Indefeasibility of Title in Kenya After Sehmi: What Has Changed and What Still Holds

For decades, the principle of indefeasibility of title was the bedrock of Kenya property law. Once your title was registered, it was protected. Prior claims, earlier transactions, even fraud by previous owners — none of these could unsettle a registered title held by someone who bought in good faith.

Then came Sehmi v Tarabana [2025] KESC 21. The Supreme Court's April 2025 ruling modified this doctrine significantly. What changed, and what still holds, matters enormously for every Kenya property buyer.

---

What Indefeasibility Originally Meant

Under the Registered Land Act and the Land Registration Act 2012, registration of a title gives the registered owner a protected, conclusive right to the land. Section 26(1) of the Land Registration Act 2012 states that the certificate of title is "prima facie evidence that the person named as proprietor... is the absolute and indefeasible owner."

This protection was designed to give confidence to buyers and lenders. If you buy a registered title, pay for it, and register the transfer, you should be able to rely on your registered ownership.

The doctrine enabled Kenya's property market to function. Lenders could accept land as collateral knowing their registered charge could not be challenged by prior unregistered claims. Buyers could purchase in confidence that a clean title search protected them.

---

What Sehmi Changed

The Supreme Court in Sehmi established a significant exception to indefeasibility: a registered title whose root is an illegal original allocation is void, regardless of how many subsequent registrations have occurred and regardless of whether subsequent buyers acted in good faith.

The court was clear. The indefeasibility principle protects legitimate titles. It does not protect titles whose creation was an illegal act. The initial illegality — an irregular or fraudulent original allocation — travels forward through the chain, infecting every subsequent registration.

Tarabana Company Ltd held a registered title. It had purchased the property through proper processes. It had no knowledge of the original allocation's illegality. The Supreme Court cancelled its title anyway.

---

What Still Holds

Sehmi did not abolish indefeasibility. It defined its limits.

The protection still applies fully in the following situations:

Fraud by a prior owner that does not affect the root of title. If the seller fraudulently obtained a transfer from a legitimate owner, a buyer who purchases from the fraudulent seller without notice may still be protected by indefeasibility, because the root of the title (the original allocation) was legitimate.

Claims by unregistered parties. A person who has an equitable or beneficial interest but has not registered it cannot defeat a registered title acquired for value without notice of the unregistered interest.

Technical irregularities in registration. Minor procedural errors in registration do not void a title under the Sehmi principle. The ruling specifically addressed titles whose original allocation was illegal, not titles where subsequent registration processes had minor administrative imperfections.

---

What Buyers Must Now Do Differently

The Sehmi ruling means due diligence must now go further back. Confirming the current registered owner and the absence of registered encumbrances is no longer sufficient.

Buyers and their advocates must trace the title back to its original allocation and confirm that the allocation was legitimately made. This requires physical attendance at the Land Registry to review the physical file, which should contain the original allocation letter, gazette publication, or other originating document.

If the original allocation cannot be confirmed from the physical file, that gap is now a material risk indicator, not merely an administrative inconvenience.

---

The Advocate's New Obligation

Following Sehmi, the standard of care for conveyancing advocates has changed. An advocate who runs an official search, confirms the current registration, and proceeds to completion without checking the root of title is no longer meeting the professional standard.

This is not a counsel of perfection. It is what the Supreme Court has specifically required.

The LSK AML/CFT Guidelines 2025 and the post-Sehmi professional landscape together require advocates to independently verify property ownership, not merely confirm what the registry currently shows.

---

How Litmus Addresses the Post-Sehmi Requirement

A Litmus verification includes a physical registry file review that specifically checks the chain of title back to the original allocation. The verifier looks for the originating documents in the physical file: allotment letter, gazette publication, or first registration documents.

Where the file is thin or the originating documents are absent, the Litmus report flags this as a risk indicator requiring further investigation before a transaction proceeds.

This is the root-of-title check that Sehmi now requires.

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

---

This article is for general information only. It does not constitute legal advice. Consult a qualified Kenya advocate before any property transaction.