The Supreme Court of Kenya recently brought to an end the case of Dina Management Limited Vs the County Government of Mombasa & 5 others.
In this case, the county government challenged the validity of the title for a piece of land on Nyali Beach acquired by Dina Management Limited.
The argument was that the suit property was a public land reserved for public use, which the seller of the land to Dina Management had in 1989 unprocedurally and illegally acquired.
As such the county government in a bid to create public access to the beach entered the property, demolishing the perimeter wall facing the beachfront.
Dina Management being the third owner, and citing bonafide purchase for value and with title, challenged this action arguing that it was not privy to the alleged initial flawed acquisition by the initial owners.
A bonafide purchaser is defined as a buyer without notice of any defects, infirmities or flaws in its acquisition.
The judges, in upholding the decisions of the High Court and Court of Appeal that Dina Management did not hold a valid title to warrant constitutional protection for the right to property under Article 40 of the Constitution, clarified that it is not enough to produce the instrument of ownership such as title deed in court.
There must be proven efforts, over and above payment of consideration and registration of title, in confirming that the transfer of title to the previous owner was formal.
The Supreme Court cited the provisions of Article 40(6) of the Constitution providing that the rights under Article 40 do not extend to any property that has been found to have been unlawfully acquired.
It made a finding that the title to the suit land was issued as a freehold title contrary to the provisions of the Government Lands Act (now repealed) which limited leases of town plots to no more than 100 years and that the suit land had been set aside for public purpose hence it was irregular and illegal to have its ownership transferred for private purposes as was the case here.
The Supreme Court ordered that the land henceforth vest with the county government.
Just recently in the case of Mohamud Kochale & others Vs Lake Turkana Wind Power & others, a three-judge bench in Meru held that the Lake Turkana Wind Power irregularly acquired the community land where the power project sits.
Finding that the Constitution was not followed when the 150,000 acres of community land were allocated to the power project, the High Court nullified the title deeds, subject to one year grace period of regularisation.
The implication of the above decisions and developments in the land acquisition process is that the bar on due diligence and the need for compliance with the land acquisition process has been raised a notch.
The due diligence may include but is not limited to requesting for allotment letter, undertaking routine land searches in the land registry, cross-checking with the Ndungu Report on illegal/irregular public land allocations, and engaging a land surveyor.
Kitoo is an advocate of the High Court of Kenya and Mwendwa is a law student at Strathmore University.
