Double Property Titles: A major Real Estate Risk

Justice image-Double property titlesDouble property titles is one of the major risks associated with real estate. Double property titles occur when the registrar or any other authority issues one or more titles for the same real estate. Where the registrar or such authority inadvertently issue two or more titles bearing the same land reference number for separate parcels of land, the danger may not be great. The anomaly can be corrected by cancellation of the latter titles and reissuing new titles. In the majority of the cases I have encountered, I have found investors unaware of such double property titles. The discovery only came to light by coincidence when official title searches from the Land Registry turned out to be inconsistent with the survey map from the Director of Surveys.

However, the real danger of double property titles becomes apparent where the titles refer to the same real estate. This exposes the investor to the risk of property loss if the titles are held by different parties. Many investors have lost property when one party exercised what they perceived to be their indefeasible right conferred by their respective titles over real estate. We saw this in the demolitions in Syokimau, Eastleigh and Wilson Airport. The risk of double property titles became clear in the following case:

Gitwany Investment Limited v. Tajmal Limited & 3 others [2006] eKLR.

In this case, the Commissioner of Lands had issued two titles for the same parcel of land in Kileleshwa Estate – Nairobi at 6 years interval to two different investors. The first investor never moved to the site. The second investor pulled down the old single dwelling house on the plot and re-developed it with high class apartments to the tune of Kshs.151.5 million. No fraud was established in the double property titles allocation.

In his judgement, Justice Isaac Lenaola ordered that:

  • The first owner was the bonafide owner of the land (and the second owner a trespasser on the land).
  • The second title should be cancelled within 30 days by the Commissioner of Lands.
  • The structures constructed by the second owner at Kshs.151.5 million should be removed within 90 days.
  • The second owner should be restrained from developing the land further.
  • The Commissioner of Lands was ordered to pay the second owner Kshs.151.5 million.

The significance of this ruling was that the first title having been issued earlier was indefeasible. And since it had not been cancelled, the second title could not confer any rights to the land. In the words of the judge, the second title remained a sham.

Stephen Omengo
Real Estate Consultant at Tysons Limited, Nairobi-Kenya
Personal blog: www.omengo.co.ke
Personal email: stephen@omengo.co.ke

  1. That a good piece of advise,but who should be blamed for double title allocation?How can an innocent purchaser avoid being trapped in all these mess?Kindly advise.

    • Dear Isaac,
      As an investor you will need to carry out some reasonable level of due diligence just to ensure you are not duped. Streamlining of records and use of IT would be the ultimate solution where information is stored and retrieved at the click of a button. The latter is for the government.

  2. Stanley Andanje

    A very useful piece of information. Writen in an interesting manner.

  3. A good piece especially for my family who is going through a similar situation. Now I know what to tell them.

    Thanks.

    Steve.

  4. What about buying houses which have no title? What level of security shopuld one get be it from the seller or government? what is your advise of this?

    • Dear Kyuk,
      Ideally any transaction in land should be in writing. This forms a binding contract between the seller and the buyer which can be enforced through the justice system. You should perhaps worry if a third party processes a title before you do, or if there actually exists a title and a third party registers his interest before you do.

  5. Hi,

    Was the Gitwany Vs Taj ever resolved, who currently is the legal owner of the land? would buying an apartment now at Taj Garden be legal.

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