In Defense of the Torrens System

In Defense of the Torrens System: Spotlight on Justice Munyao Sila’s Decision in “Isaac Omwonga Mariera –vs- Abel Moranga Ongwancho & 2 Others, Kisii ELCC No. 958 of 2016 (formerly Kisii HCCC No. 305 of 2012)”

The Environment and Land Court, sitting at Kisii, has in an exciting decision decried the enduring menace of fraudulent land transactions with the acquiescence/participation of rogue players at the land registries.

In summary, the suit revolved around the Plaintiffs and 1^st Defendant each claiming to have title to the suit property. The Plaintiffs asserted that they are the lawful owners having purchased the suit property from the first leasehold owner, Fredrick Ayienda. They contended that they were duly registered as proprietors but their documents were caused to vanish from the lands registry and, instead, a register indicating the 1^st Defendant as proprietor fraudulently created. On his part, the 1^st Defendant argued he was the one with good title over the suit property, claiming to have purchased the same from one Nikora Isaboke Kingara, who it was alleged had purchased the land from Fredrick Ayienda.

The court embarked on a scrupulous analysis of the evidence, noting firstly that there was no contest that Fredrick Ayienda was the first lessee of the suit property. Fredrick Ayienda had testified as a Plaintiff’s witness stating he sold the suit to the Plaintiffs and not Nikora as claimed by the 1^st Defendant. The court found Fredrick’s testimony to have quite weighty probative value. The court then proceeded to highlight the pitfalls that enveloped the 1^st Defendant’s case including;

1. The 1^st Defendant’s failed to produce the sale agreement between Fredrick Ayienda and Nikora who the 1^st Defendant supposedly purchased the land from.
2. The 1^st Defendant also failed to produce the sale agreement between himself and Nikora whom he supposedly purchased the suit property from. The 1^st Defendant further never produced any cheque or bank deposit slips showing how consideration was ever paid. He also did not produce copies of Nikora’s ID and KRA Pin.

• The 1^st Defendant produced 2 transfer instruments for the transfer of title from Fredrick to Nikora leaving it unclear which of the 2 was used to transfer title. Along with other patent and latent shortcomings, neither of the 2 transfer documents was registered in the Land Registry at Kisii which made it sufficiently clear that the 2 transfers could not have transferred title from Fredrick to Nikora.

1. The 1^st Defendant also produced 2 transfer documents for the transfer of title from Nikora to himself. Similar to the 2 transfer documents from Fredrick to Nikora, neither of the 2 transfer documents from Nikora to the 1^st Defendant was registered in the Land Registry at Kisii thus the 2 transfers could not have transferred title from Nikora to the 1^st Defendant.
2. The Transfer instrument that supposedly granted the 1^st Defendant title over the suit property purported to have been signed in November 2008 by Mr. Owuor, the Land Registrar, who had actually retired from the civil service on 1^st July 2008.
3. Alleged stamp duty payments for the transfers from Fredrick to Nikora and from Nikora to the 1^st Defendant were of such dubious nature as to pinpoint to fraud being committed.

• There was no Certificate of Lease ever issued in the name of Nikora despite the White Card at the Land Registry indicating that one had been issued to him on 9^th August 1984.
• There was no Certificate of Search produced to show the property was once owned by Nikora.

1. The 1^st Defendant never produced any proof that either Nikora or himself ever paid land rent and rates over the suit property.

The court narrated with palpable displeasure how individuals such as the 1^st Defendant manage to perpetuate fraudulent acquisitions of title with the help of individuals working at the land registry.  All it takes for one to commit the fraud is for them, with the connivance of crooked staff in the Lands office, to engineer the physical disappearance of the genuine register (Green Card for freehold titles, White Card for freehold titles) along with the genuine supporting documents in the parcel file at the lands registry. The genuine register and supporting documents are then replaced with fresh fraudulent ones bequeathing interest to the fraudsters who can then proceed to deal with the title as they so please.

The court, in line with recent jurisprudence such as the Supreme Court’s decision in Dina Management Limited vs County Government of Mombasa & 5 Others (Petition 8(E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) emphasized the need for courts to carefully analyze the root of title before deciding who holds a valid title to land.

In its final disposition, the court held that the 1^st Defendant was not a bona fide purchaser for value without notice, and that the title he held was fraudulent and incapable of being protected under the provisions of Section 26 of the Land Registration Act. The court ordered the land registrar to expunge all records indicating that the suit land was transferred by Fredrick Ayienda to Nikora and subsequently from Nikora to the 1^st Defendant. The court further ordered the land registrar to reconstruct the records to demonstrate that the land was transferred from Fredrick Ayienda to the Plaintiffs. The Plaintiffs were declared to be the legal proprietors of the suit property. The Plaintiffs were held to be at liberty to either receive/take over the suit property as is or to demand that the 1^st Defendant remove whatever he had put on that land at the 1^st Defendant’s own expense. The Plaintiffs were also awarded Kshs. 5,000,000.00 general damages for trespass.

Having issued the above orders, the court issued an impassioned and fierce polemic against the “muck that has permeated our land registries”. In an evident defense of the principles espoused under the Torrens System of Land Registration, the court underscored that a land registry ought to be a hallowed place, a repository whose records are absolutely tamper proof and beyond reproach. The court emphasized the necessity of placing the land registries only in the hands of persons of absolute integrity owing to the confidence and responsibility placed on the office by the public to keep proper records and to reflect the correct position regarding land ownership in Kenya.

The court accentuated the importance of maintaining accurate records of land ownership. Land being an important resource and factor of production, proper record keeping and maintenance cannot be taken lightly. This will reassure banks and other lenders who issue credit facilities with land as collateral. People’s assets and investments pegged on land will be safeguarded. Economic growth will be fostered.

This decision is a breath of fresh air, especially in today’s reality where people lose large investments and even livelihoods for purchasing land without undertaking sufficient due diligence that goes beyond conducting a search at the lands registry. The courts have often adopted the pitiless stance of declaring such losses as self-inflicted wounds whilst remaining mum about the need for the land registries to maintain accurate records so that reliance on the records cannot occasion losses in the first place.