By practice, lawyers and players in land transactions usually conduct a basic official search at the Ministry of Lands to ascertain land ownership prior to the formalization of any intended conveyancing deal. Upon confirmation of ownership the following other searches are conducted:
a) Rates and rent search.
b) Registered user search.
c) Search at the registry of persons to ascertain authenticity of the parties.
d) Boundary verification.
Parties then proceed to seal the intended deal and a title derived therefrom was considered as a clean title, indefeasible and against the whole world.
However, the Supreme Court in a judgment (delivered on 21st April 2023) in Dina Management Limited v County Government of Mombasa & 5 Others Petition E010 of 2021 held that a complete due diligence within the meaning of the law must go to the root title i.e. the first certificate of title issued. ‘To establish whether the appellant is a bona fide purchaser for value, we must first go to the root of the title, right from the first allotment’, the apex Court stated. The first and subsequent title deeds must have been obtained legally, regularly and procedurally as per the then prevailing legal regime for it to pass a good title to the intended purchaser.
Essentially, prospective buyers must do a historical search, ascertain the legality of the first and subsequent title deeds issued and the regularity of the process of acquisition for the intended land deal to be legally insured. Conveyance advocates must then as of necessity issue legal opinions to their clients as to the outcome of the historical search.
I end this piece by quoting an excerpt from the judgment, ‘Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed…’