12th November 2026 | Who Owns the Land? Part 2 of 8
In Part 1, we examined what the Supreme Court actually decided in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), but this is the question every landowner eventually asks: is the title deed enough?
A title deed remains powerful evidence of ownership. However, where credible evidence suggests fraud, illegality, procedural irregularity or unlawful allocation, courts may look beyond the certificate and examine how the title came into existence.
The Starting Point: Registration Still Matters
Sections 24, 25 and 26 of the Land Registration Act, 2012 (the Act) still favour the registered proprietor. Registration remains the foundation of ownership, and a certificate of title remains prima facie evidence of ownership.
That protection is not absolute. A title may be challenged where it was obtained through fraud, misrepresentation, illegality, procedural impropriety, or a corrupt scheme.
What Article 40(6) Changed
Article 40 protects the right to property, but Article 40(6) withholds that protection from property that has been found to have been unlawfully acquired. Dina Management reinforced that courts may refuse to protect a title founded on an unlawful process.
The question, therefore, is not only whether you have a title deed, but also whether the process leading to the title was lawful.
A Title Is the End Product of a Process
The Supreme Court’s most quoted line is that “the title or lease is an end product of a process”, so that where the process was unlawful “such a title cannot be held as indefeasible”. In Sehmi & another v Tarabana Company Ltd & 5 others [2025] KESC 21 (KLR), the Supreme Court went further to state that it is “no longer possible for a title holder to erect the certificate of title as a barrier” and confirmed that a certificate is only “prima facie evidence” of ownership.
It would be wrong, however, to read these statements as making registration meaningless. The presumption in section 26(1) of the Act still does real work. It decides cases where the challenger cannot displace it, and the Court of Appeal and the Environment and Land Court continue to uphold registered titles where the challenge is not made out.
When Must You Prove the Root of Your Title?
A proprietor is not required to reconstruct ownership history merely because allegations are made. The obligation generally arises where evidence suggests a real defect, such as double allocation, forgery, missing allocation records, conflicting title documents or unlawful conversion of public land. Once such evidence is produced, ownership disputes shift from possession of a title deed to proof of how that title came into existence.
Fraud and Illegality Are Different Routes
The distinction between section 26(1)(a) and (b) of the Act matters most at the level of proof.
Fraud focuses on misconduct and must be specifically pleaded and strictly proved. The Supreme Court in Fanikiwa Ltd & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR) endorsed a standard “higher than proof on a balance of probabilities”. The Court of Appeal in Munyanya v Keya [2024] KECA 1831 (KLR) required “very cogent evidence” and upheld a purchaser’s title against a challenger who had merely raised doubts.
Illegality, on the other hand, focuses on the validity of the process and is not subject to the same requirement. In Frank Logistics Ltd v Golden Lion Real Estate Co & 6 others [2025] KECA 1471 (KLR), the trial judge had found that fraud was not proved. The Court of Appeal nonetheless held that “the manner in which the 1st respondent’s title was lost was unprocedural and illegal”, bringing the case within section 26(1)(b) of the Act, and dismissed the appeal, leaving the cancellation of the later title in place. Therefore, a proprietor may be innocent yet still face a challenge if the underlying acquisition was unlawful.
Rectification and Indemnity
Two further provisions deserve attention. Section 80(1) of the Act empowers the court to rectify the register where a registration “was obtained, made or omitted by fraud or mistake”. Section 80(2) of the Act, as it stands after amendment in 2016, provides that the register “shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake ... or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default”. On its face, that protects the innocent proprietor against rectification. The courts have not yet explained in any authoritative way how that subsection sits with the cancellation of innocent purchasers’ titles under section 26(1)(b) of the Act and Article 40(6) of the Constitution. The likely answer is that a title that never lawfully existed is declared void rather than “rectified”.
Section 81 of the Act gives a person “suffering damage by reason of ... any rectification of the register” an entitlement to indemnity, but excludes any person who caused or substantially contributed to the damage “by fraud or negligence”, or who derives title “otherwise than under a registered disposition made bona fide for valuable consideration” from such a person (section 81(2) of the Act). For the innocent purchaser who loses a title, that is a potential source of recovery from the State, although the courts have yet to decide whether it extends to a title declared void rather than rectified.
Practical Implications
For a proprietor, the certificate remains the first line of defence, and it will be enough unless a challenger can produce real evidence of a defective root. Proprietors should nevertheless keep the documents that prove the process: the allotment letter and acceptance, survey and planning records, consents, the transfer instruments and evidence of payment.
For a purchaser, the search is a necessary step but not the end of the inquiry where the land’s history suggests a public origin, an allocation, or an unusual transfer.
For banks and lenders, security is only as strong as the title supporting it. Root of title verification is increasingly important.
For litigants, Dina Management did not abolish registered ownership; rather, it changed how ownership disputes are proved once a credible challenge is raised.
The Bottom Line
A title deed remains one of the strongest legal documents a person can hold in Kenya, but ownership is measured by more than what appears on the register. Courts are increasingly prepared to ask the secondary question: how the title came into existence. If that question cannot be answered with credible evidence, registration alone may not save the title.
Next in the Series
Part 3: The Innocent Purchaser’s Dilemma. Can you lose land acquired in good faith after conducting a search, and if so, who bears the loss?
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).