Introduction.

Consider the following scenario: you finally acquire a parcel of land, with a new title deed evidencing legal ownership. You are practically glowing with legal certainty, after all, the doctrine of indefeasibility of title means your ownership is absolute, yes?

Regrettably, it is not so simple. In Kenya, as in many jurisdictions, indefeasibility of title is a legal shield but with a few vulnerabilities. The Office of the United States Trade Representative (USTR) in its 2025 National Trade Estimate Report on Foreign Trade Barriers flagged the issue of fraudulent title deeds, warning that such schemes could undermine Kenya’s reputation and discourage foreign investment. With land fraud syndicates adept at fabricating ownership records, the question arises: just how secure is the indefeasibility of title?

Background- The promise of indefeasibility.

Under the doctrine of indefeasibility of title, a bona fide purchaser who obtains a title for value is recognized as the registered owner of the property and is shielded from most claims to ownership. This principle is a fundamental aspect of land registration systems, particularly that is based on the Torrens system, which aims to provide certainty and security in property ownership, except under specific circumstances.

The specific circumstances alluded to are provided under section 26 of the Land Registration Act, Cap 300 as follows;

 “…the title of a proprietor shall not be subject to challenge, except—

• on the ground of fraud or misrepresentation to which the person is proved to be a party; or
• where the certificate of title has been acquired illegally, unprocedural or through a corrupt scheme”

The legal twists and turns.

Here’s where things get interesting, as land ownership comes with its fair share of drama, Kenyan courts have made it clear that not all titles are created equal. A perfect example is the Harcharan Singh Sehmi & Another v. Tarabana Company Ltd & Other, Petition No. E033 of 2023.

This case tested the limits of indefeasibility.  The appellants initially held ownership of the property, having acquired it through a registered lease. However, the respondent later obtained a title to the same land, allegedly through irregular means. Subsequently, the Chief Lands Registrar revoked the appellant’s title, prompting the parties to challenge the decision in court. The lease renewal process by the appellant was also later called into question due to procedural irregularities.

The Supreme Court applied the precedent set in the Dina Management Limited Vs. County Government of Mombasa and 5 others (Petition 8 (E010 of 2021), citing that a title deed is not sufficient proof of ownership if the original allocation was illegal. The Supreme Court ruled that the respondent’s title was improperly acquired and ordered its cancellation. The appellants were reinstated as the rightful owners, reinforcing the principle that indefeasibility of title does not protect fraudulent transactions. Further, the Supreme Court set aside the disputed lease allocation, acknowledging the doctrine of legitimate expectation, noting the appellants had applied for the renewal of the lease.

Practical takeaways.

So, what’s the takeaway? While the indefeasibility of title is a reassuring principle, please do not let it lull you into a false sense of security. The real key is practicing due diligence, which includes; verification of the title’s history and investigating whether the land was legally allocated. Most importantly, consulting a legal expert as they will help spot red flags before they become court battles.

Because in Kenya, owning land is not just about holding a title, it is about making sure it is one you can actually keep.

Should you require any further information, do contact us at info@cfllegal.com.