Towards the end of 2023, over fifty homes, worship centers and schools were demolished in Mavoko; Machakos County. This was after the Environment and Lands Court’s decision on 19^th October 2023, which dismissed an injunction application by Aimi Ma Lukenya Society to stop the demolitions of homes on land that was established to belong to East African Portland Cement PLC. Furthermore, the Aimi Ma Lukenya Society, is now accused of forging the title document, which they used to sell land to unsuspecting buyers.

A similar tragedy is imminent following the decision by Justice Samson Okong’o, which dismissed adverse possession claim by squatters settled on over 1000 acres of Njiru land belonging to the former Starehe Mp the late Hon. Gerishon Kirima. The court gave these squatters up to 31^st December 2023 to vacate the land or face eviction. Once again, the court identified alleged sellers like Naridai Muoroto Self-Help Group who lacked good title, selling land to innocent unsuspecting buyers. Since the court-issued deadline has lapsed, the uncertain and tense atmosphere prevails.

But when did the axe fall on all these people? The answer is simple; some victims decided to forego representation by an advocate and transact on their own, while others were represented by insincere and indolent individuals. Kenyan laws are strict on the processes of acquiring and owning land. In a strict sense, one needs a qualified advocate to navigate through these legal hurdles. Prior to purchasing any land, it is crucial that one conduct thorough due diligence.  This might involve;

• Investigating all the parties: ensure the legal existence of all the parties involved in the transaction to ensure the parties in the transaction exist legally. This may involve:
  1. a search of individual ID with the National Registration Bureau (if need be) or;
  2.  doing a search of the company in the Companies Registry if transacting with a company. This way, one is sure that the parties involved in the transactions exist legally: or
  3. Various other searches your advocate may recommend based on the circumstances of individual cases
• Investigating the title of the land: this is where the majority lose it. Individuals ought to investigate the title by doing both official and historical searches at the relevant land registries. An official search helps a purchaser know that indeed the property physically exists. A historical search provides the ownership history of the property which is crucial in determining whether or not the vendor has transferrable interests in the land. Historical search establishes the roots of a title to a parcel of land, which is crucial in determining the title’s legal status and validity. This is now a well-cemented principle established by Supreme Court in the case of Torino Enterprises Limited v Hon. Attorney General (Petition No. 5 (E006 of 2022) of 2023).

In the landmark Kenyan Supreme Court case of Dina Management Limited v County Government of Mombasa & 5 Others [Petition NO. 8 (E010) of 2021] recently ruled that a vendor, who had purchased fraudulently acquired land, cannot pass good title to a purchaser of the same land. The court went on to note that, “A registered proprietor acquires an absolute and indefeasible title if and only the allocation was legal, proper, and regular. A court of law can’t on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.”

Thus, rather than merely leaning on the title deed’s face value or the doctrine of innocent purchaser for value, a thorough investigation into the title’s origin, its validity, and procedures behind its issuance is critical to any land transaction. Additionally, documents like certified copies of the Registry Index Maps (RIMs) and Green Card need also to be obtained and this is why it is quintessential to get a good advocate. 

Once all the due diligence processes have been exhausted, it is crucial for an individual to;

• Obtain the necessary consents from the relevant authorities- Failure to obtain any relevant consents, such as the Land Control Board (LCB) consent, or indeed spousal consent, can lead to a transaction being declared void.
• One must ensure that any outstanding rent and/or rates balances are settled and the seller obtains the necessary clearance certificates.
• Execute transfers in prescribed forms as found in the Land Registration Act (General) Regulations of 2017.
• Lastly, pay the all requisite taxes during the transaction, such as the stamp duty and capital gains tax.

It is important for individuals to be transparent and honest in land buying transactions including when paying for stamp duty and/or other taxes. Any suspicion of fraud during the transaction, such as undervaluation of the property in order to pay lesser taxes can result in the whole transaction being voided. This is based on the persuasive decision of the Supreme Court of Uganda in Betty Kizito vs David Kizito Kanonya & 7 others [SCCA No.8 of 2018]. This decision was recently upheld by ELC.

Conversely, if the axe of conveyancing tragedy falls on you, know your rights pertaining to proper eviction. Kenyan courts in the case of Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others {Muthurwa Evictions Case} laid down great jurisprudence on what amounts to lawful evictions. This jurisprudence was, in fact, incorporated later in the amendments to Section 152 of the Land Act No. 6 of 2012.  According to Section 152B of the Land Act, all evictions of unlawful occupants of public, community, or private land have to be done in accordance with the act. Section 152C provides that unlawful occupants of land must be notified 3 months prior to eviction; Section 152D provide for evictions from community land. Procedures for evictions from private land are also laid under Section 152E of the Land Act.

Likewise, mandatory procedures during the evictions are stipulated under Section 152G of the Land Act. These procedures basically touch on issues like proper identification of people doing the evictions or demolitions, presentation of formal authorization (court order), presence of government officials, and execution of eviction in a way that respects evictees’ right to life, security, and upholds human dignity. Furthermore, there is need to give affected persons the first priority to demolish and salvage their property and even devise special measures that cushion vulnerable groups like PLWDs, the elderly, children, and women. Such measures can include but are not limited to offering the vulnerable alternative shelters during harsh weather conditions.

The above discussion highlight that it is crucial to have an advocate guide you in conveyancing transactions to ensure all these processes are followed, including computing the requisite taxes, drawing the necessary agreements, and executing transfers to avoid the cruel axe. However, should the axe fall on you, ensure that there is compliance with Section 152 of the Land Act No. 6 of 2012.