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Court of AppealPartially AllowedCivil Appeal (Eldoret ELC No. 438 of 2013 appeal; memorandum of appeal dated 7th August 2018)

General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of 2018) [2025] KECA 1022 (KLR)

Court of Appeal
5 June 2025
JMJ. MativoGMG. MwanikiGOG.V. Odunga
9,850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cancelled a land title bought at auction, holding that buyers must investigate the land's history—not just trust the title document.

What this practically means

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Executive summary

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This was a first appeal against an Environment and Land Court judgment at Eldoret which had declared the 1st, 2nd, 3rd respondents bona fide purchasers for value of Eldoret Municipality Block 15/20189, bought at a KCB statutory power of sale auction, and ordered the National Youth Service (NYS) to vacate. The Court of Appeal (Mativo, Mwaniki and Odunga, JJA) isolated two issues: whether the land was lawfully allocated to Liberio/Leberio Farm Ltd, and whether the respondents were innocent purchasers. On the first, the Court found the root of title unexplained: the allotment letter to Naruna Enterprises was for a 0.5-hectare plot in Block 10, 10 km from the 2.0-hectare suit land in Block 15; the only registered PDP was the 1987 NYS PDP; the Naruna PDP was unregistered and not in the records; and the respondents failed to call Liberio Farm Ltd's directors, drawing adverse inferences. The Court held that when a proprietor's root of title is under challenge, it is not enough to dangle the title instrument, and that allocation to Liberio Farm Ltd was unlawful, illegal and irregular, attracting Section 26(1)(b) of the Land Registration Act. On the second issue, the respondents' failure to inspect the land before the auction defeated the bona fide purchaser claim. Invoking Section 3(2) of the Appellate Jurisdiction Act and rule 33(a) of the Court's Rules, the Court exercised its power to determine the validity of the title despite no counterclaim, allowed the appeal, dismissed the suit, declared the acquisition illegal and the title null and void, cancelled the register entries, granted NYS quiet possession and a permanent injunction, and awarded the appellants costs of both the suit and the appeal with interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the land (Eldoret Municipality Block 15/20189) was lawfully and regularly allocated to Leberio/Liberio Farm Ltd
  2. 2.Whether the 1st, 2nd and 3rd respondents are innocent purchasers for value without notice

Key legal issues

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01

Whether the allocation of the suit land to Leberio/Liberio Farm Ltd was lawful and regular

Holding

The allocation was unlawful, illegal and irregular; the title issued fell within Section 26(1)(b) of the Land Registration Act and was vitiated.

Reasoning

The respondents failed to explain how the land became registered in Liberio Farm Ltd's name. The allotment letter to Naruna Enterprises related to a 0.5-hectare unsurveyed plot in Block 10, 10 km from the 2.0-hectare suit land in Block 15. No PDP for the suit land existed except the 1987 NYS PDP, and the Naruna PDP was not in the records. The failure to call Liberio Farm Ltd's directors drew adverse inferences, and the trial judge ignored this uncontroverted evidence.

p. 14
02

Whether the 1st, 2nd and 3rd respondents were bona fide purchasers for value without notice

Holding

They were not; they failed the due diligence element because they did not inspect the land before the auction and could not show a good root of title.

Reasoning

PW1 admitted the respondents did not visit the land before the auction, discovering NYS occupation only months after registration. Given the unexplained acreage and location disparities, due diligence would have exposed the defects. The bona fide purchaser doctrine cannot benefit a party whose title root is irregular.

p. 14

Legal principles established

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  • When a registered proprietor's root of title is under challenge, the title instrument alone is insufficient; the proprietor must prove the legality of the acquisition process.
  • A registered proprietor acquires absolute and indefeasible title only if the underlying allocation was legal, proper and regular; indefeasibility cannot be used to sanction illegality.
  • To qualify as a bona fide purchaser for value, a purchaser must carry out due diligence including inspection of the land and inquiry into the root of title; protection does not extend to titles with an irregular root.
  • A court may determine an unpleaded issue where both parties have clearly addressed it in evidence or submissions and left it for the court's determination.

Court orders

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  1. 1.Dismissal of the 1st, 2nd and 3rd respondents' suit before the trial court
  2. 2.Declaration that Eldoret Municipality Block 15/20189 was unlawfully, irregularly and fraudulently hived out and/or excised from the National Youth Service land
  3. 3.Declaration that the 1st, 2nd and 3rd respondents' acquisition is illegal, unlawful and fraudulent and their title document is null and void
  4. 4.Cancellation of the title and all register entries for the parcel in so far as it is excised from NYS land; NYS entitled to peaceful and quiet possession
  5. 5.Permanent injunction restraining the respondents from entering, laying claim to, interfering with or dealing with the suit land
  6. 6.Costs of the suit before the trial court and of the appeal, with interest, awarded to the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

GM
majority
GO
majority
On appeal from
Environment and Land Court, Eldoret
ELC No. 438 of 2013
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act; first appeal under the Court of Appeal's appellate jurisdiction

Relief refused

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General damages and mesne profits (at trial)

Not proved

p. 3

Costs

Costs of both the suit before the trial court and this appeal, with interest thereon, awarded to the appellants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

When a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership.
p. 12Root of title
The law ofiers no protection to a bona fide purchaser who cannot demonstrate a good root of title.
p. 14Bona fide purchaser doctrine
Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.
p. 14Due diligence in land purchases
A declaration is hereby issued that the 1st, 2nd and 3rd respondents’ acquisition of Eldoret Municipality Block 15/20189 measuring 2.00 Hectares is illegal, unlawful and fraudulent and the 1st, 2nd and 3rd respondents’ title document is null and void.
p. 16Final orders
Costs of the both the suit before the trial court and this appeal and interests thereon are awarded to the appellants.
p. 16Costs

Issues in the judgment

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minor

The judgment contains garbled, corrupted passages where text appears scrambled or nonsensical, e.g. paragraphs 18-19 and 40.

minor

The names of the allottee company are rendered inconsistently in the judgment as 'Liberio Farm Limited', 'Leberio Farm Ltd' and 'Leberio Farm Limited'.

material

The judgment inconsistently describes the respondents' land versus the land allotted by reference number 215338/103 versus 259588/13, and describes the '2nd respondent' as the allottee of NYS land although the 2nd appellant appears to be the NYS entity.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of 2018) [2025] KECA 1022 (KLR)", Case Analysis (2025). Civil Appeal (Eldoret ELC No. 438 of 2013 appeal; memorandum of appeal dated 7th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1022/eng@2025-06-05

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