The Supreme Court reaffirmed the Limits of Indefeasibility in Land Titles and recognized legitimate expectation in Lease Renewals
In a landmark judgment delivered on 11th April 2025,
the Supreme Court of Kenya (Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ) in
Petition No. E033 of 2023 – Harcharan Singh Sehmi & Another v. Tarabana Company Ltd & Others clarified the extent to which the doctrine of bona fide purchaser for value without notice applies in matters concerning irregular allotment of public land. The apex court equally pronounced itself on the principle of legitimate expectation with respect to lease renewals.
The Court overturned the decision of the
Court of Appeal (Makhandia, Nyamweya, and Lesiit, JJA) which had held that the 1st respondent, was a bona fide purchaser for value. The Supreme Court reaffirmed that irregularly acquired titles cannot enjoy constitutional protection and that lessees of public land have enforceable legitimate expectations in renewal processes, provided the lessees apply for the renewal of lease and due diligence was exercised.
Bona Fide Purchaser and Indefeasibility of Title
Quoting its earlier precedent in Dina Management Ltd v. County Government of Mombasa & Others, the Court restated that where a title originates from an illegal or unprocedural allocation—particularly of public land—there is no legal estate to convey, and the doctrine cannot shield the purchaser, even if they acted in good faith. The Court thus reaffirmed that irregularly acquired titles, including those arising after lease expiry without proper process, cannot benefit from constitutional protection under the doctrine of bona fide purchaser.
Legitimate Expectation in Lease Renewal
The Court emphasized that that upon expiry, a leasehold interest ceases to exist and the land reverts to the Government, becoming public land. This holds true even where a lessee remains in possession and continues paying land rent and rates—such occupation does not create an equitable interest in the absence of a valid renewal. According to the court, whatever remained in favour of occupants of land whose lease had expired could at worst be regarded as “a tenancy at will” or at best “a mere equity”.
Notably, the Court recognized that a lessee who applies for lease renewal before the expiry of the term has a legitimate expectation that their application will be fairly considered. Where the Government fails to respond or communicate the outcome of such an application, that silence may be construed as a breach of the lessee’s constitutional right to fair administrative action under Article 47. The Court warned that administrative inaction must not prejudice applicants who have complied with due process.
Implications of the Judgment
The judgment has profound implications for lessees of public land. Where no renewal application is made before expiry, the leasehold extinguishes and the land becomes government property, exposing occupants to potential eviction or competing allocations. The decision serves as a caution to leaseholders to monitor the status of their leases closely and comply with the relevant provisions of the law regarding renewal of leases. Further, the decision serves as a directive to public authorities to uphold transparency, accountability, and procedural fairness in the management of public land. Finally, the judgement is a forewarning to prospective purchasers of land in order for them to carry out thorough due diligence before buying any property.
