Although title to land confers ownership upon someone, there are instances where two parties each hold titles whilst claiming ownership to the same parcel of land. In such instances, the courts are often called upon to make a determination as to who amongst the disputing parties holds a valid title, based on the evidence adduced in court.
When considering the evidence, all the investigation must begin at the root of the title and follow all processes and procedures that brought forth the two titles at hand. Ordinarily, the title that is to be upheld is that which conformed to procedure and can properly trace its roots without a break in the chain. No party should take it for granted that simply because they have a title deed or certificate of lease, then they have a right over the property. The parties to such litigation must always bear in mind that their title is under scrutiny, and they need to demonstrate how they got their title, starting with its root.
As both parties have similar documents, there is therefore no advantage in pegging one’s case solely on the title document that they hold. Every party must show that their title has a good foundation and passed property to the current title holder.
It is trite law, that when there are two competing titles, the first in time will prevail. This position was emphasized in the case of Wreck Motors Enterprises v The Commissioner of Lands and Others; Civil Appeal No. 71 of 1997. The same position was reiterated in the case of Gitway Investment Ltd v Tajmal Ltd & 3 others (2006) eKLR, where the court expressed itself thus.
‘…the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake, then the first in time must prevail…’
Ordinarily, no land should be registered more than once and have two separate title deeds held by separate persons. In such cases, there is definitely one title deed that is genuine, and another that was issued unlawfully or through mistake, resulting in double allocation. For a new title to be issued, the older title has to be surrendered to the lands office for cancellation.
Section 26(1) of the Land Registration Act provides as follows-
“The Certificate of Title issued by the Registrar upon registration, to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all accounts as prima facie 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 the proprietor shall not be subject to challenge, except-
- On the ground of fraud or misrepresentation to which the person is proved to be a party
- Where the Certificate of Title has been acquired illegally, unprocedurally or through a corrupt scheme
From the above, it is apparent that the law is extremely protective of title, and provides for only two instances for the challenge of title, i.e., where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party; and where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
The import from this section is to remove protection from an innocent purchaser or innocent titleholder. To this extent, the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26(1)(b) is to protect the real title holders from being deprived of their titles by subsequent transactions.
Thus, Section 80(1) of the Land Registration Act stipulates that-
“…the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake…”
To conclude by citing the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina  eKLR-
“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances, including any and all interest which need not be noted on the register”
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