Reconciling the due diligence obligation before and after the Dina Management decision in light of the Mavoko demolitions


 *Elsy Jemutai*

Due diligence is the process of carefully investigating and verifying all aspects of a land transaction to ensure that one is making an informed and secure investment.[i] It is the most fundamental process in acquiring land as a prospective buyer needs to ascertain the ownership of land.[ii] The Land Registration Act stipulates that a certificate of title, once issued, is conclusive proof of proprietorship except in cases of fraud or misrepresentation.[iii] As such, a land title is required to verify the ownership of the land. Additionally, the land title has to be genuine and valid.

However, in reality, titles do not often reflect true ownership. The script is all too familiar with misrepresentation of ownership of public land, forging of documents, subdivision and sale to unsuspecting third-party owners.[iv] The recent demolitions in Mavoko and those in Syokimau about a decade ago reflect this tendency.[v] The question that arises is; why does the script keep repeating itself?

Pre Dina-Management decision

Previously, Kenya operated under the Torrens System. In this instance, one did not need to go behind the land title to investigate the history of land transactions as it was deemed that land records reflected the land parcel accurately.[vi] The position was demonstrated in David Peterson Kiengo and 2 others v Kariuki Thuo, where it was held that a purchaser was not required to do anything more than a search at the official register to establish the ownership of land.[vii]

The change introduced in the Dina Management decision

For the first time, the Supreme Court in this landmark judgement held that a title document is not sufficient proof of ownership especially where it was tainted with illegalities.[viii] The holder of the title document must surpass reliance on the instrument alone to show that the process of acquisition from inception was legal. Bona fide purchasers have to prove that first, they acquired a valid and legal title. Second, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a title. Third, that they paid consideration for the purchase of the suit property.[ix] They need to have exercised greater caution especially where the land had changed hands severally.[x]

Implications of the Dina Management decision

Prospective buyers are now tasked with conducting thorough and in-depth due diligence prior to purchasing land. Various options have been suggested to establish validity of titles including customary searches at the land registry, requests for allotment letters, site visits and obtaining copies of the green card.[xi] In light of the above, I argue that the Dina Management decision is forward-looking rather than retrospective. It seeks to protect those who are yet to buy land, without regard for those who have already made investments believing that a search was sufficient due diligence. For instance, residents from Mavoko testified that they had obtained searches from the land registry and allotment letters as well.[xii]

The question that arises is whether it is fair to dispute the ownership of a bona fide purchaser for not being more vigilant yet they had conducted a search and the courts at the time had pronounced that searches were sufficient. Should we ignore the fact that situations similar to the one in Mavoko are often occasioned by internal collusion and fraud at the county government and land registries, for which the state should be responsible? Should the state not have a due diligence obligation as well to ensure that land titles are issued correctly? Also, even if purchasers are found to be in occupation illegally, is it fair to have them evicted in an unprocedural manner yet there is an established legal framework for evictions?[xiii] More importantly, how can the state reconcile the evictions with its duty to protect the right to housing?[xiv]

These are the questions the state should ponder upon recognising the implications of the transition in judicial thinking. Suggestions to curb the situation witnessed in Mavoko would include having the state ensure that land titles are issued correctly and enhancing integrity in land registries to curb fraud.

As for the prospective purchaser, more caution is required but the counterfactual to this is losing out on a valuable investment. As land registry records are increasingly unreliable, buyers should consider Justice Makori's suggestion; one must get a good lawyer, surveyor and a drunkard from the local area as he can present the ownership of the land more accurately than registries.[xv] It is in the buyer's own interest to be more vigilant to avoid falling into fraudulent schemes when purchasing land.

[i] CR Advocates, 'Comprehensive Due Diligence on Land Transactions in Kenya: A Buyer's Guide', 28 September, 2023-< https://www.cradvocatesllp.com/comprehensive-due-diligence-on-land-transactions-in-kenya-a-buyers-guide/#:~:text=First%20and%20foremost%2C%20it's%20crucial,details%20with%20the%20relevant%20authorities.> on 4 November 2023.

[ii] Elvis Abenga, 'Due Diligence Procedures in Land Transactions in Kenya: Five Steps'Begi's Law Offices & Chamber's Advocates, 25 October 2020 -<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiV9pHQs6qCAxX3g_0HHRE5Ba0QFnoECB0QAQ&url=https%3A%2F%2Fwww.begislaw.com%2Fdue-diligence-procedures-in-land-transactions-in-kenya-five-steps%2F&usg=AOvVaw0L9xmmpqbBGEiXvsaeglFe&opi=89978449> on 4 November 2023.

[iii] Land Registration Act (No. 3 of 2012), Section 26.

[iv] Victims of Fraud-Mavoko demolition victims count their losses, Citizen Tv Kenya, 30 October 2023, 00:39 to 00:35 - < https://youtu.be/q3iDNQnIJlU?si=PEXci1aIL4EpuP4F> on 4 Novermber 2023.

[v] Victims of Fraud- Mavoko demolition victims count their losses, Citizen Tv Kenya, 30 October 2023, 00:39 to 00:35 -<https://youtu.be/q3iDNQnIJlU?si=PEXci1aIL4EpuP4F> on 4 November 2023.

[vi] David Peterson Kiengo and 2 others v Kariuki Thuo, High Court [2012], para 13.

[vii] David Peterson Kiengo and 2 Others v Kariuki Thuo, para 15.

[viii] Dina Management Limited v County Government of Mombasa & 5 others, Petition 8 (E010) of 2021,Judgement of the Supreme Court, 21 April 2023, [eKLR], para 93-94.

[ix] Dina Management Limited v County Government of Mombasa & 5 Others, Supreme Court[2023] eKLR, para 92.

[x] Dina Management Limited v County Government of Mombasa & 5 Others, Supreme Court [2023] eKLR, para 112.

[xi] Terry Ombati, 'The bona fide purchaser conundrum and the validity of property titles: Insights from the Supreme Court of Kenya', Kabarak Law Review Blog, 27 September 2023- <https://kabarak.ac.ke/klrb/the-bona-fide-purchaser-conundrum-and-the-validity-of-property-titles-insights-from-the-supreme-court-of-kenya> on 4 November 2023.

[xii] Peterson Githaiga and Erastus Mulwa, 'Tears, pain as houses brought down in Mavoko, Machakos County', 14 October 2023-https://www.standardmedia.co.ke/eastern/article/2001483432/tears-pain-as-houses-brought-down-in-mavoko-machakos-county on 4 November 2023.

[xiii] International Covenant on Civil and Political Rights, 16 December 1966, vol. 999, p. 171, Article 17.

[xiv] Constitution of Kenya (2010), Article 43(b).

[xv] Republic v The Chief Land Registrar, Environment and Land Court [2023], [eKLR], para 26.

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