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Buyer beware (caveat emptor): a land search is not sufficient due diligence

Conducting a basic land search has been the norm and up to date considered to be sufficient due diligence before making a land purchase for all Kenyans, indeed the same is enshrined in law under section 30 of the Land Registration Act 2012 which provides "A certificate of title or certificate of lease shall be prima facie evidence of the matters shown in the certificate, and the land or lease shall be subject to all entries in the register." section 81 of the same act further provides that any person who suffers damage due to an error in the record or copy of the extract of the registry (search) shall have the right to indemnification. However the same section provides that an individual who perpetuates and illegality such as fraud or negligence shall not be entitled to indemnity.

A recent decision of the Supreme Court may be the impetus to further propagate land reforms in Kenya. In the decision of Dina Management Limited v County Government of Mombasa & 5 others (Petition No 8 (E010) of 2021. The Supreme Court held the certificate of title is the culmination of a process and that if the process was marred by illegality then the title shall be invalid and the proprietor therein shall not have an indefeasible title to property as enshrined in Article 40 of the constitution of Kenya. The constitution itself sets a limit to the right to property under Article 40 (6), that is property that is unlawfully acquired shall not enjoy the protections under Article 40. The nexus between the constitution and the provisions of the Land act is the process has to be legal and with the appropriate procedural compliance, ergo, the Supreme Court in it's decision held that a land search cannot be sufficient due diligence, a prospective buyer has to look at the root and history of the title, vet the credibility of the buyer and ensure procedural compliance was undertaken. The court held “….the suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. The appellant ought to have been more cautious in undertaking its due diligence.”

Lee Mutunga


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