively straightforward. A person only needed to produce a title deed. The law protected such ownership unless it could be proven that the title had been obtained through fraud, misrepresentation, or illegal means.

However, the sanctity of title has increasingly been challenged due to corruption, fraud, and manipulation of land records.

Justice Kiage noted in Gathondu vs Registrar & Others (2024) that the reliability of land titles has been undermined by greed, corruption, and tampering with land registry records.

Challenges in Land Ownership Today

Many Kenyans have experienced situations where land files mysteriously go missing at the land registry or official searches cannot be conducted due to incomplete or altered records.

It is also common to hear of cases where individuals purchase land only to later find themselves in court defending ownership of the same property.

The Supreme Court Position

In Dina Management Ltd vs County Government of Mombasa & Others (2023), the Supreme Court clarified that a title deed is not enough to prove ownership.

A title is only the final product of a legal process. If the process leading to the title was unlawful, the title itself becomes invalid.

This position reaffirmed the earlier decision in Munyu Maina v Hiram Gathiha Maina, where the Court of Appeal held that once a title is challenged, the proprietor must prove the legality of the acquisition process.

The Chain of Ownership Problem

Consider the following scenario:

Person F buys land from Person D
D bought the land from C
C bought the land from B

If F’s ownership is challenged by another party, F must demonstrate that every transfer in that chain was lawful.

If there was any procedural irregularity in the transfer from B to C, then C could not legally transfer ownership to D, and therefore D could not transfer valid ownership to F.

This is based on the legal principle Nemo dat quod non habet — meaning you cannot transfer what you do not own.