The Supreme Court of Kenya’s decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), affirming the Court of Appeal’s earlier judgment in Civil Appeal No. 150 of 2019, has fundamentally altered the landscape of property transactions in Kenya. As an advocate practising in conveyancing, I consider it important to bring this development to the attention of clients, investors, and the wider public to help all of us navigate the new legal environment it has created.

“A registered title is no longer, by itself, sufficient proof that your ownership is secure.”

What happened in the Dina Case?

Dina Management Limited purchased a beachfront property in Nyali, Mombasa-MN/I/6053 from a registered owner. It was not the first, nor even the second, purchaser of the property. It had a registered title. On the face of the land register, everything appeared regular.

In 2017, however, the County Government of Mombasa entered the property without prior notice, demolished the perimeter wall, and flattened the land to beach level, asserting that the property was public land that had never lawfully been available for private ownership.

The courts ultimately agreed. The original 1989 allocation of the land, made to a previous owner, was found to have been done without the requisite Part Development Plan (PDP) approval and in disregard of an existing public access road to the beach. Due to the fact that the root of title was irregular, the courts held that no subsequent owner, not even an innocent third-party purchaser who had paid good money for the property, could claim protection under the doctrine of indefeasibility of title. Dina Management was evicted. No compensation was ordered.

What does this mean for you as a property buyer?

The practical message from this decision is direct: a registered title is no longer, by itself, sufficient proof that your ownership is secure.

The courts have established that where the process by which land was originally allocated did not comply with the law, for instance, where no PDP was obtained, where the land was designated as a public utility, or where mandatory approvals were bypassed then the title issued out of that process is defective from inception. That defect travels with the land and can be raised against any subsequent owner, however innocent.

This is a significant departure from what many buyers, sellers, and even practitioners had long understood the law to be. The Torrens system of land registration on which Kenya’s land law was historically based, was designed to give finality to registered titles and protect purchasers who relied in good faith on the register. The Dina decision qualifies that protection in important ways, particularly where public land is involved.

What are the new due diligence expectations?

The courts have indicated that purchasers particularly of high-value or attractively situated land are expected to exercise greater caution before completing a purchase. While the courts have not prescribed a precise checklist, the following now form part of what prudent due diligence should include:

• Tracing the root of title. It is no longer enough to confirm who the current registered owner is. Where possible, the history of the title should be investigated. How was the land originally allocated, was a PDP obtained and were the prescribed statutory procedures followed?

• Checking land designation records. Buyers should seek to confirm whether the land was ever designated as a public utility, open space, road reserve, riparian reserve, or any category of public land in approved physical development plans held by the relevant local authority or county government.

• Engaging historical survey records. The Survey of Kenya’s historical maps can reveal whether a parcel was carved out of land previously designated as a public open space or otherwise reserved for public use.

• Physical inspection with an informed eye. Does the property abut a beach, river, forest or road reserve? Is there evidence of a historical access path or public thoroughfare? These are not merely practical questions but legally significant ones.

• Formally writing to the Ministry of Lands. Under the Access to Information Act, requests can be made for documentation relating to the original allocation such as the allotment letters, PDP approvals, allocation committee records particularly for properties whose titles date to the 1980s and 1990s when irregular allocations were more common.

The honest challenge for Advocates and Clients

I must be candid about what advocates practising in conveyancing are confronting. The new standard of due diligence implied by the Dina decision is aspirationally sound but practically demanding in ways that the current state of Kenya’s land record infrastructure does not easily accommodate.

Official searches at land registries reveal the current registered position and do not disclose whether the original grant was preceded by a valid PDP, whether allocation committee minutes were ever prepared, or whether the land was previously shown as open space on a planning map prepared decades ago. Many of those administrative records, particularly from the 1980s and 1990s, are incomplete, misfiled, or simply no longer available.

This means that even an advocate exercising every reasonable precaution may be unable to obtain a definitive answer on root-of-title questions. That is a structural problem and not one of professional negligence and calls for urgent systemic reform.

What needs to change?

The Dina decision places responsibility on private parties to uncover irregularities that were created by public officers such as commissioners of lands, directors of survey, directors of physical planning who, at every stage of the original irregular allocation, failed to perform their statutory duties. It is a legitimate question of policy whether the full burden of that failure should fall on an innocent downstream purchaser rather than on the state itself.

Several reforms are now urgently needed:

· Title Assurance & Indemnity Fund. Akin to what exists in more mature land registration systems, such a fund should be established to compensate bona fide purchasers whose titles are invalidated due to errors in the original grant process that they had no means of detecting.

· Full Digitization of Land Registry Records. This is essential so that root-of-title investigations become genuinely accessible to practitioners and not merely theoretically possible.

· Clear Legislative Guidance. On what constitutes adequate due diligence for establishing bona fide purchaser status, protecting both purchasers and their advocates from liability for risks that the law’s own infrastructure cannot currently help them manage.

Conclusion

The Dina case is a watershed moment in Kenyan land law. Its message is clear: the strength of a title is only as good as the process that produced it, and buyers must now look deeper than the face of the register. For clients, this means engaging competent legal counsel early, allocating sufficient time and resources for thorough due diligence, and approaching high-value property transactions, particularly those involving beachfront, riparian, or other publicly attractive land, with appropriate caution.

For the profession, and for the state, it is equally a call to action: to invest in the systems, records, and compensation mechanisms that can make the new standard of diligence achievable in practice, and not merely aspirational in law.