Supreme Court of Kenya on Irregular Land Titles: The Dina Management Case and Its ImplicationsÂ
- Muhoro & Gitonga Associates
- Jan 24, 2024
- 5 min read
Updated: Oct 6
Table of Contents
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1. Introduction
On April 21, 2023, the Supreme Court of Kenya delivered a landmark ruling in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment).
This decision clarified one of the most contentious areas in Kenyan property law: whether the doctrine of bona fide purchaser for value without notice protects buyers who innocently acquire titles that were originally obtained through fraud or illegality.
The Court’s ruling is clear: irregular or illegally acquired titles cannot be protected under the bona fide purchaser doctrine. Buyers must take personal responsibility for verifying the legitimacy of the titles they acquire.
This case is more than a property dispute; it has reshaped due diligence standards, strengthened public land protection, and set an enduring precedent for property transactions in Kenya.
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2. Factual Background
The dispute concerned parcel MN/1/6053, a prime beachfront property in Nyali, Mombasa County.
Dina Management Limited acquired the land for KES 18 million, claiming to be a bona fide purchaser without notice of defects. The company relied on the fact that the land was duly registered under its name at the Lands Registry.
The County Government of Mombasa opposed Dina’s claim, arguing that the land was public land reserved as an open beach access point and that its allocation and subsequent transfers were tainted with illegality. The County further argued that the allocation lacked essential documentation, including:
A Part Development Plan (PDP)
An approved survey plan
A valid letter of allotment
The County proceeded to repossess the land and demolish structures erected by Dina, leading the company to file suit. The matter escalated through the High Court and Court of Appeal before reaching the Supreme Court.
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3. Legal Issues Raised
The Supreme Court identified three main issues for determination:
Whether the bona fide purchaser doctrine applies where the root of title is tainted by illegality or irregularity.
The scope of due diligence required of land purchasers in Kenya.
Whether Article 40 of the Constitution, which protects the right to property, extends to illegally acquired property.
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4. Key Legal Doctrines: Bona Fide Purchaser & Indefeasibility
The Bona Fide Purchaser Doctrine
A bona fide purchaser is traditionally protected if they:
Paid valuable consideration,
Acquired property without notice of any fraud, illegality, or defect, and
Acted in good faith.
The doctrine ensures transactional certainty, protecting innocent buyers who rely on the integrity of the title register.
Indefeasibility of Title
Under the Land Registration Act, 2012, a registered title is conclusive evidence of ownership, subject only to limited exceptions (fraud, misrepresentation, or illegality). The Supreme Court had to reconcile these protections with constitutional principles that prohibit the protection of unlawfully acquired property.
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5. Supreme Court Judgment: Reasoning & Holding
The Court held that Dina Management’s title could not stand. Its reasoning was based on two key principles:
A Defective Root Title Cannot Be Cured
Registration of title is only as strong as its foundation. If the initial allocation was illegal, no subsequent purchaser can obtain a valid title, even if innocent.
Constitutional Supremacy
Article 40(6) of the Constitution excludes protection for property rights obtained unlawfully. Thus, even registered proprietors cannot rely on constitutional protection if their title traces back to illegality.
The Court concluded that Dina Management was not protected by the bona fide purchaser doctrine. Buyers must ensure not only that the seller is the registered owner but also that the original allocation complied with the law.
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6. Analysis of the Court’s Reasoning
The Court’s reasoning represents a policy shift prioritizing legality and integrity over transactional convenience.
The Court underscored that mere reliance on the Lands Registry is insufficient. Purchasers must dig deeper, verifying the chain of title from its origin. This prevents situations where fraudulent allocations are laundered through multiple transfers to create an appearance of legitimacy.
Critics argue this imposes an unrealistic burden on buyers, given the historic inefficiencies of Kenya’s land administration system. However, the Court reasoned that the alternative; protecting irregular titles, would entrench corruption and undermine public land safeguards.
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7. Implications for Property Transactions & Governance
This ruling has wide-reaching implications:
For Buyers:Â Increased due diligence obligations mean higher transaction costs but greater market transparency.
For Sellers:Â Vendors must provide comprehensive documentation, not just a title deed.
For Local Governments:Â Counties are empowered to reclaim irregularly allocated public land.
For the Market: The ruling discourages speculative buying and restores confidence in Kenya’s real estate sector.
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8. Practical Guidance for Buyers & Practitioners
To avoid pitfalls like Dina Management:
Engage a land lawyer early in the transaction.
Request and verify allocation documents (PDP, allotment letters, survey approvals).
Check County Government and National Land Commission records.
Conduct historical searches, not just current registry searches.
Physically inspect the property to confirm it is not reserved for public use.
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9. Checklist for Due Diligence in Kenya
A practical buyer’s checklist now includes:
✅ Current title search at the Lands Registry
✅ Historical chain of title search
✅ Part Development Plan (if applicable)
✅ Letter of allotment
✅ Approved survey plan
✅ National Land Commission approval (where relevant)
✅ County Government zoning/land use records
✅ Confirmation of no pending court disputes or caveats
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10. Conclusion
The Supreme Court’s judgement in Dina Management v County Government of Mombasa is a turning point in Kenya’s property law. It affirms that no buyer, however innocent, can shield themselves with the bona fide purchaser doctrine if the root title is tainted by illegality.
The judgment compels buyers, lawyers, and real estate stakeholders to conduct comprehensive due diligence. It also strengthens the protection of public land and enhances accountability in Kenya’s property market.
For investors, the message is clear: always verify the root of title; a registered deed is not enough.
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12. Frequently Asked Questions (FAQ)
Q1: What is the key holding of the Dina Management case?
The Supreme Court ruled that the bona fide purchaser doctrine does not protect buyers of land where the original allocation was irregular or illegal.
Q2: Does Article 40 of the Constitution protect unlawfully acquired land?
No. Article 40(6) excludes property obtained unlawfully from constitutional protection.
Q3: What is expected of buyers after this case?
Buyers must conduct deeper due diligence, including historical investigations of the title’s root and legality of allocation.
Q4: Can a registered title still be invalidated?
Yes. If the root of title is tainted by fraud or illegality, registration cannot cure it.
Q5: What documents should a buyer request before purchasing land?
A current title search, Part Development Plan, letter of allotment, approved survey, historical registry records, and confirmations from the County and National Land Commission.
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For more detailed information, please refer to the Full Judgement in Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment).
