In Brief: A recent Supreme Court of Kenya decision has affirmed that if land was improperly or illegally allocated, a title deed can be cancelled – even if the current owner bought it innocently.
On 11th April 2025, the Supreme Court delivered its judgement in Harcharan Singh Sehmi & Another v Tarabana Co. Ltd & 5 Others Petition No. 033 of 2023. It restored a Nairobi family’s land after the lease had expired and was irregularly reallocated to another party. The ruling is a wake-up call to anyone buying land: a title is only as good as its root. If the land was not actually available for allocation (for example, it was public land or someone else had a legitimate claim), then no amount of good faith on the buyer’s part will prevent that title from being revoked by the courts.
What Happened in the Sehmi Case?
The Sehmi family had a long-term lease on a plot in Ngara, Nairobi, since 1968. The lease was set to expire in October 2001. The family applied before expiry for an extension of the lease (a common process to renew the term). They received verbal assurances that it would be renewed, and they continued living on the property.
Despite the pending application for renewal of the lease, no formal renewal was given immediately. Unknown to the Sehmis, in 2009 the officials in the Land Office allocated the same plot to a company called Rospatech Ltd – effectively treating it as “vacant government land” after the lease lapsed. Rospatech quickly sold the plot to Tarabana Company Ltd in 2014 for Kshs. 24 million. Tarabana had a search from the lands office showing Rospatech as owner, so it believed everything was above board. Tarabana proceeded to construct an eight-storey building on the land.
In late 2014, agents of the new owner (Tarabana) forcibly evicted the Sehmi family, even demolishing the family’s house that had stood on the land for decades. Understandably, the family went to court to challenge this.
The Environment and Land Court initially ruled in favour of the Sehmi family, finding the allocation to Rospatech (and thus Tarabana’s title) to be unlawful, and ordering Tarabana’s eviction. Tarabana appealed, and the Court of Appeal reversed that decision, reasoning that once the lease expired, the land reverted to the government, so Tarabana’s new title might be valid. The family then appealed to the Supreme Court.
Supreme Court’s Decision
The Supreme Court has now ruled in favour of the Sehmi family, meaning Tarabana’s title was cancelled. Several points from the judgment are important:
- Rightful Owner and Legitimate Expectation: The Court held that the family, by applying for renewal before expiry, had a legitimate expectation that their lease would be renewed/extended. They had done everything right on their part. It was unfair and “inexplicable” (the Court’s words) that eight years later the land was allocated to someone else without addressing the family’s request. In Kenyan practice, if a lessee applies in time, extensions are usually granted, or at least a decision (yes or no with reasons) is given. Here, the authorities went silent and then gave the land away, which the Court found to be a violation of fair process.
- Irregular Allocation = No Title: The Supreme Court found that the allocation to Rospatech was done irregularly – not even by the correct authority at the Lands Office and with no transparent process! The Supreme Court therefore rule that Rospatech never acquired any legitimate ownership rights over the land. And because Rospatech did not have good title, following the maxim nemo dat quod non habet, it had nothing valid to sell to Tarabana. The Supreme Court reiterated a critical principle: if a title was obtained through illegal or irregular means, anyone holding that title (even an innocent purchaser) holds nothing enforceable. They compared it to building on quicksand – no matter how nice the structure (or how formal the title deed looks), it cannot stand if the ground under it is not legally sound.
- Innocent Purchaser for Value without notice not protected: Tarabana argued that they were an innocent buyer who carried out the requisite due diligence in terms of searches under the Land Registration Act (and there were no defects in title disclosed by the said searches), paid full value, and did not know about the Sehmis. Although Tarabana was not involved in the initial allocation fraud, the Court determined that this fact alone is insufficient. The onus was on Tarabana to verify that the land was actually available for allocation. Given that the family was in possession until they were evicted, Tarabana did have some indication that others were on the land. Moreover, Tarabana knew the land’s lease had expired only a few years prior – a prudent person might have inquired whether the previous leaseholder had applied for renewal (which they had). In summary, Tarabana had notice of red flags (occupation by another party, recent expiry) but went ahead regardless. The Supreme Court took a hard line: even without those hints, an illegitimate title cannot be saved by saying “I didn’t know.” Innocence might protect a buyer from unknown disputes, but it will not create ownership where the law says there was none to give.
- Consequences: The result is that Tarabana lost the land and was ordered to demolish its eight-storey building within six months – a costly consequence. The Sehmi family is to regain the property (presumably with a renewed lease issued to them properly). The Court also awarded the family Kshs. 25 million in damages for the destruction of their home and other losses. This compensation is to be paid by the parties who orchestrated the wrongful allocation. In essence, the Supreme Court tried to restore the family to the position they deserved: having their land and some monetary compensation for the trouble caused.
What Does This Mean?
- Titles Can Be Nullified: First and foremost, this case is a reminder that a title deed – even one issued by the lands registry – can be nullified by the courts if it is found to have been wrongly issued. If land was grabbed or allocated in violation of the law, that title is a paper tiger. It does not matter if you bought the land not knowing its tainted history. The courts prioritize the true entitlement to the land (be it the original owner or the public) over the subsequent transaction.
- Do Your Due Diligence Before Buying Land: If you are purchasing property, especially in Kenya, due diligence is not optional – it is a must. Beyond just doing an official search at the Lands Office, consider: Was this land previously owned by someone (like a leaseholder or the government)? If yes, how did it change hands? If it was an expired lease or public land, you should be extra cautious. Carry out a historical search. For example, ask for any allotment letters, proof of how the seller got it, and check if the previous owner’s rights were properly terminated. Seek to peruse the lands office correspondence file in respect of the land. In the Sehmi case, a simple question – “What happened to the family that was here before?” – could have alerted the buyer that something was off. Also, physically visit the land. See if anyone is living there or using it and ask them who they are. It sounds basic, but many people skip this step when dealing with just paperwork, and it is crucial. If someone claims the land, get to the bottom of it before you buy.
- Leasehold Owners – Renew Early: If you hold a leasehold title (common in cities like Nairobi, where the government gives 99-year or shorter leases), mark your calendar well in advance of expiry. Apply for extension or renewal early. The longer a lease sits expired, the greater the risk of fraudsters and land grabbers trying to grab it. Initiate the renewal/extension process early. It gives you a buffer to deal with any delays. And if you have applied, keep records of all correspondence. Should anyone later contend they were allotted or bought the land, you can show you had an ongoing process (the Sehmi family’s timely application and follow-ups helped prove their case).
- Government Must Follow Procedure: The Sehmi Case emphasizes the need for the Lands Office and its officials to act transparently and fairly. Land allocation should be conducted openly, especially when there is someone with a pending stake, such as an individual waiting on a lease renewal or extension. If a renewal or extension cannot be granted for valid reasons, the lessee has the right to know why. Article 47 of the Constitution guarantees fair administrative action, meaning any decision, like denying a lease renewal or extension, should be lawful and procedurally fair. In practical terms, if the Government decides not to renew or extend the term of a lease, perhaps to use the land for a public project, it needs to inform the lessee and likely compensate them or provide an opportunity to appeal. Simply reallocating to another without communication is unlawful.
- Public and Allocated Lands: This case also highlights the problem of land grabbers targeting lands that appear to be in limbo– such as those with expired leases, or public lands not yet titled. The Supreme Court is clearly cracking down on this. So, if you ever get an offer like “This is government land, but I have an allotment letter, you can buy it from me,” be extremely wary.
As seen in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (another case in 2023), an allotment letter alone does not equal ownership. And if that land was not legitimately free to allocate, the piece of paper is worthless. The law now requires that even after you get an allotment, you must follow through all steps properly and the allotment itself must have been lawful. Many scams involve fake or dubious allotment letters. Always verify with the issuing authority (e.g., Ministry of Lands or County Lands office) if an allotment letter is genuine and valid. Better yet, avoid purchases that rely on an allotment letter instead of a registered title.
Key Takeaway
The key takeaway from the Sehmi vs Tarabana decision is this: No one can acquire good title from a flawed process. An irregularly issued title, even in the hands of an innocent buyer, can be cancelled by the courts if the land was not truly up for grabs or the root title was flawed. From the perspective of an innocent buyer – it may feel harsh, but the principle is that the law cannot bless an illegality (ex turpi causa non oritur actio).
It is like buying a stolen car; even if you did not know it was stolen, the true owner can reclaim it. Here, if land was “stolen” (through an illegal or irregular allocation), it can be reclaimed by the rightful owner or the public, and you are left to seek refund from whoever sold it to you (which, sadly, can be a dead end if they disappear or lack funds).
Bottom line: Before you invest your hard-earned money in land, invest your time (and a bit of money) in due diligence. Consult professionals if needed. It is better to discover a defect beforehand than to find out in court later. And for those who may have already bought land, if you suspect something fishy in how the prior owner got it (maybe rumours of it being grabbed), consider seeking legal advice on how to mitigate the risk or verify the title’s legitimacy. The courts are there to uphold justice, and as seen, they will set things right – but it is far better to avoid being on the wrong side of a land dispute in the first place. Stay informed, stay cautious, and you can confidently enjoy the security of your property.
