Question “a”; Explain how you would conduct due diligence as an Advocate for the

Purchaser, in view of the Supreme Court of Kenya decision in Dina Management case. (5

marks)

Brief Introduction

In the landmark decision of Dina Management Limited v County Government of Mombasa &

5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), the Supreme Court of the Republic

of Kenya clarified the limits of indefeasibility of title as protected under the Land Registration Act,

2012.1 The Court while affirming the decision of the Court of Appeal in Munyu Maina v Hiram

Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR held that where the root of title is

challenged, it is not enough for a registered proprietor (or a purchaser) to simply produce the

certificate of title or instrument of title as proof of ownership. Instead, the purchaser must go

beyond the face of the document and prove that the acquisition was legal, formal, and free from any

irregularity, illegality, fraud, or procedural defect right from the original grant or first allocation.

The Supreme Court at Paragraph 94 stated as follows;

“To establish whether the appellant is a bona fide purchaser for value therefore, we must

first go to the root of the title, right from the first allotment, as this is the bone of contention

in this matter.” [Emphasis Ours]

The protection afforded to a bona fide purchaser for value without notice does not apply if the root

of the title is tainted. This decision fundamentally shifted conveyancing practice in Kenya. It is

therefore without a doubt that a simple official search on the current title is no longer sufficient.

Every advocate acting for a purchaser must now conduct a thorough historical investigation of the

entire chain of title to ensure the root is clean before advising the client to part with money.

The Constitution of Kenya 20102, fundamentally restricts non-citizens’ land ownership rights.

Freehold ownership is expressly prohibited for foreigners. Non-citizens may hold land only on

leasehold terms not exceeding ninety-nine (99) years.

For a non-citizen purchaser, the instrument of conveyance must be a Lease granting a leasehold

term of not more than 99 years. This lease is registrable in accordance with the Sectional Properties

1 Section 26 of the Land Registration Act, Cap 300

2 Article 65 (1) of the Constitution of Kenya

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Act, Cap 286, the owner submits an application using Form LRA 9 as specified in the Land

Registration (General) Regulations.3

The Agreement for Sale must expressly state that the interest being transferred is leasehold. The

Instrument of Lease must recite the sectional plan, the unit number, the undivided share in the

corporation, and the exact term of ownership. Stamp duty is payable under the Stamp Duty Act at

the applicable rate on the lease premium4. Upon registration, the foreigner obtains a Certificate of

Lease, which serves as prima facie evidence of his or her rights. The lease is also subject to the

covenants in the management agreement and by-laws of the sectional estate, which run with the

land and bind successors in title.5

Once the leasehold interest is properly registered, the foreign owner enjoys full rights of

disposition in line with ordinary conveyancing principles. The owner may sell, assign, sub-lease

for a term not exceeding the residue of the 99 years, or charge the unit.

How to conduct due diligence as an Advocate for the Purchaser

The Property registered and owned by Kuji Panga is a classic example of land that originated under

the repealed Government Lands Act (Cap 280). Although it is now private freehold land that was

long ago alienated by the Government to private individuals, its title was historically perfected

through Indentures of Conveyance registered in the Government Lands Registry in Nairobi.

The root documents for this parcel are the Indenture of Conveyance dated 28th February 1979 made

between Sala Ale to Singa Poa, which was registered together with the annexed Land Survey Plan

Number 132013. It was registered at Volume N.57, Folio 311/1 under File 17341, and the

subsequent Indenture of Conveyance dated 11th March 2006 made between Singa Poa to Mon Ami,

and registered at Volume N.57, Folio 311/5 in the same File 17341. The folio numbers appear to

“jump” from 311/1 to 311/5 only because, under the old manual system, folio pages in each Volume

were allocated sequentially to every document lodged in the registry, regardless of the parcel. Over

the twenty-seven years between the two Indentures, hundreds of other conveyances for other

Nairobi properties filled the intervening folios. This gap is therefore entirely normal. These old

3 Regulation 9(1) The Sectional Properties Regulations, 2021

4 Section 51 of the Sectional Properties Act, Cap 286

5 Section 29 of the Sectional Properties Act, Cap 286

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titles were later converted under the Land Registration Act, Cap 300 into the Certificate of Title

issued to Kuji Panga on 2nd May 2025 following transmission from his late father’s estate.

The first step in the due diligence process would be to carry out an official search at the Nairobi

Land Registry to confirm the current registered owner. It would also be necessary to apply for a

certified copy of the current Certificate of Title in Kuji Panga’s name, together with an up-to-date

copy of the register, to confirm that; he is indeed the registered proprietor, to note the subsisting

charge in favour of Beta Bank for KES 700,000,000, and to check for any caveats, inhibitions,

cautions, or pending applications that might affect the Property. This is offered as a paid-up service

at the Lands Registry.6 This search gives an immediate snapshot of the title as it stands today and

ensures there are no obvious dealings that could block the sale of apartment units. In National

Land Commission v Afrison Export Import Limited & 10 Others [2019] eKLR7 the Court

stated the need for additional measures to confirm the validity of a search and the ownership of

land.