The Sehmi Supreme Court Ruling: What Every Kenya Conveyancing Advocate Must Now Do
On 11 April 2025, Kenya's Supreme Court handed down a judgment that every conveyancing advocate in the country needs to have read. The case is Sehmi v Tarabana [2025] KESC 21 (KLR), and its core message is straightforward: a title deed is only prima facie evidence of ownership, and an advocate who stops at the official search has not met the standard of care required of a competent property lawyer.
If you practise conveyancing or act on any property transaction, this ruling changes what "reasonable diligence" means for your file.
This article is for general information only and does not constitute legal advice.
What the court actually decided
The Supreme Court in Sehmi confirmed that a registered title is prima facie, not conclusive, proof of ownership. That is the legal baseline that has existed in Kenya for decades. What the judgment does is make the professional consequences explicit.
An advocate who relied solely on an official search and did not independently trace the history of the title was found to have fallen below the standard expected of a reasonably competent conveyancing practitioner. The court drew a clear line between what the register shows and what a prudent advocate must independently establish.
The implication is direct: running a title search at Ardhi House is the starting point, not the finishing line.
Why the "official search" defence no longer holds
Many advocates have historically treated the official search certificate as their primary due diligence instrument. The search confirms the registered owner, lists encumbrances, and shows cautions. That is valuable information.
But the Supreme Court had already flagged the limitation of official searches two years earlier in Dina Management Ltd v County Government of Mombasa [2023] KESC 30 (KLR). In that judgment, the court explicitly stated that "official searches conducted at the land registries do not delve into the root of title." Sehmi extends this principle to professional liability.
An advocate cannot use "I did the official search" as a complete answer to a negligence claim. The search shows what is currently on the register. It does not reveal how the title arrived there, whether the chain of transactions leading to the current entry was lawful, or whether earlier dealings were tainted.
What "tracing the root of title" means in practice
Tracing the root of title means going further back than the current entry in the register. It means asking:
- Who held this title before the current registered owner?
- How did each transfer occur? Was it by sale, transmission, court order, or allocation?
- Was each transaction properly executed and registered at the time it took place?
- Are there any suspicious gaps, rushed transactions, or unexplained changes in the chain?
In practice, this involves requesting the full history of the parcel at the relevant Lands Registry. Most registries maintain title history files and folio records. For older titles, this may require examining the parent registry file, predecessor documents, or allocation letters if the land was originally public land.
This is not the same as a standard search. It takes more time. It requires more skill. And according to Sehmi, it is now expected of you as a conveyancing advocate.
The professional liability exposure
The direct risk for advocates who do not adjust their practice is a professional negligence claim. If a transaction goes wrong and the root cause turns out to be a defect in the title history that an advocate should have discovered, the advocate faces liability to their client.
The Law Society of Kenya's disciplinary framework also applies. Advocates who are found to have conducted inadequate due diligence can face complaints under the Advocates Act, Cap 16. More significantly, the LSK's AML/CFT/CPF Guidelines 2025, issued following Kenya's FATF grey-listing in February 2024, add a compliance layer on top of ordinary professional negligence. Failing to conduct adequate property verification now carries regulatory consequences alongside the civil ones.
What you should change in your practice right now
The first change is procedural: update your file checklist to include a root-of-title investigation as a mandatory step, separate from the official search. Document what you found, how far back you traced, and what gaps if any exist.
The second change is in your client communication. If the root-of-title investigation reveals something uncertain, your client needs to know before contracts are exchanged. The obligation to advise does not stop at what the register shows today.
The third change is in your engagement letters and file notes. Every step of your due diligence should be recorded in writing with dates and sources. If you are ever asked to justify your process, a contemporaneous record is your strongest protection.
Practical limits and what to do when the history is unclear
Some titles have murky histories. Registries may have incomplete records for older parcels. Mutations may have been approved but not fully documented. The parent file may have been lost or damaged.
In these situations, your obligation is not to conjure information that does not exist. It is to document what you found, note what you could not verify, advise your client clearly about the risk, and let the client make an informed decision whether to proceed.
Proceeding without noting the gap is the danger. Noting it, advising on it, and letting the client decide with full information is a defensible position.
Where Litmus fits your practice
Litmus produces independently verified land intelligence reports designed to support the root-of-title and independent verification work that Sehmi now requires. A Litmus report covers the official search, title history, encumbrance analysis, court order checks, and a physical site verification by a named field agent. Every report includes a Section 106B certificate under the Kenya Evidence Act, which is required for electronic records to be admissible in court, as confirmed in Ogembo v Yongo [2024] KEHC 15763.
The standard report is KSh 21,500. The report with an included field visit is KSh 25,500. It is designed to be ordered at the start of a transaction, before your client commits to anything.
If you want to align your due diligence practice with the post-Sehmi standard, a Litmus report gives you an independently verified, court-admissible foundation to build on.
This article is for general information only and does not constitute legal advice.
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