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Deeds of indemnity – reconstruction of records

Is it necessary for registered owners to issue Deeds of Indemnity issued for purposes of reconstruction of records?

A deed of Indemnity is an agreement between two or more parties, the purpose of which is to specify the actions and consequences which will result should a particular event or events occur. The agreement essentially attempts to negate or limit the risk which one of the parties is exposed to.

Section 33 of the Land Registration Act no. 3 of 2012, provides that the Registrar has powers to reconstruct any lost or destroyed land register after making such inquiries as may be necessary and after giving due notice of sixty days in the Gazette. It is a requirement that prior to reconstruction of misplaced records at the Lands Registry, the registered owner is required to prepare and have registered a Deed of Indemnity.

The sole purpose of the deed of indemnity is to indemnify the government and the Department of Lands in case there has been any transaction altering the status of the original title. It is important that the government is indemnified against actions, proceedings, claims, demands and expenses which may be brought, levied or made against the government and/  or Lands Registry in relation to the registration of Deed of Indemnity and the Reconstruction of the Deed File, as the records relied on for purposes of the reconstruction are usually availed by the registered owner and thus the government needs to be indemnified in case of any actions that may arise due to the usage of the records furnished.

Further, section 81 (1) of the Land Registration Act provides that subject to the provisions of this Act and of any written law relating to the limitation of actions, any person suffering damage by reason of—

(a) any rectification of the register under this Act; or

(b) any error in a copy of or extract from the register or in a copy of or extract from any document or plan certified under this Act,

shall be entitled to indemnity.

In the circumstances, noting that the government in mandated to indemnify any person that may suffer damage as a result of any rectification or error on the register, it is only fair that the government and the Lands registry are indemnified in instances where the registry relies on records provided by the registered owner for reconstructions of records.

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