The Standard of Care for Kenya Advocates After Sehmi and Dina Management
Two Supreme Court rulings changed the landscape of Kenya property law in fundamental ways.
Dina Management Ltd v County Government of Mombasa [2023] KESC 30 (21 April 2023) established that official searches at land registries "do not delve into the root of title."
Sehmi & 2 others v Tarabana Company Ltd & 3 others [2025] KESC 21 (11 April 2025) confirmed that a registered title traced to an illegal original allocation is void, regardless of how many innocent subsequent buyers have held it.
Together, these two decisions define a new standard for what Kenya conveyancing advocates must do when advising clients on property transactions.
What Changed: The Before and After
Before Sehmi and Dina Management: The dominant understanding was that registered title was, for practical purposes, conclusive. An advocate who confirmed that a title was registered in the seller's name, confirmed that no adverse encumbrances were noted on an official search, and proceeded to completion had met the standard.
After Sehmi and Dina Management: That standard is no longer sufficient. An advocate who relies solely on an official search has not checked the root of title. The Supreme Court explicitly confirmed that official searches do not do this. A buyer who loses land due to an illegal root after an advocate's due diligence consisted only of an official search will have a strong basis for a professional negligence claim.
What the New Standard Requires
1. Root of title investigation.
The advocate must trace the title back to its original allocation or first registration and confirm that the original grant was legitimately made. This requires physical attendance at the Land Registry and review of the physical file, not just an online or digital search.
The physical file should contain the documents that underpin each stage of the title's history: the original allocation letter or grant, gazette publications, prior transfer instruments, and discharge documents.
Where the file is incomplete or unexplained, the advocate must either seek the missing documentation or advise the client that the due diligence cannot be completed satisfactorily.
2. Documentation of the investigation.
It is not sufficient to do the root-of-title investigation without documenting it. The matter file must contain a record of what was checked, when, by whom, and what was found.
Documentation is the advocate's defence in a professional negligence claim. "We traced the title and found no problems" is much stronger with a documented paper trail than without.
3. Separate court process search.
An official title search does not capture court proceedings that are registered at the court rather than the Land Registry. An injunction restraining dealings with a parcel, an attachment order, or a succession dispute may exist in the court system without appearing on a standard title search.
The advocate must conduct a separate court process search in the relevant court registry.
4. Gazette check.
Compulsory acquisition notices, zoning changes, and other government publications affecting the land may not appear in a title search. A gazette check covering the relevant period should be part of the standard due diligence file.
5. Verification of client and counterparty identity.
Under the LSK AML/CFT/CPF Guidelines 2025 and POCAMLA 2025, advocates must conduct customer due diligence on their clients. For property transactions, this includes verifying the identity of the buyer and, where relevant, the seller. The advocate must also verify that the seller is the actual person named in the title, not an impersonator.
The AML/CFT Layer
The post-POCAMLA obligations for law firms handling property transactions add a compliance layer on top of the post-Sehmi due diligence standard.
An advocate's matter file for a property transaction should now contain:
Title search (Ardhisasa/official search): current registered owner and encumbrances.
Root-of-title review documentation: physical file review tracing the chain back to original allocation.
Court process search record.
Gazette search record.
Client CDD documentation: identity verified, source of funds confirmed, beneficial ownership documented.
Property ownership verification (independent of what the client tells you).
Risk assessment noting any flags identified and how they were addressed.
The file is now a compliance document as well as a conveyancing document.
How Advocates Can Protect Themselves
The documented checklist approach is the primary protection.
Build a standard due diligence checklist for every property transaction file. Each item on the checklist should be initialled by the responsible fee-earner and dated when completed. Blank items should have a written explanation of why they could not be completed.
Delegate root-of-title physical searches to a trusted and documented process. An advocate cannot be at the registry for every file if volume is high. But the person who conducts the physical search must be identifiable, trained, and documented.
Use a third-party verification service like Litmus for the registry and court process search components. The Litmus report provides a dated, signed, court-ready document that forms part of the matter file.
Engage with the LSK's CPD requirements on AML/CFT and post-Sehmi due diligence. Demonstrating that firm staff have received relevant training is relevant in a negligence or regulatory inquiry context.
The Practical Bottom Line
For most Kenya conveyancing advocates, meeting the post-Sehmi standard requires modifying the standard due diligence process to add:
A physical registry file review (root of title).
A court process search (separate from the title search).
A gazette check.
Documentation of all of the above.
These steps add time and cost to each transaction. They are not optional. A buyer who relies on the advocate's due diligence and later loses land due to an illegal root deserves compensation. An advocate who took all the required steps is protected. An advocate who skipped them is not.
This article is for general information only. It does not constitute legal advice. For professional negligence risk management specific to your practice, consult a Kenya advocate specialising in professional liability.
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