The Supreme Court’s Take on Land Ownership, Lease Renewals, and the Myth of Indefeasible Title

Land ownership in Kenya is a deeply contentious issue. With layers of legal history, bureaucratic red tape, and overlapping claims, navigating the land system is no simple task. The Supreme Court’s recent judgment in Harcharan Singh Sehmi & Another v. Tarabana Co. Ltd & 5 Others (Petition No. E033 of 2023) adds an intriguing aspect to three key areas of property law: legitimate expectation in lease renewals, the validity of irregular land allocations, and the much-debated doctrine of the bona fide purchaser for value without notice.

This case, involving a decades-long fight over a Nairobi property, offers a timely reminder of the power and limits of title deeds in Kenya and what happens when the system fails to protect those who follow it.

Background: A Long Road to Justice

The dispute centers on a parcel of land in Ngara, Nairobi—L.R. No. 209/2759/9. The appellants, Harcharan and Jaswarana Sehmi, had owned the property on a 59-year leasehold title granted in 1942, set to expire in 2001. They claim to have applied for a lease extension in 2001, supported by no-objection letters from planning and survey authorities.

Yet by 2009, the land was allocated to Rospatech Ltd (2nd Respondent), which then sold it to Tarabana Co. Ltd (1st Respondent). In 2014, the Sehmies were forcefully evicted.

The legal battle escalated through the Environment and Land Court (ELC), Court of Appeal, and finally the Supreme Court—each court offering contrasting interpretations on key issues of land law.

The ELC: Fraud, Eviction, and Justice for the Appellants

At the ELC, Justice K. Bor ruled in favor of the Sehmies. The court held that:

• The appellants had a legitimate expectation that their lease would be renewed.

• The allocation to Rospatech was unlawful and procedurally flawed.

• Tarabana was not a bona fide purchaser for value without notice.

• The Sehmies were entitled to damages and repossession of the land.

The court found that bulldozers had demolished permanent structures during the eviction and awarded Kshs. 25 million in general damages, even though specific financial losses could not be substantiated.

Court of Appeal: The Turning Point

The tide turned at the Court of Appeal. The appellate judges held that:

• The lease expired in 2001 and reverted to the Government.

• There was no proof of renewal, and no legal interest survived.

• Tarabana was a bona fide purchaser, and its title was protected under Section 26 of the Land Registration Act.

• The ELC had no power to vest ownership back to the appellants in the absence of proven fraud.

This effectively meant that procedural irregularities in the initial allocation to Rospatech did not invalidate Tarabana’s subsequent title—so long as Tarabana acted in good faith and had no notice of prior claims.

Supreme Court: Bringing Clarity to Confusion

The Supreme Court, however, stepped in to resolve not just the dispute but larger legal ambiguities affecting thousands of landowners across Kenya.

Here’s what the Supreme Court clarified:

1. Legitimate Expectation Must Be More Than Hope

The Court acknowledged that the Sehmies had initiated a lease renewal process—but emphasized that a legitimate expectation requires clear communication from an empowered public body. Silence, even bureaucratic inaction, does not automatically generate enforceable rights.

Key quote:

“A legitimate expectation cannot arise from silence or inaction… the expectati

This raises the bar for leaseholders relying on ‘unspoken norms’ or historical practices when leases near expiration. The takeaway? Get your approvals in writing—and don’t assume that no response equals a yes.

2. Indefeasible Title Has Limits—Especially on Public Land

Perhaps the most important contribution of this judgment lies in its interpretation of Section 26 of the Land Registration Act and Article 40(6) of the Constitution. While courts once held that title deeds were sacrosanct, the Supreme Court firmly stated:

“If the process that led to th issuance of a title did not comply with the law, such a title cannot be held as indefeasible.”

This reaffirms earlier precedent (Dina Management Ltd v. County Government of Mombasa) and sends a clear message: titles acquired through illegal or irregular means cannot be protected by law, even if they are held by an innocent party.

This decision essentially “defangs” the shield often raised by purchasers claiming they were unaware of past fraud.

3. No Innocence in Illegality

The Supreme Court dissected the doctrine of the bona fide purchaser for value without notice. Traditionally, this doctrine protects buyers who purchase property in good faith, without knowledge of competing claims. But the Court took a hard line:gality.’”

In other words, you can’t claim innocence if the very title you acquired was born from an illegal act. This shifts the burden of diligence even further onto buyers—especially those acquiring land from state-allotted leases.

The Final Decision

Despite finding that the original lease had expired, the Supreme Court held that the allocation to Rospatech was unlawful. Because Tarabana’s title stemmed from that flawed allocation, it too fell apart.

The Court reinstated the ELC’s decision, granted the appellants ownership upon payment of applicable fees, and ordered the eviction of the current occupants within 90 days.

Conclusion: Why This Case Matters

This case is more than a personal victory for the Sehmi family. It’s a landmark ruling that reshapes how courts will interpret:

• The limits of title deeds as protection.

• The duties of public authorities in processing lease renewals.

• The responsibilities of land buyers to investigate not just ownership, but also the legality of that ownership’s origin.

In a country where land disputes are often clouded by corruption, bureaucracy, and historical injustice, the Supreme Court’s decision strikes a blow for accountability.

For landowners, it’s a call to diligence. For prospective buyers, it’s a cautionary tale. And for the public, it’s a sign that not even the most ironclad title deed can legitimize an illegal past.