19/06/2026
Planning to buy land or an apartment? is a postal search or looking at an originla titile deed enough to confirm ownership?
Chekc out this brief from J. Katisya and Associates Advocates Mediators and Arbitrators on what is required to confirm a valid titile deed.
PURCHASE OF LAND: WHO BEARS THE DUE DILIGENCE BURDEN AFTER DANI MANAGEMENT CASE (ROOT OF TITLE) STANDARDS
As a legal practitioner specialising in conveyance and land transactions for over 20 years, I must say the current legal burden on a buyer to verify a title is quite high. It is now more than ever prudent to engage a lawyer, surveyor and valuer before making any step towards purchase of land. This may seem expensive but better safe than regrets later.
In the recent landmark Supreme Court decision in Dani Management Case eng@2023-04-21" rel="ugc" target="_blank">https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/30/eng@2023-04-21 DANI, the court held that holding a Title Deed Certificate is not sufficient proof of ownership. Even a valid search does not provide this comfort. For a title to be good and valid as a buyer you must be satisfied that
a. The Original Allocation was valid.
b. The property is not a public utility
c. The Physical Property boundaries
d. Genuine Title Deed Certificate
Buyer Beware gets more weight when it comes to land transaction in Kenya. A buyer can no longer rely on the Innocent Purchaser Without Notice defence to legitimise a title that did not meet the above threshold.
The nature of land and its commercial value means that Buyers will not stop purchasing but are required to take an extra caution. A prudent buyer should now require from their advocate a more extensive level of due diligence that include;
a. Official Search- ensure to have the Application and receipts
b. Search on vendors ID and PIN validity
c. Beneficial owner interests including spouse, succession beneficiaries etc
d. Confirmation of the validity of title through the serial numbers
e. Green card or certified title for RTA titles to ascertain past transactions on the Parcel of land
f. Parcel file to confirm allotment or adjudication of the first title or subdivision process
g. PDP and Survey Plans
h. Allotment and Adjudication Records
i. RIM to confirm the location of the property
j. Relevant consents
k. Confirmation from government agencies that property is not public land including, NLC, County, KURA, KENHA, KCAA, KFS etc
l. Confirmation of Rate and Rent
m. Zoning and User of the area
n. Gazette Notices
o. Court Cases
Right now, in Kenya, there is no central place for the Buyer to procure this information. The advocate will need to make several validity checks, letters and even physical visits to conduct the due diligence. Although the government agencies are quite responsive the process may take weeks to months to conclude on due diligence.
Some checks are fairly straight forward on E-Citizen, BRS, ITax, Kenya Law Reports, ArdhiSasa and Survey of Kenya, however for other checks you may need to visit several government agencies.
As a potential buyer the comfort of an original title and Official Search even one with a Bank Charge on it, is no more. You need to be prepared to invest in proper due diligence before making the move to Purchase property.
Of course, bearing in mind the market forces some Sellers may not be willing to wait for the extensive due diligence process to be complete. A buyer who is keen on a property may consider adopting the following terms in their agreement;
a. An agreement that is subject to a valid legal title
b. More explicit warranties to be provided by the Seller that they hold good title.
c. Hold funds in escrow pending results of due diligence
d. Take preliminary possession of the property- this often alerts anyone with a claim to object
e. Longer transaction period
To support the Real Estate Industry, the Government should invest in digitisation and centralisation of due diligence checks for any potential buyer. Already the government has achieved this through agencies like KenInvest which provided a comprehensive road map for any Investor to ensure compliance.
The declaration by the court that any unlawfully acquired property does not give any legitimate right to title should cause anyone holding any title to conduct their own due diligence to ensure they hold more than the paper in their custody.
It is advisable for all current land title holders to conduct a historical search and due diligence to ensure what they hold is indeed a good title. It is disappointing when a seller wants to sell the property and the said title fails the due diligence checks and the transaction collapses. Where a Seller can guarantee valid title based on the above threshold to reduce uncertainty and costs for a potential buyer is now a great selling point.
Ideally, the Government should guarantee good title. However, our checkered past history makes this impossible at the moment. The past governments issued Title that were not legally valid and subsequent transfer and subdivision does not sanitise this. It is a painful reality for those who get caught up in this but it is our current reality.
The standards on a valid title in land, set out of the Supreme Court decision in the Dani Management Ltd case are now being applied by financiers, investors and buyers of Real Estate and the industry is adjusting accordingly. One thing a Title holder should do is to make sure that what they hold is a valid legal Title Deed that can withstand any due diligence tests.
Janet Katisya
J Katisya and Associates Advocates
www.jkadvocate.co.ke
[email protected]
0799 849228
