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Court of AppealDismissedCivil Appeal No. 28 of 2005· [2015] KECA 644 (KLR)

Kamere v Lands Registrar, Kajiado (Civil Appeal 28 of 2005) [2015] KECA 644 (KLR)

Court of Appeal
12 June 2015
RNR.N. NambuyePKP.O. KiageAMA.K. Murgor
4,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A title deed alone won't protect your land in Kenya—you must prove who you bought from and that you actually paid.

What this practically means

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Executive summary

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The appellant, Samuel Kamere, sought indemnity from the Lands Registrar, Kajiado after the High Court (Khamoni, J, judgment dated 25 February 2000 in HCCC No. 2143 of 1993) ordered rectification of the land register reinstating the original plaintiff, Archibold Karanja Kagai, as registered proprietor of Ngong/Ngong/3088. The register had been transferred to the appellant on 5 April 1991 by imposters. On appeal, counsel collapsed the grounds into three issues: whether the appellant was a bona fide purchaser for value; whether the respondent owed a duty in effecting the transfer; and whether the respondent was liable to indemnify the appellant under the Registered Land Act (Cap 300, now repealed). Applying the first-appeal retrial standard from Selle v Associated Motor Boat Company, the Court re-evaluated the evidence and held that the appellant failed on all three elements of bona fide purchase: he proved no valid root of title (no sale agreement, no seller testimony, no registration documents traceable), conducted grossly inadequate due diligence (relying only on a registry search, purchasing from strangers introduced by an agent who disappeared), and produced no evidence of payment of the purchase price. His title, derived from a null and void transfer, could not pass. The Court further held that under the proviso to section 144(2) of the Act, no indemnity was payable because the appellant's own negligence and omissions contributed to the loss, he acquired title from persons who caused the damage, and he proved no valuable consideration. The alleged negligence of the respondent could not be determined, having been neither pleaded nor proved below. The Court of Appeal dismissed the appeal with costs to the respondent, affirming the judgment of the High Court.

Key legal issues

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01

Whether the appellant was a bona fide purchaser for value of the suit property

Holding

He was not: he failed to prove a valid root of title, conducted grossly inadequate due diligence, and produced no evidence of payment of consideration.

Reasoning

The court, on a first appeal, re-evaluated the evidence. No sale agreement was produced, the sellers did not testify, the estate agent disappeared, no identity documents were produced, no bank statement evidenced payment, and the Land Registrar could not trace any supporting registration documents. Having failed to discharge the evidentiary burden, the appellant could not acquire title, which was incapable of passing from a transferor without title.

p. 6
02

Whether the appellant was entitled to indemnity under section 144 of the Registered Land Act

Holding

No indemnity was due because the appellant's actions and omissions contributed to the loss, he acquired title from strangers to the property, and he proved no valuable consideration, falling within the proviso to section 144(2).

Reasoning

Entitlement to indemnity depends on the section 144(2) provisos: the claimant must not have caused or substantially contributed to the damage by fraud or negligence, and must not have derived title from a person who so contributed, unless under a bona fide registered disposition for valuable consideration. The appellant acquired from imposters after lax due diligence and proved no payment, so both limbs defeated the claim.

p. 8
03

Whether the respondent's negligence in failing to produce the parcel file could be determined

Holding

No: negligence was neither pleaded nor proved before the trial court and cannot be raised for the first time on appeal.

Reasoning

The court held it was as much the appellant's responsibility to produce documentation establishing the root of his title as it was the respondent's to produce registration documents. But because the respondent's alleged negligence was not pleaded or proved in the lower court, relying on Nairobi City Council v Thabiti Enterprises Ltd, the issue was not open for determination on appeal.

p. 6

Legal principles established

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  • A person claiming to be a bona fide purchaser for value whose title is under challenge must prove a valid legal title, due diligence to establish the lawful owner, and payment of valuable consideration.
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond the instrument of title.
  • No valid transfer of registered land can pass where the transferor has no title; such a transfer is null and void ab initio despite registration.
  • No indemnity is payable under section 144(2) of the Registered Land Act to a person who acquired title from one who caused or contributed to the damage, or who failed to pay valuable consideration.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

Authorities

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Legislation

  • Registered Land Act, Chapter 300section 27
  • Registered Land Act, Chapter 300section 28
  • Registered Land Act, Chapter 300section 143
  • Registered Land Act, Chapter 300section 144(1)(a)
  • Registered Land Act, Chapter 300section 144(2)

Cases cited (4)

  • Selle v Associated Motor Boat Company
    [1968] E.A. 123
  • Jivanji v Sanyo Electrical Company Ltd
    [2003] KLR 425
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal number 239 of 2009
  • Nairobi City Council v Thabiti Enterprises Ltd
    (1995 – 98) 1 EA 231
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2143 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate provisions; judgment styled 'JUDGMENT OF THE COURT'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamere v Lands Registrar, Kajiado (Civil Appeal 28 of 2005) [2015] KECA 644 (KLR)", Case Analysis (2015). Civil Appeal No. 28 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/644/eng@2015-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.