How Advocates Should Document Independent Title Verification Post-Sehmi

The Supreme Court's ruling in Sehmi v Tarabana [2025] KESC 21 changed what Kenya property advocates must do. It also changed what the matter file for a property transaction must contain.

An advocate who performed due diligence but documented nothing has no protection if they are later challenged. An advocate who performed thorough due diligence and documented every step has a professional defence that is far stronger than memory and assertion.

Here is what the post-Sehmi verification file should contain.

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The Documentation Baseline: What Every File Needs

1. Current official search result.

The starting point. Date-stamped. Shows current registered owner, encumbrances, and title status. This is what was always in the file. It is now the beginning, not the end.

2. Physical registry file review note.

A written record documenting the physical attendance at the Land Registry, what documents were found in the physical file, and any discrepancies between the physical file and the digital record.

This note should include:

Date of attendance.

Registry attended.

Name of the person who attended.

Documents found in the physical file (list them specifically).

Any documents that should be present but were absent.

Any discrepancies between the physical file and the digital record.

The conclusion: does the physical file support the current registration?

3. Root-of-title trace documentation.

A written record tracing the title back to its origin. This should document:

The original allocation or first registration: when, under which legislation, and what documents evidence it.

The chain of transfers from original allocation to current owner.

Confirmation that each step is documented in the physical file.

Any gaps in the chain and how they were resolved or explained.

4. Court process search record.

A dated record confirming a search was conducted at the relevant court registry. The record should note:

Court searched.

Date of search.

Parcel number and owner name searched.

Result: no proceedings found, or proceedings found (described).

5. Gazette search record.

A dated record confirming a gazette search was conducted. The record should note:

Period covered by the search.

Search method (physical gazette volumes, official Kenya Gazette search portal).

Result: no relevant notices found, or notices found (described).

6. Client CDD documentation (post-POCAMLA 2025).

As a DNFBP reporting entity under POCAMLA 2025, your firm must document:

Client identification (certified copy of ID, passport).

If a company: beneficial ownership documentation.

Source of funds confirmation (bank statements, remittance records, employment confirmation).

Risk assessment: low, medium, or high risk, and the basis for the assessment.

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How to Structure the Physical File

A physically organized matter file for a property transaction should have tabs or sections:

Tab 1: Instructions and client retainer.

Tab 2: Title documents: official search, title deed copy, prior searches.

Tab 3: Root-of-title documentation: physical file review note, chain-of-title trace, documents evidencing each step.

Tab 4: Court process search record.

Tab 5: Gazette search record.

Tab 6: Client CDD: ID, source of funds, risk assessment.

Tab 7: Encumbrance resolution: discharge documents, consent letters (spousal, LCB where applicable).

Tab 8: Transaction documents: sale agreement, transfer instrument, payment confirmation.

Tab 9: Completion documents: stamped transfer, registered title.

This structure allows any partner, regulator, or court to follow the due diligence process from beginning to end.

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The Litmus Integration

For firms handling regular property transaction volumes, integrating a Litmus verification into the standard workflow addresses several of the documentation requirements above.

The Litmus report provides:

Physical registry file review documentation (Tab 3).

Court process search record (Tab 4).

Gazette search record (Tab 5).

Named verifier attestation (signed, dated, court-ready).

Section 106B Evidence Act certificate (making the electronic components admissible without additional authentication).

The Litmus report goes into the matter file as a single document that covers the core independent verification components. Your own work covers the client CDD, transaction documents, and completion.

Institutional pricing is available for firms handling regular volume. Contact Litmus to discuss a firm-level arrangement.

Standard verification: KSh 21,500. Full field verification: KSh 25,500.

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The Risk Management Argument

The cost of thorough documentation is the time and discipline required to do it consistently. The cost of inadequate documentation is professional negligence liability.

A buyer who loses land due to an illegal root, after relying on their advocate's assurance that the title was clean, has a strong professional negligence claim. If the advocate's file shows:

No physical file review.

No court process search.

No gazette check.

Just an official search and a note saying "title appears clean."

...then the advocate has very limited defence.

If the advocate's file shows all the steps above, documented and dated, the advocate can demonstrate that they met the required standard of care. Even if the title later proves problematic due to circumstances the advocate could not have detected, thorough documentation demonstrates that reasonable professional care was exercised.

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This article is for general information only. It does not constitute legal advice. For specific advice on professional negligence risk management in your practice, consult a Kenya advocate specialising in professional liability.