A clean search brings comfort. A purchaser checks the register, finds a registered proprietor, pays the price and assumes the title is theirs. But the bona fide purchaser defence in Kenya does not necessarily protect a purchaser where the root of title is defective. The Environment and Land Court’s decision in Kibuna v County Government of Nairobi & 4 others is a firm reminder that a clean search at your own step in the chain says nothing about the steps before it.
The Court held that a second allocation of a plot already allotted to someone else gave its recipient nothing to pass on, so the two purchasers who followed him could not rely on the bona fide purchaser defence.
The Facts
Jedidah Ngina Kibuna was allotted Plot No. 230, Jamhuri Phase II (now Nairobi/Block 63/493) by a letter of allotment dated 27th October 1992 by the predecessor of the County Government of Nairobi (the 1st Defendant). She accepted the offer, paid the stand premium and land rent and executed an agreement for lease, but her lease was never registered. Instead, a lease over the plot was registered in October 2001 in the name of Abraham Mwangi Njihia (the 2nd Defendant), who sold it to Morris Gitonga Njue (the 4th Defendant), who passed it to Vera Mwasi (the 5th Defendant), the registered proprietor at trial.
The 2nd Defendant claimed an earlier allotment in February 1992 but produced only a copy of the letter, no lease and no transfer from the Council. His sale to the 4th Defendant was dated 7th July 2001, months before the Green Card shows his lease was issued. In 2006 he had also recorded a consent in court that he had no claim over the land, which he disowned at trial but never set aside. The 4th and 5th Defendants pleaded due diligence and relied on the protection of first registration under section 143(1) of the repealed Registered Land Act.
The Registered Proprietor Must Prove the Root
Under section 26(1) of the Land Registration Act, a certificate of title is prima facie evidence of ownership but can be challenged for fraud or misrepresentation, or where it was acquired illegally, unprocedurally or through a corrupt scheme. Relying on Munyu Maina v Hiram Gathiha Maina [2013] eKLR and the Supreme Court’s decision in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Court held that once the root is challenged, the registered proprietor must go beyond the instrument and prove the legality of how the title was acquired.
The 1st Defendant’s own evidence settled the contest. Its witness confirmed that Ms Kibuna was the allottee on the Council’s register, that no other allotment had been issued over the plot, and that the letter the 2nd Defendant relied on did not come from the Council. Ms Kibuna’s documents showed how she acquired the plot, while the 2nd Defendant had nothing comparable and the Court found his evidence not credible. It also gave weight to the unset-aside 2006 consent.
A Void Root Travels with the Title
Having found that the 2nd Defendant never owned the plot, the Court held that he had no good title to pass to the 4th Defendant, and so none reached the 5th Defendant. She could not be a bona fide purchaser for value because, in the Court’s words, “the root of her title is fettered.” This follows Dina Management, where the Supreme Court held that a party cannot invoke the doctrine once the root of title is successfully challenged.
Two features of the record undermined the due diligence claim. The 2nd Defendant sold the plot before his own title had been processed, so the 4th Defendant’s search could not have revealed a completed prior transaction. The Court also treated the speed of the transfers, recorded as 23 days, as a sign of irregularity. Applying Moses Parantai & another v Stephen Njoroge Macharia [2020] eKLR, on the need to plead and prove fraud above the ordinary civil standard, it found that the 2nd Defendant had taken advantage of his position as the area Councillor to acquire the plot. There is no separate finding of fraud against the 4th or 5th Defendants. Their position fell with the root.
Rectification and Mesne Profits
Section 80 of the Land Registration Act allows rectification where a registration was obtained by fraud or mistake, but protects a proprietor’s title unless the proprietor knew of, caused or substantially contributed to it. The Court directed the Chief Land Registrar to cancel the registrations in favour of the 2nd and 5th Defendants and register the lease in Ms Kibuna’s favour. The judgment does not separately analyse the section 80(2) knowledge requirement against the 5th Defendant, nor does it address the section 143(1) argument. The result rests on the defective root.
Ms Kibuna sought KES 12 million in mesne profits. The Court found the figure exorbitant because the plot was undeveloped and there was no evidence that anyone was benefiting from it, and awarded KES 2,000,000 against the 2nd, 4th and 5th Defendants jointly and severally.
Outcome and Takeaways
The re-allotment to the 2nd Defendant was declared void ab initio, the County Government was ordered to execute the lease in Ms Kibuna’s favour, and costs were awarded against the 1st, 2nd, 4th and 5th Defendants equally. Three points for practitioners:
- When acting for a purchaser or financier of land that originated in a public allocation, treat a clean official search as necessary but not sufficient. Trace the title back to the original allotment and confirm it against the allotting authority’s register of allottees, because a search will not reveal that an earlier transaction should never have happened.
- When defending a registered title, be prepared to prove the root, not simply produce the certificate. The 4th Defendant could produce no consent, transfer documents or proof of payment, so keep the full acquisition file. A consent that has not been set aside also remains binding on the party who gave it.
- When pursuing a claim of this kind, anchor it in the allotting authority’s records and plead fraud with particulars. Ms Kibuna’s late payment did not defeat her allotment because the Council accepted it and its witness confirmed her compliance. Tie any claim for mesne profits to evidence of use or benefit, as an inflated figure will be discounted.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the Real Estate & Securitization Department at Wamae & Allen LLP: conveyancingWA@wamaeallen.com
About the author
Janeirene specializes in real estate and securitization and banking and finance. She is a promising transactional advocate who has experience in real estate and securities law, transactional law and advisory and has handled complex transactions and advisories.
Peris is a results-driven and disciplined legal professional committed to delivering exceptional value to clients. With expertise across various legal fields, she provides strategic legal solutions tailored to diverse client needs. Her strong interpersonal skills, dedication, and meticulous approach to legal practice enable her to navigate complex legal matters effectively.
