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The Supreme Court of Kenya recently delivered a landmark judgment in Dina Management Limited v County Government of Mombasa & 5 others (Petition No. 8 (E010) of 2021), which has significant implications for property investors and stakeholders in Kenya.
The case involved the allocation of a parcel of land in Nyali Beach, Mombasa to H.E Daniel T. Arap Moi. Subsequent transfers of the property occurred, leading to its acquisition by Dina Management Limited. The County Government of Mombasa forcefully entered the property, claiming it was public land. Litigation ensued at the Environment and Land Court, followed by an appeal to the Court of Appeal and a petition to the Supreme Court resulting in the Supreme Court’s decision.
Departure from the previous position
The Supreme Court’s ruling represents a departure from the previous position based on the Torrens System, where a certificate of title issued by the Registrar was considered conclusive evidence of proprietorship. Irregularities or illegality in the initial allocation did not affect subsequent transfers if subsequent owners were not party to the illegality.
The key points from the ruling are as follows:
Implications and conclusion
The burden now falls on property buyers and other stakeholders to conduct thorough due diligence and establish the legality and validity of titles. This burden is particularly challenging given the parlous state of land records in Kenya and the ongoing digitisation process which has made it challenging to access historical property records. It is essential for the Government to take measures to safeguard accurate land records, both in paper and digital formats, to facilitate proper due diligence and protect investors’ interests.
This ruling emphasises the need for caution, diligence, and robust investigations when engaging in property transactions in Kenya.
1. Vivian Kerage – Senior Associate
2. Carla Mwalabu – Principal Associate
3. Dhara Pandya – Trainee Lawyer