Legal Advisory: What to Do If You Lose a Title Deed in Kenya

A title deed is the primary proof of land ownership in Kenya, and its loss should be treated as a serious legal matter. The replacement process is governed by the Land Registration Act, 2012, and is designed to protect owners from fraud and duplication.

The first step after discovering a loss is to report the matter to the police and obtain a police abstract. This is followed by an official land search at the relevant Land Registry to confirm ownership and check for encumbrances.

The registered proprietor must then swear a statutory declaration explaining how the title was lost and confirming that it has not been sold, charged, or otherwise disposed of. An application for replacement is made to the Land Registrar using the prescribed form, supported by the necessary documents.

To safeguard public interest, the Registrar publishes a notice in the Kenya Gazette and a national newspaper, inviting objections for a minimum of 60 days. If no valid objection is raised, a replacement title is issued and the land register updated.

Property owners are advised to register a caution immediately upon loss to prevent fraudulent dealings and to seek legal guidance where land is of high value or subject to dispute. If the original title is later recovered, it must be surrendered to the Lands Registry.

While the process may take several months, strict compliance with the law ensures the protection of property rights and the integrity of Kenya’s land registration system.

Review of the provisions of sections 70(2), 75 and 76) of the Land Act

 

Based on the Land Act (No. 6 of 2012) of Kenya, specifically within Part VI: Leases (Remedies and Relief), Sections 75 and 76 govern the process by which a lessor (landlord) can forfeit a lease and the relief available to the lessee (tenant) against that forfeiture. 

Here is a breakdown of the sections requested:

1. Section 75: Notice before Forfeiture 

This section acts as a procedural safeguard for the lessee. A lessor cannot automatically evict a lessee or forfeit a lease for breach of covenant (including non-payment of rent) without following this process. 

• Notice Requirement: The lessor must serve a notice on the lessee specifying the particular breach (e.g., unpaid rent or broken covenant).
• Remedy Period: The notice must require the lessee to remedy the breach within a reasonable time.
• Court Action: If the lessee fails to remedy the breach within the specified time, the lessor may then commence an action in court for forfeiture. 

2. Section 76: Relief against Forfeiture

This section gives the Court discretionary power to prevent the harsh application of forfeiture, guided by principles of equity. 

• Court Discretion: In an action for forfeiture, the court may grant relief to the lessee on such terms as it deems just.
• Equitable Principles: The court will consider the conduct of both parties, the nature of the breach, and whether the breach has been remedied.
• Effect: If relief is granted, the lease continues as if the breach had never occurred. 

3. Contextual Notes on Related Sections

• Section 73 (Lessor's right of forfeiture): Establishes the right to forfeit if rent is unpaid for twelve months or if a covenant is breached.
• Section 74 (Effect of forfeiture on subleases): Provides that forfeiture of a head lease does not automatically destroy a sub-lease; the court can protect sub-lessees.
• Section 70(2) (Land Registration Regulations): While not in the main Land Act 2012, Regulation 70(2) of the Land Registration (General) Regulations 2017 requires that an application for registration of a charge must be supported by a land rent clearance certificate. 

Summary of Process:

1. Breach: Lessee fails to pay rent/covenant.
2. Section 75: Lessor serves a notice specifying the breach.
3. Action: If not remedied, Lessor sues for forfeiture.
4. Section 76: Court may grant relief (e.g., time to pay) to the lessee to avoid losing the lease. 

 

“Stick to the Deal” – The Binding Nature of Divorce Settlement Agreements

“Stick to the Deal” – The Binding Nature of Divorce Settlement Agreements: The Case of JJM v JLM [2025] KEHC 15576 (KLR)

1. INTRODUCTION

This case reaffirms a key principle in Kenyan family law:

A matrimonial settlement agreement voluntarily executed by spouses is binding, and courts will not reopen the distribution of matrimonial property unless vitiating factors are proved.

The decision emphasizes contractual certainty in divorce settlement agreements and protects parties from attempts to renegotiate after benefiting from the agreement.

2. FACTUAL BACKGROUND

• The parties married in 1980 and remained together for over 40 years.
• Their marriage was dissolved on 29 November 2024 via a Decree Absolute.
• During their marriage they acquired:
• A Ngong property (registered in the husband's name).
• Two parcels in Ndalu/Kipchonge Block (later transferred to their adult son).
• A Lenana View Apartment (B4)—allegedly bought using funds sent by the husband from Namibia.

The Settlement Agreement

On 4 November 2017, the parties executed a Divorce and Settlement Agreement (DSA) to determine ownership and distribution of their matrimonial assets.

Dispute

• In 2018, the husband sent an email to their adult son attempting to “rescind” the settlement agreement, claiming it was skewed in favour of the wife.
• He later filed an Originating Summons (2021) asking the Court to disregard the DSA and redistribute property based on “contribution.”
• He also withdrew any claim to the two parcels transferred to their son, leaving the Ngong property as the main contested asset.

3. ISSUES FOR DETERMINATION

1. Whether the Divorce and Settlement Agreement (DSA) is valid and enforceable.
2. Whether the Court should disregard the DSA and redistribute matrimonial property based on contribution under the Matrimonial Property Act.
3. Whether the husband’s unilateral attempt to rescind the DSA was legally effective.
4. Costs of the suit.

4. COURT’S HOLDING

1. The Settlement Agreement is Valid and Binding

The Court held that the DSA executed by both spouses is a legally binding contract, enforceable under contract law, even though the Matrimonial Property Act expressly mentions only pre-nuptial agreements.

2. No Legal Grounds to Invalidate the Agreement

The husband failed to prove any vitiating factors such as:

• Fraud
• Duress
• Coercion
• Undue influence
• Misrepresentation
• Manifest injustice

His reason—that the agreement was skewed—did not meet the legal threshold.

3. Unilateral Rescission by Email Was Ineffective

The email to the couple’s son did not constitute lawful cancellation.
Rescission of a contract requires:

• Communication between the contracting parties, and
• Mutual consent or court intervention.

4. Estoppel: Husband Approbated the Contract

He benefitted from the DSA by:

• Selling the Lenana apartment in accordance with the agreement;
• Receiving and using the proceeds;
• Buying another property with the proceeds.

Having enjoyed the benefits, he could not later repudiate the agreement.

5. Originating Summons Dismissed

The Court declined to reopen distribution of the Ngong property.
The DSA governs all issues of matrimonial property.

Each party was ordered to bear their own costs.

5. COURT’S REASONING

a) Settlement Agreements Are Enforceable

Although the Matrimonial Property Act is silent on post-nuptial agreements, courts rely on:

• The law of contract,
• The principle of party autonomy, and
• Public interest in finality of disputes.

b) Vitiating Factors Must Be Pleaded and Proved

Courts will not set aside a settlement simply because a party later regrets signing it.

c) Equity Will Not Help a Party Acting in Bad Faith

The husband:

• Accepted the DSA,
• Benefited from it,
• Later attempted to change his mind.

This violates the principle that a party cannot “approbate and reprobate”—accept and then reject the same instrument.

d) DSAs Reduce Litigation and Promote Certainty

They encourage amicable settlement and reduce re-litigation of matrimonial disputes.

6. LEGAL PRINCIPLES ESTABLISHED

1. Divorce Settlement Agreements (DSAs) are binding under contract law, even if not expressly provided for in statute.
2. Courts will not revisit contribution analysis where a binding DSA exists.
3. A DSA can only be set aside if vitiating factors are proven.
4. Parties who benefit from a DSA are estopped from later challenging its validity.
5. Unilateral cancellation of a matrimonial settlement is invalid.
6. The principle of finality of settlement agreements is central in post-divorce property disputes.

7. PRACTICAL IMPLICATIONS & LEGAL ADVICE

A. For clients entering settlement agreements

• Ensure the terms are fair, clear, and fully understood before signing.
• Obtain independent legal advice.
• Document all negotiations and communications.
• Ensure all parties sign voluntarily and without pressure.
• Remember: once executed and acted upon, a DSA is very difficult to set aside.

B. For clients seeking to challenge a settlement

A challenge is only viable where there is strong evidence of:

• Fraud or forgery
• Undue influence or coercion
• Threats or duress
• Material misrepresentation
• Gross unfairness amounting to manifest injustice

Mere dissatisfaction or hindsight regret is insufficient.

C. For lawyers drafting DSAs

• Include clauses on variation, rescission, and dispute resolution.
• Ensure the agreement covers all assets (real and personal).
• Ensure proper witnessing and execution.
• Advise clients on consequences of non-compliance.

D. For ongoing or future matrimonial property disputes

• A DSA will generally override contribution arguments.
• Courts favour finality and will avoid reopening concluded agreements.

8. CONCLUSION

JJM v JLM [2025] KEHC 15576 reaffirms that:

When spouses freely execute a divorce settlement agreement, they are bound by it. Courts will enforce the agreement and will not assist a party seeking to escape its consequences after enjoying its benefits.

This case strengthens contractual certainty in family law and underscores the importance of carefully negotiating and drafting settlement agreements.

On Compulsory Leave, Procedural Fairness, and Constitutional Compliance in Kenya: The Case of Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others [2025] KEELRC 3037 (KLR)

I. Introduction

The judgment in Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others represents a significant development in Kenyan employment law, particularly regarding the intersection of procedural fairness, fair labour practices, and constitutional protections. The case addresses the legality of placing employees on compulsory leave without prior notice or an opportunity to be heard and demonstrates the judiciary’s commitment to constitutionalising employment rights. This commentary provides a detailed analysis of the facts, legal issues, judicial reasoning, constitutional implications, and policy considerations arising from the decision.

II. Factual Background

The Petitioners were employees of the Kenya Medical Supplies Authority (KMSA) and were placed on compulsory leave without prior notification or an opportunity to be heard. Following this action, the 1st Petitioner resigned, claiming constructive dismissal. The Petitioners alleged that the employer’s conduct constituted unfair labour practice, discrimination, and a breach of their constitutional rights under Articles 27, 41, 47, 50, and 236 of the Constitution.

The case highlights a common practical dilemma in employment management: balancing employer prerogative in workforce administration against employee constitutional and procedural rights.

III. Legal Issues

The case raised several interrelated legal questions:

1. Whether placing employees on compulsory leave without prior notice, explanation, or hearing constitutes a violation of fair labour practices and fair administrative action.
2. Whether the unilateral imposition of leave can amount to constructive dismissal under Kenyan law.
3. The appropriate remedies for employees whose constitutional rights under Articles 27, 41, 47, 50, and 236 are violated in an employment context.

IV. Court’s Holding and Reasoning

The Court held that the forced leave without notice, justification, or an opportunity to be heard constituted unfair labour practice and unlawful administrative action. It emphasized several key principles:

1. Procedural Fairness as a Constitutional Requirement
   The Court anchored its reasoning on Article 47 (fair administrative action) and Article 50 (right to a fair hearing), holding that procedural safeguards apply to employment decisions affecting rights, including compulsory leave. Even in public institutions, managerial discretion must be exercised in compliance with natural justice principles, including prior notice, explanation, and the opportunity to respond.
2. Constructive Dismissal
   The Court found that the 1st Petitioner’s resignation constituted constructive dismissal. Constructive dismissal arises where employer conduct fundamentally undermines the employment relationship, leaving the employee no reasonable alternative but to resign. Here, the unilateral leave disrupted the employment relationship to such an extent that resignation was effectively compelled.
3. Constitutional Violations and Remedies
   The Court recognized violations of Articles 27, 41, 47, 50, and 236, awarding Kshs. 6 million each to the 1st and 3rd Petitioners for constitutional infringements and six months’ salary to the 1st Petitioner for constructive dismissal. This demonstrates the Court’s willingness to link statutory employment protections with constitutional safeguards to ensure comprehensive redress.

V. Doctrinal Analysis

1. Procedural Fairness in Employment Law

Traditionally, procedural fairness in employment focused on disciplinary hearings or dismissals. Njoroge expands this principle to include pre-dismissal managerial actions, such as compulsory leave. This aligns with administrative law doctrines, emphasizing that any action affecting an employee’s substantive rights must follow fair procedures, regardless of whether the action constitutes dismissal.

2. Constructive Dismissal Doctrine

The Court reaffirmed that constructive dismissal does not require a formal termination notice. It arises from employer conduct that fundamentally breaches the employment contract, including unilateral, unjustified, or procedurally defective interventions. This approach strengthens employee protection and aligns Kenyan jurisprudence with common law principles, including those recognized in South African and UK law.

3. Integration with Constitutional Law

The decision is particularly significant for constitutionalising employment protections. Articles 41 and 47 now serve as key instruments for evaluating fair labour practices, procedural fairness, and employer accountability. This integration illustrates the Court’s transformative approach, which ensures that administrative and employment decisions respect both substantive and procedural constitutional rights.

VI. Comparative Perspective

Comparative jurisprudence demonstrates a similar emphasis on procedural safeguards:

• South Africa: The Labour Relations Act requires hearings before suspension or dismissal.
• United Kingdom: Employment tribunals consider whether procedural fairness was observed before upholding unilateral employer actions.

Njoroge aligns Kenya with these jurisdictions, reinforcing the global trend of embedding due process in employment law, particularly for public sector employees.

VII. Policy Implications

1. Employer Practices: Public and private sector employers must develop clear policies regarding compulsory leave, including notice requirements, explanation of reasons, and the opportunity for employees to be heard.
2. Human Resource Management: HR professionals must ensure procedural compliance to avoid claims of unfair labour practice or constructive dismissal.
3. Legislative Reform: The decision suggests a need for statutory guidelines on compulsory leave, particularly in public institutions, to codify procedural safeguards.
4. Judicial Precedent: This case establishes a benchmark for damages in constitutional violations arising from unfair labour practices, guiding both tribunals and HR managers.

VIII. Conclusion

Njoroge & 2 others v Kenya Medical Supplies Authority underscores the judiciary’s commitment to protecting employee rights through constitutional guarantees, extending the scope of procedural fairness beyond traditional dismissal or disciplinary contexts. The case consolidates principles of fair labour practice, procedural justice, and constructive dismissal and signals to employers the need for transparent, justified, and legally compliant management of employment actions, including compulsory leave.

The judgment also provides a doctrinal and policy framework for advising clients on employment practices in Kenya, highlighting the necessity of procedural compliance to mitigate exposure to constitutional claims and compensation liability.

High Court Upholds the Constitutionality of Certain Provisions of the Tax Procedures Act

On 20 February 2020, the High Court of Kenya rendered a judgment affirming that sections 57, 58(2), 59, and 99 of the Tax Procedures Act, 2015 (TPA) are consistent with the Constitution of Kenya, 2010.

The decision was issued in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority, Petition No. 156 of 2017. The petitioner, Okiya Omtatah Okoiti, had challenged the constitutionality of the said provisions, arguing that they infringed the right to privacy under Article 31 and the privilege against self-incrimination guaranteed under Article 50(2)(l) of the Constitution.

Statutory Background

The impugned sections of the TPA confer investigative and enforcement powers upon the Kenya Revenue Authority (KRA). These powers include:

• Accessing premises to inspect goods, records, and equipment;
• Requiring persons in possession of relevant documents to produce them;
• Extracting or copying information for tax purposes; and
• Seizing documents necessary for determining a taxpayer’s liability.

In practice, the KRA invokes these provisions to obtain information from third parties such as banks and debtors of taxpayers, to verify compliance and collect outstanding taxes. The TPA further provides that:

• Any document or statement obtained may be admissible in civil or criminal proceedings involving the taxpayer; and
• Failure to comply with information requests attracts a penalty not exceeding KES 1,000,000, imprisonment for a term not exceeding three years, or both.

The Petitioner’s Argument

Mr. Omtatah argued that the provisions unlawfully limit individuals’ constitutional rights to privacy and protection against self-incrimination. He also alleged that KRA’s exercise of these powers had been politically motivated in certain cases — citing, for example, a 2017 request by KRA to Diamond Trust Bank for financial records relating to Governor Ali Hassan Joho.

The Court’s Determination

The Court dismissed the petition, finding that:

1. KRA’s enforcement powers are legitimate and necessary for ensuring tax compliance under the law.
2. These powers do not unreasonably infringe privacy rights, as they relate specifically to determining tax liability rather than personal or private affairs.
3. Under section 6 of the TPA, KRA is under a legal duty to maintain confidentiality of taxpayer information, save for exceptions permitted under section 6(2).

On the question of self-incrimination, the Court held that the privilege does not shield individuals from fulfilling lawful obligations under tax law. It emphasized that the right cannot be used as a cover for evading taxes or obstructing the lawful mandate of the KRA. Accordingly, obtaining records or statements for enforcement purposes does not amount to a violation of Article 50(2)(l).

Context and Legal Implications

This decision follows an earlier judgment in Robert K. Ayisi v Kenya Revenue Authority, Petition No. 421 of 2016, where the High Court had declared section 59(4) of the TPA unconstitutional for breaching advocate–client privilege under section 137 of the Evidence Act (Cap 80).

The 2020 judgment therefore clarifies that, save for section 59(4), the KRA retains broad statutory authority to compel production of information from various persons to establish tax liability.

Commentary

The ruling reinforces KRA’s investigative and enforcement mandate at a time when the Authority is intensifying tax compliance efforts. However, concerns persist regarding the potential misuse of these powers for politically motivated investigations. The Court did not fully address safeguards against such abuse, leaving room for future litigation or legislative clarification on the limits and accountability mechanisms governing KRA’s enforcement actions.

Whether an employer is justified in terminating an employee who has absconded duty: An Analysis of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

Legal Issue:

Whether an employer is justified in terminating an employee who has absconded duty, and whether procedural safeguards under Section 41 of the Employment Act, 2007 are required in cases of desertion.

Key Facts:

• The Claimant filed a claim for unfair termination.
• The Respondent argued the Claimant had absconded duty without explanation or indication of return.
• After a period of unexplained absence, the Respondent issued a one-month notice of termination.
• The Respondent asserted that the Claimant’s conduct amounted to a repudiation of the employment contract.

Court's Holding:

• The Claimant’s conduct constituted desertion, not mere absenteeism.
• Desertion amounts to repudiation of the employment contract.
• The Respondent’s issuance of a notice of termination was a lawful acceptance of that repudiation.
• Procedural fairness under Section 41 was not strictly required because the employee was unavailable and had abandoned the relationship.
• The termination was fair and lawful.

Legal Principles:

✅ Desertion as Just Cause for Dismissal

• Cited under Section 44(4)(a) of the Employment Act: absence without lawful cause is a ground for summary dismissal.

✅ Repudiation of Contract

• Employee conduct may amount to constructive termination of the employment contract, which the employer can accept through notice of termination.

✅ Procedural Fairness – Section 41

• Where the employee has absconded, it is impracticable to conduct a disciplinary hearing.
• Courts recognize exceptions to procedural safeguards where the employee's own actions render compliance impossible.

Use in Litigation:

For Employer (Respondent):

• Use to support a defence against a claim for unfair termination.
• Argue that the Claimant’s desertion nullified procedural obligations, and the employer acted reasonably and lawfully.
• Cite Mumali as precedent where the court excused procedural compliance due to employee abandonment.

For Employee (Claimant):

• Distinguish the facts: prove intention to return, communication with the employer, or that the absence was lawfully excusable.
• Argue that desertion was not established, or that the employer failed to take reasonable steps to clarify the employee’s intent before termination.

Relevant Authorities:

• Employment Act, 2007, Sections 41 and 44(4)(a)
• Catherine Wanjiru Gachigi v Airtel Networks Kenya Ltd [2013] eKLR
• Ayub Kombe Gwali v Kenya Ports Authority [2016] eKLR

Conclusion:

Mumali v Blink Studio Limited establishes that desertion constitutes a repudiation of the employment contract and that strict procedural compliance is not required where the employee has made themselves unavailable. It reinforces the employer’s right to act where the employment relationship has effectively broken down.

Advisory: Registration of a Sectional Title under the Sectional Properties Act 2020

Registration of a sectional title is a pretty straightforward one that involves three significant steps. The first step entails the registration of a sectional plan for the property. 

 

This will include a geo-referenced plan with a bit more details than the architectural drawings that used to be utilized in the long term leases in the previous regime. The second step then is the creation of new individual titles for all units in the property. 

 

This of course therefore means that the mother title is cancelled. The third step is the establishment of an Owners Corporation as provided for under the Act. 

 

It is important to note that the Owners Corporation to a large extent takes the place of the Management Companies that used to be incorporated for similar purposes under the previous regime that dealt with long term leases.

Owners’ benefits under the Act

The SPA makes provision for a mechanism of apportioning the common property to each unit owner. Previously, unit owners held long term leases for their units while the management companies incorporated for the management and administration of the property would hold ownership of the common places. 

Under the SPA, each unit owner owns a fraction entitled to him depending on his ownership and holds title over the common areas in common with all other unit owners. The Owners Corporation therefore in essence does not own any common areas but its duty is solely for the management and administration of the property. The common areas are therefore no longer owned by a common entity but directly by the owners.

Further, the SPA provides for a mechanism of defining each owners interest in the property by way of geo-referencing. This means that there exists detailed definition of the areas and units owned by an owner.

The SPA also provides for the closure of the main/mother title to prevent further dealings on the title and hence goes a long way in protecting the rights of the unit owners from unscrupulous developers who may at their own behest proceed to attach the title to the property on a charge taken out by them.