The Supreme Court of Kenya recently handed
down a major decision in Dina Management Limited v County Government of Mombasa
& 5 others (Petition No. 8 (E010) of 2021), which has significant
implications for Kenyan property investors and stakeholders. The issue concerned the allocation of land to
H.E Daniel T. Arap Moi near Nyali Beach, Mombasa. The property was later
transferred, leading to its acquisition by Dina Management Limited. Mombasa
The county government forcibly entered the property, saying it was public land.
Following litigation before the Environment and Land Court, an appeal to the
Court of Appeal, and a petition to the Supreme Court, the Supreme Court ruled
in favor of the county government.
The Supreme Court's decision constitutes a
significant divergence from the prior Torrens System position, in which a
certificate of title issued by the Registrar was regarded conclusive evidence
of proprietorship. If subsequent owners were not involved in the illegality,
irregularities or illegality in the first allocation had no effect on later
transfers. The following are the
ruling's important points:
1. No title sanctity: The Supreme Court confirmed that registered title to property can be cancelled
if the method followed prior to title issuing failed to comply with the law.
This means that if the initial allocation of the land was illegal or
unprocedural, innocent buyers cannot depend on the idea of indefeasibility of
2. Increased caution and diligence: Property investors, lenders, and other stakeholders must now exercise
even more caution and diligence when dealing with Kenyan properties. To confirm
the title's legality and validity, it is important to extensively research its
history, from the initial allotment to the current title.
3. The burden of proof shifts to the
buyer: The buyer bears the task of proving the
legality and validity of a title. It is not enough to simply have a registered
lease or title. For the title to be indefensible, the entire allocation process
must have been legal and in accordance with the authorized procedures.
This ruling's implications and conclusion are
worrisome. Property buyers and other
stakeholders are now responsible for conducting thorough due diligence and
determining the legality and validity of titles. This load is especially
difficult to bear considering Kenya's poor state of land records and the
current digitalization process, which has made access to historical property
records difficult. To assist appropriate due diligence and protect investors'
interests, the government must take steps to secure correct land records, both
in paper and digital formats. This
decision emphasizes the importance of exercising caution, diligence, and
thorough study when engaging in property transactions in Kenya.
It is unclear what would happen to existing
transactions. We may expect to see more
incidents of county governments raiding homes and businesses in the name of
regaining public land.
Read the petition here
SC Petition No. 8(E010) of 2021 Dina
Management Ltd v County Government of Mombasa