Landmark Ruling on Indefeasibility of Title vis-à-vis illegally or unlawfully acquired property: Dina Management Limited v County Government of Mombasa & Others

The Supreme Court of Kenya recently delivered a landmark judgment in Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023). This decision carries significant implications for the doctrine of indefeasibility of title and the protection afforded to bona fide purchasers for value. 

Brief Facts

In September 2017, the County Government of Mombasa (1st Respondent), without prior notice, forcefully entered the property known as MN/1/6053 in Nyali Beach, Mombasa County (the “Suit Property”), which was registered to Dina Management Limited (the Appellant). The county government demolished the perimeter wall facing the beachfront and levelled the property with the adjoining beach area.

The 1st Respondent claimed that the demolition was an enforcement action to create a public access way to the beach, asserting that the Suit Property was public land.

Aggrieved, the Appellant filed Environment and Land Court Petition No. 8 of 2017, seeking various reliefs, including:

• A declaration that its constitutional rights under Articles 27(1) & (2), 29, 40, and 47(1) & (2) of the 2010 Constitution had been violated;

• A permanent injunction restraining the 1st Respondent from interfering with the Suit Property;

• Compensation for malicious damage to property, trespass, and associated costs.

In response, the 1st Respondent filed ELC Petition No. 12 of 2017 against the Appellant, the Chief Land Registrar, Land Registrar Mombasa, Director of Surveys, Director of Physical Planning, and the Attorney General, seeking:

• A declaration that the Suit Property is public land forming part of the beach area within the high and low water marks of the Indian Ocean;

• Revocation of the title;

• Expungement of all survey and registration records;

• Eviction of the Appellant;

• General damages for trespass.

Trial Court Findings

The Environment and Land Court consolidated the two petitions and ruled in favour of the Respondents. It held that:

• The alienation of the Suit Property was irregular and unlawful, lacking requisite statutory approvals and plans;

• The Appellant could not be deemed a bona fide purchaser for value, having failed to demonstrate adequate due diligence;

• The Appellant’s constitutional rights had not been violated;

• The Appellant was not entitled to the reliefs sought.

Court of Appeal Decision

The Appellant appealed in Civil Appeal No. 150 of 2019, but the Court of Appeal upheld the lower court’s findings. It emphasized that:

• A title acquired through an unlawful process cannot enjoy the protection of indefeasibility;

• The Suit Property remained public land, and any purported private title was void ab initio;

• A road had previously existed through the property providing public access to the beach, reinforcing its status as public utility land.

Appeal to the Supreme Court

Dissatisfied, the Appellant moved to the Supreme Court seeking to overturn the decisions of both lower courts.

Appellant’s Arguments

The Appellant argued that:

• It was a bona fide purchaser for value, having bought the property from Bawazir & Co., who in turn had purchased it from former President Daniel T. Arap Moi;

• It paid KES 18,000,000 and conducted due diligence, including obtaining confirmation from the Ministry of Lands validating the title;

• Its title was legal, and protected under Article 40 of the Constitution;

• It had consistently paid rates to the local authorities and was never challenged on ownership prior to the demolition.

Respondents’ Arguments

The 1st Respondent argued that:

• The allocation of the property to the first registered owner (H.E. Daniel T. Arap Moi) was unlawful;

• A 1971 survey plan designated the Suit Property as public open space reserved for a road;

• The procedures for converting public land to private use were not followed.

The 2nd to 6th Respondents supported the Appellant’s position, maintaining that the original allocation was lawful, and title passed in accordance with the law.

Supreme Court Findings

The Supreme Court dismissed the appeal and affirmed the findings of the lower courts. Key observations included:

• Title is the end product of a process, and if that process is flawed or unlawful, the resulting title is not indefeasible;

• Since the initial allocation to H.E. Daniel Arap Moi was irregular, he had no valid interest to transfer, and subsequent transactions—however innocent—could not cure the original illegality;

• Article 40(6) of the Constitution excludes protection of property acquired unlawfully;

• The nature of the Suit Property, being beachfront land, required a higher level of due diligence, which the Appellant failed to meet.

Our Commentary

This Supreme Court decision firmly reinforces the principle that indefeasibility of title is not absolute. Where the original allocation of land is unlawful or irregular, subsequent purchasers—even bona fide ones—cannot benefit from the protections ordinarily afforded under the law.

The ruling also places a heightened duty of care on purchasers and other stakeholders in land transactions to trace the root of title, not just the current registration status. This development poses practical challenges, particularly given:

• The poor state of historical land records in Kenya;

• Widespread historical land injustices; and

• The ongoing digitisation of land records, which has at times hindered rather than enhanced access to archival information.

Moving forward, due diligence in land transactions must extend beyond registry searches to include comprehensive historical investigations, ideally with support from qualified legal and land experts.

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