The Torrens system, through what is known as the Mirror Principle, gave rise to the belief that holding a title deed is the ultimate proof of land ownership. The idea was straightforward. The land register should reflect the actual position on the ground, so a buyer could rely entirely on what the title shows without needing to investigate further. Recent decisions by the Supreme Court in the cases of Harcharan Singh Sehmi and Another versus Tarabana Company Limited and Others; and Dina Management Limited versus County Government of Mombasa have clarified that a title deed, on its own, is not always conclusive. These decisions emphasise that what truly matters is the manner in which the title was obtained. If a title has its roots in fraud, illegality or the process of allotment is flawed, its presence on the register is not enough to protect it. The courts have reaffirmed that ownership is not just about what appears on paper, but also the legitimacy behind it.
The Sehmi Case: When a Lease Expires, So Does the Interest
In the Sehmi case, the appellants, Hacharan Sehmi and Jaswarana Sehmi, had held a lease over a parcel of land in Ngara, Nairobi, since 1968. As the lease approached its expiry in 2001, they applied for a renewal three months before the expiration date. Despite this timely application, no formal response was received from the authorities, and the lease was not renewed.
The appellants continued to occupy the land, believing that the renewal process was underway. However, in 2009, the government allocated the same land to Rospatech Limited, who subsequently sold it to Tarabana Limited. Tarabana obtained a registered title and claimed to be a bona fide purchaser, asserting that it had acquired the land for value without any notice of fraud.
In 2014, the Hacharana and Jaswarana Sehmi were evicted. They challenged the allotment of the land to Tarabana, and the Environment and Land Court (“ELC”) ruled in their favour. The ELC found that Hacharan and Jaswarana Sehmi had legitimate expectations that their lease would be renewed. The Court of Appeal overturned this finding holding that although there was sufficient evidence that the Sehmi`s had applied for renewal, there was no evidence that the lease was renewed or extended. Consequently, as the government did not respond to the application for extension, the lease automatically reverted to the government upon its expiry.
At the Supreme Court, it was held that after the lease had expired, the land reverted to the government. Since the land had been reverted to the government, the lease had extinguished for all purposes. However, since the original leaseholders had made an application for extension of the lease three months before its expiry, they had legitimate expectation that the lease would be extended. The doctrine of legitimate expectation required that the application for extension of lease be considered fairly, and a decision made within a reasonable time. The Sehmi`s who were in possession of the land were also entitled to be furnished with reasons if their application was rejected. The Court also found despite there being no renewal/extension, no objection to the extension application had been made and a Part Development Plan has been prepared with a view of activating the lease extension process. Consequently, the land had been allotted contrary to the application by the Sehmi`s for extension of lease. Therefore, the Court directed the Land Registrar to make an entry in the Proprietorship Section in the Land Register to reflect Sehmi as the proprietors of the suit property.
The Dina Case: No Title Can Flow from an Illegality
In the Dina case, the Supreme Court of Kenya addressed the issue of land titles arising from illegal or irregular allocations. Dina Management Limited had purchased a beachfront property in Mombasa, claiming to be a bona fide purchaser for value without notice of any irregularities. However, the County Government of Mombasa contended that the land was public property, designated for public use, and that its allocation to private entities was unprocedural and unlawful. The Environment and Land Court, and subsequently the Court of Appeal, found that the original allocation lacked an approved Part Development Plan, and that the property included a public access road to the beach, which had been blocked by the private development.
Upon reaching the Supreme Court, the Court upheld the decisions of the lower courts. It ruled that the initial allocation was illegal, and therefore, no valid title could be passed to subsequent purchasers, regardless of their claimed bona fide status. The Court emphasized that the protection typically afforded to bona fide purchasers does not apply when the root of the title is tainted by illegality or irregularity.
Why These Cases Matter
The Sehmi case underscores the importance of not only applying for a lease renewal in a timely manner but also ensuring that the renewal is formally concluded before the lease expires. Merely continuing to occupy the land or assuming that the renewal is in process does not confer any legal rights. Once a lease expires without formal renewal, the land reverts to the government, which can lawfully allocate it to others. This case serves as a cautionary tale for leaseholders to proactively follow up on renewal applications and secure formal confirmation to protect their interests
The Dina Management case reinforces the principle that a valid land title cannot originate from an illegal or irregular allocation. It underscores the importance of conducting thorough due diligence when acquiring property, as even bona fide purchasers cannot claim ownership if the original title was unlawfully obtained. This decision serves as a critical reminder that the legitimacy of a land title depends not only on its appearance in the register but also on the legality of its origin. Simply put, if the title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he/she was not aware of the illegality.
So, What Are the Key Lessons?
Whether you are buying land, advising clients, or just following land matters in Kenya, here is what you need to know:
Final Thought
So next time someone says, “But I have a title,” the right response might be: “Yes, but how did you get it?”