THE LEVEL OF DUE DILLIGENCE IN THE LAND PROCESSESS: A CASE STUY OF DINA

MANAGEMENT LIMITED VS. COUNTY GOVERNMENT OF MOMBASA & 5 OTHERS -

INTRODUCTION

In the Kenyatta and Moi error, high level officials grossly abused their powers by violently

executing large-scale public land grab. A case in point is the Dina Management Limited

PETITION NO. 8 (E010) OF 2021 (hereinafter the Dina Management Limited case). Property

Title Number MN/1/6053 situated in Nyali Beach, Mombasa County was allocated and

thereafter, a freehold Title issued to the first registered owner by the Commissioner of Lands in

1989. The suit property then sold to a subsequent purchaser and eventually to the Appellant.

The County Government of Mombasa entered the suit property, demolished the perimeter wall

facing the beachfront and flattened the property to the same level of the beach, on the premise

that the land was designated as an open space thus, not available for alienation to a private

party. The supreme court reasoned that a Title document is not sufficient proof of ownership of

property where the origin of that Title has been challenged. The holder of the Title document

must go beyond the instrument itself and show that the process of acquisition from inception

was legal.

The decision contradicted the Torrens system which is predicated upon the sanctity of the

Register as captured in earlier decisions of the court of appeal and suggested in Report of the

Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce

Report, 2020. It also created different position with regard to the bona fide purchaser and due

diligence generally. The decision required purchasers and their representative to be meticulous.

It cared not the fallibility of unrepresented purchaser and the lethargic conducts of certain
lawyers. It further sought to entrench inequality in access to land. For this, this article grapples

with the question of the due diligence of the purchaser.

DUE-DILLIGENCE

Due diligence may be considered as the process of confirming the ownership, dimensions or

size of property. Like Crop rooting depth which is categorized as shallow, moderate, or deep,

the depth of the root of the title is relative. Similarly, like types of roots, some red flags may be

prima-facie while others need examination. According to the court, the depth of auditing in

terms of time is not determined but will depend on the nature of the land. The Judges further

argues that no lapse of time can make regular an irregular allocation. The court also stamped

the use of NEMO DAT RULE in conveyancing.

However, the court was not clear on whether this raised bar on the level of due diligence was

applicable only where the land was historically a public land or in all cases. Further, amount of

compliance that is sufficient was not determined, whether substantial or total compliance with

the process was the bear minimum. The court assumed that information relating to land and to

particular land are readily available, easily accessible or even available at all.

The raised bar also will infringe on the Sessional Paper No. 3 of 2009 on National Land Policy.

Equitable access to land by the poor may not be realized as raised bar means more resources

needed to acquire land.

CONCLUSION

While the court may argue that by forewarning the purchaser in this case, it was forearming

them in future transactions and while there was need to encounter the rampant land grabbing

by the powerful statesmen, A better tool can be devised that is soft to the poor’s’ access to land

but harsh on the land grabbers.