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Supreme CourtAllowedPetition E033 of 2023

Sehmi & another v Tarabana Company Limited & 5 others

Supreme Court of Kenya
11 April 2025
Mohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
12,550 words in judgment
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The bottom line

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You cannot claim innocent buyer protection if the land title was illegally obtained from the start.

What this practically means

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The Supreme Court ruled that buying land in good faith does not protect you if the original title was illegally acquired from public land. Even if you paid for it and had no idea about the fraud, the title is invalid. The court also said that a certificate of title is not final proof of ownership—courts can look behind it. Finally, if you apply to renew a lease on time, the government must consider your application fairly and give reasons if they say no.

Executive summary

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This appeal arose from a land dispute over LR No 209/2759/9 in Ngara, Nairobi. The appellants were registered lessees of the property under a 59-year lease expiring on October 1, 2001. They applied for extension three months before expiry, and the Commissioner of Lands sought comments from the Directors of Physical Planning and Survey, who indicated no objections. Despite this, the application was not acted upon for eight years. In 2009, the property was allocated to the 2nd respondent by a lands officer, not the Commissioner, and without following the prescribed procedure under the Government Lands Act. The 2nd respondent subsequently sold the property to the 1st respondent, who claimed to be a bona fide purchaser for value. The Environment and Land Court found the allocation unlawful and restored ownership to the appellants. The Court of Appeal reversed, holding that the 1st respondent was a bona fide purchaser with an indefeasible title. The Supreme Court overturned the Court of Appeal, allowing the appeal. The Court clarified the doctrine of bona fide purchaser, holding that it cannot protect a title to illegally acquired public land because there is no 'legal estate' to purchase. The Court distinguished between conclusive evidence of title under the repealed Registration of Titles Act and prima facie evidence under the Land Registration Act, stating courts cannot ignore irregularities in allocation. The Court also held that the doctrine of legitimate expectation applies to lease renewals: a lessee who timely applies has a right to fair consideration and reasons if denied, though not a pre-emptive right. The Court found the 2nd respondent's allocation procedurally flawed and illegal, the 1st respondent not a bona fide purchaser, and the appellants had a legitimate expectation of renewal. The Court ordered cancellation of the 1st respondent's title, registration of the appellants as proprietors, and demolition of the 1st respondent's developments within six months. Costs were awarded to the appellants in the lower courts, with each party bearing its own costs in the Supreme Court.

Questions the Court framed

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

  1. 1.What is the meaning, scope and extent of applicability of the doctrine of Bona fide/Innocent Purchaser for value without Notice?
  2. 2.Whether the doctrine of bona fide/ innocent purchaser for value without notice protects a purchaser of an illegally/irregularly allocated title over Public Land.
  3. 3.To what extent, if at all, is the doctrine of Legitimate Expectation applicable to the renewal of leases over public land?

Key legal issues

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01

Whether the doctrine of innocent purchaser for value without notice protects a purchaser of an illegally/irregularly allocated title over public land.

Holding

The doctrine does not protect such a purchaser. The holder of an illegally allocated title cannot confer a valid title upon a third party, so there is no 'legal estate' to be purchased. The absence of 'notice' refers to an equitable interest, not the illegality of the title itself.

Reasoning

The court held that the 2nd respondent's allocation was procedurally flawed and illegal, made by a lands officer rather than the Commissioner of Lands, and without the required advertisements. Since the 2nd respondent could not pass valid title, the 1st respondent could not be a bona fide purchaser. The court distinguished between a legal estate and an equitable interest, noting that the doctrine only protects a purchaser of a legal estate against prior equitable interests. Where the root title is illegal, there is no legal estate to purchase, and the doctrine cannot apply. The court relied on its decision in Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) for the proposition that where the root of title is successfully challenged, a party cannot benefit from the doctrine of bona fide purchaser.

p. 23
02

Whether the doctrine of legitimate expectation applies to the renewal of leases over public land.

Holding

Yes, the doctrine applies. A lessee who makes a timely application for renewal has a legitimate expectation that the application will be considered fairly and that a decision will be communicated. However, this does not create a pre-emptive right to the lease.

Reasoning

The court found that the appellants applied for renewal three months before expiry, the Commissioner of Lands sought comments from relevant directors, and no objection was registered. A Part Development Plan was prepared with the word 'Extension'. Despite this, the application was not acted upon for eight years, and the land was allocated to the 2nd respondent. The court held that the appellants had a reasonable expectation, expressed to a competent authority, that their lease would be extended. However, the court clarified that legitimate expectation does not confer pre-emptive rights; it entitles the applicant to a fair consideration of the application and reasons if denied.

p. 27
03

What is the meaning, scope and extent of applicability of the doctrine of bona fide/innocent purchaser for value without notice?

Holding

The doctrine means that an innocent purchaser of a legal estate in land without notice of an equitable interest takes free from that interest. Three elements are required: innocence (good faith and due diligence), purchase for value (consideration paid before notice), and a legal estate. The doctrine only protects against claims based on equitable interests, not against claims that the title itself is illegal.

Reasoning

The court restated the doctrine, explaining that 'innocence' requires good faith and due diligence, including inspecting the property. 'Purchase for value' requires actual payment of money before notice of the equitable interest. The 'legal estate' must be contrasted with an equitable interest. The court emphasized that the doctrine is a defence against equitable claims, not a shield for illegally acquired titles. The court cited Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) for the proposition that an innocent purchaser must exercise due diligence, including inspecting the suit premises.

p. 21

Legal principles established

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  • The doctrine of bona fide purchaser does not protect a buyer of illegally acquired public land.
  • A certificate of title is only prima facie evidence of ownership, not conclusive proof.
  • A lessee who applies for renewal on time has a legitimate expectation of fair consideration and reasons if denied.
  • An illegally allocated title cannot be passed to a third party—there is no legal estate to purchase.
  • The bona fide purchaser doctrine only defends against equitable claims, not claims that the title itself is illegal.
  • Legitimate expectation does not give a pre-emptive right to a lease, only a right to fair process.

Court orders

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  1. 1.The Judgment of the Court of Appeal, dated October 8, 2021 is hereby overturned.
  2. 2.The petition of appeal dated November 23, 2023 is hereby allowed;
  3. 3.The Chief Land Registrar (3rd respondent) is hereby directed to effect a cancellation of the 1st respondent's title from the Proprietorship Section of the Land Register;
  4. 4.The Chief Land Registrar (3rd respondent) is hereby directed to make an entry in the Proprietorship Section of the Land Register to reflect the appellants as the proprietors of the suit property in accordance with the provisions of the Land Registration Act.
  5. 5.The structures and developments erected by the 1st respondent on the suit property be removed and demolished by the 1st respondent within six months from the date of this Judgment under the supervision of the 5th respondent;

The bench

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

Mohammed Khadhar Ibrahim
majority
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 of Kenya
Civil Appeal No 463 of 2019
Jurisdiction invoked
Article 163(4)(b) of the Constitution

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 doctrine of bona fide purchaser for value cannot be invoked to protect a title to an illegally acquired public land.
p. 26 Bona fide purchaser - limitation
the Land Registration Act only requires courts to treat a certificate of title as prima facie evidence of indefeasibility. The courts cannot therefore close their eyes to the irregularities attendant to an allocation of public land.
p. 26 Indefeasibility of title - prima facie evidence
The doctrine of legitimate expectation implies that an expectant applicant has a right to have his/her application considered fairly, and to be informed in reasonable time of the decision. It also means that an applicant in possession of the land, is entitled to be furnished with reasons in the event that his/her application is denied.
p. 27 Legitimate expectation - renewal of leases
The Judgment of the Court of Appeal, dated October 8, 2021 is hereby overturned.
p. 27 Final orders - reversal of Court of Appeal
The Chief Land Registrar (3rd respondent) is hereby directed to effect a cancellation of the 1st respondent's title from the Proprietorship Section of the Land Register;
p. 27 Final orders - cancellation of title

Key timeline

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Before 1990
Original lease granted to the appellants over public land.
1990
Appellants applied for lease renewal three months before expiry.
1998
Land allocated to the 2nd respondent without proper process.
2001
2nd respondent sold the land to the 1st respondent.
2021-10-08
Court of Appeal ruled in favor of the 1st respondent.
2025
Supreme Court overturned the Court of Appeal, restoring the land to the appellants.

Practical implications

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For lawyers

Challenge root title in land disputes

When defending a client claiming bona fide purchaser status, you must now prove the root title was legally acquired. If the original allocation was illegal, no amount of due diligence by your client will save the title. Use this case to attack titles traced to public land allocations made by unauthorized officers or without public advertisement.

For businesses

Verify land origin before buying

Before purchasing land, especially former public land, hire a lawyer to trace the title back to the original allocation from the government. If that allocation was irregular—made by the wrong officer or without public notice—your purchase is at risk even if you act in good faith. Demand proof of proper allocation procedures.

For individuals

Apply for lease renewal early and in writing

If you hold a lease on public land, apply for renewal well before expiry and keep copies of your application. The government must consider it fairly and tell you the decision. If they deny it, they must give reasons. If they ignore you for years, you may have a legal claim for legitimate expectation.

Frequently asked questions

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Can I lose land I bought in good faith in Kenya if the original title was illegal?+

Yes. The Supreme Court ruled that buying land innocently does not protect you if the original title was illegally obtained from public land. Even if you paid full value and had no idea about the fraud, the title is invalid. Always verify the root of title before buying.

Is a Kenyan land certificate final proof of ownership?+

No. The court said a certificate of title is only prima facie evidence, not conclusive. Courts can investigate how the title was obtained. If the allocation was irregular, the certificate can be cancelled even if you are the current registered owner.

What happens if the government ignores my lease renewal application in Kenya?+

You have a legitimate expectation that your application will be considered fairly and that you will be told the decision in reasonable time. If the government ignores you for years and then gives the land to someone else, you can challenge that in court.

Can I claim to be a bona fide purchaser if the seller's title was illegal in Kenya?+

No. The Supreme Court held that the doctrine of bona fide purchaser only protects against claims based on equitable interests, not against claims that the title itself is illegal. If the root title is illegal, there is no legal estate to purchase.

Later judgments citing this (25)

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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, "Sehmi & another v Tarabana Company Limited & 5 others", Case Analysis (2025). Petition E033 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/21/eng@2025-04-11

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