What is a Bona Fide Purchaser in Kenya Land Law and How Has Sehmi Changed This?

In Kenya land law, a bona fide purchaser (sometimes called a purchaser for value without notice) is a buyer who:

Paid genuine consideration (money or other value) for the property. Had no notice of any prior claim, defect, or irregularity affecting the title. Acted in good faith throughout the transaction.

For decades, the bona fide purchaser doctrine provided strong protection in Kenya. If you purchased land in good faith, paid for it, and registered the title, you were generally protected against prior claims — even claims that arose from fraud or irregularity that you did not know about.

The Sehmi ruling changed this.

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The Traditional Bona Fide Purchaser Protection

Under the Registered Land Act and the Land Registration Act 2012, Section 26 provides that registration of a title is conclusive evidence of ownership. The statute protected registered owners from prior unregistered claims.

For a bona fide purchaser, this meant: if you bought from a registered owner, paid the purchase price, registered the transfer, and had no knowledge of any problem with the title, your registered ownership was protected.

This protection enabled the property market to function. Without it, every buyer would need to investigate the entire history of every title going back to its original creation — an impossible burden.

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What Sehmi Changed

In Sehmi v Tarabana [2025] KESC 21, the Supreme Court carved out a significant exception to this protection.

The court held that the bona fide purchaser protection does not apply where the title's root — the original allocation — was illegal. If the land was originally allocated through an illegal process, that illegality travels forward through the entire chain of ownership, infecting every subsequent title regardless of how innocent the subsequent buyers were.

Tarabana Company Ltd was a bona fide purchaser by every conventional measure: they paid genuine consideration, they registered the title, and they had no knowledge of the original allocation's illegality. The Supreme Court still cancelled their title.

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The Distinction After Sehmi

The protection still applies in many circumstances. Sehmi established a specific exception, not a general abolition of the bona fide purchaser doctrine.

Still protected:

A buyer who purchases from a fraudulent seller who used forgery to obtain a transfer from a legitimate original owner, where the root of title (the original allocation) was itself legitimate.

A buyer who acquires a registered title against prior unregistered claims, where there is no illegality in the title's origin.

No longer protected (post-Sehmi):

A buyer whose title traces back to an illegal original allocation, even if the buyer acted in perfect good faith and paid full price.

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What This Means Practically

The Sehmi ruling shifts the risk in the property market. Previously, a buyer who checked the current registration and found a clean title could be reasonably confident in their protection. After Sehmi, that confidence is qualified by the question: was the original allocation legitimate?

For buyers, this means due diligence must now include root-of-title verification — tracing the chain back to the original allocation — not just confirmation of the current registration.

For advocates, this means the post-Sehmi standard of care requires physical registry file review going back to the original allocation, not just a current official search.

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The Advocate's Position After Sehmi

The Sehmi ruling creates a specific professional liability exposure for conveyancing advocates.

An advocate who tells a client "the title is clean" based solely on a current official search, and the client then loses the title due to an illegal original allocation, has given advice that is now demonstrably insufficient.

The post-Sehmi standard requires advocates to trace root of title. Advocates who have not updated their practice to include this step are exposed.

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A Litmus verification includes physical registry file review tracing the title to its original allocation — the specific check the bona fide purchaser doctrine can no longer substitute for.

Standard verification: KSh 21,500.

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This article is for general information only. It does not constitute legal advice. Consult a qualified Kenya advocate for advice specific to your transaction.