Recent reports indicate that fraudulent/fake land titles and deceptive dealings continue to thrive within the Ministry of Lands. One significant case making headlines is Nairobi Civil Appeal E789 of 2023, where Mas Construction Limited (the "Appellant") contested the rightful ownership of Land Reference Number 209/1916/5 (the "Land") against Abdul Waheed Sheikh and Abdul Hameed Sheikh (the "Original Owners"), along with Hassan Abdi Salan and Mahat Adan Abdirahman Ibrahim (the "Sellers"), among others. This appeal arises from the judgment of the Environment and Land Court (“ELC”) in Case No. 1480 of 2014.
The central issue in this case is determining the rightful owner of the Land, with both the Appellant and the Original Owners claiming ownership. The case also highlights the fraud within multiply authorities in the processing of a land title.
The Sellers had sold the Land to the Appellant, and the Appellant had completed the transfer process. In 2014, despite the Land being occupied by the Original Owners caretaker, the Appellant filed a case in the Chief Magistrate's Court for distress of rent, seeking to evict tenants from a house erected on the Land. The Appellant also demolished the structure. In response, the Original Owners filed a lawsuit in the Environment and Land Court, claiming that the Land had been registered in their late father's name and that the family had occupied the Land since 1937, fulfilling all legal obligations of ownership. The Appellant opposed the suit, asserting that it had purchased the Land from the Sellers through a sale agreement, had obtained the necessary clearances and consents, and had conducted three searches to confirm that the Land was legally registered in its name. The Appellant and Sellers claimed that the Land had been allotted to the Sellers in 1997, prior to which it had been unalienated government land. The Sellers used a certified copy of the deed plan (they claimed they had lost the original one), adhered to the terms of the allotment letter and secured title to the Land.
The court ruled in favour of the Original Owners, finding that the Appellant's title was fraudulently obtained and therefore invalid. The court noted, among other things, that the Sellers had failed to provide the original deed plan to obtain title to the Land. Instead, the Appellant claimed that the original deed plan had been misplaced and thus procured a certified copy from the Land Survey of Kenya. Additionally, the deed file only contained entries related to the Sellers and Appellant's ownership, with no prior transactions, and had been missing for some time.
The Court of Appeal upheld the judgment of the trial court, citing several key points:
- The Original Sellers took significant steps to demonstrate the validity of their title, including proving the original deed plan was in their possession and was therefore used to obtain title to the Land.
- The Land was not available for allotment when it was allegedly allotted to the Sellers, as the Commissioner of Lands or any other authority lacks the power to allot land that is not available for allotment. The Land in 1997 was still under a lease set to expire in 2003. Therefore, no legitimate title could have been passed to the Appellant.
- The Sellers did not possess the original deed plan and had falsely claimed to have misplaced it in order to fraudulently obtain a certified copy and, consequently, the title to the Land.
Key takeaways
- Landowners should maintain proper records of all relevant land documents. The original deed plan played a crucial role in this case.
- A holistic approach to due diligence is essential, including site visits and verifying the root title. Continuous occupation by the Original Sellers of the property was a key point of evidence in this case.
- The importance of root title searches was emphasised, as seen in the Dina Management Limited vs County Government of Mombasa & 5 Others (2023) case, where the Supreme Court stressed the necessity of proving the root title and ensuring the acquisition was formal, legal, and free from encumbrances not recorded in the land register.
- Legal practitioners must adhere to the correct legal processes in land transfers, lease extensions, subdivisions, and changes of use.
- Inter-authority collaboration is needed to close loopholes in land transactions. For instance, in this case, Nairobi City County acknowledged it had no obligation to verify the authenticity of documents presented for development approval (even though the Appellant had obtained such approval to build apartments).
- Land rent and rates payments in the name of a person do not automatically prove ownership of the land title. These payments only demonstrate compliance with title conditions, not ownership.
- Fraudulent actors may exist within entities such as the Ministry of Lands, Survey of Kenya, and local authorities. Actors are forging deed plans, titles, allotment letters, transfer instruments, official stamps, official signatures therefore buyers should be cautious and ensure the root title of the land was legally and legitimately acquired.
This judgment serves as a crucial reminder for all stakeholders involved in land transactions to exercise diligence, transparency, and vigilance in ensuring the legality and legitimacy of property titles.
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