On 21st April 2023, the Supreme Court of Kenya in the case of Dina Management Limited -vs- County Government of Mombasa, Chief Land Registrar and 5 Others, while resolving the question on indefeasibility of title, had this to say:
“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, H.E. Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant. Having found that the 1st registered owner (Moi) did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution.”
That one’s right to own a property including land can be limited is succinctly captured by the above holding. This is by dint of Article 40 (6) of the Constitution which does not protect an owner of land if the land has been acquired irregularly and fraudulently. When the root of the title or ownership has been challenged, then one cannot benefit from what in legal parlance is referred to as the doctrine of bona fide purchaser for value without notice.
The holding of the Apex Court in the Dina Management Limited case delved into the question of illegal allocation of public land. The case resembles the ongoing controversial Buxton housing project where the County Government of Mombasa ventured into a Kshs. 6 Billion project that involved the allocation of public land which was irregular, fraudulent and without the consent of the National Land Commission.
The decision, which I fully concur with, is a timely reminder that there might be another circus, if in future, the allocation or privatization of Buxton land is declared unlawful, unprocedural and unconstitutional like the case of Dina Management Limited. The judgement is a reminder that we are not yet out of the woods despite having a very clear law on allocation and privatization of public land. Reason, you may ask? The County Government of Mombasa and Buxton Point Apartment Limited have not been forthright regarding Buxton Estate’s title and/or the developer’s title. In short, there is no certainty regarding the titleof Buxton. Consequently, you ask, does Buxton Point Apartment Limited have a valid title that can confer a lawful interest to third parties/Buxton beneficiaries?
Of due diligence and searches
Before buying land or a house, one is usually advised to conduct a search in respect of a land subject of a transaction, especially in a country like ours where land fraudsters have continuously been involved in illegal land deals involving public land. The purpose is to know the certainty of a title, to know whether one will be getting a good title to the land. However, in the Buxton case, land records and documents pertaining to the Buxton title are missing and we wonder how buyers have ascertained the status of Buxton land. So, whatever befell Dina Management is likely to befall Buxton beneficiaries who will not be able to raise the defence of bona fide purchaser for value without notice should the title to Buxton Point Apartment Limited be challenged and revoked in future.
The Common Law Doctrine of Bona fide Purchaser for Value without Notice is an absolute defence in land law against an action for impeachment of one’s title or ejectment.
The author is an Advocate of the High Court of Kenya
