Chemey Investment Limited v Attorney General, Permanent Secretary, Ministry of Health & Ethics & Anti-Corruption Commission
The bottom line
#Kenya's Court of Appeal ruled that a title obtained through fraud gets no legal protection, even if you're the registered owner.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title under the repealed Registered Land Act
Sections 27, 28 and 143 guarantee sanctity of title, but title obtained fraudulently or illegally is not protected; the appellant's registration was not a first registration and it had actual knowledge of the fraud
The Court accepted that registration under section 27 vested absolute ownership and section 28 protected the proprietor, but section 143 permitted rectification where registration was obtained by fraud or mistake to which the registered person was party. The evidence showed the appellant was connected to the fraudulent scheme through shared directors and postal address, so its title was not worthy of protection.
Whether the appellant was a bona fide purchaser for value without notice
The appellant was not a bona fide purchaser; the transactions were a sham and a fraudulent stratagem by connected parties
The Court identified tell-tale features: the speed of transfers, inconsistent and inadequate consideration, common directors between allottees, Ekima Junior Academy and the appellant, a shared postal address (P.O. Box 815 Eldoret), Ekima never taking possession, and the property being in obvious public use. No innocent purchaser would buy such property without inquiry.
Whether the respondents' self-help eviction without a court order entitled the appellant to relief
The Court disapproved of self-help but declined to restore possession, preferring public interest in restoring public land to public use
The Court stated it cannot approve self-help or violation of the law to right a perceived wrong, but here both sides were wrongdoers. The property was in use as Uasin Gishu District Hospital, and the learned judge had preferred public interest in restoration to public use; the Court found no basis to interfere.
Whether the judge erred in referring to Article 40(6) of the current Constitution
The judge was entitled to refer to Article 40(6) to make the point that henceforth illegally acquired property enjoys no constitutional protection
The judge was clear that the former Constitution applied; the reference to Article 40(6) was merely to note the express constitutional edict that those who illegally acquire property cannot take refuge under the right to property.
Legal principles established
#- Title to property obtained fraudulently or illegally in violation of statute is not sacrosanct and does not enjoy protection of the law under the repealed Registered Land Act
- Sanctity of title was never intended to be a vehicle for fraud, illegalities or unjust enrichment at public expense
- A bona fide purchaser exercising due diligence must inspect the property and inquire into occupation and developments before purchase
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya
- HC Misc. App. No. 94 of 2005 (OS)
- Jurisdiction invoked
- First appeal from the High Court under the former Constitution section 75 proceedings; appellate jurisdiction of the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemey Investment Limited v Attorney General, Permanent Secretary, Ministry of Health & Ethics & Anti-Corruption Commission", Case Analysis (2018). Civil Appeal No. 349 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/863/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.