Due diligence has always been key in matters land, especially when purchasing. More often than not, purchasers are conned due to ignorance of one form or another. Most of us have heard of normal searches at the land registry, but do you know of historical searches? Did you do one on the last piece of land you purchased?
A historical search is basically a search done at the Lands Registry to establish the history of the ownership of that land. It shows the owners of that piece of land from the date of its registration, showing all the transactions that have been done on it.
On 28th June 2019, the Environment and Land Court at Nairobi made it clear that before one transacts in any piece of land, he or she has as part of due diligence to conduct a historical search of the land in question to ascertain if there are overriding interests affecting that land. This is an additional element to the requirement of a normal search at the land registry.
This position was held in the case of National Land Commission versus Afrison Export Import Limited & 10 others (2019) where the court expounded on the requirement of exercising “due diligence” when transacting in land. In support of its decision the court said:
A search on any title at the land registry is very important before one can act on it. The search indicates the owner(s) of a particular property and any encumbrances or other relevant entries registered against that land. Once a search is issued by the Lands Office, it should be conclusive evidence of proprietorship in light of the fact that our title registration system is based on the Torrens System of registration. However, a search may not always be a true reflection of the position as will be demonstrated in this case where two searches carried out in the same year showed different results.
On the one hand, the copy of the search which was adduced by the Applicant (NLC) showed that L.R. No. 7879/4 was registered in the names of the 1st and 2nd Interested Parties (Afrison Export and Import limited and Huelands limited respectively) and had nil encumbrances as at 19/1/2018. On the other hand, the search adduced by the 1st and 2nd Interested Parties showed that they were the registered owners and that there were two undischarged mortgages registered against the title in favor of the 11th Interested Party (Patrick Thoithi Kanyuira) and KPTC as at 7/8/2018.
The two searches were done in the same year, emanated from the same registry and are in respect of the same piece of land. It is inconceivable that one search done in January, 2018 would show that there were no encumbrances and yet another one done in August, 2018 shows that there were two mortgages dated 29/12/1981 and 11/7/1986 respectively. The two contradictory searches show that a search and the records held at the lands registry can be manipulated to achieve certain objectives which in most cases are intended to deceive those relying on the search to transact on the land in question.
Simply put, the same parcel of land produced two different search results, although they were done in the same year. Hence a normal search would not be enough to establish ownership.
It was concluded that apart from a normal search at the Land Registry, there were other steps which the Applicant was expected to undertake. If NLC had delved into the history of the title, it would have discovered that the title had two mortgages, besides other entries in the register, and that there were other transactions in respect of L.R. No. 7879/4 which were not on the register. Hence the court held that a normal search is not enough; one needs to do a historical search on the said land to avoid unnecessary encumbrances.
So next time you would like to purchase some land, which, for many Kenyans, is sooner rather than later, ensure that you not only carry out a normal search, but also a historical search. A normal search can be done online via the eCitizen Portal, while for a historical search, one has to go to the Land Registry where that land is registered. Read more on how to avoid being a victim of land fraud here.
By Andrew Wanga and Victory Wanjohi