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Detailed Exposition Of Torrens System As Incorporated In RTA And LRA

DETAILED EXPOSITION OF TORRENS SYSTEM AS

INCORPORATED IN RTA AND LRA

Hassan Asaria – Advocate (Kenya) & Barrister-at-Law (U.K. & Cnd)

(e-mail: nylex3@gmail.com)

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TORRENS SYSTEM OF TITLES NOT UNDERSTOOD IN KENYA

TITLE CAN NEVER BE NULLITY AB INITIO UNDER RTA & LRA

  CONSTITUTION MERE BARE BONE OF LAWS NEED TO BE FILLED

 

STRUCTURE OF PAPER:

It discusses same most of topics as previous articles by the author. However, while article is brief for general knowledge, this is in detail like a thesis with case laws and therefore ideal as reference for members of Bar and Bench.

Although the Registration of Titles Act (Cap 281) (RTA) has been replaced by Land Registration Titles Act (3 of 2012) (LRA),  the discussion herein is based on RTA. This is because LRA is substantially similar to RTA as most of principles of Torrens system, like RTA, are also incorporated in it. A table  in Section 2(c) herein for a quick reference contains cross reference of relevant sections between RTA and LRA.

Layout of this Paper: It has been arranged for an easy reading with an Master Index (Appendix A),  Index with Digest of content for quick reference (Appendix B)  and  at the bottom List of  cited cases or authorities with Digest (Section 19)

NAIROBI: June 15, 2014        artrevsesubmdetail15jun14-FINAL  this slightlyupdated19aug14

C  O  N  T  E  N  T  S

  

           

 Appendix: A

MASTER INDEX

Reference: LRA replaced RTA , RLA and other land  Acts.  RTA = Registered Titles Act (Cap 281), Registered Land Act (Cap 300) and Land Registration Act (3 of 2012)

 Appendix A:  Master Index

Appendix B:   Index with Digest of contents for quick reference

SECTIONS:

  1. Brief introduction of Law – concept of Torrens system as incorporated in RTA and LRA
  2. Profile of  new Land Registration Act (3 of 2012) – Saving provision RTA v LRA: RTA continue to apply to past transactions – LRA similar to RTA incorporating cardinal principles of Torrens system.
  3. RLA compared with  RTA and LRA – unlike RLA, common law and equity do not apply  to RTA and LRA and both first and subsequent titles indefeasible.
  4. Philosophy of RTA and Torrens system of title – doctrine of  indefeasibility of title and concept of ‘curtain and mirror
  5. Common law and equity do not apply  to RTA – title from void instrument valid – forger can transfer a valid title – Common law doctrine “non dat qui non habet’ does not apply to RTA:
  6. UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO: Last buyer’ title ORIGINAL GRANT as such buyer not concerned about past irregularities and illegalities
  7. For quick reference excerpts from selected cases
  8. Under Article 40(6) of current Constitution tendency of Court to declare title   nullity ab initio
  9. Registrar’s duty to scrutinize instrument before registering – registration procedure internal department matter.
  10. Register and not certificate constitutes title because title by registration
  11. BURDEN OF PROOF OF FRAUD HIGHER AND DEGREE OF DILIGENCE LOWER – a. because of concept of indefeasibility of title. b. Burden of proof is on who alleges fraud.
  12. RTA overrides other Acts and laws so that concept of Torrens system not undermined.
  13. Buyer entitled to property and original owner compensation – how quantum of damages computed.
  14. A bona fide buyer not liable for loss and cost of suit to anyone including  First to Defendant
  15. No rectification of title once bona fide buyer is registered – limitation registrar’s Powers
  16. Under RTA possession passes with registration of transfer
  17. Exception to indefeasibility of  title – there cannot ever be two concurrent titles.
  18. LIST OF CASES AND AUTHORITIES CITED IN PAPER WITH DIGEST
  19. DETAIL EXPOSITION OF LAW ON INTER[PRETAION OF CONSTITUTION WITH REFERENCE TO TORRENS SYSTEM – WHY UNDER ARTICLE 40(6) TITLE CANNOT BE NULLITY AB INITIO

 

Appendix: B

      

INDEX WITH DIGEST FOR QUICK REFERENCE
Sec  
01 Brief introduction of Law – concept of Torrens system – title can never ever be nullity ab initio – trf from void instrument valid – bona fide buyer entitled to property and original owner prop.
  

02

 DETAIL EXPOSITION OF LAW

Profile of new Land Registration Act (3 of 2012) : (a) Saving provision RTA v LRA: Under s.107(1)  of LRA,  RTA continue to apply to all prior transactions, and (b) LRA similar to RTA as it incorporates most of basic principles of Torrens i..e indefeasibility or title being absolute upon registration, buyer takes title at its face value and is not concerned about the  past records, to ensure title is absolute, its not subject to common law, equity and any conditions or contingencies, in the event of conflict with other laws, it prevails, title cannot be rectified, once bona fide buyer for value has  acquired it, register and not certificate is title,   and because Govt being sole custodian  and responsible to scrutinize  records, it is obliged to compensates original owner who is deprived of property or and also indemnify anyone who suffers loss due to the negligent of officials. Under s.106 of LRA, transactions that arose prior to repeal to continue to be subject to RTA

.

 03 RLA compared with RTA  and new  LRA: Unlike RLA,  RTA and LRA (a) are pure breed of Torrens system, (b) common law and equity do not apply to  them  - as such title from a void or forged instrument  is valid and  (c) apart from first all subsequent registration are  also indefeasible.
  

 

04

Philosophy of RTA and Torrens system of title -doctrine of  indefeasibility of title;  In Regal Constellation Hotel Ltd  Re 2004 CanLII 2006 Ontario C.A.) Pge13 para 42 (case is attached)   “The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy.”  These principles form the doctrine of indefeasibility of title and is the essence of the land titles system. “   S.23(1) assures buyer indefeasible and sanctity of title - under s.22(3) last buyer's title deemed original grant thereby extinguishing all past titles - as such buyer not concerned about past records and entitled to property - under s.24(2) original owner's right to property is converted to right to compensation - recent C of A case reaffirms all the doctrines of Torrens system.
 05 Common law and equity do not apply  to RTA: As such, common law doctrine “non dat qui non habet’ does not apply to RTA and therefore  transfer from void instrument or forger valid – buyer’s title better than that of original owner
  

06

UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO: This is because under s. 22(3) of RTA last buyer's title deemed ORIGINAL GRANT thereby extinguishing all past title including of original owner - also because common law doctrine of  seller cannot give better title than he has does not apply to RTA forger can transfer valid title -  In a Uganda case with similar facts to subject suit of irregular issue of provisional cert of title and forged transfer, it was held buyer's title valid, original owner's right to possession converted to right for compensation - and provisional certificate replaced previous certificate.
07 This section has detail excerpts from selected cases for quick reference
 08 Under Article 40(6) of current Constitution tendency of Court to declare title nullity ab initio:   By taking literal meaning of Article 40(6) which states, ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. However no such provision in repealed Constitution which applied to subject suit - current Constitution no retrospective effect. FOR DETAIL EXPOSITION OF INTERPRETATION OF CONSTITUTION SEE AT THE BOTTOM SECTION 19
 09 Registrar’s duty to scrutinize instrument before registering - Registration procedure internal department matter: under s.32 RTA interest in instrument passes upon registration - under repealed GLA, passed upon execution - recent C of Appeal judgment confirms, , "Govt is the sole keeper of all the records and guarantees indefeasibility of title against entire world and if anyone suffers loss due  to the malfeasance of Land Department, Govt compensates" - hence buyer not concerned of past
  

10

Register and not certificate constitutes title because title by registration: In Breskvar v Wall (1971) 126 CLR (High Court Aus)  -  “The Torrens system of registered title ...is not a systemof registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which, but for registration would have had."  Under s.32 of RTA interest passes only upon registration - s.23 deems certificate conclusive merely as proof in the court to avoid registrar producing record in the court  - s. 71 provisional cert as effective as original - see Uganda case with similar facts as subject suit confirming  this. Hence, if a cert is lost, destroyed and duplicate issued by forgery, it does not affect the status of the register of title in any respect.
  

11

Burden of proof of fraud higher and degree of diligence lower to preserve doctrine of indefeasibility - Burden of fraud on who alleges - 1st Def alleged fraud but in  breach of pleading rules did not adduce even one iota evidence of fraud by way of witness or document, thereby costly trial was unnecessarily prolonged -  To be diligent, a buyer is not required to do anything more than follow a normal procedure. A bona fide buyer is liable only for ‘willful blindness’.  A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon - Plaintiff followed all normal procedure and because of due diligence it took over 6 months instead of normal 2-3 months to complete transaction 
 12 RTA overrides other Acts and laws so that concept of Torrens system not undermined: Relevant s.1(2): Its to preserve 'sanctity of title' - What it means is that, if a provision of any Act is repugnant to RTA, unless it itself expressly refers to the RTA, the provision of RTA would prevail over that Act.
  

 

13

Buyer entitled to property and original owner compensation - how quantum of damages computed: s. 22(3) last buyer's title deemed original grant thereby extinguishing all past titles including of original owner - s.23 bestows on buyer indefeasibility of title - as such s.24 specifically provides for compensation to original owner deprived of property due to malfeasance of registrar - thereby owner's right to property is converted to right for compensation - effectively owner suffered suffers no economic loss as paid full damages as in the case of compulsory acquisition - like in  compulsory acquisition prop taken in public interest, under RTA  also orig owner's prop taken in the interest of  public at large as it is to prevent each buyer going through arduous and costly exercise to scrutinize title - e.g. it is like,  instead of millions of passengers each time flying on a plane scrutinizing if plane was in good condition or pilot was sober, this responsibility is put on the owner of plane. As such under RTA,  it is the responsibility of registrar to scrutinize each document before registering it -. How quantum damages computed: e.g. its like,  damages is payable to all passengers of the bus if accident due the negligence of driver - hence Registrar liable to all aggrieved parties. As decided in Virender Gudka & others v A.G  HCCC Nrb Env (480 of 2011) eKLR [2014] consequential losses also payable.
 14 As bona fide buyer not liable for loss and cost of suit to anyone including to  First Defendant: This because (a) subject suit is bona fide and not vexatious or malicious,  (b Plaintiff is registered owner on record  and also was in actual possession of prop, (b) First Defendant forcefully ejected Plaintiff,  (c)  as a result there was reasonable cause of action and legitimate right to institute an action and – (d) there was no malice on the part of the Plaintiff,
  

15

No rectification of title once bona fide buyer is registered – limitation registrar’s powers: In Power Technics Ltd. v A.G, Registrar of titles and Commissioner of Lands HCCC 178 of 2011 (Nrb High Court) [2012] eKLR at para “19. A plain reading of section 60 will show that the powers of the registrar are limited to correcting errors and misdescriptions of land or boundaries or where entries or endorsements to any grant or certificate of title are made in error. If substance of law, the issue has to be referred to the court as in the instant suit.”
  

16

Under RTA possession passes with registration of transfer:  This is because, with transfer and issue of certificate of title, the possession also is deemed to have passed to the buyer.”  I cannot see how a person could possibly be described as “the absolute and indefeasible owner without the possession….  The Act gives the registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession. As a corollary, since First Def was no longer proprietor, he was deemed not to be in possession. Despite this presumption, there is plenty of evidence to show that Plaintiff was in effective possession and first Def had discarded for 24 years and thereby abandoned possession.
  

17

Exception to indefeasibility of  title – there cannot ever be two concurrent titles: Other jurisdictions by special legislation have provision providing that buyer’s indefeasibility of title is subject to “the estate of a proprietor claiming under a prior instrument of title”. This is not a general exception or else it would entirely defeat the concept of last buyer having indefeasible title. It has a limited application where by error same land is included in two titles in which case the prior one prevails and subsequent one is paid compensation. It applies in limited instances where there is error in survey.  However, in Kenya’s RTA there is no such provision and moreover s.22(3) of Act by unequivocally stating “The title of proprietor under such fresh certificate of title shall be as valid and effectual as if he had been the ORIGINAL GRANTEE in the grant of the land contained in the certificate” thereby extinguishes all past titles and interest  including of the original owner.
18 LIST OF CASES AND AUTHORITIES CITED IN THIS PAPER WITH DIGEST
19 Detail exposition of law on interpretation to Constitution with reference to Torrens system:Constitution merely few pages document that  encompasses all the laws of a nation. Hence it states in a wide philosophical way. For instance, it would merely say “vehicle” which could mean motor bycicle, car, bus, truck, tractor etc. Hence legislature and court has derive appropriate meaning according to the issue by taking into context all other legislations. – it is merely a skeleton or framework of laws  and legislature and court are required to put flesh into it – Bill of Right gives citizen right to own property and RTA and LRA indefeasibility of title – as such property of an innocent buyer cannot be deprived without compensation – court erred in declaring title of prop of an innocent  buyer nullity ab initio – no such provision in repealed Constitution – no retrospective effect of current Constitution.

BRIEF INRODUCTION OF LAW

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  1. BRIEF INTRODUCTION: RTA and LRA are basically similar because concept of  Torrens system of registration of titles is incorporated in in them. Hence reference herein to RTA substantially applies to LRA.
    1. Torrens system not understood: It is respectfully submitted that unlike in other jurisdictions such as New Zealand, Australia, Canada and Uganda, in Kenya the principles and concept of Torrens system has not been mooted out in a real sense inside or outside the court. As such, they are not quite understood in Kenya c
    2. The cardinal principles of Torrens system: Like “curtain and mirror’ principle,  buyer takes the title at its face value as it appears on the face of mirror and is not concerned about what is behind the curtain, that is about past irregularities and illegalities. Also upon registration, fide buyer for value is accorded  absolute or indefeasible title against entire world including the original owner. This is to expedite transactions and reduce cost by each buyer not having to scrutinize all past records. To facilitate this,   registrar is made the sole custodian of records and is required to scrutinize each instrument before registering it. As a result if  anyone suffers loss due to the malfeasance or negligence of officials, Govt is obliged to compensate the aggrieved party. These cardinal concepts of Torrens system are enshrined in both RTA and LRA. Under s. 22(3) of RTA the title of last buyer is deemed ORIGINAL GRANT thereby extinguishing all previous interest and titles including of original owner. What this tantamount to is that in essence each transfer of land  involves   surrendering back and issue of a fresh grant from the State. This is reinforced by s. 23(1) which accords indefeasibility of title to the buyer upon registration against entire world including original owner. This tantamount to buyer not to be concerned about the past. In Gibbs v. Messer  (1891) AC 28 or 248 (Privy Council) –  indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Such a purchaser cannot, in the absence of fraud, be affected by the defects in his vendor’s title..”   Because buyer takes the title at its face value, the prescribed procedure for registration of documents and issue of title are therefore internal department matter and buyer is not concerned if records are irregular or that matter forged. Hence, as indicated, if anyone suffers loss due to the malfeasance of officers at the Land Title Registry,  Govt is obliged to compensate him under s.24 of the Act. This is a special head of damages in addition to normal duty of care under the common law. Because of indefeasibility of  title in rem, bona fide buyer is entitled to the property,  the original owner who is deprived of property is compensated  fair market value so that he did not suffer any economic loss.
    3. Register and not certificate title:  Under RTA title is by registration, that is,  register is the title and certificate not title in itself  as title is derived only by registration. This is because under s. 32 of the Act no interest in an instrument passes until it is registered. Whereas under GLA (repealed) interest passed upon execution of a document, under RTA only upon registration . Further, certificate is optional and is issued under s. 22(1) only at the request of owner and payment of a fee. Under s. 31 a copy of instrument certified by registrar conclusive evidence that it has been registered.  As such certificate is merely for a mode of proof to show that the name of person in it is at present registered as the owner (which is rebuttable), and also to make easier to prove ownership in the court without the necessity of calling registrar to produce records. When  a duplicate or provisional certificate of title is issued, it instantly replaces the original or previous one and is effective in all respect as the original. It is like a passport which is lost and is replaced and replacement of  which does not affect the status of citizenship. Long and short is that if a provisional or duplicate certificate is issued irregularly or by forgery, it is does not affect the status of register itself in any way at all as title is separate entity.
    4. RTA overrides Common Law – forger can transfer valid title: To preserve the doctrine of indefeasibility, unlike RLA, common law does not apply to both  RTA. And LRA. In view of this, the common law doctrine “non dat qui non habet”  the buyer cannot transfer better title than he has does not apply. This makes title from a void instrument valid. or a forger can transfer a valid title until it is intercepted by a bona fide buyer. Unfortunately, while not quite grasping these principles of RTA or Torrens system, there has been tendency for the court in Kenya to declare title of  a bona fide buyer nullity ab initio for past irregularities and illegalities not realizing that common law did not apply to RTA. By ignoring  the cardinal doctrine of indefeasibility of title and not awarding property to the bona fide buyer, what court in some cases has done is to  render the RTA like a car without an engine or abolished the doctrine of indefeasibility of title.
    5. Owner deprived of property suffers no economic loss: Both under compulsory acquisition and under RTA property is taken away in the interest of public at large. Since public at large benefits from the property and so that single citizen does not take entire brunt, as a fairness, he is compensated a full market value. Contrary to the objective and cardinal principle of indefeasibility of title under RTA or Torrens system, as indicated, there has  been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer. This is because court felt that it would be unfair to deprive original owner of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt, he is also compensated full market value.  This is also because Constitution accords right to own property. How it benefits country at large if owner is deprived of his property under RTA ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades, Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties, avoid colossal cost and unnecessary stagnation of economy. It is like – instead of millions of passengers each time  before boarding a plane carrying   out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol, by law responsibility of safety of passengers is put solely on the owner of the airline.  Under RTA, registrar as an exclusive  custodian of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that  a  buyer takes the register of title at its face value  and is not concerned about the past records.
    6. Registrar obliged to pay  compensation not for the act of defrauder but his own malfeasance: To make the registrar liable for negligence or malfeasance of his officials at the Land Title Registry is not something unusual. This is based on the general and most precious concept for co-existence in this world.  Hence under common law tort,  everyone  owes a duty of care to another person. If due to his act or negligence another person suffers harm or loss, by law he is obliged to make loss good. In this respect,  Govt  is not excepted and is also liable for its action like  a private individual. As such, if  registrar is required to pay compensation, it is purely based on this concept of duty of care. He is therefore not paying compensation because of the act of the defrauder or forger. If there was no malfeasance  in his department, the defrauder would not have succeeded. As indicated, he is obliged to pay compensation because  knowing very well that public was  required  to put full faith in the accuracy of records,  he let malfeasance occur. It is like – because of duty of care that Govt owes,  it is made liable for  its negligence in not maintaining a highway bridge which collapses causing injuries.
    7. In property grabbing cases, innocent buyer’s property unfairly taken away without compensation: Both compulsory acquisition and depriving of property under RTA are fair and in compliance of Constitution as long as  property of an individual is taken away for the benefit of public at large and it is ensured that individual who is deprived did not suffer any economic loss and was paid full value. However, it is sad that court while not quite understanding this concept of compulsory acquisition and protection of right of ownership of  property under the Constitution,  also in cases of ‘PROPERTY GRABBING’, have been depriving innocent buyers of  their properties without any compensation. This is absolutely unfair and against the Constitution. As enlightened above, like individual, Govt also owes duty of care to all the citizens and is liable for its negligence. If a defrauder succeeded in grabbing the land, it was because of malfeasance on the part of Govt officials. Govt’s only  course was to follow the culprit and not take easy way to deprive helpless  innocent citizen of his property or compensation.  Since taking the property benefited public at large, it would be unfair  that a single innocent individual took the entire brunt for the negligence of Govt.  Constitution whose main objective is to protect citizen, would frown upon innocent citizen being deprived of compensation. Also  under the Rule of Natural Justice, it would be unfair to profit public at large at the cost of an individual innocent citizen. As a fairness, like in case of compulsory acquisition, he should be paid full compensation  for the loss particularly citizens at large benefited from his property. In depriving the property, the court erroneously  holds title  nullity ab initio under Article 40(6) of new Constitution which provides, ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ by taking a literal meaning instead of construing it in the context  of legislation such as RTA and Bill of Right in Constitution protecting individual’s right to own property. However, as explained elsewhere herein, the repealed Constitution in fact did not have provision such as Article 40(6) and new Constitution does not apply retrospectively.  Also it  erroneously held that since Commissioner of Lands held the land in trust for the public use, the title of of such land even if acquired by an innocent buyer would be nullity ab initio. Such a narrow interpretation of law goes against the Bill of Right  not mentioning the doctrine of indefeasibility of title. Since public at large was the beneficiary, the innocent buyer was also deemed one of the beneficiaries.  Apart from this, in the realm of trust law, the duty of care that trustee owes is higher than ordinary individual. If defrauder was able to grab the land, it was purely because of malfeasance of officials for which no one but only Govt is liable. As a result, the public at large ought to take the entire brunt and not an individual innocent citizen.
    8. Three selected local cases reinforcing concept of Torrens system: In support of these principles of RTA or Torrens system, numerous other cases will be found herein. However, for the time being,  it would suffice to quote following three cases which succinctly sums of all the doctrines:
      1. DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012): In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. It was stated, “They were not obligated to do anything more than search the official register to establish ownership. If, as it turned out, the register was inaccurate by reason of malfeasance by land officials,  the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property ,
      2. C.R. Patel v Commissioner Land Registration & 2 Other (Judgement Jan 2013), HCCC No. 87 of 2009, Uganda High Court at Kampala (Land Division): The Registration of Titles Act of Uganda is basically similar to that of Kenya. This is also a title fraud  case in which there were irregularities in issuing  of duplicate or provisional certificate of title as NO GAZETT NOTICE WAS PUBLISHED AND ALSO FOREGED TRANSFER WAS REGISTERED. It was held that despite irregularities and illegalities in issue of provisional certificate and registering forged transfer, since buyer was a bona fide buyer and was not concerned about the past illegalities, his title was indefeasible and valid in rem. It was also stated that under Torrens system in fact register is the title and not certificate. Once duplicate or provisional certificate is issued, it replaces the old one. and
      3. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): In this recent case the Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud was on who alleges it and standard of proof was more than a mere balance of probabilities”.

      DETAIL EXPOSITION OF LAW

      RTA = Registration of Titles Act (Cap 281),  RLA = Registration of Land Act (Cap 300) and LRA = Land Registration Act (3 0f 2012)

      1. Profile of  New Land Registration Act (No. 3 of 2012): Since most of basic principles of Torrens system of registration titles have been incorporated in  new LRA, it is very much similar to RTA. Hence all the discussions and authorities quoted herein with reference to RTA is equally applicable to LRA as well.
        1. Saving provision RTA v LRA: Although RTA and RLA have  been replaced by LRA, under saving provision of  s. 107(1) LRA they continue to a apply to all the  transactions immediately prior to repeal. The s. 107(1) states, “Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force of exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act’.
        2. LRA, similar to RTA: All the basic features features of Torrens system are in RTA and also have been incorporated in new LRA i..e (i) Upon registration title to be absolute or indefeasible in rem, (ii) Buyer takes the title at its face value and is not concerned about the  past records, (iii) to ensure title is absolute, it is not subject to common law, equity, any condition or contingency, (iv) to preserve the doctrine of indefeasibility, in the event of conflict with other laws, it prevails, (v) title cannot be rectified once bona fide buyer for value has  acquired it, (vi) register and not certificate is title as title being by registration – cert optional and  merely for proof to avoid need to call land records into court, and (vii) because Govt being sole custodian  and responsible to scrutinize  records, it is obliged to compensates original owner who is deprived of property and also indemnify anyone who suffers loss due to the negligent of officials. Under saving provision of s.106 of LRA, transactions that arose prior to repeal to continue to be subject to repeal acts e.g. RTA and RLA.
        3. CORRESPONDING SECTIONS RTA AND LRA INCORPORATION TORRENS SYSTEM

      RTA AND LRA: AT GLANCE RELEVANT CORRESPONDING SECTIONS

       TORRENS SYSTEM THAT ARE INCOPRPORATED

      #

      Issues

      RTA Sections

      LRA Sections

      Comments

      01 LRA prevail if conflict with other laws 1(2) 5 To preserve doctrine of indefeasibility Act prevails if conflict with other laws
       

      02

      Title AbsoluteIndefeasibility of title

      Last trf deemed original grant

      Buyer not concerned about past

      Buyer entitled to prop and orig owner to compensation

      22(3), 22(1)32 24, 25, 26, 40 These are cardinal principles of Torrens system Unlike RTA, s.26(1)(b) of LRA states title can be challenged, if obtained irregularly. However s 80(2) title cannot be rectified if bona fide buyer in possession and acquired by valuable consideration
      03 Both first and all subsequent titles indefeasible 22(3), 23(1), 32 24, 25 Under RLA only first title indefeasible as RLA subject to common law, equity, trusts etc. and title not absolute.
      04 Govt compensate party deprived of property or suffers loss due to negligence of officers 24 81, 82, 83, 84 This is because Registrar being sole custodian of records and is obliged to scrutinize each doc before registering it.
      05 RTA and LRA not subject to Common law to ensure title absolute and preserve doctrine of indefeasibility 22(3), 32, 39, 80, 81, 82 66, 67 40, 41 S 163 of RLA  expressly makes it subject common law and equity. No such provision in RTA and LRA
      06 Register is title and not certificate – because title by registration 22, 23, 31, 32, 36 35, 24 Interest vests upon registration and not upon execution as was under GLA
      07 Certificate proof merely as evidence in court 23, 31, 32 34 To avoid cumbersome process of calling Land Registry records to court, certified docs sufficient proof
      08 Power of Registrar and court to rectify title, errors etc. – no rectification if bona fide buyer registered 59,60, 61 79, 80 Under s 80(2) of LRA title cannot be rectified if bona fide buyer in possession and acquired for valuable consideration
      09 Issue duplicate cert for lost or destroyed one 71 33 s. 71 of RTA: Provisional or duplicate cert valid to all intents as the lost one.
      10 LRA saving prov for repealed Acts e.g. RTA. RLA etc.    — 5 Transactions before repeal continue to apply

       

      1. RLA compared with RTA  and LRA – unlike RLA, common law and equity do not apply to RTA and unlike RLA in the case of both first and subsequent titles indefeasible:RTA, RLA, LRA and English Registration of Title Act 1925 (‘ERTA’) all provide systems for registration of land titles. Both ERTA and Torrens system evolved in same era in early 1900. Both have lot of  similarity. However a major difference is that under Torrens system title becomes absolute or is indefeasible in rem  upon registration whereas under ERTA title is not absolute or is conditional as it is subject to common law, equity and constructive trust. The main differences between RLA and RTA-LRA are: (i) While RLA is hybrid of English (ERTA) and Torrens System of title, RLA and LRA are basically pure breed of Torrens System,  (ii) While RTA and LRA overrides common law and equity which makes title from a void or forged instrument  valid, RLA is subject to common law and equity. This is because,  s. 163 of  RLA expressly provides that the Act is subject to the “common law of England, as modified by equity” “ which encompasses equitable doctrines of implied, constructive and resulting trusts. As a result title is not absolute (except for original grant) because those equitable interest and rights that are not registered are also recognized ” See Kanyi v. Muthiora (19 of 1982) CA Nrb at pages 713. On the other hand, both RTA and LRA override common law and equity as do not have provision such as s.163 of RLA. This makes registration under RTA absolute like that of company shares – what appears on the face of register is what is recognized and not equitable interest. (iii) Since RLA is subject to common law and equity, except for the first registration, subsequent registrations could be defeasible or not indefeasible. This is because, those equitable interest and rights that are not registered are also recognized.  On the other hand, since RTA and LRA do not have provision such as  s. 163 of RLA, common law and equity do not apply and therefore, unlike RLA, not only first registration but all subsequent ones are also indefeasible. Since common law do not apply, its doctrine that buyer cannot transfer better title than he has (“non dat qui non habet) also do not apply. Hence, as indicated,  title from a void or forged instrument is valid.
      2. Philosophy of RTA and Torrens system of title – doctrine of  indefeasibility of title and concept of ‘curtain and mirror:.
        1. Doctrines of Torrens system: The cardinal principle  is contained in the classic statement in Gibbs v. Messer  (1891) AC 247 PC at 254  para 3  “..The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.”  In Regal Constellation Hotel Ltd  Re 2004 CanLII 2006 Ontario C.A.) Pge13 para 42  “The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy.”  These principles form the doctrine of indefeasibility of title and is the essence of the land titles system. “As I understand Gibbs v. Messer, indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Such a purchaser cannot, in the absence of fraud, be affected by the defects in his vendor’s title.” Once the transfer is registered, it is immaterial if it is defective as buyer takes the title at its face value.
        2. Torrens system doctrines incorporated in RTA:  The doctrines of Torrens system are enshrined in RTA under – (a) s. 23(1) which makes title of last registered owner indefeasible or absolute against entire world including the original owner, (b)  s. 22(3) deems the title of last registered owner as an ORIGINAL GRANT thereby extinguishing all past titles and interest including that of original owner. This also tantamount  to buyer need not be concerned about the past record,  and  in essence  it means “each transfer of land involves surrender back to the Crown and a fresh grant from the States”, (c) s 24 obliges govt to compensate owner deprived of his property because of malfeasance at  the Land Registry,  and  s.32  provides that  interest in an instrument would pass only upon registration  thereby constituting register as title and not certificate, and thereby obliging registrar to scrutinize each instrument before registering it and making it unnecessary for the buyer to check past records. On the other hand, under GLA, interest passes upon the  execution of instrument and parties themselves are responsible to scrutinize past record.
        3. Recent Court of Appeal affirming doctrines: Numerous other similar authorities will be found herein.  Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): the Court of Appeal unequivocally affirmed principles of Torrens System of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities

       

      1. Common law and equity do not apply  to RTA and LRA – title from void instrument valid -forger can transfer a valid title:

       

        1. Common law doctrine “non dat qui non habet’ does not apply to RTA: In Boyd v. Mayor, etc., of Wellington (supra)N.Z Salmond J. said (of the 1915 Act): “One of the main purposes of the Land Transfer Act was to abolish this rule of the common law in favor of the rule that he who purchases a registered title in good faith from the registered proprietor obtains for himself an indefeasible title unaffected by any defect in the title of his vendor.” As common law does not apply to RTA,  the doctrine that seller cannot give better title than he has “non dat qui non habet’ does not apply, and therefore title derived from a void instrument is valid or a forger can transfer a valid title to a bona fide buyer who has no  knowledge of fraud. However, forger’s title is valid, until it is voided.  If in the meantime bona fide buyer for value is registered as owner, he achieves an indefeasible title against the entire world including the original owner, and thereafter the original owner’s right to the possession is converted to the right to  compensation from the government.  This purpose is thus expressed by the Privy Council in Gibbs v. Messer (1891) AC 28 PCpge 257 last para  -  “..Although a forged transfer which is void at common law, will, where duly entered on the register, becomes the root of a valid title, in a bona fide purchaser..”  The effect of registration, therefore, is to validate the purchaser’s title notwithstanding defects in the vendor’s registered title. The common law rule of non dat qui non habet is wholly abolished in favor of purchasers of registered titles in good faith”. “As I understand Gibbs v. Messer (supra) “.. indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Such a purchaser cannot, in the absence of fraud, be affected by the defects in his vendor’s title. .  In Assets Company Ltd v Mere Roihi and Others (1905) A.C. 176  House of Lords (Privy Council) at pge 18 para 1  “.. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached ..”
        2. Transfer from void grant valid: Even when original grant void, subsequent bona fide buyer’s title is valid and indefeasible. In Thomson v. Edie et al Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada at page 22  para 61, There was irregularity in issue of the grant. The property was later sold to a bona fide buyer. It was held,  “However, the Eadies are entitled to rely on the same protection of indefeasibility of title as if the grant had been valid.  That is the intention and the effect of the LTA.”  Asset Co. Ltd. v. Mere Roihi and others (1905) AC 176 (Privy Council) – In N.Z   In issuing grant to Native lands, there were several irregularities. Subsequently lands were sold successively to the bona fide buyers for which transfers, registered and certificate of titles issued. Upon the Natives challenging the titles of bona fide buyer it was held, at pge 2 last para, “.. in the absence of fraud by the Company or its agents, registration is conclusive, and confers good title on the Company, and that in the proceedings in the Native court even if proved, cannot affect the title of the Company, although such defects may possibly entitle the Natives to Compensation for any injury caused to them by improper registration..” and at  17 para 2  “..The sections making registered certificate conclusive evidence of title are too clear to be got over”
        3. Buyer better title than original owner: Assets Company Ltd v Mere Roihi and Others (1905) A.C. 176  House of Lords (Privy Council) at pge 18 para  “.. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached ..”In the text book Principles of Land law in Uganda by  John T. Mugambwa (who is a professor at Murdoch University in Australia and has 20 text books to his credit) at pge 73 para 4  mentions a case in Uganda – Lwanga v. Registrar of Titles Misc Case No 7A of 1977 (Unreported) (1980) AC 248 in which A forged the signature of B and transferred the property in his name and later sold and transferred it to a bona fide buyer. It was held that “… the title of bona fide purchaser could not be impeached since a person who was registered through fraud could pass a good title to a bona fide purchaser for value unless purchaser was not a bona fide purchaser or was privy to the fraud. This was one of the paradoxes of registered conveyance, that the registration by fraud was yet capable of becoming a good root of title to a bona fide purchaser for value

      Forger can transfer valid title: The Law and Practice Relating to Torrens Title in Australasia Vol I by E.A. Francis at pages 597, 649, 651 and  “..Thus a forger succeeds in getting himself registered as the proprietor and thereafter executes a disposition for value in favor of a bona fide purchaser ….then prima facie that purchaser cannot be ousted at the instance of the true owner, not only because of the express statutory provisions protecting possession, but also because a registered proprietor who has been unlawfully registered can nevertheless transmit a sound title..” The law and Practice of Registered Conveyancing by Ruoff & Ropper 3rd ed at page 68 para 1g: Under section 24 of the Act, a person deprived of land can claim compensation from the defrauder and govt. For example, in Australian case in Breskvar v Wall (1971) 126 CLR (High Court Aus)  the appellants were not deprived of their land when it was registered in the name of a rogue because by appropriate legal action they could have recovered the land from him. However, the appellants irrevocably lost their land once the rogue sold to an innocent person who acquired a title superior to theirs.   The result of these cases is that an “innocent” purchaser or lender’s interest is valid even if obtained pursuant to a fraud, and a fraudulent purchaser or lender’s interest is invalid. Frazer v. Walker (1967) 649 ALL E.R at pge 651 para I: In this suit wife forged husband’s signature  mortgaged it. The husband sought to set aside the mortgage, as well as the title to the new bona fide owner who had acquired title through foreclosure of the property. Their Lordships cannot accept this argument … Even if non-compliance with the Act’s requirements as to registration may involve the possibility of cancellation or correction of the entry—the provisions as to this will be referred to later—registration once effected must

      1. attract the consequences which the Act attaches to registration whether that was regular or otherwise…. It is in fact the registration and not the antecedents which vests and divests title.” Gibbs v Messer (1891) AC 248 Privy at page 254 para 3 Council..  “…every one who purchases in bona fide  and for value, from a registered proprietor, and who enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title”
      2. Other local supporting cases: Dinshaw Byramjee & Sons Ltd v. A.G. of Kenya – Civil Appeal No. 25 of 1965  – Court of Appeal at Nairobi (Sir Clement de Lestang, Ag. P., Spry and Law, JJ.A),  May 24 and June 8, June 8, 1966): E. A Law Reports Pge 198): A trust owned two parcels of land registered under RTA. Appointment and removal of trustees wrongful or irregular and invalid. The registered trustees created a charge. Held: At pge 202 para 5: ‘It is clear, therefore, that whatever irregularities may have occurred in the registration of earlier instruments, the transfer and charge  created by registered proprietors of the land became on registration a valid and effectual instrument’. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013: In this recent suit the Court of Appeal expressly affirmed principles of Torrens System of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities”
  1. UNDER RTA TITLE CAN NEVER EVER BE NULLITY AB INITIO:

 

    1. Last buyer’ title deemed ORIGINAL GRANT – buyer not concerned about past irregularities and illegalities: Original grant is issued by Govt after settling all the past issues of land once and for all so that first grantee and subsequent buyers or owners are not concerned about the past issues, irregularities and illegalities. Thenceforward all future buyers take the title at its face value and are not concerned about past history. As responsibility to scrutinize each instrument before its registration is put on the registrar,  s.23(1) RTA assures a buyer indefeasible title against entire world including the original owner upon registration. To that end s.22(3) of RTA provides,  “The title of the proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if he had been the original grantee in the grant of the land contained in the certificate’. As a result, as indicated,  all previous titles and interest are deemed extinguished including that of the original owner and thereby buyer is not concerned about the past irregularities or illegalities. What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. In Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge 14 last para), “.. He noted, as an important benefit of the new system, “cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that each freeholder is in the same position as a grantee direct from the Crown’. “This is an assertion that the title of each registered proprietor comes from the fact of registration, that is made the source of the title, rather than a retrospective approbation of it as derivative right..” In Regal Constellation Hotel Ltd 2004 CanLII 206 Ontario C.A.) Pge13 para 43,  “Certainty of title and the ability of bona fide purchaser for valuable consideration to rely upon the title as registered, without going behind it to examine the conveyance, are therefore, hallmarks of the land titles system..”  In Assets Company Ltd v Mere Roihi and Others (1905) A.C. 176  House of Lords (Privy Council) at pge 18 para 1    “.. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached ..”
    2. Buyer not concerned about past: In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada  at page 18 para 24.  In this case by error part of land of Edie was included in the subsequent grant of Thomas.’ .  At pge 18 para 24 ..  “The general and primary conception underlying the statute, as it is of all legislation establishing what is known as the Torrens system of land titles, is that the existing certificate, bearing the name of a real person, is conclusive evidence of his title in favor of any person dealing with him in good faith and for valuable consideration …The argument made involves this, that a person contemplating a purchase of land included in a certificate must not only examine that certificate and make a proper search for the interests to which, by the statute, it is declared to be subject, but must also examine every transfer back to the original grant from the Crown for errors in transcription into the successive certificates The legislation was designed, obviously, to avoid just such inconvenience and risk..’  Even when original grant is void, subsequent bona fide buyer’s title is valid and indefeasible.
    3. Why buyer given property and original owner compensation: Also in Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge12 para 1, “..The justification for destroying an existing legal estate or interest, which already been duly established upon the register, is, in other words, found only in the necessity of protecting those who subsequently deal in good faith and for value in a manner, which, upon its face, the register appears to authorize, and who then obtains registration”  In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada at page 19 para 25   “..The Torrens system is intended “to give certainty to title” as it appears in the land titles office.  That one who is named as owner in an uncancelled certificate of title possesses an “indefeasible title against all the world”, and at pge 19 para 25 “…registered owner of lands described in a certificate of indefeasible title signed by the Registrar has title to those lands from the moment the signature of the latter is affixed thereto, good against all the world….and is not liable to an action for ejectment or recovery of the said lands by the rightful owner..”…. This is because original owner’s right to possession of property is converted to right to be paid compensation. In local case of DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO[2012]eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012:  Defrauder registered himself by irregular means as the proprietor  and sold it  to a bona fide buyer not aware of fraud. HELD: “As buyer not concerned past irregularity and illegality, his title indefeasible.  They were not obligated to do anything more than search the official register to establish ownership. If, as it turned out, the register was inaccurate by reason of malfeasance by land officials, the second implication is that the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property. …. They had no obligation to go beyond the register to investigate Njendu’s title and satisfy themselves of its validity. They did their bit.” What this tantamount to is that buyer is entitled to the possession and original owner compensation, and that,  even if all the records including actual register of title were irregular or forgery because buyer is not concerned about them as buyer takes the title at its face value as it appears in front of mirror and is not concerned about the past or what is behind the curtain.  “Indefeasible” means “that which cannot be defeated, revoked or made void.
    4. Uganda case facts similar to subject suit and buyer’s title held valid: C.R. Patel v Com Land Registration & 2 Other -  Uganda HCCS 87 of 2009 Judgmt Jan 2013):  Uganda’s RTA is basically similar to Kenya’s RTA. Like in subject suit, in this Uganda suit also provisional certificate of title was forged and there was  irregularly in issue of provisional certificate of title without publication of Gazette  notice and thereafter property was transferred by a forged transfer. It was held, “…Counsel for the plaintiff submitted that the irregularities being talked about by the 1st defendant, that even if they occurred, were done before the plaintiff bought the suit properties from the person who, on a search before the sale were duly registered as proprietors. Unless there is evidence of fraud on the plaintiff’s part, and none was adduced by the defendants, the plaintiff remains a bona fide purchaser.  …… Further, even if there were errors or irregularities in the issue of the special (duplicate) certificates of title and transfer to Damulira Stephen, which is not proved, the plaintiff was not party to the errors committed in the office of the first defendant by her officers. To condemn the plaintiff on account of errors he was never  privy to would be to abolish the indefeasibility of title principle  which is protected in Sections 59,64,77,176 ( C ) and 181 of the Registration of Titles Act and which is the hallmark of the torrens system of title by registration practiced in Uganda. Section 91 of the Land Act was never intended to abolish this age old concept of indefeasibility of title. ….  Errors, illegalities and even frauds in earlier registrations cannot entitle the 1st defendant to cancel a registration of a person who is not privy to those errors. It was also held duplicate or provisional certificate of title replaces previous one and is as effective as  original.
  1. FOR QUICK REFERENCE DETAIL  EXCERPTS FROM SELECTED CASES:;
  1. This Uganda Case basically has similar facts as subject suit:C.R. Patel v Commissioner Land Registration & 2 Other (Judgment Jan 2013), HCCC No. 87 of 2009, Uganda High Court at Kampala (Land Division): The Registration of Titles Act of Uganda is basically similar to that of Kenya. This is a title fraud  case with facts basically similar to  subject  suit of Asaria v Rai and Others. In this Uganda case  there were also irregularities in issue of duplicate or provisional cert of title as NO GAZZET NOTICE WAS PUBLISHED AND TRANSFER WAS ALSO FORGED. also  buyer  was a bona fide buyer for value without the knowledge of fraud or irregularities. It was held that despite irregularities and illegalities in issue of provisional certificate and registering forged transfer, since buyer was a bona fide buyer and was not concerned about the past illegalities, his title was indefeasible and valid in rem. It was also stated that under Torrens system in fact register is the title and not certificate. Once duplicate or provisional certificate of title is issued, it replaces the previous one. Held:  It was held that despite irregularities and illegalities in issue of provisional certificate and registration of forged transfer, the buyer not being aware of them had valid title.” Further, even if there were errors or irregularities in the issue of the special certificates (means prov cert) of title and transfer to Ddamulira Stephen, which is not proved, the plaintiff was not party to the errors committed in the office of the first defendant by her officers. To condemn the plaintiff on account of errors he was never  privy to would be to abolish the indefeasibility of title … and which is the hallmark of the torrens system of title by registration practiced in Uganda. …. Errors, illegalities and even frauds in earlier registrations cannot entitle the 1st defendant to cancel a registration of a person who is not privy to those errors.” … “A special (provisional) (duplicate) certificate of title once issued under Section 70 of the Registration of titles Acts simply replaces the Duplicate (original) Certificate of title which is lost or presumed lost. … The Special and Duplicate (original)  Certificates of title are all based on one folio of the register (white page). It is my interpretation of the law that Section 64 (1) read together with Section 176 (e) RTA on priority of titles is quoted out of context. It deals with a situation where there are two or more conflicting registers (folios) in respect of the same piece of land. It does not deal with a situation where under Section 70 of the RTA a duplicate certificate of title is issued. Here there are no two conflicting certificates of titles but a replacement of the same certificate of title..”
  2. Recent CA case affirming principles of Torrens system: Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013: In this suit one of the beneficiaries fraudulently sold the property to  a buyer who was aware of fraud. Although property was not awarded to the buyer because he was aware of fraud, nonetheless, the Court of Appeal expressly affirmed the principles of Torrerns System of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities”

EXCERPTS: AT PAGES 10 AND 11 OF THIS CA CASE:   

  1. ..”The Registration of Titles Act is entirely a product of the Torrens system of registration. The word ‘Torrens’ is derived from Sir Robert Torrens, the third Premier of South Australia and pioneer and author of a simplified system of land transfer which he introduced in 1858. This is a system that emphasizes on the accuracy of the land register which must mirror all currently active registrable interests that affect a particular parcel of land. Government, as the keeper of the master record of all land and their owners, guarantees indefeasibility of all rights and interests shown in the land register against the entire world and in case of loss arising from an error in registration the person affected is guaranteed of Government compensation. This statutory presumption of indefeasibility and conclusiveness of title under the Torrens system can be rebutted only by proof of fraud or misrepresentation in which the buyer is himself involved. The object of this philosophy was summarized in the classic Privy Council decision in Gibbs V. Messer [1891] AC 247 P.C. at pg 254 as follows:-“The main object of the Act, and the legislative scheme for the attainment of that object, appear to them to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validly. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.”.
  2.  ..”We have taken this long route in order to explain that it has always been the law under the Registration of Titles Act and based on the Torrens system, that the title of a bona fide purchaser for value and without notice of fraud could not be impeached. This is what the judges in the Uganda case of Lwanga V. Registrar of Titles, Misc. Cause No. 7A of 1977 (1980) HCB 24, called the paradox of registered conveyancing – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value. Because of the seriousness of allegation of fraud, a criminal act, the burden of proof is on the party who alleges it and the standard of proof is more than a mere balance of probabilities. Fraud, for that reason, is treated as matter of evidence. ..”
  3.  “It follows from what we have said that there has never been any controversy with regard to theapplication of Section 23 of the Registration of Titles Act and even though the phrase “Torrens system”may not have been expressly used, there are numerous decisions in this country where it has beenapplied as demonstrated in cases following, Moya Drift Farm Ltd V. Theuri [1973] E.A. 114 where inreversing the High Court the predecessor of this Court held that the appellant was the absolute andindefeasible owner of the suit property and was entitled to take proceedings in trespass. Mutsonga V. Nyati H.C. Msa 295/1976 sets out the standard of proof for an allegation of fraud. In Hannah Wangui Ithebu &Ano. V. Joel Ngugi Magu & 2 Others Civil Appeal No. 86 of 1999 [2005] e KLR the High Courtrelied on the decision of the Court of Appeal in Permanent Markets Society & 11 Others V. Salima Enterprises & 2 others Civil Appeal No. 185 of 1997 that even where it is shown that past registrationswere obtained illegally the title of the last bona fide purchaser for value was indefeasible under Section 23 (1) of the RTA. This position was restated by the Court in Dr. Joseph Arap Ngok V. Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai. 60 of 1997 where this Court categorically declared that:-..” (iv) ..  “Section 23(1) of the Act gives an absolute and \ indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” See also Njilux Motors Ltd V. KP&L & Nairobi City Commission Court of Appeal Civil AppealNo. 206 of 1998, Job Kipnandi Chebon V. Makana Transporters Ltd & 3 Others, Edwin Wambua & Others, Mombasa HCCC No. 274 of 2009,Russel & Co. Ltd. V. Commercial Bank of Africa Ltd. [1986] KLR 633, Wreck Motors Enterprises Ltd V. Russet Co. Ltd V. Commercial Bank of African Ltd & Ano. [1986] KLR 633, Rose Njoki Kingau & Ano. V. shaba Trustees Ltd. & Another CivilApplication No. Nairobi 111 of 2010 and Elijah Arap Bii V. Samuel Gitau & KCB, Civil Appeal No. 155 of2006. With this plethora of authorities, it is erroneous to argue as learned counsel for the applicants did  that there is need for the Supreme Court to settle the law on fraud and indefeasibility of titles, that ‘fraud” ought to be defined by that court…”
  1. Buyer entitled to possession and original owner compensation: DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO[2012]eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012: (case is attached):  This case unequivocally confirms that Buyer is entitled to the possession and original owner compensation,: In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. It was stated, “They were not obligated to do anything more than search the official register to establish ownership. If, as it turned out, the register was inaccurate by reason of malfeasance by land officials,  the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property.  What this tantamount is that as buyer takes the records and register of title at the Land Title Registry at its face value. He is not concerned at all even if all the records and signatures are illegal. irregular or forged. This is  because Govt is the sole custodian and protector of Lands Office records and obliged  to scrutinize each document before registering or filing it and also to ensure accuracy of all the records at all  time. Because of this, if anyone suffers loss due to misfeasance or otherwise of officers, Govt is required to compensate that person. This is a special head of claim in addition to normal claim for duty of care under common law

EXCERPTS FROM THIS CASE

At Para 13: “Where, then, does this leave us? There is no elegant way to resolve this issue. There is only a pragmatic way of doing so. It is in keeping with the objectives of the Registered Lands Act, and, indeed, the entire system of registration of land in Kenya. The Registered Lands Act is based on the Torrens’ System. Under this system, indefeasibility of title is the basis for land registration. The State maintains a central register of land title holdings which is deemed to accurately reflect the current facts about title. The whole idea is to make it unnecessary for a party seeking to acquire interests in land to go beyond the register to establish ownership. The person whose name is recorded on the register holds guaranteed title

  1. to the property. Since the State guarantees the accuracy of the register, it makes it unnecessary for a person to investigate the history of past dealing with the land in question before acquiring an interest. That this is the essence of the Torrens System was stated as early back as 1891 in the case of Gibbs v. Messer (1891) AC 254: .The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author\’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author\’s title.
  2. At Para 14: “Practically, the principle of indefeasibility has two implications for the instant case. It means that if the parties who acquired interests to the properties from Njendu can demonstrate that they did so in good faith, without notice and did not participate in Njendu’s fraud, their titles will be secure and guaranteed by the State. They were not obligated to do anything more than search the official register to establish ownership. If, as it turned out, the register was inaccurate by reason of malfeasance by land officials, the second implication is that the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property.” 
  3. At Para15: “In my view, this statement of the law suggests the prima facie resolution of the case: In as long as, at this stage, it cannot be demonstrated otherwise, the assumption is that David Peterson Kiengo; Nkiiri Victor Michuru; and Kenakena Investments Ltd on the one hand; and Fountain on the other are bona fide purchasers for value without notice. They had no obligation to go beyond the register to investigate Njendu’s title and satisfy themselves of its validity. They did their bit.”   (iv) At para 22: …”Yet, I must return where I began. This is not an elegant solution. It is a hard result for the Thuos. They did nothing wrong. They are merely victims of a fraudster; in fact, they are vicarious victims to the fraudster because they never saw nor dealt with him. It is the other parties to the cases who were directly “victimized.” Yet, through the operation of the law, these other parties have an upper hand in retaining possession and ownership of the properties in question. For me, it is not enough that I say that the “law made me do it.” I believe that the results here are in keeping with the overall policy objectives of the Land Registration Act, whose stability, I also believe, maximizes the welfare of the polity. That does not make the result here any easier for the Thuos. The only saving grace is that they have a course of action against the State for recovery of damages if, eventually, the final resolution of this case mirrors that of the two Applications under consideration…
    1. Upon registration title indefeasible: Dr. Joseph Ng’ok v. Justice Moijo Ole Keiwua, J.L. Ole Kipury, J.B. Muturi, Commissioner of Lands and Madison Insurance Co. Kenya Ltd, Court of Appeal, Civil Appeal 60 of 1997 (27/97 Nrb) (case is attached) – Appellant applied for the allocation of a plot which was approved but he did not get himself registered. Subsequently same plot was allocated to three respondents who were registered as proprietors under RTA. They sold and transferred to Goodwood Properties Ltd who in turn sold and transferred  to respondent, Madison who was registered. It was held that since Madison was a bona fide buyer and there was no evidence of fraud, Madision under s.23(1) of RTA had indefeasible title. “Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy”.
    2. In Hannah Wangui Ithebu & Other v Joel Nguigi Magu, The Land Registrar Muran’a & Other Civil Appeal No. 86 of 1999 – [2005] eKLR High Court at Nairobi:  it was alleged that Appellant with collusion of Land Registrar had been registered as the first owner of the land. It was held at page 2 and 3 by Justice Visram applying Court of Appeal dictum in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC    Appeal No. 185 of 199: “Essentially, the issue before this Court turns on a legal point: whether the title deed issued to the Appellants in respect of the suit land conferred upon the Appellants an indefeasible and unpeachable title, which could not be challenged on any ground including fraud” …” under Section 23 of the Registration of Titles Act (which is in parimateria to the Registered Land Act) a Certificate of Title issued by the Registrar to any purchaser of land is to be taken by all courts as conclusive evidence that the person named therein as proprietor of land is the absolute and indefeasible owner thereof and his title is not subject to challenge except on the ground  of fraud or misrepresentation to which he is proved to be party”. … “ However, the Appellant’s registration as owners of the suit land was a first registration and under Section 143(1) of Registration of Land Act, Cap 300 Laws of Kenya, such registration could not be defeated even by proof of fraud. So even if the lower court was correct in finding that the defendants ‘conspired to fraudulently deprive the plaintiff (of suit land), as it did, this could not defeat the registration of Appellants, as the first registered owners of suit land….Unfortunately, that is the law, and much though I might dislike or disapprove of it (and I must say that indeed I disapprove of it) I am bound by it. In its wisdom, the Parliament made that law, and I am duty bound to apply it”.  As explained elsewhere herein, whereas under RLA only first registration is indefeasible, under RTA subsequent registrations also are indefeasible unlike RLA, common law does not apply to RTA.
    3. Dinshaw Byramjee & Sons Ltd v. A.G. of Kenya – Civil Appeal No. 25 of 1965  – Court of Appeal at Nairobi (Sir Clement de Lestang, Ag. P., Spry and Law, JJ.A),  May 24 and June 8, June 8, 1966): E. A Law Reports Pge 198: A trust owned two parcels of land registered under RTA. Appointment and removal of trustees wrongful or irregular and invalid. The registered trustees created a charge. Held: At pge 202 para 5: ‘It is clear, therefore, that whatever irregularities may have occurred in the registration of earlier instruments, the transfer and charge  created by registered proprietors of the land became on registration a valid and effectual instrument’.
    4. How court erred in Iqbal Rai’s case denying bona fide buyer land or compensation – also how Iqbal’s case different from subject case: Iqbal  Rai v Mark Lecchini HCCC 1054 of 2005 (Nrb):  In this Iqbal’s case,  a defrauder stole the identity of the owner, forged his signature and sold the plot to a bona fide buyer. The buyer unaware of the forgery, registered the transfer. Both original owner and buyer asserted that he had indefeasibility of title by virtue of s.23(1) of RTA upon registration of transfer. The property was awarded to the original owner based on  Gibbs v Messer (1891) AC 248 at page 254  para 3   that buyer did not deal with the owner who was registered at the time and  dealt with the defrauder.  As this was against the cardinal principle of Torrens system that upon the registration of transfer buyer’s title becomes indefeasible against entire world including the original owner or his vendor notwithstanding the infirmity of his author’s title, the Gibbs case had been overruled Under Torrens system, title is by registration. Buyer’s  title comes into existence upon registration and therefore it is irrelevant as to with whom he dealt.  Gibbs case was overruled as confirmed in Frazer v. Walker (1967) 649 ALL E.R at pge 651 para H and I. This cardinal principle of Torrens system is enshrined in sections 22(3) and 23(1) of RTA and also incorporated in new LRA.  As explained elsewhere herein, as a bona fide  buyer is not concerned about the past irregularities, upon the registration his title is deemed conclusive and indefeasible notwithstanding the infirmity of his author’s title. UNFORTUNATELY HON. JUDGE IN IQBAL’S CASE ERRED BY RELYING ON GIBB’S CASE NOT KNOWING THAT IT IN FACT IT HAD BEEN OVERULED.
    1. Under Article 40(6) of current Constitution tendency of Court to declare title nullity ab initio. THE DETAIL EXPOSITION OF LAW FOR INTERPRETATION OF CONSTITUTION IS  GIVEN AT THE END HEREIN:Apart from court declaring bona fide buyer’s title nullity ab initio on the ground of common law doctrine “non dat qui non habet”, it has been declaring title nullity under Article 40(6) of current Constitution by taking literal meaning.  Article 40(6) states, ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. Like all the provisions of Constitution, this is also a general philosophical statement which has to be read in the context of other  provisions such as of RTA. Provisions are like dry bones, skeleton or a initial frame of a house and it is the duty of court to fill in flesh.   “The High Court has added further support to this position by the dictum that: The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325) Hence this article has to construed in context of other relevant  legislation such as RTA, LRA, indefeasibility of title of bona fide buyer, Bill of  Right in the Constitution securing right to own property and payment of compensation to citizen deprived of property. Hence, most appropriate interpretation of this Article 40(6) would be that it would apply  to a defrauder and there could not  be intention to deprive innocent buyer of his property or compensation. It should be noted that, repealed Constitution  did not have such provision. Also new or current Constitution under Article 50(2)(n) does not have retrospective effect
    2. Registrar’s duty to scrutinize instrument before registering because – Registration procedure internal department matter -
    1. Why registration procedure internal department matter?: This is to fulfill main objective of Torrens system to avoid each buyer checking records that may go back for decades. Instead registrar is required to scrutinizeeach instrument before registering it. S. 22(3) of RTA makes last title deemed original grant and s. 23 bestows indefeasibility of title thereby buyer is not concerned about past irregularities and illegalities and takes the title at its face value. Hence impliedly buyer is not concerned about the prescribed procedure of registration.  In the local Court of Appeal case, Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013:- It was stated, “Govt is the sole keeper of all the records and guarantees indefeasibility of title against entire world and if anyone suffers loss due  to the negligence of Land Department, Govt compensates”. The compliance of procedure is registrar’s concern also because s.32 of the RTA states that the instrument is not valid until it is registered, the s. 27 provides that instrument is deemed registered only when registrar enters a memorial in the register. As such the procedure for registration stipulated under the Act is internal matter for the Land Titles Department only. Because  of this, if due to any negligence anyone suffers loss, the government compensates the aggrieved party which includes the original owner who is deprived of the property. Under the Old System conveyance or GLA (now replaced by LRA), the interest or title passed upon the execution of instrument and registration was substantially for priorities. Whilst under RTA or Torrens system parties remain responsible for the preparation of documents, it is the act of an officer in the Land Titles Office which effects the transfer of title to any registered legal estate or interest. The powers and responsibilities vested in state officials thus give rise to the possibility of loss through mistakes occurring in the Land Titles Office for which loss, the compensation is payable. AssetCo. Ltd. v. Mere Roihi and others (1905) AC 176(Privy Council) at pge 3 para 3  - In this case it was stated, “In every district there was a District Land Registrar whose duty it was to examine into title of every person applying for registration, and if satisfied with the title he was to issue  a certificate of title and register it. His certificate duly authenticated under his hand and seal was made evidence in all Courts of Law and Equity of the particulars therein set forth, and there being entered in the Register Book, and except  in cases after provided the certificate was conclusive evidence that person named in was entitled to the land mentioned in it for the estate or interest therein mentioned ..”
    2. Non compliance of procedure does not invalidate title: In Frazer v. Walker (1967) 649 ALL E.R at pge 651 para I, in a jointly owned property wife forged, appellant, husband’s signature and later mortgaged the property. The husband sought to set aside the mortgage, as well as the title to the new bona fide owner who had acquired title through foreclosure on the ground that registration of instrument did not comply the required procedure and therefore was a nullity. It was held that, “Their Lordships cannot accept this argument, which would be destructive of the whole system of registration. Even if non-compliance with the Act’s requirements as to registration may involve the possibility of cancellation or correction of the entry—the provisions as to this will be referred to later—registration once effected must attract the consequences which the Act attaches to registration whether that was regular or otherwise…. It is in fact the registration  and not the antecedents which vests and divests title.”
  1. Register and not certificate constitutes title because title by registration: 

Under RTA or Torrens system register is the title and certificate is merely proof of title. This was summed up succinctly by Barwick CJ in Breskvar v Wall (1971) 126 CLR (High Court Aus) pge 4 para15. (case is attached)  -  “The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivate. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matter not what the cause or reason for which the instrument is void.”   In Breskvar v Wall (Supra) at pge 14 last para (case is attached), “.. He noted, as an important benefit of the new system, “cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that each freeholder is in the same position as a grantee direct from the Crown’. “This is an assertion that the title of each registered proprietor comes from the fact of registration, that is made the source of the title, rather than a retrospective approbation of it as derivative right..” What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State.   This Uganda case confirms that  buyer not concerned about the past, and provisional certificate replaces previous one:  C.R. Patel v Commissioner Land Registration & 2 Other (Judgement Jan 2013), HCCC No. 87 of 2009, Uganda High Court at Kampala (Land Division) (case is attached): The Registration of Titles Act of Uganda is basically similar to that of Kenya. This is a title fraud  with irregularities in issue of provisional certificate.  It was held that despite irregularities and, since buyer was a bona fide buyer and was not concerned about the past illegalities, his title was indefeasible and valid in rem. It was also stated that under Torrens system in fact register is the title and not certificate. IT ALSO CONFIRMED THAT ONCE DUPLICATE OR PROVISIONAL CERTIFICATE OF TITLE IS ISSUED, IT REPLACES THE PREVIOUS ONE. Under RTA the interest in a instrument by virtue of s. 32 passes only upon registration and under s.27 the instrument is deemed registered as soon as it has been marked by the registrar with the folio and volume. It is the duty of registrar to scrutinize each instrument before registering it. On the other hand under GLA (repealed), the interest in an instrument passed upon the execution of an instrument and it was the responsibility of the buyer to scrutinize it and all past records. What is referred to here as title is registration and not certificate of title which is merely a piece of paper to establish proof.  The s.23 states that the certificate of Title ‘shall be taken by all courts as conclusive evidence that the person named therein as the proprietor. Also under s. 31 a copy of instrument certified by registrar to be conclusive evidence that it has been registered.  It is obvious that the purpose of sec 23 is to constitute certificate of title merely as a proof or evidence of title to make it convenient to prove title in the court and avoid having to call registrar to produce the records. What certificate is deemed to  say is that the owner whose name appears on the certificate is in fact at present on the record as the registered owner at the Land Title Registry. In the subject suit, while first Defendant holds original certificate, he is not registered as the owner at the registry. The operative or key words in this section are ‘evidence’ and ‘court’.  As per s. 32 of the Act, title  being by registration, only register itself constitutes the title. As such to establish who is the owner, it is necessary to search the title. Also the certificate is requisite for the purpose of registration of transfer and other instruments purely as a mechanism or procedural matter. Since it is optional, under s.22(1) buyer can at any time after he has been registered as owner apply for the issue of a certificate upon payment of a fee. Hence, if certificate is lost, destroyed or a duplicate is obtained by a forgery, it does not affect in any way the status of register of title.  S.71 of the Act categorically states, “ .. the provisional certificate shall be available for all purposes and use for which the grant or certificate of title so lost or destroyed would have been available and as valid to all intents as the lost or destroyed certificate”. It is like passport. It does not constitute citizenship. If a passport is lost and a new one is issued, the old one is deemed cancelled and new one is as effective as the original. On the other hand, whereas buyer’s name currently appears as the registered owner at the Land Registry, original owner’s does not. The certificate held by Plaintiff indeed reflects the true status with the name of owner at the registry. Hence, the certificate held by original owner is worth as a piece of paper as it is not reflection of what is at present on register.

  1. BURDEN OF PROOF ON WHO ALLEGES – BURDEN OF PROOF HIGHER AND DEGREE OF DILIGENCE LOWER: 
  1. Degree of diligence lower because of concept of indefeasibility of title: : In AssetCo. Ltd. v. Mere Roihi and others (1905) AC 176(Privy Council) at pge 27/28 para: Lord Lindley  in delivering the judgment of the Board, said that the sections of the then New Zealand Acts to which his Lordship referred: “…… appear to their Lordships to show that by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part.. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon..”  In other cases it has  been upheld that, in fact a high degree of probability is required.”  “..The want of that prudence, caution and wariness is not sufficient, according to the decisions and the principles which have hitherto been acted on, to affect the party with notice. … I am of the opinion that the party having acted bona fide, and having only omitted that caution which a prudent, wary, and cautious person might and probably would have adapted, is not to be fixed with notice of this instrument…. To be diligent buyer is not required to do anything more than follow a normal procedure. A bona fide buyer is liable only for ‘willful blindness’.  Gross negligence without mala fides will not be regarded as fraud…”    Francis, Torrens Title in Australasia, Vol. 1 at pp. 602 and 603 (extract not attached) summarizes the position in the following manner: “With regard, then, to the general exception from indefeasibility in cases of fraud, the position, it seems, may be summed up as follows:- (1). No definition is given, either by statute or by judicial decision, of what constitutes fraud, nor, it seems, is any such definition possible. (2) Fraud, for the purposes of these provisions, must be actual and not constructive or equitable fraud. (3) Fraud must involve an element of dishonesty or moral turpitude. (4) The presentation for registration of a forged or fraudulently obtained instrument does not constitute fraud if the person presenting it honestly believes it to be a genuine document. Grossnegligence without mala fides will not be regarded as fraud in New Zealand, or, it seems, in Australia.”
  2. Burden of proof is on who alleges fraud and burden is higher:   Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013,: In this suit it was stated that the burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities” Under RTA or Torrens system, the burden of proof is higher than in ordinary civil case. This is so that concept of indefeasibility of title is not undermined. In Mutsonga v. Nyati   Corrum:  Kneller J. High Court Mombasa No: 295/1976 Reported in 1984 page 425 at pge 439 para lines 25-30 (case is attached): “The next issue is whether or not the defendant had the parcel registered in his name fraudulently?  Charges of fraud should not be lightly made or considered ….  They must be strictly proved and although the standard of proof may not be so heavy as to require beyond reasonable doubt, something more than a mere balance of probabilities is required…”
  1. RTA overrides other Acts and laws so that concept of Torrens system not undermined: Under s 1(2), RTA being a special legislation, it overrides inconsistent provisions of all other Acts such as Government Proceedings, Advocates, Stamp Duty and Indian Transfer of Property. This is because, if title was subject to other laws, it would defeat the cardinal principle of ‘sanctity of title’ or ‘conclusiveness of title’.  S. 1(2) states “Except so far as is expressly enacted to the contrary, no Act in so far as it is inconsistent with this Act shall apply or be deemed to apply to land, whether  freehold or leasehold which is under the operation of this Act”. What it means is that, if a provision of any Act is repugnant to RTA, unless it itself expressly refers to the RTA, the provision of RTA would prevail over that Act.  Land Law in E. Africa by Krishan M. Maini pg 167.” This provision protects land registered under this Act from any other law, procedure and practice which is inconsistent with its provisions.. A provision of on these lines is common to all the Torrens statutes.”  If the title was subject to other laws, it would defeat the cardinal principle of ‘sanctity or conclusiveness of title “Section  23 (1) of the Act  bestows  sanctity of title upon the title holder under the Act. … In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.”  In Breskar v Wall HC Aust. 70; (1971) 126 CLR 13 Dec 1971  among other defenses in a case of  forged transfer, it was alleged that transfer did not comply with Stamp Act and therefore transfer was void. However, although it was void because of illegality under the Stamp Act, it was valid because under Torrens past illegality does not invalidate title. Hence Torrens system prevailed over the Stamp Act. “…Thus the effect of Stamp Act …is irrelevant to the question of whether the certificate of title is conclusive..” In Popatlal vs. Visandjee [1960] EA 361, 365: In this suit there was a default of mortgage and issue was whether Indian Evidence Act 1872 applied to the title under RTA. Held: (i) The joint effect of s. 1(2), s 23 and s.32 of RTA was to override s. 68 of the Indian Evidence Act, 1872. (ii) ..”Any other conclusion would violate the general principle of sanctity of title of the register, which is the foundation of legislation based on, as the Registration Title Ordinance is, upon the Torrens system of registration’.
  2. Buyer entitled to property and original owner compensation – how quantum of damages computed:
  1. Last buyer’s titled deemed original grant extinguishing all past titles including of original owner: This is because upon the registration of a buyer as a proprietor, the title of original owner is instantly extinguished in view of: (a) As under s.22(3) of RTA last buyer being deemed original grantee, all past interest and titles including of original owner being extinguished (b) Under s. 23(1) upon registration  buyer has indefeasible title against entire world including the original owner, and (c)  Under s.24 party who suffers loss including original owner who is deprived property due to the negligence of registrar is paid compensation by Govt. What this means is – “Where an owner is deprived of title as a result of forgery or other fraud, his or her right to recover the land is converted to right for compensation and the former owner is not entitled to have his titled restored and is statute barred from commencing an action to recover Torrens title land against registered proprietor.”
  2. Original owner’s recourse only for compensation and not possession:
    1. In Regal Constellation Hotel Ltd  Re 2004 CanLII 2006 Ontario C.A.) Pge13 para):  “The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy.”  These principles form the doctrine of indefeasibility of title and is the essence of the land titles system. In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canadaat page 19 para 25 “..registered owner of lands described in a certificate of indefeasible title signed by the Registrar has title to those lands from the moment the signature of the latter is affixed thereto, good against all the world….and is not liable to an action for ejectment or recovery of the said lands by the rightful owner..”
    2. DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012: In this suit, “If, as it turned out, the register was inaccurate by reason of malfeasance by land officials,  the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property”……at para 22: “Yet, I must return where I began. This is not an elegant solution. It is a hard result for the Thuos (original owners). They did nothing wrong…. Yet, through the operation of the law, these other parties (buyers) have an upper hand in retaining possession and ownership of the properties in question. For me, it is not enough that I say that the “law made me do it.” I believe that the results here are in keeping with the overall policy objectives of the Land Registration Act, whose stability, I also believe, maximizes the welfare of the polity. That does not make the result here any easier for the Thuos. The only saving grace is that they have a course of action against the State for recovery of damages..”  
  1. Registrar liable because sole custodian of all records: Whilst under Government Lands Act (repealed) interest in land passed upon the execution of an instrument, under RTA s.32 interest passed upon the registration. Section 27 of the Act states that an instrument is deemed registered when registrar enters a memorial in register and inserts his signature. Hence it is the act of an officer in the Land Titles Office which effects the transfer of title. The powers and responsibilities vested in state officials thus give rise to the possibility of loss through mistakes occurring in the Land Titles Office.  Apart from compensation payable under common law for negligence, under s.24(1) of RTA Government is obliged to pay compensation for mistakes of its officials. This provision provides for compensation for loss generally to any aggrieved party. However, since bona fide buyer upon registration achieves indefeasible title against entire world including the original owner, compensation is payable to the original owner losing the property as a consequence of fraud or by registering other person as proprietor in consequence of any error or miss-description in any grant or certificate of title or any entry or memorial in the register. The action is a special action, which is separate and different from any action the victim may have at common law.
  2. Damages payable to all injured parties: : In computing quantum of damages, the principle is that – victim to be put in his original state, that is, to be compensated for all losses he has suffered. If more than one party is injured due the act of a culprit, all have to be compensated as is in the case of passengers who are injured in a bus accident due to the negligence of a driver. As held in Virender Gudka & others v A.G  HCCC Nrb Env (480 of 2011) eKLR [2014] consequential losses such as loss of profit and cost of increase in cost of construction also payable.
  3. Contrary to cardinal principles of Torrens system Court’s tendency to award property to original owner on emotional basis: The court has been justifying declaring title of bon fide buyer nullity ab initio under the common law doctrine that seller cannot transfer better title than he has “non dat qui non habet’  not knowing, as explained elsewhere herein at length, that as RTA overrides common law, this common law doctrine does not apply. Hence forger can transfer a valid title or  title from a void transfer can be  valid. Also contrary to the objective and cardinal principle indefeasibility of title under RTA or Torrens system,  there has also been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer thereby destroying the cardinal principle of indefeasibility of title and making the Act defunct or like a car without its engine. This is because court feels how original owner could be deprived of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt, he is also compensated full market value.
  4. Owner deprived of property suffers no economic loss: Both under compulsory acquisition and under RTA property is taken away in the interest of public at large. Since public at large benefits from the property and so that single citizen does not take entire brunt, as a fairness, he is compensated a full market value. Contrary to the objective and cardinal principle of indefeasibility of title under RTA or Torrens system, as indicated, there has  been tendency for the court to award the property on emotional reason to the original owner instead of bona fide buyer. This is because court felt that it would be unfair to deprive original owner of his property not realizing that the owner would not suffer any economic loss as in the case of compulsory acquisition by Govt, he is also compensated full market value.  This is also because Constitution accords right to own property. How it benefits country at large if owner is deprived of his property under RTA ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades, Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties, avoid colossal cost and unnecessary stagnation of economy. It is like – instead of millions of passengers each time  before boarding a plane carrying   out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol, by law responsibility of safety of passengers is put solely on the owner of the airline.  Under RTA, registrar as an exclusive  custodian of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that  a  buyer takes the register of title at its face value  and is not concerned about the past records
  5. In compulsory acquisition country at large benefits: So that one individual does not suffer or take entire brunt, under Constitution, the Govt is obliged to pay full compensation at fair market value to the individual concerned. Same principle applies when depriving original owner of his property under RTA. Since it  benefits  country at large, so that deprived owner  does not suffer any economic loss,  he is paid full compensation at a fair market value. How it benefits country at large ! To avoid everyone each time carrying out arduous and costly search of title which may go back decades, Torrens system provides that instead registrar as the sole custodian of records scrutinizes each instrument once and for all before registering it thereby expediting transfer of properties, avoid colossal cost and unnecessary stagnation of economy. It is like – instead of millions of passengers each time  before boarding a plane carrying   out cumbersome enquiry to find out if plane was mechanically sound or pilot was qualified and not under the influence of alcohol, by law responsibility of safety of passengers is put solely on the owner of the airline.  Under RTA, registrar as an exclusive  keeper of records at the Land Title Registry is made solely responsible to ensure that all the records are at all time accurate so that buyers take the register of title at its face value  and are not concerned about the past records.
  6. More supporting cases why buyer entitled to property and original owner property:
  1. Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013): In this recent Court of Appeal, theexpressly affirmed all the principles of Torrerns system of titles and also unequivocally stated that a bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value..” This tantamount to buyer entitled to the possession.
  2. In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada at page 4 para 25: “[T]he Torrens system is intended “to give certainty to title” as it appears in the land titles office.  That one who is named as owner is an uncancelled certificate of title possesses an “indefeasible title against all the world”,…. That such a system may from time to time impose hardships is obvious and, therefore, in addition to preserving actions against the wrongdoer, the legislature has provided an assurance fund out of which, in appropriate cases, compensation may be paid to those who suffer a loss.”See text book “The Australasian Torrens System by James Edward Hogg” at pge 847 para 3 “…If a person is rightfully entitled to any interest in land and has lost his property owing to another person having obtained a registered interest which is, as against the rightful owner, indefeasible, provision is made for pecuniary compensation by way of damages being, in certain cases, made payable to the person so deprived of his property. For this purpose an Assurance Fund has been created in each jurisdiction.”
  3. Viranda Ramji Gudka & 2 others Nairobi HCCC (ELC Civil Suit) No. 480 of 2011 – {2011} eKLR: Land compulsorily acquired by Govt for road use – it was subsequently subdivided, allocated and title under RTA  issued to the Plaintiff – Road Authority to construct road overnight demolished a highrise building and 30 godowns on the ground title was issued illegally. HELD: (1) As no evidence of fraud on the part of Plaintiff,  his title  indefeasible (2) Govt adduced no evidence of compulsory acquisition and survey plan did not show if subject land was included, and (3) judgment for the Plaintiff that Plaintiff entitled to the land and Govt to pay Kshs.750 m for damage to property, loss of profit etc.
  4. Vekariya Investments Linited –v- Kenya Airport Authority & 2 others HCCC Milimani  Const and Human Rights Petition No. 263 of 2011 –{2014} eKLR: JKIA land was allocated and title issued to JKIA for public use of road and airport.  Subsequently land subdivided and allocated irregularly to predecessor of Petitioner. Title under RTA issued  – no evidence of fraud – issue of double allocation: HELD: (a) By virtue s.23(1) of RTA and s. 26 of new LRA 3 of 2012, both  parties had indefeasible title (b) As held in Gitwany Investment Limited v Tajmal Limited and 3 others Nairobi HCCC No. 1114 of 2002 {2006} eKLR – if double allocation prior one prevails  and land awarded to JKIA – as both parties innocent and fraud emanated from Land Title, Registrar liable to compensate  Petitioner bona fide buyer value of property and pay both parties cost. (c) Also followed was  Peterson Kiengo v Kariuiki Thuo -  Machakos HCCC No. 180)  and 220 of 2011 {2012} eKLR – Govt guarantees indefeasibility of  title, buyer takes title at face value and not obliged to scrutinize past record, Registrar liable for malfeasance of land officials and liable to pay compensation to aggrieved party, and buyer entitled to property and original owner compensation, and  (d) Article 40(6) which states that if title acquired unlawfully, it is invalid means title of party who colluded in fraud and not of an innocent buyer.
  5. Text book – Land Law in Uganda: Under the Torrens system, government is liable to pay two types of compensations: A text book “Principles of Land Law in Uganda by John T. Mugambwa’ 2002 Ed (who is a professor at Murdoch University in Australia and has 20 text books to his credit) pge 88 para 3 and 4 (extract of text attached) “Firstly, an action may be instituted where a person suffers loss through any omission, mistake or misfeasance of the registrar. ….. Secondly, a person who suffers loss as a result of the registration of another as proprietor may bring an action for damages against the registrar.
  6. Famous local case holding Registrar liable of malfeasance:  Gitwany Investment Ltd – vs – Tajmal Ltd, Geoffrey Njage, Max Motors Ltd, C of L and A.G. HCCC 1114 of 2002 (Nairobi) (case is attached). In this suit, presumably in collusion with Land Registry another record of title was created and a defrauder was registered and was issued with the certificate of title. The land was later sold to a bona fide buyer who was not aware of another original record. The buyer developed the land constructing several high-rises buildings comprising of apartments and for which he also borrowed money from the bank. It was held that both original owner and bona fide buyer were innocent. The property was awarded to the original owner and Commissioner of Lands was ordered to pay bona fide buyer Kshs151,500,000.00 cost of development and Commissioner was also ordered to pay the cost of both the parties and also cost of removal of development. It  was stated that “In fact the entire mess in which those parties find themselves in, is creation of and a matter that must be put squarely at the doorstep of the Commissioner of Lands … All documents leading  to the issuance of title are prepared, kept nor issued by any other party other than that office..” It should be noted that in the Gitwany case there were two or double allotments, two titles and two records of same land. Hence, the prior allotment or title prevailed but the subsequent title holder was compensated.
  7. Uganda’s case of C.R. Patel v Com Land Registration & 2 Other -  Uganda HCCS 87 of 2009 Judgment Jan 2013) (case is attached): Uganda’s RTA basically similar to Kenya’s, and also facts of Uganda case are similar to the subject suit. Despite forged Provisional Certificate and forged transfer like in the subject suit, title of bona fide  buyer was nonetheless held valid and thereby buyer was entitled to the possession of property. This was because buyer was not concerned about the past irregularities and illegalities of which he was not a party.
  8. Hannah Wangui Ithebu & Other v Joel Nguigi Magu, The Land Registrar Muran’a & Other Civil Appeal No. 86 of 1999 – [2005] eKLR High Court at Nairobi: (case is attached) : This case follows the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC    Appeal No. 185 of 199 (case is attached):  despite  illegality  in past title,  this Court of Appeal case affirmed title of bona fide buyer to be  indefeasible under s.23(1) of RTA.    In this Hannah’s case, Justice Visram emphatically stated “…such registration could not be defeated even by proof of fraud….Unfortunately, that is the law, and much though I might dislike or disapprove of it (and I must say that I indeed I disapprove of it) I am bound by it. In its wisdom, the Parliament made that law, and I am duty bound to apply it”.
  9. Registrar obliged to pay  compensation not for the act of defrauder but his malfeasance: To make the registrar liable for negligence or malfeasance of officials at the Land Title Registry is not something unusual. This is based on the general concept under common law tort that everyone in life owes a duty of care to another person. If due to his act or negligence another person suffers harm or loss, by law he is obliged to make loss good. In this respect,  Govt  is not excepted and is also liable for its action like  a private individual. Hence, if registrar is required to pay compensation, it is purely based on this concept of duty of care. He indeed is not paying compensation because of the act a defrauder or forger. If there was no malfeasance  in his department, the defrauder would not have succeeded. As indicated, he is obliged to pay compensation because  knowing very well that public was  required  to put full faith in the accuracy of records,  he let malfeasance occur. It is like  govt being liable  due to its negligence in not maintaining a highway bridge which collapses causing injuries.  .
  1. A bona fide buyer not liable for loss and cost of suit to anyone including to the original owner:
    1. Where an innocent bona fide buyer while relying on the face of title, buys a property about  which later on it  transpires that due to a fraud that emanated at the Land Titles Registry the original owner was adversely affected, such buyer as matter of principle and fairness cannot be liable to the original owner for any loss that original owner may suffer. This is because, if original owner suffered, it was because of malfeasance or negligence of officers at the Registry.  A bona fide buyer is also not liable because 24(i) of RTA specifically absolves a bona fide buyer for value who is registered as the proprietor of any liability for damages suffered by the original owner deprived of the property.  In Breskvar v Wall (Supra) at pge 17 para 9   “..nothing in the Act contained shall be interpreted to subject to any action of ejectment or recovery of damages any purchaser or mortgagee bona fide for valuable consideration of any land under the provisions of the Act although his vendor or mortgagor may have been registered as a proprietor through fraud or may have derived from or through a person registered as a proprietor through fraud.”  In  Gitwany Investment Ltd – vs – Tajmal Ltd, Geoffrey Njage, Max Motors Ltd, C of L and A.G. HCCC 1114 of 2002 (Nairobi) it was ruled that since fraud originated at the Land Registry and both the parties were innocent, the government must take the brunt of paying compensation of Kshs.151,500,000.00 million to the buyer and also pay costs of both parties. In the Principles of Land Law of Uganda by John T Mugambwa (who is a professor at Murdoch University in Australia and has 20 text books to his credit) page 88 para 2, “For example, if X fraudulently transfers P’s land to himself and he is the registered proprietor, X is the wrongdoer and P is entitled to sue him for compensation …. X would still be liable even where he transfers the land to TP, BUT NO ACTION FOR COMPENSATION BE BROUGHT AGAINST TP OR ANY OTHER PERSON WHO IS A BONA FIDE PURCHASER FOR VALUE. This is because of the principle of indefeasibility under s.61 and 181 of the Registration of Titles Act. The latter provision expressly absolves a bona fide proprietor for value from any liability for damages suffered by a person P deprived for his estate or interest in consequence of fraud, error or miss-description.  Under  s. 186(a), a person deprived of his or her estate or interest in land  may claim compensation from the government.”
  1. No rectification of title once bona fide buyer is registered – Limitation Registrar’s Powers: Registrar no power if issue of substance:  Under RTA registrar does not have power if issue of substance is not involved. In Power Technics Ltd. v A.G, Registrar of titles and Commissioner of Lands HCCC 178 of 2011 (Nrb High Court) [2012] eKLR at para “19. A plain reading of section 60 will show that the powers of the Registrar are limited to correcting errors and miss-description of land or boundaries or where entries or endorsements to any grant or certificate of title are made in error. This is a limited jurisdiction that does not include cancellation of titles. Even where the Registrar exercises such powers granted to him the facts that are condition precedent of the exercise of such power must be shown to exist and the party against whom the power invoked must be given an opportunity to be heard. Section 65 empowers the Registrar to do all things that are necessary to ensure that there is a fair hearing” In Asset Co. Ltd. v. Mere Roihi and others (1905) AC 176 (Privy Council)  at pge 9 para 1  “ …Large, however, as powers are, it has been decided that they cannot be exercised to the prejudice of registered bona fide purchaser..”  In Regal Constellation Hotel Ltd  Re 2004 CanLII 2006 Ontario C.A.) Pge 14 para 44) “.. It has been held that there is no jurisdiction to rectify the register if to do so would interfere with the registered interest of a bona fide purchaser for value in the interest as registered..”This is because before his title is voided, a forger can transfer a valid title to a bona fide buyer for value without the notice of fraud. Once bona fide buyer is registered and thereby achieves indefeasible title in rem and even against the original owner, it cannot be rectified against him. This is because,  forger’s title is voidable and not void. Because forger’s name appear on the register as the owner,  to the public, for all purposes, he is the owner. The text book, The Law and Practice Relating to Torrens Title in Australasia Vol I by E.A. Francis) ‘page 66,60 & 634 .. At pge 66…”there seems little doubt that, though the powers conferred on Registrar do involve the exercise of a judicial discretion, they do not extend to adjudicating upon substantial conflicting claims..”  page 634 “..It seems that these powers cannot be exercised so as to deprive of his interest any registered proprietor who is a purchaser or mortgagee bona fide and for valuable consideration…” page 655 ‘..the exercise of the registrar’s powers must be limited to the period before a bona fide purchaser, or mortgagee acquires a title …”….    “…In this scheme, good faith purchasers or mortgagees who have taken an interest in the land for valuable consideration and in reliance on the register, are protected,  in keeping with the motivating principles underlying the land titles system.”  Under s. 80(2) of  Land Registered Act (3 of 2012) title cannot be rectified if bona fide buyer was in possession and acquired for valuable consideration.
  2. Under RTA possession passes with transfer:Unlike RLA, under RTA, with transfer and issue of certificate of title, the possession also is deemed to have passed to the buyer. As a corollary, since In Moya Drift Farm Ltd. v. TheuriPg. 114 – (Court of Appeal at Nairobi  No: 13  of 1973  (Sir William Duffus, P. Spry, V.P., and Lutta, J.A.)  Civil Appeal 44 of 1972. – EALR pg. 114  (Appeal from the High Court of Kenya – Miller, J.).. The appellant sued the respondent claiming that it was the registered owner of certain land on which the respondent was trespassing and who had refused the appellant entry.  It claimed eviction and a perpetual injunction restraining trespass by the respondent.  The judge found that the appellant was the registered owner of the land but that as it had no possession it could not claim in trespass. The appellant appealed, contending that possession was unnecessary in view of the Registration of Titles Act. Held:  the appellant was the absolute and indefeasible owner of the land and was entitled to take proceedings in trespass; at Pg. 115 –“ Mr. Hewitt conceded that it was formerly the law in England that a person had to have taken possession of land before he could take proceedings in trespass, but he submitted that this cannot be the law of Kenya, as it would make nonsense of s. 23 of RTA.  I find this argument irresistible and I do not think it is necessary to examine the law of England.  I cannot see how a person could possibly be described as “the absolute and indefeasible owner” of land if he could not cause a trespasser on it to be evicted.  The Act gives the registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession.”
  3. Exception to indefeasibility of  title – there cannot ever be two concurrent titles: The indefeasibility of title is not absolute. However there are exceptions to the indefeasibility such as fraud, encumbrances noted on the title, and tenancy under three years with tenant in possession. Other jurisdictions specifically have enacted law to provide as a further exception, “the estate of a proprietor claiming under a prior instrument of title”. This is designed where due to an error in survey or mistake on the part of registrar same land is included in two titles, in which case the later one is rectified and is paid compensation. This is not a general exception as otherwise it would be make redundant cardinal doctrine of indefeasibility of title. However, it ought to be born in mind that Kenya’s RTA has not been amended to provide for this exception. Under RTA such exception would also be contrary to the express provision contained in s.22(3) that “ The title of the proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if  he had been the ORIGINAL GRANTEE in the GRANT of the land contained in the certificate.” This provision tantamount to invalidate all previous titles in vesting in LAST bona fide buyer indefeasible title in rem even against the original owner. What this unequivocally states is that,  there can never arise a situation of there being at the same time two concurrent titles of the same land.  In Breskvar v Wall (Supra) at pge 14 last para, “.. He noted, as an important benefit of the new system, “cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that each freeholder is in the same position as a grantee direct from the Crown’. “This is an assertion that the title of each registered proprietor comes from the fact of registration, that is made the source of the title, rather than a retrospective approbation of it as derivative right..” What this tantamount to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. Hence because of s.22(3) there never can be issue of two concurrent titles as latest registration constitutes final grant or title and all previous ones are deemed buried and of no consequences.  Professor John T. Mugambwa is professor at Murdoch University in Australia and has to his credit  20 text books. Among these, includes “Principles of Land Law in Uganda” and ‘Source Book of Uganda’s Land law”. In the “Principles of Land Law in Uganda” at page 77 para 3 he mentions about this exception of indefeasibility, “ The estate of a proprietor claiming under a prior instrument of title”. If a subsequent buyer can never have an indefeasible title, then what is the purpose of the Torrens system? The objective is to save dealers in land from the obligation to inquire about the history of the legal land history – i.e. how the vendor acquired the land. The person whose name appears on the certificate is the owner…IN KENYA, APART FROM OVERRIDING INTERESTS MENTIONWD IN THE ACT AND INTERESTS ENDORESED ON THE CERTIFICATE, THE ONLY EXCEPTIONS ARE FRAUD AND MISREPRESENTATIONS
  4. LIST OF CASES SITED IN THIS PAPER;
     

    LIST OF  CASES CITED IN THIS PAPER

     

     01 Asset Co. Ltd v Mere Roihi (1905) AC 176  – Privy Council: Title  frm void instrument valid – to preserve concept of indefeasibility, burden of proof for fraud higher and degree of diligence lower – registrar’s duty to scrutinize each doc as such rules and provisions for registration internal dept matter – registrar’s power to rectify title cannot be exercised to the prejudice of bona fide buyer.
    02 The Australian Torrens System by James Edward Hogg: All the concepts of Torrens system of titles are discussed and explained.
     02 Boyd v Mayor etc. Wellington (1915) – (Case not found): Unlike RLA, common law do not apply to RTA – this is to preserve doctrine of indefeasibility – hence common law principle seller cannot give better  title than he has (non dat qui non habet) do not apply – as such title frm void instrument valid or forger can trf valid title.
    03 Breskvar v Wall (1971) 126 CLR (High Court Aus): Title frm void instrument valid as such forger can trf valid title – title by registration – as such register is title and not cert.
     04 Cecila Gakui Kinyua & Other v. Nayaga Gichenga, Registrar & Others (287 of 2010)  HCCC Milmn Lnd Env {2012} eKLR: Justice P. Nyamweya held no notice under  s.13A of GLA required as RTA exempted under s. 19(3)  and registrar to be party
     05  C.R. Patel v Commissioner Land Registration & 2 Other (Judgment Jan 2013), HCCC No. 87 of 2009, Uganda High Court at Kampala (Land Division): Uganda RTA basically similar to Kenya’s – this Uganda case had similar facts to subject suit as provisional cert was forged and no Gazette notice and forged transfer – HELD: As buyer bona fide unaware of fraud, “to deprive him of title would be to abolish concept of indefeasibility of title..” – also held prov cert replaces prior one and as effective as previous one.
      

     

    06

     Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013: In this recent case,  the Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud is on who alleges it and standard of proof is more than a mere balance of probabilities”
    08 D.T. Dobie & Co (K) Ltd v. Joseph Muchina & Another – Civil Appeal 37 of 1998 (Nrb) eKLR: The court should exercise its power to strike out action for lack of cause of action or otherwise very sparingly.
     09  David Peterson Kiengo & 2 Others -v-  Kariuki Thuo[2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012: Title of bona fide buyer valid despite past irregularities and illegalities – ORIGINAL OWNER’S RECOURSE COMPENSATION AND NOT POSSESSION
    10 Deepak Kamani -v-  Kenya Anti- Corruption Commission and others Court of Appeal (152 of 2009): Constitution frowns technicalities to hinder justice being rendered – pleadings be amended than struck off.
     11 Dinshaw Byramjee & Sons Ltd v. A.G. of Kenya – Civil Appeal No. 25 of 1965  – Court of Appeal at Nairobi (Sir Clement de Lestang, Ag. P., Spry and Law, JJ.A),  May 24 and June 8, June 8, 1966): E. A Law Reports Pge 198: Held: At pge 202 para 5: ‘It is clear, therefore, that whatever irregularities may have occurred in the registration of earlier instruments, the transfer and charge  created by registered proprietors of the land became on registration a valid and effectual instrument’.
     12 Frazer v. Walker (1967) 649 All E. R or 1AC 585 (HC Aus: Title valid despite past irregularities and procedure not followed – confirms Gibbs v. Messer(1891) AC 28 overruled -  under Gibbs case buyer was obliged to deal with registered owner – Gibbs overruled  since title upon registration absolute,  buyer need not have to deal with registered owner
     13 Gibbs v. Messer (1891) AC 28 or 248 (Privy Council): Propounds concept of Torrens system and indefeasibility – sanctity of title – buyer take title at face value and not concerned about past – title from void instrument valid – buyer entitled to prop and original owner’s right to possession converted to compensation -under Gibbs case buyer obliged to deal with registered owner only – however Gibbs case overruled as confirmed in Frazer v Walker – as title upon registration absolute, buyer need not deal with registered proprietor – under s 32 of RTA interest passes only upon registration – once registered, title absolute.
     14 Gitwany Invest Ltd v. Tajmal Ltd, Njage, Max Towers, C o L and AG – HCCC 1114 of 2002: whereas Gitwany suit had two records of title, subject suit only one title – in Gitwany case since both buyer and orig owner innocent and since fraud emanated at Land Title Registry, registrar ordered to pay Kshs 151 million compensation to buyer and costs of both parties.
    15 Gitau & 23 Others v A.G & 58 HCCC 548 of 1995 – No notice under GPA required to enjoin later on another party in the suit
     16 Govindji Popatlal -v- Nathoo Visandjee – Civil Appeal No. 41 of 1959 – Court of Appeal Nairobi June 1960 -  E.A.L.R (1960) pg 361: Joint effect of.1(2), s.23 and s.32  was to override other Acts inc Indian Prop and Evidence Acts  etc.- “Any other conclusion would violate the general principle of sanctity of title of the register, which is the foundation of Torrens system of registration.”
    17 Hannah Wanagui Ithebu & Other v. Joel Magu & Registrar (86 of 1999) HCCC Appeal {2005} eKLR: “Bona fide buyer’s title cannot be defeated because of past illegality ..that is the law’
     18 Iqbal Singh Rai v Marck Lecchini HCC 1054 of 2005 (Nrb): Court erred in depriving bona fide buyer of prop or compensation by following Gibbs v. Messer (1891) AC 28 or 248 (Privy Council) not knowing Gibbs case had been overruled  -  see comments on Gibbs and Walker’s cases herein
     19 Prof John Mugambwa – Murdoch University, Australia & Land Law in Uganda: He has written over 15 books on Land Law incl on Uganda – See extracts frm his book – see also correspondence with him by Plaintiff – according to him there are specific exceptions to indefeasibility e.g. fraud but there cannot be general exception as it would entirely defeat the concept of Torrens system of title.
    20 Josephat Mureu Gabiguta –v- Howse & MC George Ltd HCCC 2545 of 1993 (Nairobi): Under GPA, despite notice defective, suit cannot be dismissed as long as Govt had all the pertinent info and was not prejudiced.
    21 Dr. Joseph Ng’ok – v – Justice Moijo ole Keiwua & five others C.A.  Civil Appeal 60 of 1997 (27/97 VR): s. 23(1) of RTA gives bona fide buyer absolute sanctity of title upon registration
    22 Kenya Bus Service Ltd & Another v Minister of Transport A.G. HCCC 504 2008 Nrb [2012) eKLR - Requirement of notice to Govt under s.13A  of GPA  violates citizens right under Article 48 of the Constitution
     23 Mutsonga v. Nyati   Corrum:  Kneller J. High Court Mombasa No: 295/1976 Reported in 1984 page 425 at pge 439 para lines 25-30: To preserve doctrine of indefeasibility, burden of proof for fraud higher than ordinary civil suit
     24 Moya Drift Farm Ltd. v. Theuri Pg. 114 – (CA  Nrb  13  of 1973)  CA 44 of 1972. – EALR pg. 114: Under RTA possession passes with the registration of transfer - this is because, what would be purpose of indefeasible title if  buyer did not have possession
     25 Regal Constellation Hotel Ltd. Re 2004 CanLII 206 Ontario Court of Appeal: Buyer not concerned about past - each registered owner in same position as a grantee from the Govt. - this is enshrined in s.22(3) of RTA which states that last buyer's title deemed original grant
    26 Thomson v. Eadie et al, 2006 BCSC 868 at page 21: Buyer's title valid even if original grant from Govt invalid - tantamount to buyer not concerned about past irregularities and illegalities.
    27 Virender Gudka &  3 others v A.G  HCCC Nrb Env (480 of 2011) eKLR [2014] consequential losses also payable also payable by registrar for malfesanace at Registry
     28 Wreck Motors Enterprises Ltd  -v- Com of Lands, Salpar Singh, NCC & Chemo Ent, CA 71 of 1997: Two Letter of Allotments were issued – however 2nd allottee was registered and was issued cert who sold it to a bona fide buyer – as 2nd allottee was registered, his title under s.23(1) of RTA was indefeasible.

     

    SECTION: 19:                KENYA CONSTITUTION  – APPLICATION AND PRINCIPLES OF  INTERPRETATION – DETAIL EXPOSITION

    CONSTITUTION MERELY  SKELETON OR FRAMEWORK OF LAWS – COURT TO PUT FLESH AND SPIRIT TO IT – TO BE INTERPRETED BROADLY AND READ WITH ANCILLARY LAWS – BILL OF RIGHT TO OWN PROPERTY – COURT ERRED HOLDING TITLE UNDER RTA NULLITY AB INITIO UNDER ARTICLE 40(6) – NO SUCH PROVISION IN REPLEALED CONSTITUTION – NO RETROSPECTIVE EFFECT OF CURRENT CONSTITUTION.

  5. Court erred in interpretation of Constitution and declaring title nullity ab initio under Common law and Constitution: 19-A   Title nullity under common law: (for detail see 23, 25 & 28): While court not realizing that common law and equity did not apply to RTA, the court has held title nullity ab initio based on common law doctrine that seller cannot transfer better title than he has. This is absolutely contrary to the cardinal principle of RTA. To preserve the doctrine of indefeasibility, firstly, s. 22(1) of RTA  assures indefeasibility of title in rem to a buyer, secondly under s. 22(3) buyer’s title is deemed as new GRANT thereby extinguishing all past titles and interest. It also tantamount that buyer is not concerned about the past record,  and thirdly, as the common law and equity did not apply to RTA, title from void transfer would be valid i.e. a forger can transfer a valid title as explained in detail elsewhere herein. Whereas s.163 of RLA expressly provides that Act is subject to the “common law of England as modified by equity”, so that doctrine of indefeasibility is not undermined,  RTA does not have such provision.

    Erred also by declaring  title nullity by misconstruing Article 40(6) of Constitution: (for detail see 23). This Article states, that  ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. The court taking its literal or face meaning have been holding bona fide buyer’s title nullity ab initio contrary to the cardinal principle of indefeasibility of title thereby rendering RTA a car with an engine. How court has erred in interpreting this Article is explained in detail later on.

    An example of how court has demolished cardinal principle indefeasibility of title in RTA rendering RTA as a car without an engine:  This by misconstruing Article 40(6) of Constitution and declaring RTA nullity ab intio: In the case of Chemei Investments Limited v The Attorney General & Others Nairobi Petition No. 94 of 2005 (Unreported) where the court stated at paragraph 64 that -“The Constitution protects a higher value, that of integrity and rule of law. These values cannot be side stepped by imposing legal blinders based on indefeasibility. I therefore adopt the sentiments of the court in the case of Milan Kumarn Shah & 2 Others v City Council of Nairobi & Another (Supra) where the Court sated as follows, ‘We hold that the registration of title to land is absolute and indefeasible to the extent, firstly, that the creation of such title was in accordance with the applicable law and secondly, where it is demonstrated to a degree higher than the balance of probability that such registration was procured through persons or body which claims and relied on that principle has not himself or itself been part of a cartel which schemed to disregard the applicable law and the public interest.”

    No retrospective effect of Article 40(6) of current constitution: (see for detail section 23(l) herein): Article 50(2)(n) of current Constitution provides that every accused has right, “not to be convicted for an act or omission that at the time it was committed or omitted was not an offence..” The repealed Constitution in fact did not have provision such as Article 40(6). The court, therefore, had been wrong in holding title nullity ab initio in respect of illegality prior to current Constitution. The detail exposition on law in respect of  retrospective is given herein in section 23(l).

    19-B.  Court to add flesh and spirit to the bones or laws – provisions of Constitution general and vague:  The Article 40 (6) of the Constitution states ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’.  This provision indeed is very general, wide and ambiguous. The term ‘acquired’ could imply any transfer – current or past one, or any owner or only the defrauder. Also term ‘unlawfully’ is wide. There are degrees of unlawful acts – from a felony to merely spitting in the street. For instance in the case of transfer of property, if application for registration was not signed, or property was undervalued for stamp duty or to expedite registration, a favour was asked of official,  all such instances could be deemed unlawful. As such, it is absolutely incumbent that provisions of Constitution as explained in detail herein has to be liberally and broadly construed to befit appropriate circumstances. This responsibility has been expressly assigned to the legislature and court by filling flesh and spirit to bare bone provision of Constitution.

    19-C   Constitution merely framework or bare bones – legislature and court to fill it with flesh and spirit: While Constitution is a supreme or paramount document of dogma and law, it is barely few pages and therefore cannot spell out or encompass all the detail laws of land. It is indeed bare bone of laws or is like a mere framework of a building. Until finishing work is completed, the building cannot be used for occupation, though frame or structure is a critical part of building. The constitution leaves on legislature and court to finish the building by putting flesh into the framework. Hence to interpret a provision such as Article 40(6), it has to be looked in the context of detail laws that have been promulgated or enacted, namely registration of titles Acts such as RTA and LRA,  Bill of Rights under the Constitution protecting right of property of citizen, and provisions regard to payment of compensation when property is expropriated. Unfortunately court has construed Article 40(6) by taking only the literal meaning of it and instead of declaring the title of actual defrauder nullity also has ruled innocent buyer’s title nullity. Although Constitution is a brief document, since its language is philosophical and broad, it encompasses all aspects of life for governance of an ideal nation.  However, it relies on legislature and court to formulate detail laws within the spirit and parameter that has been laid down based on Article 259(1) which provides that “This Constitution shall be interpreted in a manner that— (a) promotes its purposes, values and principles;  (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;  (c) permits the development of the law”.  Because it is merely a skeleton or framework of laws, it imposes serious responsibility of ‘DEVELOPING THE LAW” on the shoulder of legislature and court. Hence court should not take this duty lightly by merely taking a literal meaning of a provision and depriving innocent owner of his property that Bill of Right has specifically assured him. How broad could a provision be – for instance, just as an analogy, say it used a term that a vehicle be used for transportation. The vehicle could mean motorcycle, tractor, bus or car. It is therefore, left to the discretion of legislature and court to designate appropriate vehicle for the purpose. When it states that each citizen has right to own a property, it leaves rest of ancillary detail, such as of tenure, allotment, title, mortgage and lease for legislature to enact. Hence correct meaning and purpose of a provision of Constitution could only be derived in the light of subordinate legislations.

    19-D.  Article 19 of Constitution:  “(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2). The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State, (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter”. This Article indeed confirms that the provisions of Constitution are mere bare bones or framework and as provided under Article 259(1), it is the responsibility of legislature to interpret it broadly and develop laws to add flesh to it. If court purported to read only literal meaning, it would be against the spirit of the Constitution and unjust. Article 68:  “Parliament shall— (a) revise, consolidate and rationalize existing land laws; (b) revise  land use laws in accordance with the principles  set out in Article 60 (1); and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land; (ii) to regulate the manner in which any land may be converted from one category to another; (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter”.  This confirms the duty of legislature and court to develop the laws. Hence, to interpret an Article or provision, it is critical to look at it in the light of subordinate statute enacted by legislature. Hence, it is paramount that Article 40(6): ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ has to be read with the provisions of legislations, such as registrations of titles Acts about sanctity or indefeasible of title granted to last bona fide buyer which tantamount to that such innocent buyer’s title can never be nullity ab initio because of past illegality.

     

    ARTICLE 40(6) APPLIES ONLY TO ACTUAL DEFRAUDER AND NOT TO INNOCENT  BUYER:

    19-E   What to be taken into account in interpreting a law: The Article 20(3)(b) states “Adopt the interpretation that most favors the enforcement of a right or fundamental freedom”. It implies that legislature and court to use their wisdom and discretion to achieve objective of Constitution. To take merely a literal meaning of language of a provision would tantamount to doing injustice.  In construing a law, foremost of all the intention of legislature and purpose of law should be taken into account.  The purpose is absolutely clear as Bill of Rights provides right to own the property by a citizen and also impliedly protection of title be assured.  To that end, if property is acquired compulsorily or if owner’s right to it is prejudiced by any provision of the Constitution, the citizen has to be compensated or appropriate relief is to be given.  As indicated, since Constitution is merely a skeleton or frame of laws, to understand true meaning of a provision, it is absolutely critical to take into account the detail laws promulgated or enacted under it. In declaring title nullity ab initio, it is absolutely incumbent that provisions, such as s. 22(3) of RTA should be born in mind  which declares last registered owner’s title as a fresh or new grant thereby extinguishing all previous titles and interest, while s. 23(1) assuring indefeasible or absolute title to  a bona fide buyer. As RLA under s. 163 was  subject to common law and equity, except for the first registration, other registrations could be defeasible or are not indefeasible. This is because those equitable interest and rights that are not registered are also recognized. On the other hand, as RTA and LRA do not have provision such as s. 163 of RLA, they override common law and equity and therefore, unlike RLA, not only first registration, but all subsequent ones are also indefeasible or absolute.  Based on this, under RTA and LRA past irregularity or illegality do not affect last buyer’s title. Hence title from a void instrument can be valid or a forger can transfer a valid title,  and therefore title can never ever be nullity ab initio as far as last bona fide buyer is concerned.  Despite of such a clear cut ruling of superior Court of Appeal in the following two cases confirming that upon registration, last bona fide buyer had indefeasible title in rem despite past illegality, the High court  had been erroneously holding that, since equity and common law also applied to RTA, it had been declaring title of  last bon fide buyer nullity ab initio for past illegality or irregularity based on seller cannot vest better title than he had. By extricating this main component, namely, concept of indefeasibility of title  which makes title absolute in rem,  the High Court has rendered RTA or Torrens system like  a car without an engine, though recent cases have begun to recognize the principles of Torrens sytstem:

    1. In Hannah Wangui Ithebu & Other v Joel Nguigi Magu, The Land Registrar Muran’a & Other Civil Appeal No. 86 of 1999 – [2005] eKLR High Court at Nairobi: Justice Visram unequivocally reaffirmed the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC    Appeal No. 185 of 199  that despite past illegality title of a last bona fide buyer was indefeasible under s. 23(1) of RTA. Full detail of Hannah’s case is given elsewhere herein. Unfortunately, despite this decision of superior Court of Appeal, High court incorrectly applying common law doctrine, have been declaring titles of bona fide buyer nullity under RTA.
    2. Dr. Joseph Ng’ok v. Justice Moijo Ole Keiwua and Others, Court of Appeal, Civil Appeal 60 of 1997 (27/97 Nrb) – In this suit despite past illegality, the title of last bona fide was held indefeasible. The ruling stated, “Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy”.
    3. Recent cases recognizing concept of Torrens system: I it is a relief that at last courts have begun to understand and apply the doctrines of Torrens system, in particular the concepts of – (i) as buyer takes the title at the face value, he is not concerned about the past irregularities and illegalities, and as such (ii) buyer entitled to the property and original owner fair market compensation like in compulsory acquisition. Following are recent cases affirming doctrines of Torrens system.

    a.DAVID PETERSON KIENGO & 2 OTHERS V KARIUKI THUO [2012] eKLR HCCC 180 & 220 of 2011 (Machakos) Judgment: 5th July, 2012): In this suit the defrauder registered himself as a proprietor and than sold the property to innocent buyers who were registered as the owners. It was stated, “They were not obligated to do anything more than search the official register to establish ownership. If, as it turned out, the register was inaccurate by reason of malfeasance by land officials,  the parties deprived of their property by such inaccuracy or malfeasance may bring an action against the State for recovery of damages but not for possession or ownership of the property

    b.Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR – Court of Appeal Civil App Sup No. 12 of13 – Ruling on: 8th Nov 2013 (case is attached): In this recent case the Court of Appeal unequivocally affirmed principles of Torrens system of titles: (a) Govt, as a keeper of records guarantees indefeasibility of title against entire world, (b) If anyone suffers loss, Govt compensates, (c) Buyer is not concerned about past irregularities and illegality, (d) Bona fide buyer notwithstanding infirmity of his author’s title, acquires indefeasible title – ‘called the paradox of registered conveyancing  – that the registration obtained by fraud was void and yet capable of becoming a good root of title to a bona fide purchaser for value, and (e) The burden of proof of fraud was on who alleges it and standard of proof was more than a mere balance of probabilities”.

    Specific provisions of Constitution with regard to interpretation:

    19-F  Interpretation – Article 259 of Constitution:  “(1) This Constitution shall be interpreted in a manner that: (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance. …(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—“ Article 20(3) (b) “adopt the interpretation that most favors the enforcement of a right or fundamental freedom”… 20(4)(b).. Promote the spirit, purport and objects of the Bill of Rights”.

    Following are excerpts from an article published in Kenya Law Reports: “The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation in Kenya:” By Ongoya Z. Elisha 2008: (Article’s excerpts attached)

    19-G  Interpretation of Constitution: When courts decide Constitutional cases, they do more than interpret a statute. The Constitution is a charter containing the pact that is the “social contract” At times, the Constitution is vague or imprecise or has glaring lacunae and the courts are called upon to provide the unwritten part.”(Muigai, G., 2004. Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation, East African Law Journal, Vol 1 p 1.

    1. Broad and Liberal Interpretation: In the case of Crispus Karanja Njogu Vs Attorney General Nairobi, High Court Criminal Application No 39 of 2000 in which the court held the view that Constitutional provisions ought to be interpreted broadly or liberally ‘and not in a pedantic way i.e. restrictive way.’(In the words of the court, “Constitutional provisions must be read to give effect to the values and aspirations of the people. The court must appreciate throughout that the Constitution, of necessity has principles and values embodied in it, that a Constitution is a living piece of legislation. It is a living document.” Similarly, members of the tribunal of inquiry established to investigate the conduct of puisne judges in matter number 1 of 2004 had occasion to make a ruling raising, among other issues, the questions of Constitutional interpretation. In their ruling, tribunal members opined that “rules of interpretation in case of a Constitution which is not an Act of Parliament may, therefore, be different from those in case of an Act of Parliament. We will interpret the Constitution in a liberal and broad manner within the precincts of common sense and the object of the particular section”)
    2. In the case of Rev. Dr. Timothy Njoya and 6 others Vs the Attorney General and 4 Others [2004] 1 KLR 232; (2008) 2 KLR (EP) 624 the three judges each considered the issue of the proper approach to Constitutional interpretation separately. Ringera J (as he then was) held that: “The Constitution is not an Act of Parliament and is not to be interpreted as one. It is the supreme law of the land; it is a living instrument with a soul and consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles. … those to my mind are the values and principles of the Constitution to which a court must constantly fix its eyes when interpreting the Constitution.” On her part, lady justice Kasango J held “I therefore reject the contention that the Constitution of Kenya is to be construed in the same way as any other legislative enactment. In this judgment I shall proceed to apply the rule of construction of the Constitution of Kenya in a broad and liberal manner.” It is, nonetheless, apparent that the majority judgment in this case accepted the liberal approach as the proper approach to Constitutional interpretation. Although this judgment in many other respects has received mixed reactions from the Kenyan public, the foregoing restatements served as a departure from the so-called Elman doctrine.
    3. Court to add flesh and spirit to the bones or law: The High Court has added further support to this position by the dictum that: The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325)

    Principles of interpretation – Excerpts from Wikipedia Encyclopedia:

    19-H   Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.

    1. Golden rule, or British rule:  Is a form of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” (also known as the “literal rule”) and the “mischief rule.” The golden rule allows a judge to depart from a word’s normal meaning in order to avoid an absurd result.
    2. Doctrine of Absurdity: In law, strictly literal interpretations of statutes can lead to logically deduce absurdities, and the Doctrine of Absurdity is that commonsense interpretations should be used in such cases, rather than literal reading of a law or of original intent. The Absurdity doctrine is a doctrine in legal theory, also known as “Scrivner’s Error”; in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions. It is contrasted with.  Chung Fook v. White, 264 U.S. 443 (1924), was a landmark Supreme Court case. It was significant in that it marked the end of the era of strict plain meaning interpretation of statutes and the beginning of the looser American Rule that the intent of the law was more important than its text.
    3. Circumstances of use: Although it points to a kind of middle ground between the plain meaning (or literal) rule and the mischief rule, the golden rule is not, in a strict sense, a compromise between them. Like the plain meaning rule, the golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature’s intention, the golden rule dictates that a judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.

    19-I      RTA and LRA overrides other Acts: Apart from taking into account these factors in construing meaning of Article 40(6), the court also needs to heed to s.1(2) of RTA which states, “Except so far as is expressly enacted to the contrary, no Act in so far as it is inconsistent with this Act shall apply or be deemed to apply to land, whether  freehold or leasehold which is under the operation of this Act”. What it means is that, if a provision of any Act is repugnant to RTA, unless it itself expressly refers to the RTA, the provision of RTA would prevail over that Act. This provision makes RTA override all other Acts because, if title was subject to others laws, it would defeat the cardinal principle of “sanctity of title” or “conclusiveness of title”. Although the Constitution is supreme, however, to aid in the interpretation of its provision such as Article 40(6), the provisions of RTA becomes very much relevant or helpful and ought to be taken into account. As the legislature has enacted RTA in compliance with the spirit to develop detail laws, it is incumbent on the court to take notice of provisions of RTA. This is because Article 40(6) do not expressly refer to RTA to override it.  In view of above, the obvious and most logical interpretation of Article 40(6) is that, it applies only to actual defrauder and not innocent buyer.

    PRIME OBJECTIVE OF CONSTITUTION, RTA AND LRA IS TO PROTECT PROPERTY RIGHTS OF CITIZENS.   

    19-J   Right to own property and protection of title: The Bill of Rights under Article 40(1) expressly provides citizen’s right to own property and thereby impliedly also protection of title or ownership. Article 40(1) states “Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in part of Kenya”.  To that end, if property is acquired compulsorily or if owner’s right to it is prejudiced by any provision of the Constitution, the citizen has to be compensated or appropriate relief be given.  The Article 84 (6) of old Constitution (still applicable) in this respect re-affirms original power of High Court to give relief to those who are prejudiced by the provision of the Constitution. The RTA, which is enacted with the blessing of Constitution, has detail laws for registration of titles, and while assuring indefeasibility of title to the last bona fide buyer, in compliance with the spirit of Constitution also obliges the Government to under s. 24 pay FULL COMPENSATION to the owner who is deprived of his property. This is a special type of compensation in addition to normal common law under the negligence. Since the prime objective of both the Constitution and also RTA is to ensure that innocent buyer’s right is not prejudiced, it would be gross injustice to give a narrow or literal interpretation to the Article 40(6) ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ and deprive a bona fide buyer of his property without any compensation or relief. This is particularly when harm to the innocent buyer is due to the negligence of officials at the Land Registry and buyer having relied on the statute (RTA) promulgated by Parliament with the blessing of the Constitution, the supreme authority, offering him protection of title. Hence, it is respectfully submitted that the obvious and logical interpretation of “unlawfully acquired” in the Article 40(6) means the actual defrauder and not the innocent buyer. This is why the legislature who had to formulate detail laws have enacted RTA to govern the registration of titles and have specifically provided therein, concept of indefeasible or absolute title to the last registered owner. The same concept or principle has been carried forward into new LRA.

    19-K   Constitutional right for compensation: To protect interest of a citizen who is adversely affected by the provisions of Constitution, the Constitution under Article 84 of old Constitution reaffirms original power High court to grant relief to such citizen. This Article is carried forward in the new Constitution. Article 19 of new Constitution provides that “ Until the Chief Justice makes the rules contemplated by Article 22, the Rules for the enforcement of the fundamental rights and freedoms under section 84 (6) of the former Constitution shall continue in force with the alterations, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with Article 22.” When anything is taken away from an individual citizen or his right is prejudiced in the interest of public at large, it would be unfair that one individual takes the entire brunt. Since all citizens would have benefitted, the Constitution specifically provides that such individual be compensated as in the case of compulsory acquisition.  In  JAMES NYAGA V. A.G MISC CIVIL 1732 OF 2004 (Nrb Law Courts [2007] eKLR: court declared bona fide buyer’s title nullity ab initio (it is submitted court erred in this respect) under Article 75 old Constitution (Article 40(6) new Constitution). However, to preserve the spirit of Constitution in protecting rights of innocent citizens, in pursuance of Article 84(6) old Constitution (still valid), it awarded compensation to the bona fide buyer for his loss. It stated. “…Are the Applicants entitled to the remedies sought? Under s 84 of the of Constitution (still valid), the court has inherent and unfettered jurisdiction to grant remedies available to ensure that the ends of justice are met. In doing so, the court will endeavour to balance the interests of the Applicants as against those of the general public…

    19-L   NO RESTROSPECTIVE EFFECT OF ARTICLE 40(6) of 2010 new  Constitution which  states, “‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ cannot apply retrospectively as previous Constitution did not have such provision.

      1. Generally no retrospective effect of current 2010 Constitution: The principle of legality affords to the accused person the right to be tried and punished only in accordance with an existing law. This principle is set forth in Article 50(2)(n) of the Constitution. It enjoins the State from punishing an act or omission, which was not an offence under Kenyan Law or International laws at the time of the commission or omission.  Acts or omissions that constitute crimes in Kenya are defined in the Penal Code. For an act or omission to be charged and tried as a crime, the prosecution must be prepared to present evidence proving the existence of each of the elements of the crime.
      2. No retrospective effect of Article 40(6) of current  Constitution: This Article cannot apply to past events and transactions: It states, “‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. It cannot not apply to past transaction because previous repealedConstitution did not have this or such provision and also because provisions of current Constitution does apply retrospectively:
      3. Act has to be an offence at the time: Article 50(2)(n) Constitution provides that every accused has right, “not to be convicted for an act or omission that at the time it was committed or omitted was not – (i)  an offence in Kenya; or (ii) a crime under international law; (o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been ether acquitted or convicted”.
      4. Supreme Court case – Constitution no retrospective effect: Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd  and 2 Others – Application No. 20f 2011 Supreme Court of Kenya, Nairobi, eKLR [2012]: It states,  “The general rule for non-criminal legislation was that all statutes other than those which were merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. …… A Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectively, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectively would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.
      5. International law against retrospective application of law: This is because it would be a serious infringement of human rights. Protocol II to the 1949 Geneva Conventions, article 6(2)(c)(1977) states,  “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

     

     

     

     

     

  1. February 23, 2018

    do some on practical approach to conveyancing in Kenya please.

  2. February 23, 2018

    Spot on.

  3. September 5, 2018

    impressive. A very analytical exposition.

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