10th November 2026 | Who Owns the Land? Part 1 of 8
Take this case for instance. You buy land. Your advocate conducts a search. The Lands Registry confirms ownership. Approvals are obtained, rates are paid, and millions of shillings are invested. Years later, a court tells you that the land was never capable of being privately owned in the first place. This is what happened in Dina Management Ltd v County Government of Mombasa & 5 others, [2023] KESC 30 (KLR), one of the most consequential land decisions delivered in recent years.
The judgment has generated no shortage of commentary. Some have concluded that title deeds are no longer worth the paper they are written on, while others argue that every purchaser must now trace a property’s history back to the first allocation. Still others suggest that the doctrine of the innocent purchaser is effectively dead. None of those conclusions is quite right.
What the Supreme Court did was both narrower and more significant. It did not make every title vulnerable; rather, it reminded purchasers, lenders and developers that ownership is not merely a question of registration. Sometimes, the more important question is how the title came into existence in the first place. This article examines what the Supreme Court actually decided, what it did not decide, and why the distinction matters. The rest of this series builds from that foundation. Next in the series: Is Your Title Deed Enough?
The Facts
To understand why the decision matters, it is worth stepping back from the legal principles for a moment.
From Dina’s perspective, this was not a reckless acquisition. The company purchased the property in 2006 for KES 18 million and relied on official records and approvals that appeared to support ownership of the property. Among the documents relied upon were ministry approvals, confirmation from the lands office, development permissions, environmental licences and evidence of payment of rates.
The County Government of Mombasa (the County) took a different view. It maintained that the land was public beach land that should never have left public ownership in the first place. In 2017, it demolished the perimeter wall and levelled the site. The dispute that followed eventually reached the Supreme Court.
Dina petitioned the Environment and Land Court, claiming that the demolition violated its rights, including its right to property under Article 40. The County responded with its own petition seeking declarations that the land was public beach land and that Dina’s title was void. The Environment and Land Court heard the two petitions together, dismissed Dina’s petition and partly allowed the County’s, finding that the allocation was unlawful and rejecting Dina’s defence that it was an innocent purchaser. The Court of Appeal dismissed Dina’s appeal.
One feature of the case is easily missed. The national land agencies, including the Chief Land Registrar and the Director of Surveys, supported the lawfulness of the allocation, while acknowledging that the application letter and the Part Development Plan (PDP) were missing. This was therefore not a case of a purchaser who ignored warnings from the land registry. The registry itself stood behind the title.
What the Supreme Court Decided
The Supreme Court’s jurisdiction lay only under Article 163(4)(a), on questions involving the interpretation or application of the Constitution. The Supreme Court was strict about this. It held that the factual findings on the allocation, made concurrently by two courts, were not open to it. It accepted jurisdiction over, among others, the constitutional question of whether Dina’s title was protected under Article 40 as that of a bona fide purchaser, and it declined to entertain claims that had not been decided in the courts below, observing that Dina was “no more than seeking compensation and/or damages”, which was outside its purview.
That framing explains the shape of the judgment. The Supreme Court did not retry the allocation. It took the irregularity as established and asked whether a title built on it could be protected.
So What Exactly Was Wrong With the Allocation?
The Supreme Court identified three defects. First, the land was not available for allocation at all. Because the 1971 survey plan designated it as an open space for public use, it was a public utility and “could not be described as unalienated public land”. Second, the procedure was not followed. Allocation required planning before survey, with a PDP approved and an application to the Commissioner of Lands. There was no evidence of either. Third, the tenure was wrong: for a town plot, the Government Lands Act permitted a leasehold not exceeding 100 years, not a freehold.
The Core Holdings
Having set out the definitions of a bona fide purchaser in Katende v Haridar & Company Ltd [2008] 2 EA 173 and Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR), the Supreme Court adopted the Court of Appeal’s statement in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) that “it is not enough to dangle the instrument of title as proof of ownership”. Because the dispute was about the original allocation, “we must first go to the root of the title, right from the first allotment”.
The heart of the decision states that a title or lease “is an end product of a process”. If the process that led to it was unlawful, “such a title cannot be held as indefeasible”. The first allottee therefore “had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd”, which subsequently had nothing to pass to Dina. The Supreme Court stressed that “we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities” in the allocation of public land.
On the Constitution, the Supreme Court held that Article 40(6) “limits the rights as not extending them to any property that has been found to have been unlawfully acquired”. It went on to state that “the root of the title having been challenged, ... the appellant could not benefit from the doctrine of bona fide purchaser”. The land vested in the County under Article 62(2), and the Supreme Court added that beach property is attractive and Dina “ought to have been more cautious in undertaking its due diligence”.
What Is Binding, and What Is Not
It helps to separate the holdings from the facts and from the Supreme Court’s observations.
The binding propositions are three: where the root of a registered title is challenged, the proprietor must prove that the acquisition was lawful and cannot rest on the certificate alone; a title produced by an unlawful allocation is not indefeasible and is not protected by Article 40, because Article 40(6) excludes unlawfully acquired property; and a successor purchaser cannot use the bona fide purchaser doctrine to protect such a title, because the first allottee had nothing to pass.
Other features are particular to the facts: the land was a public utility protecting access to the sea, the defects were specific to the old Government Lands Act allocation process, and the findings of fact were concurrent findings that the Supreme Court would not disturb.
The remark that Dina should have been more cautious is an observation unique to the circumstances of that case. It is not a rule that sets the standard of due diligence for every purchase. Nor is the decision a blanket condemnation that an innocent purchaser can never be compensated. Its remark that Dina was “no more than seeking compensation” was a statement about the limits of the Supreme Court’s jurisdiction in that appeal.
The Word “Challenged”
The single most important word in the entire judgment is not indefeasibility, public land or even bona fide purchaser; it is the word “challenged”. The obligation to go behind the register arises because “the root of the title” has been “challenged”. Dina Management does not say that every purchaser, in every conveyance, must reconstruct every link in the chain back to the first allotment whether or not anything puts the title in question. It says that once a title is genuinely challenged, on competent grounds, the certificate alone will not answer the challenge.
The Court of Appeal has since stated the threshold expressly. In Frank Logistics Ltd v Golden Lion Real Estate Co & 6 others [2025] KECA 1471 (KLR), it held that a registered proprietor “will not be called upon to prove the root of the title on spurious allegations”; “some evidence must be placed before the court” showing “reasonable grounds for believing that the title may not have been properly obtained”. Part 2 of this series examines that threshold and the burden of proof in detail.
What Dina Management Did Not Decide
The judgment says nothing about purchasers at public auctions, whether at a chargee’s sale under the Land Act, a court sale or a county rates sale. It does not address compensation, the standard of proof of illegality, or the extent to which its reasoning applies to purely private land. Those questions have been the subject of later decisions, and one of them, the position of the auction purchaser, is now before the Supreme Court, which affirmed its certification as a matter of general public importance in Teleposta Pension Scheme Trustees Registered v Intercountries Importers and Exporters Ltd & 5 others [2026] KESC 27 (KLR). Parts 4 and 5 of this series will deal with auctions, while Part 8 will deal with the open questions.
How the Supreme Court Has Built on It
The Supreme Court has not treated Dina Management as a one-off. In Torino Enterprises Ltd v Attorney General [2023] KESC 79 (KLR), it held that “an allotment letter in and by itself, is incapable of conferring a transferable title” and that the military’s occupation of the land “sounded a warning of ‘buyer be aware’”. In Sehmi & another v Tarabana Company Ltd & 5 others [2025] KESC 21 (KLR), it held that the burden of proof “lies upon the person claiming to be a bona fide purchaser”, and that the doctrine “cannot be invoked to protect a title to an illegally acquired public land”.
The Supreme Court has also marked the limits. In Fanikiwa Ltd & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR), the full bench of the Supreme Court upheld a chain of titles, holding that fraud “must be pleaded and strictly proved” and that where the root is lawful “the question of whether such third parties were innocent purchasers for value without notice should not arise”.
Practical Implications
For buyers and their advocates, the lesson is not panic. It is to understand where the risk sits. It sits in the origin of the title: how the land left public hands, or how an earlier link in a private chain was created. A clean search is necessary but no longer sufficient where there are signs that the land was once public, reserved, or used by a public body, or where the chain contains an allocation, a reconstruction, a transmission or a corporate transfer that cannot be documented. Part 7 of this series sets out a due-diligence framework built on the decided cases.
For sellers and lenders, the lesson is that a title is only as marketable as its documented root. Allotment letters, PDPs, survey records, and the documents behind each transfer are now part of the title, in practical if not legal terms.
The Bottom Line
Dina Management did not make every title unsafe. It made the origin of a title matter. A title born of an unlawful allocation will not survive a legal challenge, however innocent the buyer and however clean the search. A title with a lawful, documented root will. The difference between the two is rarely visible on the register. It is found in allotment files, survey records and the history of each transfer.
What We Do
Our Real Estate and Dispute Resolution teams advise buyers, sellers, developers and lenders on this question: we trace a title to its root before money changes hands, and we defend titles when they are attacked in court. If you own land, are buying it or are lending against it, and want to know what Dina Management means for you, speak to us before the question is asked in court.
Next in the Series
Part 2: Is Your Title Deed Enough? We look at what registration really guarantees, and the moment the burden shifts to the owner.
Disclaimer: Who Owns the Land? is a series by OK Law Advocates LLP on titles, purchases, and public auctions after Dina Management. It is a general commentary on the law as of the date of this publication and is not legal advice on any particular transaction. To discuss what it means for your land, purchase or security, contact our Real Estate team. Specific advice should be obtained on the facts of each case from Luka Ome (luka@oklawllp.com) or OK Law Advocates LLP (enquiries@oklawllp.com).