I recently discovered my title deed is fake, what are my options?

Fake title

Part III of the Land Registration Act provides procedural or administrative mechanisms for everyone to follow when trying to acquire land.

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Hi Eric. I bought a piece of land and even got the title deed for it. Recently, I discovered the title was forged. I have been trying to contact the person who sold me the land but he keeps avoiding me. Please advise me on what I should do?

The predicament you describe should remind readers of a story ran by one Barak Oduor in the Daily Nation of May 24, 2018, headlined “Kenya: Land fraudsters shift base to rural areas where folks are still trusting.”

 It so happens that land ownership is an over popularised trophy and people continue to be victims in the name of building image. In the rapidly growing urban centres, it is an overpriced phenomenon magnified as a pathway to development and wealth recognition in Kenya. Even though ownership of property is a constitutionally protected right at Article 40 (1) of our Constitution, there exists a number of pitfalls that one must contend with in seeking to acquire the desired land.

Part III of the Land Registration Act provides procedural or administrative mechanisms for everyone to follow when trying to acquire land. However, this does not necessarily deter fraudsters and unscrupulous individuals from plying their business of conning unsuspecting clientele.

Ill intentions

It has been proved that those who swindle others tend to manipulate the system to execute and actualise their ill intentions whose success probability is driven by willingness of victims to trust. To understand this administrative process is necessary for one to identify the point at which the transaction became suspect.

Since the person from whom you bought the land was deliberately dishonest, you may have remedy in a competent court of law. A recourse in court for the matter to be heard and determined in your favour, requires that solid evidence is adduced to demonstrate the alleged fraud. A good prosecutor would ask, if you have the following: a search report obtained from the registry of the Ministry of Land’s, as part verification mechanism having visited the land physically and given copies of its legal identification documents by the seller in the name of a title.

The report should show the existence of the land in purchase, the real owner and information regarding any encumbrance: a letter of offer or intent from the seller, or their legal representative with details of the seller and purchaser, alongside the proposed price of the land, besides description of the property, including its location together with other terms of payment and obligations for the execution of the contract.

The letter of offer must be supported by a sale of land agreement, if the purchaser accepts to transact, in which obligations of the seller and buyer are defined and explicitly expressed. The assumption made in this text is that the land deal between you and the unscrupulous seller was documented in such a sale of land agreement, for which you must have a copy.

Another supposition is that you ascertained and cleared any land rates and rents that may have otherwise accrued on the land and safely retained the official receipts from the relevant county government office to recognise such transactions. Further, one should be in possession of transfer documents and consent to transfer issued by the Commissioner of lands, that are signed by both seller and buyer. Henceforward, a few more administrative actions are required of the ministry of lands office, upon presentation of the transfer of land documents, which include valuation of the parcel of land to determine the amount of stamp duty to be borne by the buyer.

 In this context, two documents must be obtained: an official valuation report and stamp duty receipt as a consequent document of the payment process to Kenya Revenue Authority.

Unscrupulous seller

Lastly, having finalised all the obligations as a buyer, and the documents presented to the Ministry of lands to effect transfer, the purchaser is required to collect the new title. Since the old title in the name of the seller is surrendered as part of the transfer process before another is issued, the buyer presents official receipts in lieu.

Your will prosecute your case successfully against the unscrupulous seller, including some of the Ministry of Land officials, if the trail of paper and process evidence stays the description herein provided. To begin with, you must request for a warrant of arrest to be issued for the seller to be brought before court.

This discussion terminates with a rider. It is difficult to legislate for human attributes like trust, love and humility amongst others. Only consequential actions from such attributes can be legislated for. There is a Masai proverb that says a zebra carries its stripes wherever it goes, which is an analogy that impeaches people of bad character.

No law is constructed to instill honesty, humility and other emotional intelligence traits in people, but only to tether those who hold relationships to diligence, acceptable levels of truthful engagement and discharge of duties. Trust, therefore, is a considered virtue that springs from and thrives on a person’s character. Michael Josephson posits that character is both formed and revealed by how one deals with everyday situations as well as extraordinary pressures and temptations. Like a well-made tower, character is built stone by stone, decision by decision.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]