Verifying Land and Property Ownership in Kenya

The official search

Section 34 of the Land Registration Act, 2012 entitles a person who requires an official search of any parcel to receive the particulars of the subsisting entries in the register, certified copies of documents and the cadastral map or plan filed in the registry, on payment of the prescribed fee. For parcels in registries that have been digitised, searches can be made through the Ministry of Lands' Ardhisasa platform.

The search shows who the registered proprietor is and what is registered against the land, such as charges in favour of lenders, cautions and restrictions. Obtain it close to the date of the transaction, because entries can change.

What a title proves, and what it does not

Under section 26 of the Land Registration Act, a certificate of title is taken by the courts as prima facie evidence that the person named is the absolute and indefeasible owner, subject to the encumbrances and conditions it records. That protection is not absolute. The title may be challenged on the ground of fraud or misrepresentation to which the person is proved to be a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme.

This is why verification goes beyond the certificate itself. The chain of ownership, the way the land was first allocated and the consistency of the documents all matter.

Tenure for non-citizens

Article 65(1) of the Constitution of Kenya provides that a person who is not a citizen may hold land on leasehold tenure only, for a term not exceeding ninety-nine years. Under Article 65(2), any document that purports to give a non-citizen more than a ninety-nine year lease is treated as conferring a ninety-nine year lease and no more.

Article 65(3) treats a body corporate as a citizen only if it is wholly owned by one or more citizens, and property held in trust as held by a citizen only if all of the beneficial interest is held by citizens. Investment structures should be checked against these rules before land is acquired.

Agricultural land

Under section 6(1) of the Land Control Act, a sale, transfer, lease, charge or other dealing in agricultural land within a land control area is void unless the land control board has given its consent. Section 9(1)(c) requires the board to refuse consent where the land is to be disposed of to a person who is not a citizen, or to a private company or co-operative society that is not wholly owned by citizens.

Spouses and matrimonial property

Where the seller is married, the land may be matrimonial property. Section 93 of the Land Registration Act provides that land acquired during a marriage for the co-ownership and use of the spouses is to be dealt with under the Matrimonial Property Act. Confirm the seller's marital position and obtain any spousal consent required before completion.

Checks on the ground

The register records rights; the ground shows reality. Before committing, confirm:

• The location and boundaries match the registry map, ideally with a surveyor confirming the beacons.
• Who is in occupation, and on what basis.
• That rates and, for leasehold land, land rent are paid up, with clearance certificates where required.
• Planning and zoning permit the intended use.
• Access roads and neighbouring uses do not raise disputes.

A verification checklist

Before any deposit is paid:

• Current official search showing the registered proprietor and all encumbrances.
• Copies of the title and the ownership history.
• Confirmation of tenure and that the buyer can lawfully hold it.
• Land control board consent where the land is agricultural.
• Spousal consent where required.
• Survey confirmation and a site visit.
• Rates and rent clearance.

Transfer and legal work

Verification tells an investor whether to proceed. The sale agreement, the transfer and the registration are conveyancing work carried out by an advocate, who will rely on the searches and checks described here.

Frequently asked questions