GROUP MEMBERS NAMES

1. Tiffany Njoroge 1051337

2. Stacy Margaret Omondi 1051310
3. Violet Anne 1048946
4. Daisy Wambui Nyutu 1049724
5. Florence Opiyo 1051344
6. Patience Sang’ 1051359
7. Valencia Mugwelo 1051323
8. Kala Clinton Malonza 1049109
9. Juma Kevin 1049109
10. Owen Muthui 1051347
11. Ivy Stacy 1048979

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Question: Explain and distinguish between the deeds system of land registration and the title
system of registration. Which is the better of the two systems of land registration and why?

TABLE OF CONTENTS

1. INTRODUCTION
2. KEY PRINCIPLES OF BOTH SYSTEMS OF REGISTRATION
3. PROCESSES OF BOTH SYSTEMS OF LAND REGISTRATION
4. STRENGTHS AND WEAKNESSES OF BOTH SYSTEMS OF LAND
REGISTRATION
5. EXAMPLES OF COUNTRIES USING THE SYSTEMS
6. SUPERIORITY COMPARISON USING CASE LAWS
7. STATUTORY INDICATIONS OF THE SYSTEMS IN KENYA

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 INTRODUCTION
Land registration describes methods by which matters concerning ownership, possession or other
rights in land are recorded with a government agency. Land registration has developed over the
years and its actualization in the world was due to the changes in times and the way in which man
organized himself. It was seen as a development towards civilization since it made land ownership
and the use of land easier with its development.1 Here in Kenya, the colonialists introduced land
registration which eroded communal land ownership in Kenya with an interest of alienating land
from the Kenyan people. There are many systems of land registration but for the purposes of this
paper, we shall look at the title system of land registration and the deed system of land registration
comparatively to ascertain which of the two systems is more superior to the other. The deed
registration system, also known as the registration of deeds system, is based on the registration of
documents relating to transactions affecting interests in land while the title registration system
operates on the principle of registering the title to land rather than the documents affecting the
land.

1
‘(20) Land Registration: A Review of Rationale, Mechanics and Typologies | Ronald Matende - Academia.Edu’
<https://www.academia.edu/38103433/Land_Registration_A_review_of_Rationale_Mechanics_and_Typologies> accessed 17 November 2023

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 THE DEED REGISTRATION SYSTEM
A deed is defined as a written instrument, which has been signed and delivered, by which one
individual called the grantor conveys title to real property to another individual called the grantee.
A deed is sometimes called a conveyance of land or a tenement. In common law jurisdiction, a
deed is an instrument under seal that contains a covenant or contract delivered by an individual
who is bound by it to the party to whom it is granted. the deed must describe the property affected,
the name of the party transferring the property and the party receiving the property; a deed must
be signed by the grantor under the acknowledgement of the public notary or commissioner of
oaths. To complete the transfer, the deed must be recorded in the register by the recorder of deeds.
There are two types of deeds; a warranty deed and a quit claim deed. A warranty serves as a
guarantee that the grantor owns the title, while a quit claim deed serves to transfer the interest
which the grantor actually has in the title.2
The deed registration system means that the deed itself, being a document, which describes an
isolated transaction, is registered. This deed is evidence that a particular transaction took place but
it is in principle, not in itself proof of the legal rights of the involved parties and consequently, it
is not evidence of its legality. Thus, before any dealing can be safely effectuated, the ostensible
owner must trace his ownership back to a good root of title. Once a deed has been received in the
land registry, it undergoes thorough examination to ensure that what is contained in the deed
matches the recorded facts and history of the property in question. This ensures that the transaction
is originating from the rightful owner and it is describing the right property.3
The legal description of the property in the deed should tally with subsisting information deposited
previously in the registry about the property. Information abstracted from a deed is normally
recorded on the mother title and in the register and is referred to as abstract title. The deed system
relies heavily on a parcel file which contains documents concerning all previous transactions
affecting the property. These documents must all be rigorously scrutinized in relation to the deed
before a verdict by the registrar to reject or accept the deed is arrived at.4

2
Ibid 1
3
Ibid 1
4
Ibid 1

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 PRINCIPLES OF DEED REGISTRATION SYSTEM
The deed registration system has been constructed on the three main principles: the principle of
contract or covenant, public land recordation and the insurance of title principle. The Registration
of deed is based on the general principles of contract which include legality, intention, contractual
capacity, agreement, form, Consideration and genuine consent. The deed is based on formation of
a promise and keeping of that promise. The most central aspect of a deed is mutual agreement
rather than guarantee from a third party. In some cases, title insurance may be taken to bolster trust
in the registered deed. The promise intrinsic in the registration of deeds is that of good intention
and the judicial principle of adjudicating the promise in the deed.5
The deed system is sometimes referred to in the USA as land recordation system. The primary
functions of a land recordation system are to provide a public record of land ownership and to
provide notice of the existence of certain continuing interests, encumbrances, and claims. The
conventional recording system makes no averments to the public about the state of the title to any
parcel of land. Instead, the land recordation system simply invites searchers to inspect copies of
documents and to draw their own conclusions as to title. The following observation about
recordation system in USA by Hanstad confirms the complexity and opacity of the deed
registration system: To assert or to protect an interest in property under the recording system, the
claimant must file a document describing that interest with the public recorder's office. The
submitted document for example, a deed is then recorded in an alphabetical grantor grantee index,
thus providing notice of that interest to all.6
Whenever an interest in property is transferred, a search is made of all claims related to the parcel
in question. The transferee, or her agent, must undertake a complex, tedious, and costly search
through the grantor-grantee indexes to ensure that the transferor does indeed possess the interest
to be conveyed and to confirm that no outstanding claims exist. Obtaining a title insurance policy
is the most common method of apprising the transferee of the marketability of the acquired title.
A title insurance company issues the insurance policy after its search of the records indicate that

5
Ibid 1
6
Ibid 1

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title is clear, thereby assuming the transferee's risk of purchasing an impaired title. It is the "risk"
inherent in recordation that creates the need for "assurance" that title is clear. The title industry
provides this assurance, although at a significant cost to landowners.7
The deed registration system, also known as the registration of deeds system, is based on the
registration of documents relating to transactions affecting interests in land. The key principles of
deed registration are:
Registers documents only, not title – The deeds system focuses on registering documents
like transfers, mortgages, etc. It does not register or guarantee the title itself (Section 27,
Registered Land Act).
- Uses description of land, no maps – The deeds registry uses a tract index system that
identifies land using written descriptions only. No maps are used to identify parcels
(Section 33, RLA).
- First registered deed has priority – The deed that is registered first takes priority over any
subsequent deeds related to the same land. This follows the first-in-time principle (Waller
v. Sole, 2002).
- No checking if title is valid – The registrar does not investigate or confirm validity of the
title being transferred under a registered deed (Muingi v. Muingi, 1981).
It offers no compensation for those who suffer a loss from an error in the registry records. There
is no state assurance or compensation for flaws. (Section 143, RLA).
In contrast, the title registration system, also known as Torrens title, operates on the principle of
registering the title to land rather than just the documents affecting the land. The key principles of
title registration are:
- Registers current owner and encumbrances – The title register shows the current legal
owner of the land and any mortgages, easements, etc. on the land (Section 27, LRA).
- Guarantees ownership rights – The registered proprietor gets an indefeasible title that is
conclusive proof of ownership (Section 28, LRA).
- Uses maps to identify parcels – The registry uses cadastral maps to index land parcels
(Section 7, LRA).
- Simplifies transfers as register shows ownership – Conveyancing is easier as the register
shows current rights (Sections 93-96, LRA).

7
Ibid 1

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 - Checks registration follows law – The registrar verifies compliance with legal requirements
before registration (Sections 39-40, LRA).
- Compensates for registry errors – Provides state compensation for errors in the register
(Section 143, LRA).
The principal problems with recordation stem from the system's inability to provide conclusive
evidence concerning the status of rights to land. Any interested party is invited to search the
evidence and make their own determination as to the status of land rights although a personal
determination is not definitive as to title. Thus, the land recordation suffers from problems of
inefficiency, insecurity of title, and high costs.8
The registration of deed system entails maintenance of a public register in which documents
affecting interests in a particular land are copied. Such a deed is mere evidence of the recorded
transaction and is by no means proof of title. The most a deed can do is to invoke the records as
prima facie proof of the fact that the transaction in question did occur. However, cannot and will
not suffice to prove the validity or legitimacy of such transactions. Further disfavor with the deed
system arises from its inability to confer a secure title to land. The purchaser lacks government’s
guarantee of ownership, accuracy of entries and indemnity for losses arising from omission or
Errors. Use of cumbersome and complex historical deduction to prove the goodness of title makes
the system complicated and discouraging.9
The deed system has been described as an act of recording the assurance to title which fails to pass
the property to the buyer but only makes him to feel more secure. The mere assurance fails the test
of judicial declaration of title which is the main stay of the title registration system. Presently,
many countries are treating the deed system as old fashioned and are gradually adopting title
registration systems.10

8
Ibid 1
9
Ibid 1
10
Ibid 1

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 THE TITLE REGISTRATION SYSTEMS
The title registration system was brought forth to address the shortcomings of the deed registration
system. Whereas in the deed registration system, it is the deed which is registered, the title system
registers the title. Title in strict legal sense connotes the right to ownership of the property. So,
while the deed system registers a document, the title system registers the right to ownership of
property. The title registration system appears in many different versions, however, the Torrens
registration system and the English title system which is merely a modified version of the Torrens
system, are most popular. Torrens title is a system of land registration in which a register of land
holding maintained by state guarantees an indefeasible title to those included in the register. Land
ownership under this system is transferred through registration of title instead of using deeds. Its
main purpose is to simplify land transactions.11
The title system operates on the basic principle of title by registration rather than registration of
title. In the previous deed system, parties could transact title privately by agreement through a deed
before a solicitor or commissioner of oaths and merely convey what had already happened to the
public recorder of deeds for record purpose only. The deed was a conveyance that had already been
completed between the parties and the work of the public officer was only to acknowledge and
keep record of the act. However, under the registration of title system, a title may only come about
after registration by the public officer. The responsibility to make title may only come about after
registration by the public officer. The responsibility to make title is vested in the public officer and
by extension in the government. No other authority has the power to create title to land except the
Government and through the processes of registration and other legally sanctioned procedures.12

PRINCIPLES OF TITLE REGISTRATION SYSTEM

Unlike the Deed system which is based on the principle of mutual trust between private entities,
the Torrens system works on three principles: the mirror, the window and the insurance principle.
Mirror principle has the implication that the register (Certificate of Title) reflects or mirrors
accurately and completely the current facts about title to each registered lot. It says that the
information in the title and on the register is a mirror of the true status of all rights and interests in
that land. This means that each dealing affecting a lot (such as a transfer of title, a mortgage or

11
Ibid 1
12
Ibid 1

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discharge, a lease, an easement or a covenant) must be entered on the register and so be viewable
by cheap online or other types of searches. The mirror principle relates to the accuracy, certainty
or conclusiveness of entries in the register as a reflection of the true status of the title. In some
sense therefore, the mirror principle stands for transparency and openness of the title registration
system and has the effect of building confidence and assurance in the system. It protects the title
from any unregistered interests and guarantees absence of any other hidden factors that may
adversely affect parties concerned.13
The Curtain principle is a declaration that there is nothing beyond the ownership indicated on the
title. Thus, one does not need to go behind the Certificate of Title as it contains all the information
about the title. This means that ownership need not be proved by long complicated documents that
are kept by the owner, as in the Private Conveyancing system. All the necessary information
regarding ownership is on the Certificate of Title. In the old deed systems, one had to peel off
paper after paper, study document after document as in the act of opening curtains to reveal more
hidden information about title. The title registration system removes the necessity of opening many
curtains to search for knowledge about the title. The curtain principle refers to the easiness with
which to access information about ownership under the title registration system. The curtain
principle indicates that, though the certificate of title should be the sole and definitive source of
information for proposing purchasers, it should not reveal sensitive information. Thus, some
information on the title may only be revealed when the curtain is removed by way of official
search.14
The insurance or Indemnity principle relates to the implied guarantee of title by the state by virtue
of owning the system through which such titles are legally generated and maintained. In the
previous deed systems titles were generated by private systems outside the government machinery.
By taking over responsibility for title production, it becomes mandatory that the Government
should compensate anybody who may suffer losses as a result of mistakes or mischief in the
register. The insurance principle offer guarantee for the goodness of all titles produced by the
Government and thus makes them indefeasible. Indefeasibility means that the rights and interests
entered in the register cannot be defeated by any adverse claim which is not disclosed in the
register.15

13
Ibid 1
14
Ibid 1
15
Ibid 1

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STATUTORY PROVISIONS FOR THE LAND REGISTRATION SYSTEMS IN KENYA
English land laws were introduced in Kenya through the colonization process. Before the Berlin
conference, colonial powers had limited powers to deal with land within a foreign territory. By an
opinion of crown legal officers, “protectorate status did not confer radical title to land in a foreign
territory.” This meant that the colonial authorities had limited powers to deal with land within a
foreign territory. This impediment was however overcome through the foreign Jurisdiction Act of
1890 which gave her majesty a power of control and disposition over waste and unoccupied land
in protectorates where there was no settled form of government and where land had not been
appropriated either to the local sovereign or to individuals.in such circumstances, her majesty
would declare such lands to be crown lands or make grants for them to individuals in fee or for
any term. This was attained through the promulgation of the East African Land regulations of
1897.16

The Land Acquisition Act of India was then enacted and it appropriated all lands situated within
one mile on either side of the Kenya Uganda railway for the construction of the railway. The act
was further used to compulsorily acquire land for other “public purposes” such as government
buildings. The act came with a problem that’s the ever-expanding definition of public purpose for
which land could be forcibly acquired. The misuse of the urgency clause led to the massive
displacement of poor peasants and traditional communities with inadequate or compensation and
delays in completion of acquisition procedures. By defining “persons interested” as those having
an interest in land including tenancy and easement rights as opposed to actual title, it created a
conducive environment for dispossession of native Kenyans of their land.17
The East African Lands Order in Council, 1901 was the first local land legislation. This legislation
conferred upon the commissioner of the protectorate, power to dispose of all public lands on such
terms and conditions as he might think fit, subject only to any directions which the colonial
secretary of state might give. The East African Lands Order in Council was later expanded
reenacted in the in the form of the Crown Lands Ordinances of 1902 and 1915. The 1902 crown

16
Maina SC, ‘REGISTRATION OF TITLE TO LAND: A CRITIQUE OF THE LAND REGISTRATION ACT NO.3 OF 2012’

17
Ibid 16

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lands ordinance conferred upon the protectorate administrator enormous powers of lawfully
disposing land within the protectorate. The commissioner could sell freehold estates in land, but
regard had to be given to the rights and requirements of the natives in dealing with crown land.
However, natives’ rights were merely occupancy rights and where land was no longer occupied, it
could be sold as if it were “waste and unoccupied land”18
Both the 1902 and the 1915 ordinances defined crown land as, “all public lands within the East
African Protectorate which for the time being are subject to the control of his majesty protectorate
and all lands which have been or may hereafter be acquired by his majesty under the land
Acquisition Act 1894 or otherwise howsoever.” In 1915, the then chief justice delivered an opinion
that whatever rights the indigenous inhabitants may have had to the land had been extinguished by
the colonial legislation leaving them as mere tenants at the will of the crown of the land actually
occupied.19
In 1938 however, radical title to land reserved for African occupation was severed from the
colonial sovereign and transferred to trust board, set out specifically for that purpose. Nevertheless,
radical title to areas not so reserved, classified as crown lands, remained in the colonial sovereign
irrespective of the nature of title granted to the landholders.20
The registration of documents ordinance, 1901 was intended to create a register of documents in
order to prevent fraudulent claims for compensation by squatters, mainly at the coast, claiming to
have been wrongfully dispossessed by the government. Under this act, any documents could be
registered at the option of the owner, although at the time of its enactment, the most important
documents that were registered were grants of land from the government. It was a simple system
of registration for isolated transactions without any form of reference or tracking the registered
transaction. The legislation was purely based on registration of the deeds system, thereby
effectively defeating any future claims of ownership by the locals. Their claims were issued with
certificates of ownership, certificate of mortgage or certificate of leasehold depending on the
interest obtained. Any unregistered land within the stipulated period was declared crowns land.21

18
Ibid 16
19
Ibid 16
20
Ibid 16
21
Ibid 16

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The crown land ordinance, 1915 declared all land within the protectorate as crown land, whether
or not such land was occupied by the natives or reserved for native occupation. Africans became
tenants to the crown, with no more than temporary occupation rights to land. The land reserved for
use by the Africans could also at any time be expropriated and alienated to the settlers. The
ordinance empowered the commissioner of the protectorate to grant land to the settlers for leases
of up to 999 years. The impact of such legislation was dispossessing the native African owners of
their inherent right to their land. The commissioner could offer certificates of occupancy valid for
99 and 999 years to Europeans wishing to take up land at a consideration of peppercorn.22
This ordinance brought an advanced system of registration of deeds and the provision of accurate
survey and deed plans. Upon gaining independence, the 1915 ordinance became the Government
Lands Act, CAP 280 L.O.K. the registration under the act was a deed registration. This meant that
the documents were for mere proof of registration and not of ownership of the piece of land so
registered. Proof of the title had to be done afresh. The act was meant to make further and better
provision for regulating the leasing and disposal of government lands and for other purposes. This
act gave the president enormous powers relating to dealings with government land, something that
later exposed such land to major acts of corruption with irregular allocation and titling to private
persons. The act remained operational until the provision of the Land Registration Act although
the contents of the act are yet to be converted to the Land Registration Act.23

The land titles ordinance (1908) was introduced into the country to address the shortcomings of
the RDA. It was to deal with land registration at the coast. At the time, the ten-mile coastal strip
was owned by the sultan of Zanzibar but subject to the rights of the inhabitants. As such there was
uncertainty of individual titles and land rights of the inhabitants. As such there was uncertainty of
individual titles and land rights had to be adjudicated to ascertain individual titles. Any land
transaction by way of investments was not possible due to this uncertainty. There was thus a need
for the introduction of a registration system. An office of the Recorder of Titles was set up and a
Land Titles Register. The ordinance also established a land registration court. It required any
private claimant (those with certificate of ownership issued by the sultan) to register their interests
within six calendar months. Those who registered their claims were issued with a certificate of

22
23

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ownership, certificate of mortgage or certificate of leasehold depending on the interest established.
Any unregistered land within the stipulated period was declared crown land. The sultan was instead
paid compensation.24
The same would be governed by the Crown Lands Ordinance, no 21 of 1902. Radical title to land
recognized as privately held under the Land Titles Ordinance was, apparently held by individuals
identified under the legislation while the rest appointed by the sovereign.25
The registration of titles act, cap 281 was first passed as an ordinance in 1919 to provide for the
transfer of land by registration of titles. It was the first to introduce a form of title registration in
the country. It was based on the Torrens System of Registration. Under the act, the following are
registerable, freeholds, leaseholds, powers of attorney, wills, building plans, the area of any
building let as a shop, office or flat and architect’s plan. A registered proprietor was issued with a
grant or certificate of title signed by the registrar and a copy thereof kept in the register. A separate
register is kept for each property and any entry on the register was also entered on the original title.
This system was based on fixed survey boundaries reducing litigation in boundary disputes. The
system guaranteed security of tenure and a certificate issued by a registrar was taken as conclusive
evidence of ownership and the government indemnified loss.26
Section 3 of the act provided that the registration provisions of the Land Titles Act would cease to
apply in respect of all lands comprised in any certificate of title, coming under the provisions of
the act or issued by the land registration court after commencement of this act. The act provided
that land which was alienated or agreed to be alienated in fee or for years by or on behalf of the
government before the commencement of the act, and had been surveyed and land in respect of
which a certificate of title had been issued by the land registration court, could be brought under
this act by application.27
The act, also allowed the registrar general upon registering a title, endorsing and signing upon the
last in date of the documents registered under the Registration of Documents Act, the Land Titles
Act or the Government Lands Act to cancel and dispose of such prior title. The registrar general
was to keep a book, to be called record book in which record of all deed and documents produced
and used in support of each application was kept. When land had been brought under this act, the

24
Ibid 16
25
Ibid 16
26
Ibid 16
27
Ibid 16

13 | P a g e
register kept under the Government Lands Act, the Land Titles Act or Registration of Documents
Act, was to be closed so far as concerned that land, and there would be no further registration in
respect of these registers.28
A certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission
would be taken to courts as conclusive evidence that the person named therein is proprietor of the
land, with absolute and indefeasible title subject to the encumbrances, easements, restrictions and
conditions contained therein and the title would not be subject to challenge, except on the ground
of fraud or misinterpretation to which he was proved to be a party. The registrar of each registration
district was to keep a register, called register of titles. The act declared that; no instrument until
registered in the manner described, would be effectual to pass any land or render the land liable as
security for payment of money.
This act was associated with landlessness, deterioration of the quality of land due to fragmentation,
overstocking, soil erosion and disintegration of social and cultural institutions in the reserves. The
register under this act has been transited into the Land Registration Act and shall be deemed to be
a register under the act.29
The registered land act, cap 300 sought to unify the different systems of land registration in Kenya.
That is, land titles held privately under Governments Land Act, Land Title Act and Registered Title
Act were to be converted and transferred to a new register in compliance with RLA. Secondly, it
formalized African land tenure system through the process of adjudication, consolidation and
registration. It was also intended to register land owned by Africans in the native reserves which
had gone through adjudication and consolidation process. In essence, it sought to extinguish
customary tenure and replace it with individual and exclusive rights in land.30
Moreover, it was meant to be a comprehensive substantive and procedural law on land. Upon the
first registration of any land under the act, the ITPA would cease to apply to that land, except in
relation to any dealing entered into before the date of the first registration. Unless the registers
under the other statutes are being converted, registration under the act is preceded by the
adjudication process. A land certificate under the act is only prima facie evidence of title, and if
one has been issued it must be produced to the registrar on every change of ownership when it is
destroyed by him and another one issued. It gave absolute protection to the first registration of

28
Ibid 16
29
Ibid 16
30
Ibid 16

14 | P a g e
land, even if such registration may have been fraudulently obtained. A first registration cannot be
challenged in a court of law. This provision has caused irreparable damage to individuals, families
and at times, the whole communities. Moreover, it was impossible to challenge a first registration
where the registered trustee proprietor is a trustee under section 126(1) of the Act which prohibits
the entry of particulars of any trust in the register.31
Despite it being passed in 1963 it continued to operate side by side with other statues often leading
to duplicity of titles and fraudulent transactions. The Registered Land Act simplified the
registration of title regime. However, it had its own challenge. First, administration costs for the
registration system were quite high. This meant that the registration and conversion of all
registered land under other statutes would take much longer. Secondly, it led to emergence of
boundary disputes due to the fact that titles could be issued under this act with unfixed boundaries.
Although there is state insurance in case of loss arising from a reliance on the register, the RLA
register only recorded the state of the register at the time of issuance of the title. Under the RTA,
the register contained the history of the transactions affecting the land. This meant that under the
RTA there is more transparency in land registration compared to the RLA.32
The weakness of individual title was that it resulted in subdivision of small portions of land in
various smaller fragments with poor control and regulations from the government. This gave the
opportunity to inter alia corrupt land dealings. The system failed to correct the injustices of
dispossessed land right owner’s claim to land due to the legal assumption that the registered
occupants of the adjudicated, registered and titled parcels of land were true owners. In essence,
therefore, the introduction of the colonial laws saw the birth of a duality of tenure systems in Kenya
where there were systems of lands tenure based on principles of English property law on the one
hand and a largely neglected regime of customary property law on the other hand.33

31
Ibid 16
32
Ibid 16
33
Ibid 16

15 | P a g e
 SUPPORTING CASE LAW STUDIES
The superiority of title registration over deed registration is well-established in land law case laws.
The following are explanations of some of the key land law case laws on title registration vs deed
registration, and the rationale behind the judgments made:
Munyu Maina vs Hiram Gathiha Maina (2013) eKLR
In the case of Munyu Maina vs Hiram Gathiha Maina (2013) eKLR,34 the Court of Appeal of
Kenya held that title registration is superior to deed registration because it provides a more secure
and reliable system for establishing ownership of land.
The case involved two brothers, Munyu and Hiram Maina, who were both registered as proprietors
of a parcel of land. Munyu claimed that the land was held in trust for him and Hiram, while Hiram
claimed that he was the sole owner of the land.
The Court of Appeal found that the registered proprietor of land is presumed to be the absolute and
indefeasible owner of the land, and that this presumption can only be challenged on limited
grounds, such as fraud or misrepresentation. In this case, there was no evidence to support Munyu’s
claim that the land was held in trust for him. Therefore, the court found that Hiram was the rightful
owner of the land.
The court went on to state that the indefeasibility of title under a title registration system is essential
for promoting economic development and social stability. It allows individuals and businesses to
invest in land with confidence, knowing that their title is secure.
The court's decision in this case is significant because it reaffirms the superiority of title
registration over deed registration. Title registration provides a more secure and reliable system
for establishing ownership of land, which is essential for promoting economic development and
social stability.
The court's decision also has important implications for land transactions in Kenya. Buyers and
lenders who are considering purchasing or lending against land should ensure that the land is
registered under a title registration system. This will provide them with greater certainty and
protection in the event of a dispute.

34
‘Civil Appeal 239 of 2009 - Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/93250/> accessed 17 November 2023

16 | P a g e
 Environment and Land Case 32 of 2018
In the case of Environment and Land Case 32 of 2018,35 the High Court of Kenya held that title
registration is superior to deed registration because it provides a more efficient and transparent
system for managing land transactions.
The case involved a dispute over a parcel of land that was registered under a title registration
system. The plaintiff, who was the registered proprietor of the land, claimed that the defendant had
fraudulently obtained a certificate of title for the land.
The court found that the defendant had indeed obtained the certificate of title fraudulently. The
court also found that the title registration system was more efficient and transparent than a deed
registration system. Under a title registration system, all registered interests in a piece of land are
recorded in a central register, which is accessible to the public. This makes it easy for buyers and
lenders to verify the ownership of land and to identify any encumbrances on the title. In contrast,
under a deed registration system, there is no central register of land interests, and buyers and
lenders must rely on their own due diligence to verify the ownership of land and to identify any
encumbrances on the title.
The court concluded that the title registration system is the superior system for managing land
transactions. It is more efficient and transparent, and it provides greater certainty and protection
for buyers and lenders.

Environment and Land Case 61 of 2017

In the case of Environment and Land Case 61 of 2017,36 the High Court of Kenya held that title
registration is superior to deed registration because it provides a more effective way to protect the
rights of innocent third parties.
The case Involved a dispute over a parcel of land that was registered under a title registration
system. The plaintiff, who was the registered proprietor of the land, claimed that the defendants
had trespassed on the land and built structures.

35
‘Environment & Land Case 32 of 2014 - Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/272503/> accessed 17 November 2023

36
‘Environment and Land Case 61 of 2017 - Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/143276/> accessed 17 November 2023

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The defendants claimed that they had been in possession of the land for many years and that they
had a customary right to the land. The court found that the defendants had indeed trespassed on
the land and that they did not have a customary right to the land.
The court also found that the title registration system provided a more effective way to protect the
rights of innocent third parties. Under a title registration system, a registered proprietor’s title is
indefeasible, meaning that it cannot be challenged except on limited grounds. This protects
innocent third parties who acquire interests in land from the registered proprietor, in the belief that
they are acquiring a good title.
In contrast, under a deed registration system, there is no such presumption of indefeasibility, and
any party claiming an interest in the land can bring a challenge to the registered proprietor’s title.
The court concluded that the title registration system is the superior system for protecting the rights
of innocent third parties. It provides greater certainty and protection for buyers and lenders who
rely on the title register to verify the ownership of land and to identify any encumbrances on the
title.

COMPARISON OF LAND REGISTRATION SYSTEMS IN DIFFERENT COUNTRIES

1. KENYA
THE LAND REGISTRATION ACT OF KENYA, 2012.
Kenya has taken the title registration of land as its land registration system and has since enacted
the Land Registration Act, 2012 to affect this method of land registration. We are going to look at
its provisions and how Kenya has since implemented it.
The act notable applies to the registration of interests in all public land and the registration and
recording of community interests in land. The act further provides for the establishment of a land
register, land registries and offices. The act provides for establishment of registration units by the
National Land Commission in consultation national and county governments. Land registration
units are to be established at the county level and at such other levels to ensure reasonable access
to land administration and registration services. In addition, in each registration unit a land registry
is to be maintained which is to be guided by the principles of devolution.37
The act further provides that, the act states that subject to the legislation on community land, there
is to be maintained in each registration unit, a community land register in which shall be kept, a

37
Ibid 16

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cadastral map showing the extent of the community land and the identified areas of common
interest, the name of the community identified and any other law relating to community land; a
register of members of the community, the user of the land, identity of those members registered
as group representatives, the names and identity of the members of the group and any other
requirement as shall be required under the law relating to community land.38
The registrar is to issue a certificate of title or certificate of lease, and may not register any
instrument purporting to dispose of rights or interest in community land except in accordance with
the law relating to community land. The provisions in this section are not applicable to unregistered
community land held in trust by county governments on behalf of communities.39
Subject to the laws regarding freedom of and access to information, the registrar must make
information in the register accessible to the public by electronic means or any other means as the
chief land registrar may reasonably prescribe. This act provides that the registration of a person as
the proprietor of land is to vest in that person the absolute ownership of that land together with all
the rights and privileges belonging or appurtenant thereto.40
Under this act, rights of a proprietor, whether acquired on first registration or subsequently for
valuable consideration or by an order of court, shall not be liable to be defeated except as provided
for in the act, and shall be held by the proprietor, together with all the privileges and appurtenances
thereto, free from all other interests and claims whatsoever, but subject to the leases, charges and
other encumbrances and to the conditions and restrictions. Further, every proprietor at the time of
acquiring any land, lease or charge, is deemed to have had notice of every entry in the register
relating to the land, lease or charge and subsisting at the time of acquisition.41

38
Ibid 16
39
Ibid 16
40
Ibid 16
41
Ibid 16

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 CETRIFICATE OF TITLE OR LEASE UNDER THE ACT
The registrar may, if requested by a proprietor of land or a lease, where no certificate of title or
lease has been issued, issue to him or her a certificate of title or a certificate of lease, as the case
may be, in the prescribed form showing all subsisting entries in the register affecting that land or
lease. Only one certificate of title shall be issued in respect to each parcel of land. The certificate
of title or lease issued pursuant to the provisions of the act is prima facie evidence of the matters
shown in the certificate, and the land or lease must be subject to all entries in the register. Where
there is more than one proprietor, unless they are tenants in common, the proprietors are to agree
among themselves on who among them is to receive the certificate of title or the certificate of
lease. If they fail to agree, the certificate of title or certificate of lease must be filed in the registry.
The date of issue of a certificate of title or certificate of lease must be noted in the register.42
The act also provides that, if a certificate of title or a certificate of lease has been issued, then,
unless it is filed in the registry, then it must be produced on the registration of any dealing with the
land or lease to which it relates, and if the certificate of title or the certificate of lease shows all
subsisting entries in the register, a note of the registration shall be made on the certificate or lease.
Where the disposition is a transfer, the certificate must, when produced, be cancelled, and in that
case, a new certificate may be issued to the new proprietor, and where the disposition is a charge,
the certificate must be delivered to the chargee.43

2. ONTARIO
LAND REGISTRATION IN ONTARIO
Ontario has been hailed as a state with one of the most advanced systems of land registration in
the world. It has two systems under which title to land is recorded, and these are the “Registry
System” which is governed by the Registry Act and the “Land Titles System” which is governed
by the Land Titles Act. The Registry system and the Land Titles system differ in that the former is
a registry of documents and the latter is a register of titles. The registry system is an older system
which mostly shows the documents affecting title to property, and therefore, it is not conclusive
evidence of the interest described in the particular instrument. Each instrument must be examined
to determine its legal effect.44

42
Ibid 16
43
Ibid 16
44
Ibid 16

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The land titles system affirms title to the property and, as such, prohibits the registration of a
transfer from a person who is not a registered owner. The Land Registration Reform Act (LRRA),
introduced most changes to the land registration system including automation, and it applies to
both systems. In Ontario, there are 54 Land Registry Offices which register, store and manage
documents affecting title to real property in the province. Ontario was the first jurisdiction in the
world to provide electronic registration. Despite its modern features, Ontario Land Registry
Offices currently operates under two systems: the Registry system and the Land Titles system
pursuant to the Land Title Act R.S.O. 1990 c. L.5, and the Registry Act R.S.O. 1990, c. R.20.45
The Land Titles system is a Torrens system governed by the Land Titles Act, which records the
interests that affect a particular piece of land. Former interests which are no longer active, however,
are cancelled and deleted. As a result, the registered owner and charges affecting a particular piece
of land are immediately apparent when title is searched. The Registry system is an older,
established in 1795 pursuant to the Registry Act, which provides a means for recording documents
that evidence title interests. It does not provide a definitive statement with respect to ownership or
title, but rather, represents an inventory of instruments that notify the public of interests claimed
in land.46
The original system of registering interests in land under the Registry Act (Ontario) dates from the
late 1700s. In this system, registration of title or ownership in real property in Ontario is based on
a registry system (the "Registry System") whereby all land registration documents are submitted
to the Land Registrar and are recorded, in the order they were submitted, on the abstract for the
geographic area they affect within a provincial Land Registry Office ("LRO") jurisdiction (usually
a county or region within Ontario). In this system, the province has custody of all original titles,
document and plans and has the legal responsibility for security of all title information.47
The LRO that accepts the submitted documents does not guarantee the effect of such documents
or title to properties. As a result, in order to arrive at a current determination of title to property in
the Registry System, land registration documents must be searched to trace the history of prior
transactions affecting the property. For determination of title, by law, all such documents registered
in the Registry System during the 40 years preceding the date of a search must be examined. This

45
Ibid 16
46
Ibid 16
47
Ibid 16

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procedure can be costly and time consuming if many documents have been registered during this
period.48
A second system of registering interests in land is the land titles system (the "Land Titles System").
In the Land Titles System, the Province has custody of all original titles, documents and plans and
has the legal responsibility for the validity and security of all registered land title information.
Once the property has been registered and certified, the province guarantees the title to, and
interests in, property. Since this record is updated each time a land registration document is
registered, only a search of the current register of interests (and not all documents registered during
the 40 preceding years) is required in order to ascertain title.49
By the 1980s, approximately half of the properties in Ontario were recorded under the Land Titles
System, and at such time the province decided to convert all remaining properties in the Registry
System to the Land Titles System. As of March 2011, approximately 99.9% of properties in Ontario
were recorded under the Land Titles System. The register is computerized and accessed
electronically. Through legislation, Ontario has eliminated the paper option and now all financing
statements are required to be in the electronic format approved by the registrar.233 Ontario stopped
issuing title certificates in the 1970s under its title registration systems because these certificates
are seen increasingly to be a risk if lost and unnecessary in practice.50

COMPARATIVE ANALYSIS OF THE ADVANTAGES AND DISADVANTAGES OF

TITLE AND DEED SYSTEMS OF LAND REGISTRATION

48
Ibid 16
49
Ibid 16
50
Ibid 16

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 ADVANTAGES OF THE TITLE SYSTEM OF LAND REGISTRATION
- It provides certainty of title - The register is guaranteed by the state and there is no need to
investigate long chains of title. This gives assurance to owners and simplifies land transactions
(Wayumba v National Bank of Kenya [2002] eKLR).

- It is a "curtain" system - Once registered, all previous interests are overridden and only the current
title matters. This simplifies land dealings as there is no need to investigate past histories (Muguthu
v Maina [2002] eKLR).

- It facilitates proof of title - Title is established by virtue of registration alone. No further evidence
is required (Section 28, Land Registration Act). This makes transactions faster.

- It enables ease of transfer - Title passes by registration alone so transfers are simpler than under
deed registration (Section 38, Land Registration Act).

- It allows separate registration of interests - Different interests like leases and mortgages can be
registered separately and still bind the land. This caters for complex modern interests in land
(Section 37, Land Registration Act).

- It promotes access to credit - Banks are more willing to accept registered land as collateral given
the greater certainty of title. This enhances development (Peter Njuguna Kiarie v Charles
Kinyanjui Kiarie [1984] eKLR).

DISADVANTAGES OF THE TITLE SYSTEM TO LAND REGISTRATION

- Risk of fraud - Registration can be fraudulently changed without the owner's consent, leading to
loss of title (Section 143, Land Registration Act). However, an innocent proprietor is protected.

- Registration does not guarantee validity - Even with registration, transfers can be challenged if
illegal, like in cases of fraud or duress (Section 28(3), Land Registration Act).

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- Costly establishment - Setting up a titles registry is capital intensive and requires systems for
surveying, adjudicating rights and mapping boundaries.

- Skilled personnel needed - The system requires a specialized cadre of registry officials to
maintain records and undertake registrations. Kenya currently has a personnel shortage.

- Periodic re-surveys needed - Boundaries must be kept up to date through regular, expensive re-
surveys.

ADVANTAGES AND DISADVANTAGES OF THE DEED REGISTRATION SYSTEM OF

LAND

ADVANTAGES

- Protects land rights - Does not override existing unregistered interests like title registration.
Customary rights are therefore safeguarded (Peter Ngoge & 2 others v Daniel Kamau Mbugua
[2005] eKLR).

- Cheaper to operate - Only requires a system of deed recordation. Much lighter on personnel and
infrastructure than title registration.

- Accessible system - Recording officials do not need specialized skills. Easier for rural
communities to understand.

- Promotes owners' vigilance - Owners have an incentive to safekeep title deeds and be vigilant
about protecting their rights.

DISADVANTAGES

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- No state guarantee - The government does not assure validity of deed documents. Forged or void
transfers can result in loss.

- No certainty - Owners cannot be sure they have full title. There could exist old unregistered
interests binding the land from previous owners.

- Difficulty in tracing title - Establishing good root of title involves laborious searches of previous
deeds and histories. The process is slow and costly (James Rugut Korir v John Kipkutto Tonui
[2015] eKLR).

- Multiple transactions needed - Transferring land requires multiple deeds to be completed for each
stage. This complicates each transaction (Section 23, Registered Land Act).

- Hinders land development - Banks shy away from accepting deed documents as collateral given
uncertainties in title. This constrains credit access for development.

- Vulnerable to deed tampering - Deeds can be stolen or damaged, resulting in loss of title.

CONCLUSION
In conclusion, it has been established that title registration to land is superior to deed registration
to land. However, Kenya is yet to reap from the benefits of its implementation through the statutes
and therefore, consideration needs to be taken to find a way forward.

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 BIBLIOGRAPHY
‘(20) Land Registration: A Review of Rationale, Mechanics and Typologies | Ronald Matende -
Academia.Edu’
<https://www.academia.edu/38103433/Land_Registration_A_review_of_Rationale_Mechanics_
and_Typologies> accessed 17 November 2023
‘Civil Appeal 239 of 2009 - Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/93250/>
accessed 17 November 2023
‘Environment & Land Case 32 of 2014 - Kenya Law’
<http://kenyalaw.org/caselaw/cases/view/272503/> accessed 17 November 2023
‘Environment and Land Case 61 of 2017 - Kenya Law’
<http://kenyalaw.org/caselaw/cases/view/143276/> accessed 17 November 2023
Maina SC, ‘REGISTRATION OF TITLE TO LAND: A CRITIQUE OF THE LAND
REGISTRATION ACT NO.3 OF 2012’

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