Judge says courts have no duty to protect unlawful land title deeds

Aerial view of land and positioning point area. [Getty Images]

Land buyers must carry out due diligence before acquisition to avoid fraud. This s as the top court maintained that unlawfully obtained title deeds will not be tolerated.

In a judgment last week, the Environment and Lands Court Judge in Nakuru said the court has no duty to protect unlawfully obtained deeds, even if one is an innocent purchaser for value, so long as it is proved the title was unlawfully obtained.

Justice Anthony Ombwayo noted that those seeking to purchase land must do higher due diligence since the cartels in the Ministry of Lands were becoming more complex.

The judge noted that obtaining a certificate of official search only was not enough. The judge’s decision was delivered in a suit filed by Betty Mukui (administrator of the estate of Joseph Makori Juma (deceased) and Jacquelyne Kwamboka Makori.

Lands office

The mother and daughter in the suit filed in 2015 named Kennedy Osimba and the Registrar Nakuru Lands office as respondents.

“It has come a time when the corrupt schemes at the Ministry of Lands have become so complex to the detriment of land owners and people who genuinely are desirous of owning land through purchase and therefore whosoever buys land must do a higher due diligence than that of obtaining a certificate of official search,” stated Justice Ombwayo.

The judge noted that one is now required to peruse the whole parcel file and ascertain that all entries in the green card were properly made and that the historical background of the land is ascertained.

“One must ascertain that from the first to last entry in the green card, duly executed transfer forms are available. Otherwise, fraudsters will be taking advantage of innocent owners of the land,” he added.

Mukui noted that on February 24, 2010, she carried out a search and found that the title was in her husband’s name. In 2011, her advocate saw an advert in the Kenya Gazette indicating that the title had gotten lost.

She later discovered that someone had fenced the plot and placed building stones on the land.

Mukui and Kwamboka noted that in December 2014, they realised that Osimba had physically entered into the suit property and had commenced exercising proprietary rights.

They said they reported the matter to the local chief and sought an audience with the Lands Registrar, who declined to intervene. They added that the land official declined to grant an official search on the property.

Osimba, in his defence, said he bought all that piece of land known as Njoro/Ngata Block 1/1381 (New Kiambu) from the original owner Michael Koskei Kurere on October 8, 2011, and a sale agreement duly executed and attested on the said date.

He said he paid the entire purchase price on October 16, 2012, and took possession and commenced development. Kurere, according to Osimba executed the transfer. He denied any illegality.

During the hearing of the case, Nakuru Land Registrar Margaret Anita Omollo testified that the land belonged to Kennedy Oruru Asimba and Catherine Wanjiru.

Government printer

On cross-examination, she agreed that the search dated February 24, 2010, showed that the property belonged to Joseph Makori Juma. She also agreed that the gazette notice was printed by the government printer but issued by the Land Registrar.

In the Gazette notice, the proprietor was Joseph Makori Juma. There were no transfer forms from Michael Koskei Kurere to Osimba.

The judge noted that the evidence on record and rival submissions indicated Mukui had proved on a balance of probability that her late husband was the second registered owner of the suit property on August 7, 1997, and a title deed was issued.

He said the Gazette Notice No.4584 dated April 29, 2011, issued by J M Mwaura, the Land Registrar Nakuru District recognised Joseph Makori Juma as the proprietor of the suit land. The judge said the Gazette notice appeared to have been a scheme to defraud the deceased Juma Makori of his land, although he was deceased.

“It is not clear who caused the gazette notice to be issued unless it was the ghost of Mr Makori, who was long dead. This was the start of clear fraud,” ruled the judge.

The judge noted that the architect of the fraud was the Land Registrar himself because when he went to court to testify, he appeared to have had no documents whatsoever, even the gazette notice.

“The only document the Land Registrar had was a green card and a title deed issued in 2014, and yet the land register was opened in 1997,” stated the judge.

The judge said the land registrar did not produce any transfer of land, consent of the land control board, surrendered and cancelled titles to show the land had been transferred to Osimba and the title cancelled.

The judge said the Land Registrar knew more about the skewed transactions in this matter and hence decided not to avail the parcel file.

The green card produced by the Land Registrar, the judge said appeared to be a forgery. “In this case, I do find that the first defendant’s (Osimba) title is a product of an illegal and corrupt scheme and therefore cannot be protected. In any event, the plaintiffs’ deceased husband’s title is first in time,” stated the judge.

He declares Makori Juma (deceased) as the registered proprietor. Mukui was awarded Sh100, 000 as compensation for damages suffered.