Understanding Dispensation Under Kenyan Land Law
In a land transaction, the original title deed is one of the most important documents. It ordinarily has to be produced before a deal affecting registered land can be completed.
But what happens when the original title deed cannot be produced? The title may be held by another person who is unwilling to release it. It may have been lost, destroyed or become untraceable.
The absence of the original title does not necessarily mean that the transaction must come to an end. Kenyan law gives the Land Registrar a discretion, in appropriate circumstances, to dispense with the production of the original certificate of title or certificate of lease.
The general rule: production of the original title
Section 31(1) of the Land Registration Act, 2012 provides that where a certificate of title or certificate of lease has been issued, it must ordinarily be produced when registering a dealing with the land.
The Land Registration (General) Regulations similarly provide that an application for registration should ordinarily be accompanied by the relevant original title documents unless the Registrar directs otherwise.
The requirement serves an important purpose. Production of the original document assists the land registration system in verifying the dealing and maintaining the integrity of the register.
There are, however, two exceptions: the certificate may already be filed in the land registry, or the Registrar may dispense with its production. The requirement is therefore the starting point and not necessarily the end of the matter.
When can the Land Registrar dispense with production of the title?
Section 31 gives the Land Registrar discretion to dispense with production of the original title. This discretion is important where insisting on production of the document would prevent an otherwise legitimate dealing from being registered.
Examples may include situations where:
- the original title is held by a person who cannot be traced;
- a person in possession of the title refuses or fails to surrender it;
- the original title has been lost or cannot be located;
- registration is being undertaken pursuant to a court order;
- succession proceedings have resulted in an entitlement to transmission but the original title cannot be produced; or
- the circumstances of the transaction provide sufficient grounds for the Registrar to consider dispensing with the requirement.
The existence of one of these circumstances does not automatically mean that dispensation will be granted. The Registrar must consider the circumstances of the particular case.
A court order is not always necessary
An important point emerging from Kenyan case law is that a party does not necessarily have to obtain a court order before asking the Land Registrar to dispense with production of the original title.
In Re Estate of Philip Kiogo Tunga (Deceased) [2020] eKLR, the court recognized that section 31 itself gives the Land Registrar power to dispense with production of the original title. The exercise of that statutory power is not, in itself, dependent upon a prior court order.
The court also noted that the Registrar has other statutory powers relating to requiring documents and information concerning registered land.
The practical implication is that an applicant should first engage the Land Registrar rather than automatically commencing court proceedings.
The correct procedure: approach the Land Registrar first
Where a person wants the requirement for production of the original title to be dispensed with, the appropriate first step is to make a written request to the Land Registrar.
The request should explain:
- the property concerned;
- the dealing that is intended to be registered;
- why the original title cannot be produced;
- the efforts made to obtain or trace the original title;
- the documents available to support the application; and
- why registration should proceed notwithstanding the absence of the original document.
The courts have emphasized the importance of approaching the Registrar before seeking judicial intervention.
In Charles Ntiritu M’Ikunyua & 3 Others v Stephen Robert Gitonga Njagi [2021] eKLR, the applicants sought dispensation of the original title in circumstances involving registration following a successful adverse possession claim. The court noted that the applicants had not demonstrated that they had first requested the Land Registrar to exercise the statutory discretion or that the Registrar had refused to do so. The application was consequently dismissed.
Similarly, in Kenya Commercial Bank Ltd v Alcon Holdings Limited [2021] KEELC 2373 (KLR), the court held that an application for dispensation should first be made to the Land Registrar. Judicial intervention may arise where a party is aggrieved by the Registrar's decision, in accordance with the statutory framework.
What if the title is being withheld by another person?
One common problem arises where a person who holds the original title refuses or fails to release it. For example, a court may have ordered that property be transferred to a successful claimant, but the previous proprietor may still be holding the original title and may not cooperate with the registration process.
In such circumstances, the person seeking registration should document the attempts made to obtain the title and formally request the Registrar to exercise the discretion under section 31.
The precise procedure will, however, depend on the nature of the order and the circumstances of the particular property.
What if the title has been lost?
A lost title raises a slightly different issue.
The Land Registration Act contains a separate framework concerning replacement of lost or destroyed certificates. Section 33 deals with replacement of lost or destroyed certificates of title and registers.
Therefore, a person should not automatically assume that every case involving an unavailable title should be dealt with solely through section 31.
The appropriate procedure depends on why the original document is unavailable and what transaction is being undertaken.
For example, there is a distinction between:
- a title that has genuinely been lost;
- a title that is held by another person;
- a title that cannot be traced;
- a title affected by a succession process; and
- a title whose production is unnecessary because registration follows a court order.
A proper assessment should therefore be undertaken before deciding which procedure to pursue.
What role does the Kenya Gazette play?
In practice, applications involving the absence of original title documents may involve publication of a notice in the Kenya Gazette, particularly where the Registrar considers it necessary to give interested parties an opportunity to raise objections.
The publication process should not, however, be confused with the statutory power itself.
The central legal authority for dispensing with production remains section 31 of the Land Registration Act. The Registrar's decision will depend on the circumstances and the evidence presented.
What documents may be useful?
The documents required will depend on the circumstances, but an application may need to be supported by relevant evidence such as:
- a certified copy of the title or certificate of lease, where available;
- an official search;
- the relevant transfer, transmission or other instrument;
- a court order or decree, where applicable;
- grant and confirmation documents in succession matters;
- evidence demonstrating attempts to obtain the original title;
- correspondence with the person holding the title;
- an affidavit explaining the circumstances surrounding the unavailable title; and
- any other documents that assist the Registrar in verifying the transaction.
The objective is to give the Registrar sufficient information to establish that the proposed dealing is legitimate and that dispensing with production of the original document is justified.
Can you go to court if the Registrar refuses?
Yes, depending on the circumstances.
The courts have repeatedly recognized that the Land Registrar has the initial statutory discretion under section 31. Where the Registrar has been approached and a decision has been made that a party considers unlawful or unreasonable, the appropriate judicial remedy may then be available.
This makes the sequence important:
Transaction → written request to the Land Registrar → Registrar's decision → appropriate judicial remedy, where necessary.
Skipping the first step may create avoidable procedural difficulties.
What does this mean for property owners and purchasers?
The absence of an original title should be treated as a legal issue to be investigated, rather than simply an administrative inconvenience. Before proceeding with a transaction, it is important to establish:
- who is currently registered as proprietor;
- whether there are cautions, restrictions, charges or other encumbrances;
- why the original title is unavailable;
- who has possession of it, if known;
- whether there are pending court or succession proceedings;
- whether the transaction is supported by the necessary consents and documentation; and
- what mechanism is legally appropriate for completing the registration.
This is particularly important in transactions involving estates of deceased persons, court-ordered transfers, adverse possession claims and disputes between registered proprietors and persons claiming an interest in land.
How We Can Help
At Wanjiru Nyaguthi & Company Advocates, we assist clients with land and property transactions where documentation or registration issues may complicate the completion process.
Our services include:
- conducting due diligence and official searches;
- assessing eligibility of the transaction for dispensation to determine whether the case meets the threshold the Registrar is likely to accept;
- preparing the written request and compiling supporting evidence;
- following up on the Registrar’s gazette notice process; and
- pursuing court remedies where necessary
If you are dealing with a property transaction where the original title cannot be produced, obtaining legal advice early can help prevent unnecessary delays and procedural complications.
