Kenya property law: Registration of titles

There is in place two types of registration systems

• Registration of Deeds
• Registration of Title

These two are quite distinct and one ought to have a fairly good understanding of what each of them deals with to appreciate that distinction.  The registration of deed system entails maintenance of a public register in which documents affecting interests in a particular registered land are copied.  Such a deed is merely evidentially of the recorded transaction and is by no means proof of title.  The most that can be made out of a deed is to invoke the records as prima facie proof of the fact that the transaction in question did occur.  It cannot and will not suffice to prove the validity or legitimacy of such transactions.  As a matter of requirement the deed does not even have to be consistent with any registered transaction which may have previously taken place in connection with the property in question.  Consequently the deeds system cannot confer any secure title to land in favour of the person in relation to whom the registration of the deed has been executed.  Accordingly the reliance on the deed system is as risky as reliance on the unregistered system as it entails a historical deduction of the title in respect of the property in question if one is to be sure that the title is good and well rooted.  There are no govt guarantees in regard to deeds and so there is no guarantee as to the accuracy of entries and no indemnity would be available to take care of any loses arising from omissions that may be disclosed in the register.


Registration of Title
Under Kenya laws, this refers to the maintenance by the state of an authoritative record of all rights in relation to particular parcels of land such particular parcels as may from time to time be vested on specific individuals or legal entities and subject to such limitations as may be disclosed in the register itself save for such interests as may be of overriding nature (section 30 of the RLA)  so in a sense registration of title provides that convenience and simplicity that anybody interested in a given property would want the simplicity and convenience based on principles that are by far quite different from those applicable under the unregistered system.  The case for registration of title is made out by the fact that it offers cheap and expeditious secure methods in property dealings which are in sharp contrast to the position in the unregistered system which was thought to be costly, disorganised insecure and complicated.  Its principle objective is to replace the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein.  It is precisely because of that that it is credited in eliminating wasteful burden placed on potential purchasers under the unregistered system which requires them to separately investigate titles to assure themselves that it is a good title that can pass and which is free from any hidden claims which may be adverse to their interests.  Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system.  Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be effected.  It is further regarded as final authority on the correct position regarding any registered land.  It is also cheap and expeditious in terms of facilitating various transactions regarding registered land.  State indemnity is available for any losses that may be incurred and so it makes conveyancing very simple.

The register is a very important document as it is the sole authoritative record wherein lies title to all registered plans.  The register is kept at the lands office, the central registry in the lands office.  The register itself refers therefore refers to the official record containing details of ones estates, particulars of the property and the interests that affect the property so it would identify the nature of the Estate whether leasehold property or freehold or an absolute estate and such records are described by reference to an official map plan that is maintained at the registry.  In another sense, the register can also be used in reference to the entire index of many individual registers that comprise the sum total of all titles relating to registered land in the country.  In each case the register has divisions or sections into which it is divided.  There are 3 main sections so that each register is divided into 3 parts, property section, proprietorship section and finally the encumbrances section.

The property section contains a section of the registered property and identifies such property by reference to a map plan included in this section are details of the date of first registration of the land.  It may also contain notes relating to any exemptions or other adverse interests to which the property is subject.  In the case of registered lease or land there would also be particulars of the lease including the title number and a statement to any prohibitions against alienation of such property without authorisation. 

The proprietorship section states the nature of the registered title, name and address and other description of the registered proprietor, any restraint if at all to which is powers of disposition are subject.

The encumbrances sections gives particulars of subsisting burdens to which the property is subject and any restrictions that are endorsed have the effect of preventing such dealings in the property as maybe inconsistent with the restrictions imposed.

Administration of registration system are the most crucial department involved here in the department of lands but under the ministry there are many other departments including department of survey, physical planning and the land adjudication and settlement department.  The dept of land is by far the most important in the administrative arrangements so it deserves considerations.  It falls under the Ministry of Lands and Settlement and it is charged with the responsibilities of carrying out the following
Alienation of all government and trust lands as provided for under the relevant laws Cap 280 and the Trust Lands Act
It also gives approval of development plans in respect of all categories of land;
it is in charge of the preparation, registration and issuance of titles for all categories of land whether under the RLA or the Government lands Act or RGA or LTA or
It is in charge of considering and improving buildings plans in respect of government lease of land
consideration and approval of extension of use in respect of all categories of land including application for change of user as per the requirements of the land planning act and the Town Planning Act.
It is responsible for establishing and running of various Land Control Boards across the country;
Responsible for setting up of trust lands this was at the time after independence
Extension of government leases
carrying out valuation of both govt and trust lands to facilitate alienation of such property
It also carries out valuation for purpose of determining stamp duties in respect of transfers for all categories of land and where acquisition powers have been invoked
Office of the public trusteeship and running of various affairs that fall with the office in terms of distributing the estate of a deceased person. 
Rating roles for various local authorities on the basis of which rates are assessed.