Validity of Root of Title and Applicability of Bona Fide Purchaser Doctrine — Case Analysis of Dina Management Limited v County Government of Mombasa & 5 Others

1. INTRODUCTION

This commentary provided a legal analysis on the principles established by the Supreme Court of Kenya in Dina Management Limited v County Government of Mombasa & 5 Others and their implications for:

• Assessing the validity of a registered title;
• Determining whether a party can invoke protection as a bona fide purchaser for value;
• Evaluating the effect of Article 40(6) of the Constitution on titles acquired through unlawful means.

2. KEY LEGAL PRINCIPLES FROM THE DINA MANAGEMENT DECISION

(a) Title Must Have a Lawful Root

• The Supreme Court held that the starting point in assessing the validity of title is to examine its root, beginning with the initial allotment.
• The onus is on the title holder to demonstrate that each stage in the chain of ownership is lawful and procedurally compliant.

“To establish whether the appellant is a bona fide purchaser for value... we must first go to the root of the title, right from the first allotment.” (para 94)

(b) Illegally Acquired Titles Are Not Indefeasible

• A title, even if registered, is not immune to challenge where the process of acquisition breached the law.
• Registration does not sanitize an illegal or irregular process.

“If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.” (para 110)

(c) Constitutional Limitation Under Article 40(6)

• Article 40(1) of the Constitution protects property rights, but Article 40(6) explicitly excludes such protection for property that was unlawfully acquired.
• No individual can claim constitutional protection over such land.

“Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.” (para 111)

3. IMPLICATIONS FOR CURRENT AND FUTURE CASES

(a) Due Diligence Is Crucial

• A party holding a title must trace and verify the legality of the entire chain of title, not just rely on the final registration.
• Where prior steps (e.g., allotment, transfer, subdivision) were flawed, the title may be declared null and void.

(b) Bona Fide Purchaser Defence Is Limited

• The defence of being an “innocent purchaser” will not hold if the original acquisition was illegal.
• Courts are increasingly requiring that purchasers conduct full due diligence, especially for public or formerly public land.

(c) Strategic Considerations in Litigation

• Opposing parties claiming title should be pressed to produce evidence of lawful initial allocation.
• Constitutional challenges can be mounted where land was acquired in breach of statutory or constitutional processes.

4. RISK ASSESSMENT / RECOMMENDATIONS

Scenario	Legal Risk	Recommended Action
Client holds title from initial allotment with full documentation	Low	Verify documents; maintain file for defense
Title acquired through secondary sale with gaps in allotment or vesting process	Moderate to High	Conduct historical search and advisory; consider application for regularization if available
Opponent relies on title but cannot produce initial allocation documents	High (for opponent)	Challenge root of title; invoke Dina Management and Article 40(6) in pleadings

 

5. CONCLUSION

The Dina Management decision reinforces a strict approach to land allocation and ownership, rejecting the notion that registered titles are automatically indefeasible. Legal teams must ensure that:

• Title investigations cover the full historical trail;
• Clients are advised early where defects exist;
• Strategic use of constitutional and case law tools are deployed to challenge questionable titles.

Prepared by:
Admin, Lawyers’ Guide

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.