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Court of AppealDismissedCivil Appeal No. 349 of 2012· [2018] KECA 863 (KLR)

Chemey Investment Limited v Attorney General, Permanent Secretary, Ministry of Health & Ethics & Anti-Corruption Commission

Court of Appeal
26 January 2018
5,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal dismissed an appeal by Chemey Investment Limited challenging the High Court's refusal to declare it the lawful proprietor of Eldoret Municipality/Block 4/57 and to order restoration of possession after the Government evicted it and installed Uasin Gishu District Hospital on the land. The property, Government land with public buildings, was allotted in 1995 to companies that misrepresented it as vacant; a hastily convened Board of Survey condemned the public buildings, and the property passed through connected parties - including a then Permanent Secretary, a deputy commissioner of lands and relatives of the mayor of Eldoret - before reaching the appellant in 1998. The Court held that although sections 27, 28 and 143 of the repealed Registered Land Act guarantee sanctity of title, title obtained fraudulently or illegally is not protected. The evidence - the speed of transfers, inconsistent consideration, common directors and a shared postal address - showed the transactions were a sham and that the appellant had actual knowledge of the fraud and was not a bona fide purchaser for value without notice. While the Court expressly disapproved the respondents' self-help eviction without a court order, it declined to interfere with the learned judge's preference for public interest in restoring the land to public use, and held the judge was entitled to refer to Article 40(6) of the current Constitution. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Indefeasibility of title under the repealed Registered Land Act

Holding

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

Reasoning

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.

p. 5
02

Whether the appellant was a bona fide purchaser for value without notice

Holding

The appellant was not a bona fide purchaser; the transactions were a sham and a fraudulent stratagem by connected parties

Reasoning

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.

p. 7
03

Whether the respondents' self-help eviction without a court order entitled the appellant to relief

Holding

The Court disapproved of self-help but declined to restore possession, preferring public interest in restoring public land to public use

Reasoning

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.

p. 7
04

Whether the judge erred in referring to Article 40(6) of the current Constitution

Holding

The judge was entitled to refer to Article 40(6) to make the point that henceforth illegally acquired property enjoys no constitutional protection

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya (former)section 75
  • Constitution of Kenya (former)section 75(1)
  • Constitution of Kenya (former)section 75(6)
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010section 40(6)
  • Registered Land Act (repealed), cap 300section 4
  • Registered Land Act (repealed), cap 300section 3
  • Registered Land Act (repealed), cap 300section 27
  • Registered Land Act (repealed), cap 300section 28
  • Registered Land Act (repealed), cap 300section 40(6)
  • Registered Land Act (repealed), cap 300section 48
  • Registered Land Act (repealed), cap 300section 143
  • Government Lands Actsection 3
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules
  • Government Financial Regulations and Procedures
  • Ministry of Works and Housing Circular No 2/58 of 1958
  • Physical Planning Act

Cases cited (18)

  • Joseph N. K. Arap Ng'ok v. Moijo ole Keiwua & 4 Others
    [1997] eKLR

    Indefeasibility of title of registered proprietor under the repealed Registered Land Act

  • General Medical Council v. Spackman
    [1943] 2 All ER 337

    Decision arrived at in violation of natural justice is null and void

  • Attorney General v. Ryan
    [1980] AC 718

    Decision affecting legal rights arrived at in violation of natural justice is null and void

  • Mirugi Kariuki v. Attorney General
    CA No. 70 of 1991

    Violation of natural justice renders a decision null and void

  • Kuria Greens Ltd v. Registrar of Titles & Another
    [2010] eKLR

    Illegality of eviction not sanctioned by a court order

  • Funzi Island Development Ltd & 2 Others v. County Council of Kwale
    [2014] eKLR

    Illegal transaction cannot confer indefeasible title; title obtained in contravention of law is invalid; public interest

  • Munyu Maina v. Hiram Gathiha Maina
    [2013] eKLR

    Illegal transaction cannot confer indefeasible title

  • Henry Muthee Kathurima v. Commissioner of Lands & Another
    [2015] eKLR

    Commissioner of Lands had no power to alienate Government land

  • Samuel Otieno Otieno v. Municipal Council of Malindi & Another
    [2015] eKLR

    Property cannot be re-developed without approved plans under the Physical Planning Act

  • Kipsirgoi Investment Ltd v. Kenya Anti-Corruption Commission
    CA No. 288 of 2010

    Bona fide purchaser for value without notice protected subject to title not created in breach of statute

  • Denis Noel Mukhulo & Another v Elizabeth Murungari Njoroge & Another
    CA No. 298 of 2013

    Registered Land Act did not protect title irrespective of how it was acquired; rectification for fraud

  • Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others
    [1996] eKLR

    Courts decline to protect title obtained illegally or fraudulently

  • Republic v. Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others
    KLR (E&L) 1, 563

    Courts decline to protect illegally or fraudulently obtained title

  • John Peter Mureithi & 2 Others v. Attorney General & 4 Others
    [2006] eKLR

    Courts decline to protect illegally or fraudulently obtained title

  • Kenya National Highway Authority v. Shalien Masood Mughal & 5 Others
    (2017) eKLR

    Courts decline to protect illegally or fraudulently obtained title

  • Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others
    [2015] eKLR

    Only a foolhardy or fraudulent investor would purchase such land with alacrity

  • Milan Kumarn Shah & Others v. City Council of Nairobi & Others
    HCCC No. 1024 of 2005

    Courts decline to protect illegally or fraudulently obtained title

  • Flemish Investments Ltd v. Town Council of Mariakani
    CA No. 30 of 2015

    Duty of bona fide purchaser to inspect property and exercise due diligence

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.