Cultural attachment to land

Title deeds and leases, the legal instruments that are evidence of rights to land or its ownership in Kenya, are revered. It’s always amazing how much sentimental value we attach to land. Perhaps something to do with our history or culture! The attachment varies from community to another though. It also varies from country to country within Africa. It’s certainly different in the developed democracies where many working citizens place little priority to owning land for the sake of it, provided they are able to rent some urban property to support their lifestyles. But take an inventory of Kenyans in urban areas and you will be surprised how many hold onto parcels of land back in the rural areas, either from inheritance or purchase, which lie idle. Our reverence to land ownership as an end, regardless of whether it provides an economic return, is a mindset we must gradually address.

It is therefore easy to appreciate how much premium is attached to land ownership documents around the country. These documents are therefore very safely, and in most cases secretly, kept. The able ones shove them into personalized document holders which are then securely kept in bank vaults and retrieved for occasional use whenever necessary. They pay a fee for such safe custody though. There are those who keep them in fireproof safes within their houses or offices. The safes cost a modest fee and aren’t affordable to many. Then there are the organised Kenyans who keep their title deeds and leases discretely in files in their homes or offices. But a majority of Kenyans simply keep them “somewhere” within their houses. Quite a number of Kenyans have also decided to leave their title deeds uncollected in Land Registries after the mass land adjudication and registration initiatives around the country. Business movers who know the power of “capitalising” land have left their ownership documents with banks and other financial institutions after securing loans or overdraft facilities.

Lost title deeds

Land administrators however foresaw situations in which ownership documents, however securely kept, could get either lost or destroyed deliberately or inadvertently. In anticipation of such situations, they provided legal mechanisms for replacement. I am sure some are wondering just how careless a land owner may be to lose their title deed. If you live with us, let’s walk through the various but practical situations. Remember the terrorist attacks we suffered a while back. Talk to some victims who had documents in their offices. Some got lost. Then recall the ethnic clashes we have had in some parts of the country where people’s houses have been burnt down to ashes. Many ownership documents get lost. Then there are the occasional fires that gut private offices and houses where, as mentioned above, some documents are held. Such documents get either burnt or permanently misplaced. There are incidents of house and office break-ins where valuable items, among them ownership documents, may get stolen and irretrievably lost. People moving offices or houses also do end up losing their title deeds in some cases. Insecure domestic relationships where spouses are fixated on property could also find documents destroyed or forever hidden to protect interests. In the rural areas where discrete filing and safes are the exception, title deeds could get easily lost. I beseech fellow Kenyans make efforts to make minimum arrangements to keep ownership documents in safe but retrievable places.

Law allows replacement of title deeds

Let us now answer the question that’s severally thrown at us on whether it’s possible, and if so, how to replace a lost title. Our Land Registration Act allows the Land Registrar to issue a duplicate certificate of title or lease. But the owner, or proprietor if you wish, must make an application to the effect and also provide the Registrar with satisfactory evidence of the loss or destruction of the previous documents. But before dealing, the Registrar will require a statutory declaration, in other words a statement under oath, to be made by the owner or owners, to support the application.

Once the Registrar is satisfied with the evidence on the loss, he will have to issue a sixty day Kenya Gazette notice on the loss of the title, and will also ensure that a notice of the loss is placed in two local newspapers of nationwide circulation. The requirement for newspaper notices was placed after protests that Kenya Gazette notices have little circulation and hence affected persons cannot access easily them. Regular newspaper readers may now be familiar with the sections on lost title deeds in the classified advertisements of our newspapers. Please check them out next time you read.

In lay terms, the routine documents needed for the replacement process include a duly executed affidavit, police abstract and certified copies of national identity cards. Also the owner’s PIN number, colour passport size photographs and a recent official search in respect of the property are required. One must also fill up the applicable application form and undertake to return the lost document for cancellation, if later found. Well, that’s it!