Land fraud in Kenya and prophetic task of 'due diligence'

The recent Supreme Court decisions on land and the most recent High Court decision that stripped Equity Bank CEO James Mwangi of ownership of land claimed by the Magugu family has once again exposed the deep cracks in Kenya’s land management system. The decision, which found that the Magugus were innocent purchasers entitled to keep the land, is arguably sound in law, but it raises troubling questions about justice, fairness, and the role of government in protecting citizens from fraudulent land dealings.

At the centre of this legal storm lies a grim reality: in Kenya, you can do everything right, conduct a search at the land registry, verify ownership documents, and even secure financing through reputable institutions yet still lose your land to someone who appears later claiming a better title. The Supreme Court has twice now reaffirmed the Torrens system, under which the person registered as owner is protected as such, but its decisions also exposes the limits of “due diligence” in a system riddled with corruption and incompetence.

Land is more than property in Kenya; it’s identity, security, and legacy. For millions, it represents the fruit of lifelong effort. Time and again, cases like this demonstrate how easily that dream can crumble, not because of recklessness by buyers, but due to the failure of the very institution meant to safeguard ownership, that is the land registry.

In the Mwangi–Magugu case, the Environment and Land Court ruled that the Magugus were the legitimate owners having had an unbroken chain in the acquisition of their title from the 1900s which they then later sold to one company. The court concluded that Mwangi’s title had been tainted and that the Magugus’ ownership and subsequent buyer, was therefore valid. Legally, it made sense: Under Section 26(1)(a) and (b) of the Land Registration Act (LRA), a title can be challenged if it is acquired through fraud, misrepresentation, or illegal means. But here’s the painful paradox - both parties relied on the same government records. Both conducted searches. Both believed they had genuine titles. The fraud did not come from either of them, it originated from within the system itself.

And that is where the real problem lies.

Kenya’s land registry has long been accused of being a playground for corrupt officials and unscrupulous brokers. Files “disappear,” duplicate titles mysteriously appear, and fraudulent entries are sneaked into official records. In this chaotic environment, what more can an honest buyer do beyond performing a search and obtaining a certified copy of the title deed? The court’s insistence on “due diligence” sounds noble but in practice, it places an impossible burden on ordinary Kenyans. I say so since land fraud in Kenya has skyrocketed that you may have to be a prophet to be sure of the land you are yet to buy.

How can a citizen verify information that is exclusively in the custody of government officers? How can a buyer detect fraud that originates from within the registry, sometimes even after paying for official searches and approvals? The state cannot demand of its citizens a standard of diligence higher than what its own institutions can guarantee.

The recent Supreme Court decisions have reopened a long-standing debate on the balance between legal certainty and fairness. While the Torrens system rightly protects innocent purchasers and promotes stability in land transactions, it also assumes that the government’s records are reliable. That assumption no longer holds true in Kenya. The registry’s reputation for manipulation and forgery undermines the very foundation of the Torrens principle, that registration equals ownership.

This is not just a theoretical problem. It has real, painful consequences. Banks lose millions when charged properties turn out to be fraudulently registered. Families lose homes they have lived in for decades. Investors lose faith in Kenya’s real estate market. When the government’s record-keeping is unreliable, the ripple effect damages the entire economy.

The question now is: Who bears responsibility when government officers betray public trust? Should innocent purchasers, who acted in good faith and followed all legal procedures suffer losses for crimes they neither knew of nor could have prevented? Or should the State, through its agencies, shoulder the burden of compensating victims of registry-originated fraud?

It’s time to rethink the law.

Kenya’s Parliament should consider amending the Land Registration Act to impose personal liability on land registrars and officials who facilitate or negligently allow fraudulent transactions. Such reforms would not only deter corruption but also restore public confidence in the registry. Where fraud is proven to have emanated from registry actions, be it through falsified entries, manipulation of records, or issuance of parallel titles, the officers involved should face both civil and criminal consequences.

Alternatively, a government compensation fund could be established to reimburse innocent purchasers who lose property through proven acts of official fraud. Similar systems exist in other jurisdictions that operate under the Torrens model. In Australia, for instance, the state guarantees the accuracy of its land register and compensates anyone who suffers loss due to registry errors. If Kenya truly believes in the Torrens principle, then the state must also bear the cost of maintaining its integrity.

Our laws must recognise that the public’s trust in land ownership is only as strong as the registry. The Supreme Court has spoken on the law. Now, it is time for lawmakers to act on justice.