How the Case of Musa v Musa & 6 Others [2025] impacts real estate transactions and bank lending practices

Issue

Can third-party purchasers or lenders rely on land titles that were fraudulently obtained, assuming they had no knowledge of the fraud? Whether the 1st respondent fraudulently obtained registration of land and if such title could be nullified—despite the interests of third parties like Family Bank.

Rule

A title obtained through fraud or misrepresentation is void under the Land Registration Act. Third-party rights (e.g., banks or buyers) cannot override this if the root of the title is defective.

Under the Land Registration Act (Kenya), a title obtained through fraud or misrepresentation is not indefeasible. Fraud vitiates title, even where the land has been charged to a bank or sold to an innocent third party.

Application

The court ruled that even where a bank holds a charge, it cannot claim protection if the original title was fraudulently acquired. This places an obligation on lenders and buyers to conduct thorough due diligence, not just rely on registration records.

The court found that:

• The 1st respondent used forged documents and bypassed required consents to register the land solely in her name.
• The Land Registrar processed these changes irregularly, violating legal procedure.
• Although Family Bank held a charge on the land, its interest could not survive because the root of the title was void due to fraud.
• The trial court erred by upholding a title obtained through clear misrepresentation.

Conclusion

This case strengthens the position that fraud vitiates title, and third parties—especially banks—must take extra precautions when dealing with land transactions. Legal ownership must be substantively clean, not just procedurally registered.

The Court of Appeal allowed the appeal, declared the registration fraudulent, nullified the title and all derivative interests (including the bank’s), and ordered the land revert to the rightful family heirs.

🔗 Read full case here

 

 

On the importance of consent from co-owners in family land matters: The Case of Musa v Musa & 6 Others [2025] KECA 1283 (KLR)

Link: Readfull judgment

Background / Facts

• The appellant, Eric Musa, challenged the transfer of a property he co-owned with his late father.
• The 1st respondent (his stepmother) allegedly used falsified documents to register the land in her name after the father's death.
• The land was later charged to Family Bank, raising concerns of third-party interests.
• The Environment and Land Court dismissed Eric's suit, prompting this appeal.

 Issues for determination

1. Whether the title held by the 1st respondent was obtained fraudulently.
2. Whether the Environment and Land Court erred in upholding her title.
3. Whether subsequent parties (e.g. the bank) could rely on the fraudulently obtained title.

Court’s Holding / Judgment

• Appeal allowed.
• The Court of Appeal found that:
• There was clear evidence of fraud and misrepresentation, including forged consent forms and improperly issued titles.
• The original registration in the 1st respondent’s name was void ab initio.
• Family Bank’s interest, while appearing innocent, could not survive the illegality of the original title.

Legal Reasoning

• The court emphasized that under the Land Registration Act, a title obtained by fraud is not protected.
• The Registrar’s role is administrative, and must be exercised within the law—any illegal registrations are void.
• The principle of indefeasibility of title does not apply where fraud is involved.

Outcome

• Title reverted to the rightful heirs (including the appellant).
• All registrations based on the fraudulent transfer were nullified.
• Costs awarded to the appellant.

 Legal Significance

• Land fraud invalidates title even if third parties are involved.
• It reinforces the importance of consent from co-owners in family land matters.
• Clarifies the limited protection afforded to banks and purchasers who rely on defective titles.

 

Land-based lending checklists - An update based on the decision in the case of Musa v Musa & 6 Others [2025] KECA 1283 (KLR)

Background

The Court of Appeal decision in Musa v Musa & 6 Others [2025] clarified that a registered land title obtained through fraud is void, regardless of whether a bank or third party acquired an interest in good faith. This has serious implications for collateral risk.

 

 Key Risk Exposure

• Banks relying solely on registered title risk loss of security if the title is later found to be fraudulent.
• In cases involving family land or succession, fraud or lack of proper consent is more likely.
• Third-party charges (e.g., mortgages) can be invalidated if the root title is void.

 

Policy Recommendations

1. Enhanced Due Diligence
• Investigate ownership history and succession documentation.
• Validate consents from all beneficiaries and spouses.
2. Document Authentication
• Insist on original transfer documents and cross-verification with the Land Registry.
• Use certified survey plans and match title details with registry records.
3. Legal Review Requirement
• All land-backed loans must undergo legal review by external counsel for:
• Source of title
• Validity of consents
• Risk of familial disputes
4. Contractual Safeguards
• Include warranties in facility agreements about clear and undisputed ownership.
• Require indemnities for misrepresentation and fraud.
5. Transactional Controls
• Avoid lending against titles that have changed hands within the last 12 months without solid background checks.
• Register cautions or restrictions early in the loan negotiation process.

 Action Required

Update their land-based lending checklists to incorporate these measures.

Reference

• Musa v Musa & 6 Others [2025] KECA 1283 (KLR)
• Full Judgment

 

Lawyers’ Guide: Succession Law & Procedure in Kenya

I. Legal Framework

• Primary Legislation:
• Law of Succession Act (Cap 160, Laws of Kenya)
• Procedural Guidelines:
• Probate and Administration Rules (Cap 160 Sub Leg)

 

II. Classification of Succession Cases

A. Non-Contentious Succession

• No dispute exists.
• Usually involves:
• A valid written will (Testate)
• Agreement among beneficiaries in intestate cases.

B. Contentious Succession

• Dispute over:
• Validity of a will
• Inclusion/exclusion of heirs
• Property distribution
• Requires a full hearing (probate in solemn form).

 

III. Succession Types

A. Testate Succession

• Valid will left by deceased.
• Grant sought: Probate.
• Executor(s) named in the will file the petition.

B. Intestate Succession

• No will or invalid will.
• Grant sought: Letters of Administration.
• Distribution follows Part V of the Law of Succession Act.

 

IV. Constitutional Principles (Applies to All Cases)

• Article 27 – Equality and non-discrimination in inheritance.
• Article 40 – Right to property protection.
• No discrimination based on gender, marital status, age, etc.

 

V. Order of Priority in Filing Applications (Section 66 LSA)

1.        Surviving spouse(s) (with or without other beneficiaries)

2.        Other beneficiaries (children, parents, siblings, etc.)

3.        Public Trustee

4.        Creditors

Note: No more than four persons may apply jointly (Section 56).

 

VI. Ineligibility to Apply (Section 56)

• Minors
• Persons of unsound mind
• Undischarged bankrupts

 

VII. Required Documents for Application (High Court Registry)

A. Mandatory Forms

Form	Purpose
P&A 80	Petition (summons format)
P&A 5	Affidavit in support of petition
P&A 12	Affidavit of means
P&A 11	Justification for sureties
P&A 57	Personal surety guarantees
P&A 38	Consent from adult beneficiaries not applying

B. Supporting Documents

• Original Death Certificate
• Chief’s letter confirming beneficiaries
• Will (Original or authenticated copy) – if testate
• Proof of ownership of assets (title deeds, logbooks)
• ID copies of applicants
• Objection waiver consents (if applicable)

 

VIII. Application Procedure

Step 1: Filing the Petition

• File above forms at the High Court (Family Division).

Step 2: Gazette Notice

• Cause is advertised in Kenya Gazette for 30 days.
• Objections may be filed during this period.

Step 3: Objection Handling

• If filed, court sets down for hearing as contentious matter.
• Objector files cross-petition; normal trial procedures apply.

Step 4: Grant of Representation

• If no objection is received:
• Letters of Administration or Grant of Probate issued.
• Holder is empowered to collect and preserve estate assets only.

 

IX. Confirmation of Grant (After 6 Months)

Procedure:

• Application under Section 71 LSA and Rule 40
• Filed via Summons with:
• Affidavit in Support
• Schedule of Assets showing proposed distribution
• Consent from beneficiaries (if required)

Court Checks:

• All dependants included
• Proposed distribution is fair
• No outstanding disputes

 

X. Final Steps

1.        Court confirms the grant.

2.        Administrator distributes the estate according to approved schedule.

3.        Upon completion, administrator may apply for discharge.

 

⚖️ Important Points to Note:

• All petitions and applications are filed at the Family Division of the High Court.
• Court may appoint guardians ad litem for minors.
• Where a will is contested, oral evidence of its validity is required.
• Court discretion is final in interpreting "dependants" and "fair distribution."

 

On Lenders ensuring their interest rates and loan terms are commercially reasonable and fair, especially when privately negotiated - The Case of Dhiman v Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)

Case Details

• Court: Court of Appeal, Nairobi, Appeal No.: E380 of 2023
• Lower Court: High Court at Nairobi (Makau, J), H.C. Commercial Case No. 205 of 1999
• Judgment Date: July 11, 2025 (Kenya Law)

 Factual Background

1. Loan Agreement (1996–1997):
• Respondent (Shah) lent the Appellant (Dhiman) Ksh 13 million in three installments (Ksh 2.5m, Ksh 2.5m, and Ksh 8m) (Case).
• Only Ksh 7 million was actually disbursed: Ksh 2.5m (Dec 1996), Ksh 2.5m (Jan 1997), and Ksh 2m (Aug 1997) (See Case).
• The agreement included a 36% per annum interest rate, payable quarterly, and security over land (LR 209/8192/8) via promissory notes and charge (See Case).

 

Issues on Appeal

• Unconscionability: Dhiman argued the 36% compounded interest and associated terms were excessively oppressive.
• Validity of Security: Whether the charge securing the loan over Appellant’s property was validly created.
• Preventing Unjust Enrichment: If the agreement was void, what fair restitution was appropriate?

 

 Court of Appeal’s Decision

1. Unconscionability Doctrine Applied
• Court ruled the interest rate and compounding structure amounted to “extortionate” and “oppressive” terms.
• It invoked the unconscionability doctrine, affirming that equity can intervene when contract terms offend justice and conscience.
2. Contract Declared Void
• The loan agreement was set aside, along with the order transferring the mortgaged land.
3. Equitable Restitution
• To prevent unjust enrichment, Dhiman was ordered to repay Ksh 4 million (reflecting actual disbursement minus void portions), at a fair interest rate of 12% per annum (See Case).
4. Land Vesting Nullified
• Any vesting or title change arising from the High Court’s earlier judgment was nullified.

 

Legal Significance

• Balance of Freedom vs Fairness: The Court underscored that while parties are free to contract, courts may intervene when terms are shockingly unfair.
• Kenyan Unconscionability Standard: The decision reinforces the distinction between procedural unfairness (absence of free consent) and substantive unfairness (overly harsh terms).
• Precedent for Loan Agreements: Lenders must ensure their interest rates and loan terms are commercially reasonable and fair, especially when privately negotiated.

 

🏛️ Implications for Practice

For Lenders	For Borrowers
Ensure transparency and fairness in financial terms.	Can challenge oppressive loan terms under equity.
Avoid private lending with punitive interest to evade regulation.	Be aware of rights to restitution even if original contract is void.
Secure legal advice and document informed consent.	Monitor unjust enrichment orders and equitable interest rates.

 

LEGAL BASIS FOR DEED OF VARIATION FOR A LEASE

1. Succession Law

Under the Law of Succession Act (Cap. 160, Laws of Kenya):

• When a landlord (lessor) dies, their rights and obligations under contracts (such as leases) pass to their estate.
• The appointed personal representatives (administrators or executors) step into the legal shoes of the deceased for purposes of estate management.

Relevant Sections:

• Section 79: "The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes... all the property of the deceased shall vest in him as personal representative."
• Section 80(2): Grants of letters of administration take effect from the date of death.

 

2. Contract Law Principles

• A lease agreement is a contractual relationship.
• Under common law, a contract may be varied by mutual agreement of the parties.
• The Deed of Variation is the proper legal instrument to record such changes, particularly when they relate to material terms (e.g., identity of the landlord).

 

3. Registration & Land Law (If Registered Lease)

If the lease is registered (e.g. under the Land Registration Act, 2012), and the property is governed under Kenya’s land law regime, the variation may require:

• Consent of the Land Registrar (if the lease or interest is registered);
• Updating the proprietorship section with the Administrator's details.

 

4. Evidence Required

Before executing the Deed of Variation, the following should be in place:

• Grant of Letters of Administration (from the High Court);
• Death Certificate of the deceased landlord;
• A copy of the original lease/license agreement.

 

🏛 Summary Table

Legal Issue	Applicable Law	Notes
Death of Landlord	Law of Succession Act, Sections 79 & 80	Estate takes over property rights
Change of Parties in Contract	Common Law of Contract	Must be by mutual consent
Variation of Lease Terms	Practice via Deed of Variation	Must be in writing and executed properly
Registered Lease	Land Registration Act, 2012	May require formal registration of variation

 

🖋 Bottom Line:

A Deed of Variation is a legally sound and recognized method to:

• Reflect a change of landlord due to death;
• Ensure continuity of lease terms;
• Avoid legal disputes about payment or possession.

Why A Green Card Search Matters in Land Acquisition as a form of Due Diligence

1.0 Understanding the Green Card in Kenyan Land Transactions

A green card is an actual green piece of paper that maps out a property’s history. It lists all previous owners and when they owned that piece using a hard-to-alter systemized method. This makes it one of the most important documents in due diligence and a must-have before buying land. You will find this document in the land registry.

A Green Card is an official government document maintained by the Ministry of Lands and Physical Planning. It serves as the master record of a property’s history, detailing:

• Ownership changes
• Legal transactions
• Encumbrances (e.g., mortgages, caveats)

Fun Fact: It’s called a Green Card because the original document was green. However, certified copies issued today are often white.

2.0 Relevance of the Green Card in Purchases of Land

Buying land is a major investment, and due diligence is key. Here’s why the Green Card is a must-check document:

1.         Proves True Ownership

• The Green Card lists all past and current owners, ensuring the seller has legal rights to transfer the land.
• Helps you avoid fake sellers and double-selling scams.

2.         Reveals the Land’s Full History

• Tracks every transaction since the land was first registered.
• Exposes disputes, illegal transfers, or pending legal cases.

3.         Protects You from Fraud

• A title deed alone can be forged, but the Green Card is the official government record.
• Cross-checking both documents ensures authenticity.

3.0 The contents of the Green Card? (Structure & Key Details)

A green card has three sections: The property section with property details, including the map sheet number you will ask for at the registry; the Proprietorship section with details of previous registered owners and Encumbrances listing all the charges to that property. Any discharges will also appear here to show, without a doubt, that the property is free to transfer.

A Green Card has three main sections:

Section	Details Included
Part A: Property Details	– Land Reference (LR) Number – Size (in hectares/acres) – Location (Map Sheet No.)
Part B: Ownership History	– Names of all previous & current owners – Transfer dates & transaction details
Part C: Encumbrances	– Mortgages, charges, or loans against the land – Caveats (legal warnings) – Disputes or court orders

 

4.0 The process of Obtaining & Verifying a Green Card

1: Submit an Application

• Only lawyers, licensed surveyors, or the registered owner can request a Green Card.
• Apply at the Ministry of Lands or relevant county registry.

2: Pay the Required Fee

• The current fee is KSh 2,500 (subject to change).

3: Verify Against the Title Deed

• Ensure details on the title deed match the Green Card.
• Any discrepancies could indicate fraud.

Pro Tip: Always involve a real estate lawyer to help verify documents.

 

5.0 FAQs in Kenya

1.         Can anyone access a Green Card?

No—only property owners, lawyers, or licensed surveyors can request it.

2.         How much does a Green Card cost?

Approx. KSh 2,500 (plus legal fees if using a lawyer).

3.         What if the Green Card and title deed don’t match?

This could indicate fraud—consult a lawyer immediately.

4.         Is the Green Card the same as a title deed?

No—the Green Card is the official record, while the title deed is issued to the owner.

5.         Where can I get a Green Card?

At the Ministry of Lands or respective county land registry.

6. Is the green card essential for due diligence when buying land in Kenya?

A: Yes, its importance cannot be overemphasized. The green card shows all the property details, from the title deed number to all its previous and current owners.

7. Can a lost green card be replaced?

A: Yes, you can apply for a replacement with all the details of the lost green card since all the information is available at the Land’s Registry.

8. Is a green card ever closed?

A: Yes. When land is subdivided and new titles issued, new green cards, the same number as the new title deeds, are opened. You can still commission a copy of the old green card from the Registrar in writing.

6.0 Common Mistakes to Avoid When Buying Land in Kenya

1.         Skipping Green Card Verification – Never rely on a title deed alone.

2.         Ignoring Encumbrances – Check for mortgages, caveats, or disputes.

3.         Not Hiring a Lawyer – A legal expert ensures a smooth, fraud-free transaction.

The Green Card is the most reliable document for verifying land ownership in Kenya. All buyers should confirm Green Card details before purchasing land.

7.0 Conclusion 

Important Considerations:

• Not all properties have Green Cards:

Properties under the Land Titles Act (LTA) generate Green Cards. Properties under the Registered Titles Act (RTA) and Government Land Act (GLA) do not. 

• Verification is key:

Always verify the authenticity of the Green Card with the issuing authority. 

• Consult a professional:

Engage a real estate lawyer for assistance with the application and verification process.