Without title deed, you can lose your land

Mr Nduhiu Kanja was going about his business at his home in Nyeri one day in February 2004 when a stranger accompanied by police officers showed up with a court order and evicted him immediately. 

“I was shocked. I didn’t know where to go. I just left my house with the few belongings I could carry and started walking the streets. I ran into a friend and after explaining to him what had happened, he accepted to house me in his tiny kitchen, where I have been living for 12 years,” he says.

Mr Kanja attributes his predicament to his brother’s failure to protect their title deed.

He says that after their parents died in the early ’50s, he and his older brother moved to court, seeking to inherit their land. 

In 1954, they agreed to have the land registered in the name of his older brother, Wahome Kanja, to hold it on behalf of the family.

“At some point, my brother decided to sell one acre of his share to a local sacco. The society paid him Sh70,000 to start the process of transferring the land ownership.

But before making any payment, the sacco requested that he give them the title deed to enable them to hive off the acre and get a separate title deed for it.

Unfortunately, the society never returned the title deed. Then, in 1977, the society advertised the loss of the title deed, after which the family learnt that it had taken possession of all their land.

Consequently, he and his brother filed a case in the High Court against the society, claiming entitlement to the suit property by adverse possession. His brother died in 1996, before the case was determined.

PUBLIC AUCTION

“While the case was still pending in the High Court, the sacco was successfully sued by other people over a different issue.

And since the land was now registered in the sacco’s name, it was attached for auction after the sacco refused to comply with the court orders issued in the judgment. The land was auctioned and changed hands to a new owner, who evicted Mr Nduhiu.

He says that by the time the land was attached, the sacco had stopped attending the High Court case. Besides, they did not tell him about the other case in which they were involved.

“It wasn’t until the day I was evicted that I learnt of the case,” he laments.

Confused, he consulted various people, whom, he says in retrospect, misadvised him to withdraw the title deed determination case in the High Court.

After withdrawing the case, he started moving from one government office to another, hoping to get justice. But when he visited the DO’s office  in 2011, he was advised to go back to  court.

Mr Nduhiu further learnt that the sacco officials whom his brother had given the title deed had died, and that those in office knew nothing about the case.

Desperate, he sued the new owner, telling the court that he had been evicted without notice and left landless. He also said he had not been informed about the process that led to the transfer of ownership of their ancestral land to another party because, had he known, he would have objected to  it in court.

The new owner, for his part, said he had bought the land through a public auction conducted pursuant to a decree issued by the chief magistrate’s court in Nyeri.

He said he became the registered owner of the land on July 23, 2003, and had a title deed to that effect.

Delivering judgment on the case in Nyeri earlier this year, Lady Justice Lucy Waithaka said Mr Kanja’s eviction was unfair and prejudicial since he was not given an opportunity to defend his occupation of the land.

However, she said she could not compensate him because that would be tantamount to condemning the society that had bought the land without giving it an opportunity to defend itself.

Mr Kanja is one of the many Kenyans who are suffering for failing to follow the required legal procedure when selling their land. Nearly 70 per cent of the cases pending in lands courts across the country revolve around ownership and title deeds.

CORRUPT DEALS

According to lawyer Muthui Kimani, ignorance and failure to involve lawyers before engaging in land transactions has rendered many people landless.

He advises that, before entering into any land sale agreement, you should engage a lawyer.

“One should not give any land document or title deed to a buyer in the absence of a lawyer.

The buyer is also required also engage his own lawyer to avoid being conned. The seller’s lawyer conducts the negotiations and starts the sale process. Meanwhile, the buyer’s lawyer must get the money from his client and transfer it to the seller’s account after reaching an agreement with his or her lawyer.

If the amount is to be paid in instalments, once the deposit terms are agreed on, the two lawyers come up with terms of agreement which, upon the completion the sale agreement, is signed by both the seller and the buyer in the presence of their lawyers.

Mr Kimani says that, the seller can, thereafter, get his lawyer to obtain consent  from the Lands Control Board to transfer their land to the buyer.

A transfer document is also issued and signed by all parties involved.

“It’s only after this process has been followed correctly and completed that a title deed is processed for the buyer, and  prevents land sellers from losing their land in corrupt deals.

Mr Kimani also advises land owners to do regular searches on their land at the lands registry to ensure that their land has not been transferred to someone else without their knowledge.