Overriding Interests in Kenyan Land: Rights That May Bind a Buyer Without Registration

An official search is central to a Kenyan property purchase because it shows what the land register records at the time it is issued. It can identify the registered proprietor and entries such as charges, cautions, restrictions, leases and inhibitions. It does not answer every question that may affect the land. Section 28 of the Land Registration Act provides that registered land is subject, unless the register says otherwise, to specified overriding interests that may subsist without being noted on the register.

This does not mean that a title search is unreliable or that a buyer should assume a hidden problem exists. It means that the search must be used for its proper purpose: as authoritative evidence of the registered position, read alongside the facts revealed by the site, the proposed use and the documents supplied by the seller. Where those sources point in the same direction, the buyer can proceed with more confidence. Where they conflict, the conflict is a question to investigate before completion.

What the Act means by an overriding interest

Section 28 contains a defined statutory list. It includes trusts, including customary trusts; rights of way, rights of water and profits that subsisted at first registration; natural rights of light, air, water and support; rights connected with compulsory acquisition, resumption, entry, search and user conferred by law; specified statutory charges; rights acquired or in the process of being acquired through limitation of actions or prescription; and certain utility infrastructure created under statutory power. The exact words and facts matter. A buyer should not treat any inconvenience as an overriding interest, but should not dismiss a potentially material right because it is absent from a brief search result.

The statutory list is not a substitute for evidence. An access track may be a lawful right of way, a public route, an informal arrangement or something else entirely. An occupier may be a tenant, employee, family member, licensee or person asserting a claim. A visible utility line may be supported by a wayleave or statutory power, but its route and consequence still need to be established. The buyer’s task is to identify the fact, ask who relies on it and obtain the documents or professional evidence needed to understand its effect.

Use the site visit to identify questions the register cannot answer

A site visit gives the official search its context. Record who appears to occupy the land, how vehicles reach it, whether there are paths, drains, poles, pipelines, watercourses or structures near a boundary, and whether the physical layout matches the plan and the seller’s account. Photographs and dated notes are useful because they allow a later comparison with the register and correspondence. They are not proof of a legal right, but they prevent a material fact from being forgotten once the purchase becomes urgent.

Occupation deserves careful enquiry. A buyer who sees another person living or working on the property should ask the seller who the person is, what arrangement exists, whether possession will be vacant on completion and what evidence supports the answer. The buyer should not accuse the occupier of trespass merely because their name does not appear in a search. Equally, the buyer should not accept a vague assurance that the person will leave after payment. If vacant possession is part of the bargain, the agreement should state it and provide a meaningful consequence if it is not delivered.

Access and infrastructure create similar practical questions. A path used by neighbours, an electricity line, a pipe or a drainage route may affect development, finance or enjoyment of the property. The purchaser should identify the feature, obtain available plans or consents, and decide whether it must remain, be regularised, be reflected in the price or make the transaction unsuitable. A lender’s approval does not replace that enquiry; the lender and buyer may be assessing different risks.

Deal with a known concern in the sale agreement

Once an enquiry identifies a real concern, the parties should turn it into a decision. The seller may provide evidence that resolves it. The buyer may accept a defined right on adjusted terms. A condition may require consent, a release, a possession arrangement or another step before completion. Some concerns will be too uncertain to price sensibly, making withdrawal the sensible outcome. What should not happen is that both parties acknowledge the issue and then leave it outside the written agreement in the hope that registration will make it disappear.

Section 29 is also a reminder that a purchaser has notice of entries in the register at the time of acquisition. More broadly, knowledge gained outside the register should shape the buyer’s conduct. A buyer who learns of a material fact should investigate it and decide how the contract will deal with it. The search is not a shield against information the buyer already has.

Keep the investigation proportionate and evidence-led

Not every visible feature justifies abandoning a purchase or starting a dispute. The proper level of enquiry depends on the property, intended use and significance of the fact. A minor access question may be readily resolved by plans and a seller’s evidence; a claim to occupation, customary trust or a major utility corridor may require specialist advice. The key is to make focused requests, preserve the answers and avoid unsupported conclusions about fraud or ownership.

Overriding interests are therefore a reason for disciplined conveyancing, not for suspicion without evidence. Read the register, inspect the site, ask precise questions and reflect the answer in the agreement. That process gives the buyer a realistic picture of the interest being acquired before funds are irreversibly committed.

Primary sources: Land Registration Act, 2012, sections 28–29.