Replacement of Lost or Destroyed Title

A title deed is a critical legal document as it serves as conclusive evidence of ownership of land or property. Given its importance, the loss, misplacement, or destruction of a title deed can cause significant concern to a property owner. Recognizing the possibility of such occurrences, Kenyan law provides a clear legal framework and procedure for the replacement of lost or destroyed titles.

The legal basis for this process is found in Section 33(1) of the Land Registration Act, 2012, which allows a registered proprietor whose certificate of title or lease has been lost or destroyed to apply to the Land Registrar for a replacement. The applicant must provide sufficient proof to satisfy the Registrar that the original title has indeed been lost or destroyed.

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Procedure for Replacing a Lost or Destroyed Title

The replacement of a title deed is a formal and multi-step process intended to prevent fraud and protect property rights. Below is a summary of the steps involved:

a) Reporting the Loss and Obtaining a Police Abstract

The first step is to report the loss or destruction of the title deed to the nearest police station. Once the report is made, the police will issue a police abstract confirming that the document has been reported as lost.

To obtain the abstract, the registered owner must present a copy of the lost title deed or the title number (if available), and a valid national identity card or passport.

The police abstract form may also be downloaded from the National Police Service website, printed, and presented at a police station for stamping and authentication.

b) Conducting an Official Search at the Lands Registry

Section 33(4) of the Land Registration Act requires the applicant to conduct an official land search. This search confirms the current registered ownership and provides official proof that the applicant is indeed the lawful proprietor of the property.

The search is obtained by making a formal request at the relevant land registry where the property is registered.

c) Swearing an Affidavit

The registered proprietor must swear an affidavit that attests to the loss of the original lease, stating that you bear no responsibility for the loss and that the title deed has not been pledged as security for any loans.

Where the land is jointly owned, all registered proprietors must swear the declaration.

d) Application for a Replacement Title

The proprietor must formally apply to the Lands Registry for the issuance of a replacement title through the prescribed form, accompanied by the following documents:

• Police abstract

• Certified copies of the proprietor’s ID or passport

• Passport-sized colour photographs

• Statutory declaration

• Official land search

• Copy of the lost title (if available) or proof of ownership

For registered entities, additional documents are required, including:

• Certified copies of incorporation documents

• Copies of directors’ IDs or passports

• A certified company resolution authorising the application

e) Registration of a Caution

To prevent fraudulent dealings during the replacement process, it is advisable for the registered owner to lodge a caution against the title as provided under Section 77 of the Land Registration Act, 2012.

A caution acts as a temporary restriction, ensuring that no transactions can be registered on the property until the issue of the lost title is resolved.

f) Publication in the Kenya Gazette and Newspapers

Once the Registrar is satisfied that the title has genuinely been lost or destroyed, they will cause a notice to be published in the Kenya Gazette and in at least two newspapers of nationwide circulation.

This notification provides the public with a 60-day window to raise objections to the issuance of the replacement title. The cost of this publication is borne by the applicant and paid to the Government Printer and the respective media houses.

g) Verification and Issuance of a Replacement Title

In the absence of any objections during the 60-day objection period, the Lands Registrar will issue a provisional certificate of title. This provisional document serves as temporary proof of land ownership until the permanent title deed is issued.

The Registrar will then make the necessary entries in the land register:

• On the green card for freehold titles, or

• On the white card for leasehold interests.

Following this, the applicant is issued with a replacement title deed. If the original lost title is later recovered, the law requires that it be surrendered to the Lands Registry for cancellation.

Conclusion

The process of replacing a lost or destroyed title deed in Kenya is deliberately thorough to protect landowners from fraud and unlawful dispossession. While the procedure may appear lengthy, it plays a crucial role in safeguarding land ownership rights and maintaining the integrity of the land registration system.

Property owners are encouraged to seek legal guidance to ensure that all requirements are met efficiently and accurately, reducing the risk of delays or rejection