For years, the phrase "I have a title deed" was considered absolute and irrefutable in Kenyan land transactions. The recent ruling from the Supreme Court's decision in Harcharan Singh Sehmi & Another v Tarabana Co. Ltd & 5 Others (2024) reaffirms the principle that a title is only as strong as its root.
Introduction
This landmark decision fundamentally changes how we approach land transactions in Kenya. It sends a clear message to purchasers, developers, and legal practitioners: holding a registered title deed is not enough—you must ensure that title has a lawful origin.
Background
The facts of this case reveal a common but troubling pattern in Kenya's land sector:
Timeline of Events
- 1968: The Sehmi family obtained a leasehold interest in land at Ngara
- Pre-2001: Prior to the lease's expiry, the Sehmi family applied for an extension
- 2001: Lease expired while extension application was pending
- 2009: Despite no formal objection from the Commissioner of Lands, the land was reallocated to Rospatech Ltd
- Later: Rospatech sold the land to Tarabana Ltd
- Post-acquisition: Tarabana developed an eight-storey building on the property
The Outcome: Though Tarabana held a registered title and had developed an eight-storey building, the court nullified the title and restored the land to the original allottees (The Sehmi family) based on historical possession and the unlawful nature of the reallocation.
Court's Reasoning
1. Title Must Have a Lawful Origin
The Court affirmed that a title deed does not cure an illegal allocation. Under the legal maxim of nemo dat quod non habet (you cannot give what you do not have), a title issued from a fraudulent process cannot stand, no matter how many hands it has passed through.
Nemo Dat Quod Non Habet
This ancient legal principle means "no one can give what they do not have." In the context of land law, it means that if the original allocation was unlawful, every subsequent transfer—no matter how legitimate it appears—is tainted by that original illegality.
2. Due Diligence Goes Beyond the Registry
Tarabana's reliance on the land registry alone was held insufficient. The Court emphasized that proper due diligence includes:
Comprehensive Due Diligence Requirements
- Investigating historical ownership - Who held the land before?
- Examining the process of allocation - Was it lawful and transparent?
- Physical inspection - Who is on the ground?
- Reviewing prior applications - Were there pending claims or applications?
- Scrutinizing state conduct - Did authorities follow proper procedure?
3. Legitimate Expectation is Enforceable
The Sehmis applied for lease renewal in time and had a legitimate expectation for extension of their lease. Ignoring their application and reallocating the land without explanation violated principles of fair administrative action under Article 47 of the Constitution.
While Tarabana also claimed a legitimate expectation after building on the land, the Court held that only expectations arising from lawful and transparent processes can be protected. Since the Sehmis followed the proper procedure and the new title stemmed from an irregular allocation, their expectation prevailed.
Constitutional Protection
Article 47 of the Constitution guarantees fair administrative action. When a party follows proper procedures and has a reasonable expectation of a particular outcome, the state cannot arbitrarily ignore that expectation without due process.
4. Buyer Beware: Go Beyond the Title Deed
The lower courts had ruled that Tarabana was an innocent purchaser for value without notice, which traditionally shields buyers who acquire property in good faith. The Supreme Court overturned this, holding that if the root title is void, even an "innocent purchaser" cannot benefit.
Critical Shift: This represents a fundamental shift in how Kenyan courts approach the "innocent purchaser" doctrine. Registry records alone are no longer sufficient protection.
Implications for the Land Sector
From Paper to Principle
The Sehmi case decision signals a shift in judicial thinking: from paper to principle. Courts are willing to look beyond the Land Registry to assess:
Legality of Allocation
Was the original allocation process lawful and transparent? Did it follow statutory requirements?
Conduct of Parties
Did all parties act in good faith? Were there red flags that should have prompted further investigation?
Overriding Interests
Are there pre-existing rights or claims that should take precedence over the registered title?
If a title stems from an unlawful origin, it can and will be invalidated—regardless of subsequent good faith purchases or development on the land.
Enhanced Due Diligence Requirements
What This Means for Conveyancing Practice
Conveyancing must go deeper. Legal practitioners and purchasers can no longer rely solely on registry searches. Comprehensive due diligence now requires:
1. Verifying the Root of Title
- Trace back to the original allocation or grant
- Verify the authority and process used for initial allocation
- Check for any irregularities in the chain of title
- Review historical records and gazette notices
2. Tracing Prior Dealings
- Investigate all previous transactions on the property
- Identify any pending applications or claims
- Review correspondence with land authorities
- Check for any court proceedings involving the land
3. Assessing Occupation on the Ground
- Conduct thorough physical inspections
- Interview occupants and neighbors
- Investigate any adverse possession claims
- Document evidence of who has been using the land
4. Scrutinizing State Conduct During Allocations
- Verify that proper procedures were followed
- Check for compliance with public participation requirements
- Review environmental and planning approvals
- Ensure transparency in the allocation process
Practical Recommendations
For Purchasers
Engage Experienced Conveyancers
Don't cut corners on legal fees. Comprehensive due diligence is worth the investment.
Insist on Full Historical Searches
Go beyond current ownership. Understand the complete chain of title.
Investigate Physical Occupation
Visit the land multiple times. Talk to people. Look for warning signs.
Consider Title Insurance
Where available, title insurance can provide additional protection against historical defects.
For Legal Practitioners
- Update your due diligence checklists to include root of title investigations
- Advise clients comprehensively about the risks of relying solely on registry records
- Document your investigations thoroughly to demonstrate proper professional care
- Consider independent historical searches beyond standard registry searches
- Flag any red flags immediately and advise against proceeding if concerns exist
For Developers and Investors
The implications are particularly significant for those investing substantial resources in land development:
- Budget adequately for comprehensive due diligence
- Build contingency clauses into purchase agreements
- Consider phased development pending full title verification
- Maintain detailed records of all investigations and searches
- Engage multiple experts (legal, surveying, historical research)
The Broader Message
Legal practitioners need to advise clients that compliance, not convenience, is the foundation of secure land acquisition. The Sehmi case reminds us that shortcuts in due diligence can lead to catastrophic losses—even for innocent purchasers who have invested millions in development.
Conclusion
The Sehmi decision marks a watershed moment in Kenyan land law. It shifts the burden of investigation firmly onto purchasers and their legal advisors. The message is clear: a title deed is not a guarantee of ownership—it's only as valid as its origin.
Key Takeaway: In Kenya's land sector, due diligence must go beyond the deed. Investigate the root, verify the process, inspect the ground, and question everything. Only then can you truly claim security of title.
Looking Forward
This case will likely influence how land transactions are conducted in Kenya for years to come. It reinforces the principle that legality trumps formality, and that courts will protect legitimate expectations over mere registration.
For the land sector to thrive, this decision should catalyze reforms: better integration of land registries, transparent allocation processes, and stronger protections for those who follow proper procedures. Until then, caveat emptor has never been more relevant—buyer beware, and investigate thoroughly.
