The sanctity of title deed: Is it a myth or reality for every Kenyan?

By Collins Kowuor

It was reported that farmers in Mwea were a happy lot recently because they could see light at the end of the tunnel.

Issuance of title deeds for their lands had been approved by Parliament after over 35 years. Why were they happy? It could be because of the benefits that come with having a title deed. It provides proof of ownership of land; it is a basis of security when one is taking a loan against land, it also provides peace of mind.

However, does it guarantee you security of tenure? Does it prevent people from trespassing and squatting in your land? These questions arise because of what a professional colleague shared with me recently. Her client informed her that some people had invaded their private land, fortunately, they had varnished on the first and second day when the client had gone to inform the police.

However, on the third day, fewer numbers came with building materials and started excavating strip foundation for their “sales” office. When she went with the client to the police with the title document and survey map, the trespassers were nabbed.

Interestingly, their “leaders” had appeared and asked for joint meeting with the police to also show proof that the land in question belonged to them.

The following day, the leadership of the trespassers came with a map of a wide area, a “court order” and letters from the “Government” with a land reference number but they had no title document. But, they didn’t know the number of their land, its size and location on the map when queried by her.

They said, “They were not experts on maps and land”, hence did not know what they were being asked. From the map, the land referred in the documents they had were kilometres apart from where they had invaded.

What later came out, according to my professional colleague, is that the group may have known what they were doing and were feigning ignorance as a strategy.

 They would usually occupy a private land, sell cheaply and quickly to unsuspecting public, (who are also told to build quickly lest they sell the same plots to others) then get out of the picture leaving behind an “elephant” of a problem.

The owner of the land will then have to solve the problem with the “purchasers”, government institutions and the Judiciary. You may guess how long this might take!

Given this incident, let me share with you this. The Constitution of Kenya 2010 provides for three categories of land; public land, community land and private land.

Their administration and management vests in different institutions and bodies. Some of the laws about these have been enacted in the name of Land Act, National Land Commission Act and Land Registration Act. How does the Constitution and these laws relate to sanctity of title deeds?

This can be answered by first asking more questions!  Can anyone deprive one of private land arbitrarily? The Constitution clearly provides under Article 40 that neither State nor any person can arbitrarily deprive a person of their (private) land even the Parliament.

 The new land law, that is Land Registration Act, provides that there are two types of title documents, Certificate of Lease and Certificate of Title.

Certificate of Lease is issued to persons who have leasehold interest in land while Certificate of Title is issued to persons who have freehold interest in land.

Leasehold interest means that you own the land for a given time period which is usually given in terms of years while freehold interest means that you own the land indefinitely, that is, you are not constrained by time.

The Certificate of Title is a conclusive evidence of ownership and makes one an absolute and indefeasible owner of the land in question.

The title can only be challenged on two grounds. The first ground is if the title was obtained by fraud or misrepresentation and the person in whose name the title appears is proved to have been a party to such.

The second ground is if the title had been acquired illegally, unprocedurally or through corrupt scheme. These grounds have to be ascertained and confirmed through due process of law.

The writer is the chairman of Institute of Surveyors of Kenya