Proving Land Ownership in Kenya
“There is no doubt that such proof will be on a balance of probabilities, but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property.”
- Onguto, J, Caroline Awinja Ochieng & another vs Jane Anne Mbithe Gitau & 2 others  eKLR
The court in Kwale ELC Case No.100 of 2021, Mwaja & 5 others v National Land Commission & another (Environment & Land Case 100 of 2021)  KEELC 16458 (KLR) (27 March 2023) (Judgment) dealt substantially with the question of how to prove land ownership in Kenya. In doing so, the court canvassed the issue of the jurisdiction of the National Land Commission (the NLC) as set out in Article 67 of the Constitution of Kenya, 2010 (the Constitution) in comparison to the National Land Commission Act, 2012 (the Act).
Whereas the suit was undefended, the court reiterated the principle that it is trite law that the onus of proof still lies with the person(s) claiming ownership. In proving ownership of the land, it was expected for the claimants to demonstrate the history of the property from the time of adjudication. However, the court noted that an adjudication search was never presented in court. Additionally, the claimants in the suit alluded to a green card allegedly showing the claimant’s registration as the owners of the suit property in their court papers but failed to produce the same in court.
In failing to prove that they were the owners of the land by way of documentary evidence, the court was unable to make the order and/or declaration that the claimants were the legal/beneficial/registered owners of the land.
In canvassing the issue of the jurisdiction of the NLC, the court compared Article 67 of the Constitution and Section 14 of the Act. Article 67 of the Constitution provides that the function of the NLC is to inter-alia, initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress. On the other hand, section 14 (4) of the Act empowers the NLC to make a determination on claims made by persons claiming to have an interest in the grant or disposition of public land.
The claimants had initially brought a complaint to the NLC on the issue of the ownership of the land to which the commission made a determination. The bone of contention was whether the NLC had jurisdiction to make a determination to the complaint made by the claimants as evinced in section 14 of the Act where the property was private land. To this end, the court observed that there was a conflict between the Act and the Constitution and made the conclusion that the Constitution being the supreme law of the land ought to be adhered to where there is a conflict with a legislation. Further, the court reiterated that the NLC’s jurisdiction is limited to public land and not private land.
The claimants in failing to prove ownership to the land by way of documentary evidence failed to meet the standard of proof in ownership of property. Moreover, the court held that NLC’s jurisdiction is limited to the recommendation of appropriate redress after investigations of land injustices in public land and not to make determinations.
Importance of the Decision
In conclusion, it is incumbent upon litigants and/or landowners to prove ownership of land through documentary evidence that extend to the root of the title including but not limited to land adjudication records. Short of this, their ownership claims are likely to fall on all fours. Moreover, regarding, the jurisdiction of the NLC, it is limited public land and does not extend to private land.
The decision in Kwale ELC Case No.100 of 2021 retains the principles upheld in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition No. 8 (E010) of 2021) where the court opined as follows, “To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.”
If you have any queries relating to the above or any aspect of land law, please do not hesitate to contact James Wairoto and Moses Ogutu. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.September 29, 2023