Whether the transaction between the deceased husband and purchaser was lawful, and whether the purchaser was a bona fide buyer for value without notice of any adverse interest - The case of Margaret Akuku v Omollo & 2 others [2025] KECA 1170 (KLR)

Case: Juma v Omollo & 2 others (Suing as the Legal Representatives of the Estate of the Late Raphael Okoth Omollo) (Civil Appeal 232 of 2019) [2025] KECA 1170 (KLR) (20 June 2025) (Judgment)

PART I: Summary of the case

The Court of Appeal dismissed an appeal by a widow who was trying to reclaim land her late husband had sold to a third party. She argued that the sale was fraudulent and that she had a spousal interest in the property, as well as a beneficial interest arising from her financial contributions. She also alleged that the transfer was invalid for lack of spousal consent and approval from the Land Control Board.

The land had been mortgaged to a bank, and upon her husband's default, he sold the property privately in 1997 to prevent a public auction. The buyer took possession and began collecting rent. After her husband's death in 1998, the appellant discovered the sale and challenged its validity.

The Court held that although she was the deceased’s spouse, she had not shown that she had any registered, legal, or equitable right in the land that could override the title of the purchaser. The transaction took place before the enactment of the 2010 Constitution and the Matrimonial Property Act, which now provide stronger protections for matrimonial property.

While spousal rights can exist under Section 28 of the Land Registration Act, the Court emphasized that such rights must be clearly pleaded and supported by evidence—which was lacking in this case.

On the issue of Land Control Board consent, the Court noted that although consent is required for transactions involving agricultural land under Section 6 of the Land Control Act, both the seller and buyer were now deceased, and there was no evidence showing that consent was not obtained. The land records appeared regular, and the appellant failed to present sufficient grounds to invalidate the transaction.

Regarding the claim of trust, the Court reiterated that for a trust (whether express, implied, or constructive) to be upheld, it must be clearly pleaded and proven. The appellant only cited her marital status and financial input, which the Court found inadequate to establish a trust. There was no evidence of the husband intending to hold the land in trust for her, nor any customary or family arrangements to support such a claim under Section 28(b) of the Land Registration Act.

Ultimately, the Court concluded that the transaction between the deceased and the buyer was valid and that the purchaser was an innocent buyer for value without notice of any competing claims.

 

PART II: Legal Case Brief

Parties:

• Appellant: Widow of the late Raphael Okoth Omollo
• Respondents: Legal representatives of the deceased purchaser

 

Background:

• The appellant’s husband had charged land to a bank.
• Upon default, he sold the land privately in 1997 to avoid public auction.
• The purchaser took possession and began collecting rent.
• After the husband's death in 1998, the appellant discovered the transfer and challenged its validity.

 

Issues:

1.         Whether the appellant had a spousal or beneficial interest in the land.

2.         Whether the sale was invalid due to lack of spousal consent.

3.         Whether the absence of Land Control Board (LCB) consent invalidated the transaction.

4.         Whether the deceased held the land in trust for the appellant.

 

Holding:

The Court dismissed the appeal, finding the sale lawful and the purchaser a bona fide buyer for value without notice.

 

Court’s Reasoning:

1. Spousal Interest / Consent:

• Appellant was indeed the deceased’s wife.
• However, she failed to prove a registered or legally recognized interest in the property.
• The sale occurred before the enactment of the 2010 Constitution and Matrimonial Property Act.
• Spousal rights under Section 28 of the Land Registration Act must be pleaded and proven, which was not done.

2. Beneficial Interest / Contribution:

• The appellant claimed she contributed financially to preserve the land.
• The Court found no evidence of a beneficial interest or overriding equitable right.

3. Land Control Board Consent:

• LCB consent is mandatory for agricultural land under Section 6 of the Land Control Act.
• Both transacting parties were deceased.
• No conclusive evidence was provided to show consent was not obtained.
• The land register showed no irregularity.

4. Trust:

• The claim that the husband held the land in trust failed.
• Trust must be specifically pleaded and supported by evidence.
• Appellant’s reference to marriage and financial contribution was insufficient.
• No customary or family arrangement was established under Section 28(b) of the Land Registration Act.

 

Disposition:

• Appeal dismissed.
• Sale upheld as lawful.
• Purchaser affirmed as an innocent third party without notice of adverse claims.

 

Relevance of a Green Card Search in land transactions

What is a Green Card?

A Green Card is the original register maintained at the land registry for a specific parcel of land. It contains the entire history of the land, from the initial registration to the present day.

The Green Card search is a critical component in land transactions and due diligence processes in Kenya, particularly when dealing with freehold or leasehold titles registered under the Registered Land Act (Cap 300, now repealed).

Relevance of a Green Card Search

1. Verification of Ownership

• Confirms the legal owner of the land.
• Shows the chain of ownership (from the first registration to the current owner).
• Helps detect any fraudulent transactions or irregular transfers.

2. Check for Encumbrances

• Reveals any charges, caveats, cautions, or restrictions registered against the land.
• Ensures the land is not under dispute, mortgaged, or tied up in litigation.

3. Historical Due Diligence

• Essential in tracing the origin and progression of ownership, especially in areas with high land fraud risk.
• Useful in verifying whether transfers and subdivisions were done lawfully.

4. Required for Certain Transactions

• Necessary when preparing for:
• Land purchases/sales
• Transfers
• Subdivisions
• Land use changes
• Lenders may also require it before approving financing.

5. Protection from Land Fraud

• Since land fraud is prevalent, a Green Card search provides an official source of truth beyond what is shown in a Title Deed.
• Title Deeds can be forged, but the Green Card (held at the registry) is much harder to falsify.

 

The keys steps in Conversion Process of Land Titles and/or Procedure involved

Title conversion is the process of migrating land titles from old registration systems to the new system established by the Land Registration Act, 2012. The conversion of titles is a government-led initiative to migrate all land parcels from the old registration systems to a unified, secure, and digital system, streamlining land administration and enhancing security of tenure.

The conversion process involves several key steps:

1. Preparation and Publication
• The Survey of Kenya prepares cadastral maps and conversion lists, showing old and new parcel numbers.
• The Cabinet Secretary, Ministry of Lands publishes these lists in the Kenya Gazette and two national newspapers, notifying the public of the impending closure of old registers and opening of new ones after 90 days
2. Objection and Review Period
• Landowners or interested parties have 90 days to lodge any grievances using Form LRA 96 with the land registrar. If complaints arise, a caution is registered pending resolution.
• The Registrar reviews and resolves complaints within 90 days, with appeals permitted to the Environment and Land Court.
3. Public Notice for replacement titles.
• After the 90 days, landowners are invited to apply for the replacement of titles. Applications are made via the Ministry of Lands or the Ardhisasa portal, typically through an advocate, and must include:
• Completed application form (FORM LRA 97)
• Original title deed
• Identification documents (ID/Passport)
• Proof of payment of prescribed fees (No fees are charged for conversion)
4. Verification and Issuance
• The Land Registry verifies documents and may conduct site inspections.
• Upon approval, the old title is surrendered, and a new title deed (Certificate of Title LRA 20 or Certificate of Lease LRA) is issued within 21 days, reflecting the new registration details under the Land Registration Act, 2012

Special Cases of Title Conversion

• Lost Titles: Reconstruction under Section 33(5) of the LRA, involving gazette notices and verification.
• Succession: Heirs must present grants of probate or letters of administration to update registers.
• Court-Held Titles: Requires court orders for release, often involving advocates’ irrevocable undertakings.
• Sectional Properties: Must submit georeferenced sectional plans authenticated by the Director of Survey.

 

Relevant KYC documents for a company purchasing property in Kenya.

In Kenya, KYC requirements for property transactions involving a company are governed by regulations from institutions like the Law Society of Kenya (LSK), the Registrar of Companies, and the Ministry of Lands. Banks and advocates (lawyers) handling conveyancing will also enforce these KYC rules.

KYC Documents Required for a Company Purchasing Property in Kenya

1. Certificate of Incorporation

• Issued by the Kenya Registrar of Companies.
• Proves the legal existence of the company.

2. Company PIN Certificate (KRA)

• Issued by the Kenya Revenue Authority.
• Required for stamp duty and registration.

3. Tax Compliance Certificate (optional but recommended)

• Confirms the company is compliant with tax obligations.

4. CR12 Form (Company Registry)

• Official document listing directors and shareholders.
• Must be recent (not older than 3 months).

5. Board Resolution

• Authorizing the purchase of the specific property.
• Appoints a signatory to act on the company's behalf.

6. National ID or Passport of Directors and Authorized Signatory

• To verify the identity of those acting for the company.

7. PIN Certificates of Directors and Authorized Signatory

• Required for tax compliance checks and transactions.

8. Passport-Size Photos of Directors and Authorized Signatory

• Used for identification and registration files.

9. Company Address and Physical Location

• Utility bill, lease agreement, or business permit may be requested.

10. Company’s Constitutional Documents (Memorandum & Articles of Association or Statement of Particulars)

• Required to verify company structure and powers.

 

Additional Documents (Context-Specific)

• Letter of Offer / Sale Agreement – Often required early in the process.
• Land Control Board Consent – If agricultural land is involved.
• Power of Attorney – If someone other than a director is acting on behalf of the company.
• Loan Documentation – If the purchase is financed.

 

Other Notes

• Ensure that the authorized signatory appears in the CR12 or is granted authority by a board resolution.
• The advocate handling the transaction will conduct due diligence using these documents.
• The documents will also be needed during the land transfer process at the Ministry of Lands and for payment of stamp duty through iTax.

 

Board Resolution template for a Kenyan company purchasing property

BOARD RESOLUTION FOR PURCHASE OF PROPERTY

[Company Letterhead]

BOARD RESOLUTION OF [COMPANY NAME] LIMITED
Company Registration Number: [Insert]
PIN: [Insert]
CR12 Date: [Insert date of latest CR12]

At a meeting of the Board of Directors of [Company Name] Limited, duly convened and held at [Location] on [Date], the following resolutions were passed:

 

RESOLUTION FOR PURCHASE OF PROPERTY

IT WAS RESOLVED THAT:

1. The Company shall proceed with the purchase of property known as [Insert Property Description – e.g., Land Reference Number, Title Number, Plot Number, Location] for the consideration of KES [Insert Amount], or such other amount as may be agreed upon in writing.
2. The Company approves and authorizes the negotiation, execution, and completion of all agreements, documents, and instruments necessary for the completion of the said transaction, including but not limited to:
• The Offer Letter / Sale Agreement
• Transfer documents
• Land Control Board applications (if applicable)
• Registration documents
• Payment of stamp duty and related fees
3. [Name of Authorized Person], being a Director/Authorized Representative of the Company, holding National ID/Passport No. [Insert ID/Passport Number], and KRA PIN [Insert PIN], is hereby authorized to:
• Act on behalf of the Company in all matters relating to the purchase;
• Sign and execute all relevant documents;
• Liaise with the Advocate(s), Seller(s), and Government offices;
• Make payments as necessary to complete the transaction.
4. The Company Secretary is hereby instructed to issue certified copies of this resolution to all relevant parties upon request.

 

CERTIFIED TO BE A TRUE COPY OF THE RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF [COMPANY NAME] LIMITED ON [DATE]

Signed:

 

[Name]
Director

ID No: [Insert]
Signature: ______________________

 

[Name]
Director/Company Secretary (if required)

ID No: [Insert]
Signature: ______________________

Date: [Insert Date]