D N M v M K & 4 others

The court held that the trial judge's finding of notice rested not on the church-attendance inference urged by the appellant but on the 1st respondent's continuous occupation of the suit property at the time of purchase. A purchaser with knowledge of occupation is obligated to inquire into the nature and extent of the occupier's claim; failure to do so disqualifies him from the protection of a bona fide purchaser without notice, and equity does not assist the indolent.

The court applied its own precedents, including Nyangilo Ochieng v Fanuel B. Ochieng, holding that under the Registered Land Act a statutory notice must give three months, failing which the subsequent sale is void. It distinguished the authorities cited by the appellant as relating to land governed by the Transfer of Property Act, a different substantive regime, and therefore not applicable to land registered under the Registered Land Act.

The court observed that the parties' characterisations differed: the appellant framed the claim as contractual with a six-year limitation period, while the 1st respondent framed it as recovery of land with a twelve-year period, and noted the appellant had not specifically pleaded limitation. Since the trial court did not decide the issue, the Court of Appeal declined to resolve it, the appeal being dismissed on the substantive validity grounds.

The appellant and 3rd respondent argued that any irregularity attracted only damages under Section 77(3) of the Registered Land Act. The court, however, followed the line of authority that a non-compliant notice renders the sale void rather than merely irregular, so no title passed. The Section 77(3) damages remedy presupposes a transfer by the chargee in exercise of the power of sale, which was absent here.