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Supreme CourtDismissedApplication E032 of 2025

Frann Investment Limited v Kenya Anti-Corruption Commission & 6 others

Supreme Court of Kenya
31 March 2026
Philomena Mbete MwiluP.M MwiluSmokin Charles WanjalaS.C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
2,333 words in judgment
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The bottom line

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The Supreme Court affirmed that illegally acquired land titles are not protected by registration.

What this practically means

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Mombasa Cement Limited lost its land after the courts found the original allocation was illegal. The company tried to appeal to the Supreme Court, arguing it was an innocent buyer. But the Supreme Court said the law is already clear: even if you are registered as the owner, you cannot keep land that was obtained illegally. The Court also said you cannot use the certification process to re-open a settled case. The application was dismissed with costs.

Executive summary

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This was an application by Mombasa Cement Limited under Article 163(4)(b) of the Constitution seeking to review and set aside the Court of Appeal's ruling that declined to certify its intended appeal as one raising matters of general public importance. The applicant had lost in the Environment and Land Court and the Court of Appeal, which upheld the nullification of its title to several parcels of land in Mombasa on grounds that the initial allocation was irregular. The applicant argued that the intended appeal raised novel issues including whether the government can benefit from its own illegality, whether estoppel applies against the government, and whether an innocent purchaser for value without notice is entitled to compensation. The Supreme Court, in a unanimous decision, dismissed the application. The Court held that the issues raised were not novel and had been sufficiently addressed in its previous decisions in Dina Management Ltd v County Government of Mombasa & 5 others and Torino Enterprises Limited v Attorney General. The Court reiterated that the doctrine of indefeasibility of title does not protect titles acquired illegally, unprocedurally, or through a corrupt scheme, and that a registered proprietor must go to the root of the title. The Court further held that the certification procedure cannot be used to seek a review of its previous judgments, and that any request to depart from precedent must be formally made under Article 163(7) on strict grounds. The application was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution.

Key legal issues

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01

Whether the intended appeal raises matters of general public importance under Article 163(4)(b) of the Constitution.

Holding

The intended appeal does not raise matters of general public importance because the issues it seeks to raise—regarding the root of title, indefeasibility, and compensation for innocent purchasers—have already been settled by this Court in Dina Management and Torino Enterprises.

Reasoning

The Court of Appeal found, and the Supreme Court agreed, that the applicant's questions essentially sought a re-examination of settled law. The doctrine of indefeasibility of title under section 26(1) of the Land Registration Act and Article 40(6) of the Constitution is well-established: a title acquired illegally, unprocedurally, or through a corrupt scheme is not protected. The applicant failed to demonstrate that the issues transcend the circumstances of the parties or that there is any novel point of law requiring the apex court's input. The application was therefore an attempt to have a second bite at the cherry.

p. 7
02

Whether the certification procedure under Article 163(4)(b) can be used to seek a review of a previous Supreme Court judgment.

Holding

The certification procedure cannot be used to seek a review of a previous Supreme Court judgment; departure from a previous decision must be formally sought under Article 163(7) on strict grounds.

Reasoning

The Court held that once it renders a judgment, parties cannot use the certification route to re-litigate settled issues. A request for the Court to depart from its own precedent must be made formally and can only succeed on grounds such as per incuriam or that the decision is no longer good law, after considering significant legal considerations.

p. 7

Legal principles established

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  • Certification under Article 163(4)(b) cannot be used to review or challenge a previous Supreme Court judgment.
  • A registered title is only indefeasible if the allocation was legal, proper, and regular.
  • Courts will not sanction an illegality or protect a title obtained through irregular or corrupt means.
  • A party seeking to depart from Supreme Court precedent must make a formal request under Article 163(7) on strict grounds.
  • Issues already settled by the Supreme Court (e.g., Dina Management, Torino Enterprises) cannot be re-litigated as matters of general public importance.

Court orders

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  1. 1.The originating motion dated November 7, 2025 and filed on November 28, 2025 is hereby dismissed.
  2. 2.The applicant shall bear the costs of this application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M MwiluDCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S.C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Mombasa Civil Application No E077 of 2024
Jurisdiction invoked
Article 163(4)(b) of the Constitution, sections 15 and 15B of the Supreme Court Act and rule 33(2) of the Supreme Court Rules

Relief refused

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Certification to appeal to the Supreme Court on grounds of general public importance

The issues raised are already settled by this Court's decisions in Dina Management Ltd v County Government of Mombasa & 5 others and Torino Enterprises Limited v Attorney General, and do not meet the threshold in Steyn v Ruscone.

p. 6

Costs

The applicant shall bear the costs of this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The originating motion dated November 7, 2025 and filed on November 28, 2025 is hereby dismissed.
p. 7 Final orders
The applicant shall bear the costs of this application.
p. 7 Costs order
It is well settled that once this court renders a judgment, it is not open to any party to seek a review of the judgment using the certification procedure under article 163(4)(b) of the Constitution.
p. 7 Certification and finality of Supreme Court decisions
a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.
p. 7 Indefeasibility of title and legality of allocation
To our mind, the question of unalienated Government land and the procedure of allocating such land was explained in detail in Dina Management. The application, therefore, falls short of the threshold in Steyn.
p. 7 Threshold for certification under Article 163(4)(b)

Key timeline

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Unknown
Original allocation of land to Mombasa Cement Limited (found to be irregular).
Unknown
Environment and Land Court nullifies the title.
Unknown
Court of Appeal upholds nullification and declines to certify appeal as one of general public importance.
2025-11-28
Mombasa Cement files originating motion in Supreme Court seeking certification under Article 163(4)(b).
2026
Supreme Court dismisses the application, affirming settled law on indefeasibility and certification.

Practical implications

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For lawyers

Certification is not a review mechanism

Do not use the Article 163(4)(b) certification process to challenge a prior Supreme Court decision. If you believe the Court should depart from its own precedent, you must file a formal application under Article 163(7) and show that the earlier decision was per incuriam or is no longer good law. This case closes that loophole.

For businesses

Verify land titles beyond registration

A registered title is not automatically safe. If the original allocation was illegal—even if you bought the land innocently—the title can be nullified. Before purchasing land, especially large parcels, conduct a thorough due diligence on the root of title, including how the government originally allocated the land. Relying solely on the certificate of title is risky.

For individuals

Your land title may be vulnerable

If you bought land that was originally allocated illegally, you could lose it even if you are a genuine buyer. The Supreme Court has reaffirmed that no compensation is automatic for innocent purchasers where the title is tainted by illegality. Protect yourself by investigating the history of the land before buying, and insist on a legal opinion from a conveyancing lawyer.

Frequently asked questions

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What does this Supreme Court ruling mean for land owners in Kenya?+

It means that even if you have a title deed, your ownership is not guaranteed if the original allocation was illegal. The Court confirmed that the law does not protect titles obtained through irregular or corrupt means.

Can I use the certification process to appeal a Supreme Court decision in Kenya?+

No. The certification procedure under Article 163(4)(b) is for bringing new appeals to the Supreme Court, not for reviewing its own previous judgments. To challenge a prior Supreme Court decision, you must formally request departure under Article 163(7) on strict grounds.

Does the doctrine of indefeasibility of title protect all registered land owners in Kenya?+

No. Under Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution, a title is only indefeasible if the allocation was legal, proper, and regular. If the title was obtained illegally, it is not protected.

Can the government benefit from its own illegal allocation of land in Kenya?+

The Court did not decide that the government can benefit from its own illegality. Instead, it held that the issues raised—including estoppel against the government—were already settled. The government can challenge and recover land that was illegally allocated, and the courts will not sanction the illegality.

Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Frann Investment Limited v Kenya Anti-Corruption Commission & 6 others", Case Analysis (2026). Application E032 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/31/eng@2026-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.