How the new NLC Act protects land buyers from fraudsters

On 15th October, the President assented to several statutes, the most cited being the Computer Misuse and Cybercrimes (Amendment) Act, 2025. There has been little attention on the equally impactful National Land Commission (Amendment) Act, 2025 , also assented to on the same day.

This law seeks to implement Articles 68(c)v of the Constitution which requires Parliament to enact legislation to facilitate “review of all grants or dispositions of public land to establish their propriety or legality.” The powers of the National Land Commission to review such dispositions had been included in the Commission’s Act of 2012 but the mandate had a 5-year timeline which expired in 2017. In between 2017 and the 2025 amendment, “Dina” happened.

Dina Management Limited V the County Government of Mombasa and 5 Others is a Supreme Court decision delivered in April 2023. In the judgement, the court sought to resolve conflicting decisions of the Court of Appeal on the rights of a proprietor of land who had acquired the property as an innocent purchaser “for value and without notice of defect in the title”.

The conflicting decisions had arisen following numerous cases filed to nullify titles obtained in the “wild west days” of allocation of land in Kenya’s first three decades.

In Dina, the court dethroned the historical sanctity of a title deed as conclusive evidence of ownership. It decided that ownership evidenced by title even when noted in the Land Register was rebuttable if evidence was presented showing the original allocation of the land was irregular.

Subsequent purchasers were deemed not innocent if they had been negligent in failing to establish the irregularity of the initial allocation of the land. The court placed an extremely onerous burden on buyers to ensure credibility of the titles of land they were purchasing. It required them go beyond traditional searches that focused on the status of land in the Register to include investigating the root of title from inception.

While the judgement was appropriate in relation to the specific land in question, the same having been public land prior to its allocation, it automatically impugned all titles which had emanated from allocations by government. By insisting that any title whose allocation had not followed the laid down procedures, including the development of Part Development Plans and approval of such plans by Local Authorities was irregular and therefore voidable, the court threw a significant part of the land sector into disarray.

As the Ndung’u Report had established, for decades, hardly allotments of land by government, whether of land reserved for public purposes or land that government had the right to allot, had followed procedure. Further, records as to the processes followed were largely missing and unavailable for an investigative search. It is therefore gratifying that the Amendment Act gives statutory backing to a more pragmatic solution to the morass created by Dina. The Act distinguishes between two sets of titles which can be impugned. The first set are those properties illegally obtained.

This includes titles fraudulently obtained or properties that government had no power to allot, including road reserves, school playgrounds, hospital properties and public parks. The Act authorises the Commission to revoke such titles.

The second set are allotments irregularly processed. This relates to thousands of titles, including government houses allotted to civil servants but without following the required procedures.  

The Act requires the Commission to regularise, not revoke the latter. The Act restates the protection of innocent purchasers and provides that no title can be revoked where the proprietor was an innocent purchaser for value without notice of the defect in the title.

This Act will give comfort to many landowners who were the innocent purchasers of property that had been irregularly allotted. The Act is also more consistent with good sense, recognising that to invalidate thousands of titles due to correctable defects is bad not just for the land sector but to commerce generally.

One hopes that once the new Commissioners are appointed, they will quickly establish guidelines for this process to commence and bring to an end anxiety that has clouded the land sector since the Supreme Court decision.

The writer is an advocate of the High Court of Kenya