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.
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.
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.
Why You Need an Advocate in Land Transactions
An advocate plays a critical role in protecting your interests during land transactions by conducting proper legal due diligence.
Once you instruct an advocate, they are responsible for safeguarding your interests throughout the entire transaction process.
- Drafting and reviewing the Sale Agreement
- Conducting official land searches
- Verifying ownership and previous transfers
- Checking for encumbrances such as wayleaves
- Confirming spousal consent where required
- Authenticating completion documents
- Ensuring proper registration of transfer or lease
Conclusion
Land transactions involve significant financial and legal risks. Without proper legal guidance, buyers may unknowingly acquire land with defective titles or unresolved ownership disputes.
Engaging an advocate ensures that all legal procedures are followed and that your investment is protected.
For inquiries:
info@wambuigichui.co.ke
wakili.wambuigichui@gmail.com