KENYA Trends and Developments Contributed by: Lorna Mainnah, Joseph Omwenga, June Lomaria and Herbert Karanja, Dentons Hamilton Harrison & Mathews
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Development in Kenya’s Real Estate Sector Kenya has a dynamic real estate sector that is evolving constantly to adapt to the needs of the market and has registered exponential growth over the years. This article highlights some of the recent legal and policy developments and market trends in the sector. Real estate due diligence obligations on a purchaser: Dina Management Limited v County Government of Mombasa In the landmark judgment in Dina Management Limited v County Government of Mombasa & five others [SC Petition No8 (e010) of 2021] (the “Case”), the Supreme Court (the “Court”) con - sidered the level of due diligence that should be undertaken to support a claim that one is a bona fide purchaser of land. This judgment sets a precedent for thorough due diligence in prop - erty transactions. A bona fide purchaser is one who buys land for value without notice of another’s claim to the land.
Under Section 26 of the Land Registration Act, 2012, a certificate of title constitutes clear evi - dence that the person named as an owner of land is the land’s absolute and indefeasible own - er except where the land was obtained by fraud - ulent means, illegally, or through corruption. Facts of the case The Mombasa County Government challenged the validity of the title of property belonging to Dina Management Ltd. because the first owner had obtained the title in 1989 unprocedurally The Court ruled that the property was public land that could not give rise to a private proprietary interest. The Court concluded that Dina Management Ltd. could not benefit from the defence that it was a bona fide purchaser as it should have “been more cautious in undertaking its due diligence”. For property investors, the judgment implies that a purchaser is now required to take steps and it was public land. The Court’s decision
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