The end of indefeasibility? Rethinking title security and the demise of land speculation in Kenya
by admin on | 2025-12-04 07:57:47
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The demise of the concept of indefeasibility of title in the turbulent property law regime has and continues to be occasioned by the prevailing inconsistencies in the land registry (an active crime scene) which should be a hallowed place and beyond reproach. These inconsistencies have and continue to burden the purchaser of the land, as they are required to investigate the history of the title and, more importantly, to delve into its root to ensure it qualifies for indefeasibility and is protected under the current legal regime that safeguards land ownership. The land registry as required from the Torrens system calls for the entries in the registry to reflect accurately and completely the true facts of the title of each registered lot. This has occasioned the evolution of the title to land from being conclusive evidence of indefeasibility to being one of prima facie evidence. Article 40 of the Constitution of Kenya 2010 guarantees the right to property with sub article 6 providing a caveat that the right to property does not extend to property that has been acquired unlawfully.1 Similarly, Section 26 of the land registration Act No.3 of 2012 provides, “ certificate of title issued by the registrar upon registration ,or to a purchaser of land upon a transfer or transmission by the proprietor shall(mandatory) be taken by all courts as primafacie evidence that the person named as proprietor of the land is the absolute and indefeasible owner ,subject to the encumbrances ,easements ,restrictions and conditions contained or endorsed in the certificate ,and the title of that proprietor shall not be subject to challenge expect;
- On the grounds of fraud or misrepresentation to which the person is proved to be a party; or
- Where the certificate of the title has been acquired illegally, unprocedurally or through a corrupt scheme.”
2 This is a monumental shift from the previous legal regime that was governing matters relating to land ,that is ,the Registration of titles Act CAP 281. The Registration of titles Act in section 23(1) provided that the certificate of title issued by the registrar to a purchaser of land upon a transfer or
