An analysis of Freedom Limited v Omar Awadh Mbarak [2026] KESC 2 (KLR) (23 January 2026) Supreme Court Petition No. E009 of 2024.

Facts

This dispute concerned competing claims over a large parcel of land originally known as Plot No. 287 Section V Mainland North (CR 6302), located in Mombasa. The land was first registered in the 1940s and passed through several transactions over time.

The appellant, Freedom Limited, claimed ownership of a portion of this land described as Plot No. 1948 (Original No. 412/20), allegedly excised from the original parcel. It asserted that it lawfully purchased this portion in 2009 for substantial consideration and was duly registered as proprietor. When the land registry file went missing, the appellant successfully petitioned the High Court to reconstruct the records using documents it provided. On the basis of this reconstructed record, it maintained that its title was valid and indefeasible.

The respondent, Omar Awadh Mbarak, claimed that the entire original parcel had been purchased by his late grandfather from a previous owner, although the transfer was never registered. Despite the lack of registration, the respondent asserted that his family had taken possession of the land and remained in uninterrupted occupation for over two decades.

At the trial level, the Environment and Land Court (ELC) found in favour of the appellant, holding that it had proved its title and qualified as a bona fide purchaser. The respondent’s counterclaim was dismissed.

On appeal, the Court of Appeal reversed this decision. It found that the appellant’s root of title was questionable and tainted by irregularities, while the respondent had established a superior claim based on possession and the doctrine of seisin. The appellate court thus awarded the respondent damages and effectively upheld his claim.

The appellant then appealed to the Supreme Court.

Issues for Determination

The Supreme Court identified two principal issues:

First, whether it had jurisdiction under Article 163(4)(a) of the Constitution.

Second, and more substantively, who between the appellant and the respondent had a valid title to the suit property.

Analysis

The Supreme Court approached the dispute by carefully interrogating the competing legal frameworks governing land ownership in Kenya, particularly the interplay between registered title, equitable interests, and evidentiary sufficiency.

On jurisdiction, the Court had little difficulty affirming that it was properly seized of the matter. It reasoned that the Court of Appeal had directly engaged with Article 40 of the Constitution in determining proprietary rights, thereby bringing the appeal within the ambit of constitutional interpretation and application.

Turning to the substantive issue of ownership, the Court began with the statutory principle of indefeasibility of title under Section 26 of the Land Registration Act. This provision protects a registered proprietor unless the title is shown to have been acquired through fraud, illegality, or procedural impropriety. However, the Court emphasised that this protection is not absolute and cannot be invoked in a vacuum. A registered proprietor must still demonstrate a credible and lawful root of title.

In this case, the Court found that the appellant’s title was fundamentally undermined by serious evidentiary gaps. The reconstruction of the land register had been undertaken solely on the basis of documents supplied by the appellant, without independent verification or participation of other interested parties. Moreover, there was no satisfactory evidence explaining how the original parcel had been subdivided to create the portion claimed by the appellant. The Court of Appeal had already noted these irregularities, and the Supreme Court agreed with that assessment.

The Court thus affirmed that where the root of title is doubtful, the doctrine of indefeasibility cannot shield the registered proprietor. Registration, in itself, does not cure foundational defects.

With regard to the respondent’s claim, the Court acknowledged that it rested on an uncompleted transaction. The deceased purchaser had not obtained registration before his death, and therefore no legal title had crystallised. However, the Court recognised that the respondent’s family had been in long, uninterrupted possession of the land and had produced evidence of the original transaction.

Despite this, the Court rejected the Court of Appeal’s reliance on the doctrine of seisin as the legal basis for validating the respondent’s claim. It undertook a historical and doctrinal analysis of seisin, noting that it was a feudal concept tied to English land tenure systems and had long fallen into disuse following the advent of modern land registration regimes. In the Court’s view, importing such a doctrine into Kenya’s statutory land framework was legally untenable.

Instead, the Court reframed the respondent’s position in terms of equitable interests. It held that the respondent’s claim amounted to a registrable but unregistered interest arising from the uncompleted sale. Such an interest, while recognised in equity, does not confer legal ownership and remains vulnerable to defeat by a bona fide purchaser for value without notice, provided the latter’s title is valid.

However, the Court found itself unable to conclusively determine ownership because both parties’ claims were riddled with unresolved factual issues. These included the unexplained existence of multiple title numbers, the absence of clear evidence of subdivision, uncertainty as to possession, and the lack of testimony from crucial public officials such as land registrars and surveyors. Additionally, the applicability of the Land Control Act had not been addressed, raising further doubt as to the validity of the underlying transactions.

Given these deficiencies, the Court concluded that it could not, in the interests of justice, make a final determination on ownership. Instead, it emphasised the necessity of a full evidentiary inquiry at the trial level. The Supreme Court, effectively, remitted the matter back to the ELC for a rehearing.

Conclusion

The gist of the Supreme Court’s ruling was that a registered title cannot be upheld merely on the strength of registration where its root is doubtful or tainted, and conversely, an unregistered purchaser in possession acquires only an equitable interest which cannot be elevated into legal ownership through outdated common law doctrines such as seisin; thus, where competing claims to land reveal fundamental evidentiary gaps, the Court will not conclusively determine ownership but will remit the matter for proper factual determination. As the Court held, “there was no evidence of such sub-division or excision… the trial court had acted in error in concluding that the appellant had established the root of its title,” and further rejected the doctrinal basis adopted by the Court of Appeal, stating that “for all practical intents and purposes, this doctrine is at best, sterile, and at worst, obsolete. It cannot therefore be the legal basis for validating the respondent’s title,” while clarifying the respondent’s position by holding that “what we are faced with… is a registrable but an unregistered interest… the respondent holds only an equitable or beneficial interest,” ultimately concluding that “given these glaring yet unanswered questions, we find ourselves unable to arrive at definitive conclusions regarding the nature, and ownership of the suit property.”

The Supreme Court dismissed the appeal but declined to affirm ownership in favour of either party. It partially upheld the reasoning of the Court of Appeal, particularly regarding the defects in the appellant’s title, but rejected its reliance on the doctrine of seisin.

The Court ultimately remitted the matter to the Environment and Land Court for a fresh hearing before a different judge. It directed that the retrial should comprehensively address critical unresolved questions, including the legality of subdivision, the authenticity of competing titles, possession, and the applicability of the Land Control Act.

Each party was ordered to bear its own costs.

Key Takeaways

1. The doctrine of indefeasibility of title in Kenyan law is conditional upon proof of a valid and lawful root of title.
2. Registration alone is insufficient to cure defects arising from irregular or unproven prior transactions.
3. The doctrine of seisin has no place in modern Kenyan land law and cannot be used to validate claims to ownership.
4. An unregistered purchaser acquires only an equitable interest, not legal title.
5. Courts will prioritise evidentiary integrity over formal registration where ownership is contested.
6. Where factual uncertainties are fundamental, appellate courts may remit disputes for retrial rather than issue definitive rulings.
7. Reconstruction of land records must be subjected to strict judicial scrutiny, especially where based on unilateral evidence.