Kamau & another v Nganga & 3 others

precedents on the doctrine of bonade purchaser and failing to distinguish those authorities from the circumstances of this suit; and fourth, by dismissing the counterclaim of the 2nd Appellant without considering its merits. 3. These grievances, framed in precise grounds of appeal, compel this Court to undertake a comprehensive review of the record, the ndings of the trial court and the governing legal principles. 4. At the heart of this dispute lies a dicult question; whether a claim to title, which appears to be regular, can be sustained where its roots trace back to fraud and whether those who rely on such title can invoke the equitable shield of bona de purchaser for value despite the stains upon its origin. It is to this task that the Court now turns. Background 5. The genesis of this dispute lies in a suit instituted by the 1st Respondent by a plaint dated 27th July 2018, in which he sought to assert proprietary rights over the parcel of land known as L.R. KIAMBU/MUN. BLOCK 5 (KIAMBUI) 110 (the suit property). In that action, the 1st Respondent prayed for, inter alia, the cancellation or revocation of transfers eected in favour of the Appellants, and a permanent injunction restraining them from interfering with his possession or ownership of the suit property. 6. In his pleadings, the 1st Respondent averred that he was the lawful registered owner of the suit property, having acquired it through purchase in 2006 and had been issued with a certicate of title on 7th December 2006. He stated that in 2018, while preparing to use the suit property as collateral for a bank facility, he conducted a routine ocial search, only to discover that the land had been transferred to a third party unknown to him. 7. The 1st Respondent asserted that further inquiry revealed that the 2nd Respondent had eected a fraudulent transfer of the suit property using a falsied identity card. The matter was reported to the relevant authorities, leading to the institution of criminal proceedings against the 2nd Respondent vide Criminal Case number CR. 1724 of 2018. Those proceedings culminated in a plea bargain by the 2nd Respondent with a conviction and sentence on multiple counts, including forgery. 8. In response to the suit, the 2nd Respondent led a statement of defence dated 25th June 2019, in which he denied all allegations of fraud. He asserted that he had purchased the suit property from the 1st Respondent for valuable consideration and was therefore a lawful transferee. On that basis, he urged the trial court to dismiss the 1st Respondent’s claim in its entirety. 9. On his part the 1st Appellant led his statement of defence dated 22nd November 2019 and claiming that he purchased the suit land from the 2nd Respondent for valuable consideration. He claims that he obtained a clean title and thereafter sold the suit property and transferred the title to the 2nd Appellant. 10. The 2nd Appellant led her statement of defence dated 11th January 2019 in which she denied the allegations set out in the plaint. She averred that she was an innocent purchaser for value vide an agreement dated 3rd March 2016 between herself and the 1st Appellant and held good title to the suit property as the registered proprietor. She further stated that she conducted due diligence prior to the transaction and was not, at any time, aware of any fraudulent dealings concerning the suit property. 11. The 3rd and 4th Respondents led their statements of defence on 7th September 2018 denying the contents of the Plaint and put the 1st Respondent to strict proof thereof. 12. Thus stood the opposing claims; on one side, a registered owner alleging dispossession by fraud; on the other, transferees asserting lawful purchase and rightful registration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18678/eng@2025-07-23 2

page 2 of 6

13. It fell to the honourable Magistrate to determine which narrative the law would uphold. Ultimately the honourable magistrate found that 1st Respondent was the lawful proprietor of the suit land. The learned magistrate proceeded to cancel the titles issued to the 2nd Respondent and the Appellants herein and issued a permanent injunction restraining them from dealing with or interfering with the suit land. It is from the aforementioned judgment that the present appeal arises. Issues for Determination 14. Having perused the Memorandum of Appeal, the Record of Appeal, and having analyzed the partie's submissions, the following issues emerge for determination: i. Whether the Appellants are bona de purchasers for value without notice. ii. Whether the 1st Appellant transferred a good title to the 2nd Appellant. Analysis and Determination 15. The Court now stands before the twin pillars upon which this appeal rests. At rst glance, they may appear as questions of legal categorisation; whether the Appellants were bona de purchasers for value, and whether the titles they hold can withstand judicial scrutiny. Yet beneath those legal formulations lie deeper currents. 16. The matter before the Court transcends questions of documentation or formal registration. It speaks to the integrity of property dealings, the safeguards of due diligence, and the reach of the law when title is traced to fraud. 17. What the Appellants seek is not a mere declaration of purchase, but the Court’s armation that their respective titles were insulated from the stain of deceit. They ask this Court to see in their hands, a clean title, free from the vice that tainted its origin. Whether that plea is sustainable must be determined not by assertion, but by evidence, by precedent, and by the careful application of legal principles. It is with that lens that the Court now turns to determine the issues. 18. This being a rst appeal, it is essential to rearm the parties’ right to a full and independent reevaluation of the entire record. The jurisdiction of this court, sitting as the primary appellate authority, is not to be exercised mechanically. It demands a fresh and thorough scrutiny of the evidence, guided by the law and relevant authorities culminating in a reasoned and coherent decision. 19. The principles governing this court’s role are well articulated in Selle and Another v Associated Motor Boat Co. Ltd and Another (1968) EA 123. There, the Court held that a rst appeal bears the character of a retrial. It imposes upon the appellate court a solemn duty to re-examine the evidence, draw its own conclusions, and support those conclusions with clear and persuasive reasoning. This obligation is to be discharged carefully, with due regard to the fact that the trial court had the distinct advantage of observing the witnesses as they testied and assessing their credibility in real time. 20. In undertaking this task, I remain mindful that this court did not have the benet of hearing the Appellant testify or of observing any witness rsthand. That limitation necessitates a measured approach. The appellate court must rely entirely on the cold record, reading it with attentiveness and care, while making appropriate allowances for the absence of visual and auditory cues which often inform credibility assessments. The standard, therefore, is one of rigorous re-evaluation grounded in fairness, balance, and delity to the record. 21. Guided by these principles, I have undertaken a careful and deliberate examination of the record of appeal. I have considered the pleadings, the evidence as adduced before the trial court, and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18678/eng@2025-07-23 3

page 3 of 6

written submissions led by the parties herein. Each of these has been weighed carefully with a view to determining whether the trial court committed any error of fact or law that would warrant interference by this court. 22. Section 26 of the Land Registration Act regards a certicate of title as prima facie evidence of absolute ownership. Yet that presumption is not inviolable. It is displaced where the title is shown to have been acquired through fraud, illegality, or procedural impropriety. 23. In that sense, the protection aorded to registered proprietors aligns closely with the doctrine of bona de purchaser. Both rest on the premise that title must be lawfully and honestly obtained. Registration, though signicant, does not by itself insulate a purchaser where the foundation of the title is defective. The law demands that ownership reect not only formal compliance, but also substantive integrity. 24. The doctrine of bona de purchaser for value is well anchored in Kenyan jurisprudence. It operates not as a blanket of protection but as an equitable shield, reserved for those who acquire property in good faith, for consideration, and without notice of any defect in title. The law demands more than the mere absence of fraud; it insists on diligence, honesty, and an untainted conscience. 25. The Supreme Court of Kenya extensively addressed the principle of bona de purchaser in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) as follows: “ The Black’s Law Dictionary 9th Edition denes a bona de purchaser as: ‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or inrmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’…” The Court went on to note: “ …where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register. 94. To establish whether the appellant is a bona de purchaser for value therefore, we must rst go to the root of the title, right from the rst allotment, as this is the bone of contention in this matter.” 26. The Court’s pronouncement in Dina Management Limited (supra) goes to the very heart of the matter before this Court. A registered title, though cloaked in the outward authority of the register, is not in itself conclusive where its origin is in question. The law, as restated by the Supreme Court, does not permit a purchaser to hide behind registration where the foundation of that title is alleged to be unlawful. 27. Thus, it is not enough to point to a certicate or invoke the register. One must demonstrate that the acquisition was not only regular in form but also lawful in substance; untainted by fraud, unaected by illegality, and insulated from any competing equitable interest. 28. The Appellants herein submit that the 1st Appellant obtained the title as a bona de purchaser after paying the 2nd Respondent valuable consideration of Ksh. 4,000,000/- pursuant to a sale agreement https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18678/eng@2025-07-23 4

page 4 of 6

dated 25th November 2015. The 1st Appellant claims to have held the title between 3rd December 2015 and 30th March 2016 when he sold and transferred it to the 2nd Appellant for a consideration of Ksh. 6,000,000/ 29. The 1st Appellant contends that he undertook due diligence that went beyond a mere perusal of the register, and that nothing in the course of his inquiries disclosed any indication or notice of fraud in the historical dealings over the suit property. 30. The Appellants maintain that they are bona de purchasers for value who were unaware of any fraudulent activities in relation to the title to the suit land. They placed reliance on Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR where the Court of Appeal stated: “ They were, as I have said earlier innocent purchasers who had relied on the contents of the land registry records to acquire the properties. It would be contrary to the intent of law and wholly unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership and the history of the past transactions involving that land. It must be reiterated further that the only reason why the law requires the keeping of land records is to aord a notice to the whole world of the status of the property.” 31. Conversely, learned counsel for the 1st Respondent’s submits that the Appellants failed to satisfy the stringent criteria set out in Dina Management Limited (supra). In their view, the Appellants did not demonstrate that their acquisition was both lawful in substance and free from encumbrance, nor did they trace and vindicate the root of title in accordance with the authority’s clear mandate. 32. The Appellants, in urging reliance upon the decision in Elizabeth Wambui Githinji (supra), seek refuge in the authority of registration, contending that the law imposes no further burden than a reading of the register. Yet that argument, while not without precedent, falters when confronted with the higher clarity of the Supreme Court’s pronouncement in Dina Management Limited (supra). The two decisions cannot be read in equal breath. One rests upon a presumption; the other imposes a duty. 33. The law as it now stands does not countenance a passive purchaser. It calls for vigilance. It insists that one who claims good title must do more than accept the face of the register; they must interrogate its foundation. For it is not the register that is sacrosanct. It is the justice behind the registration that the law seeks to preserve. 34. Having weighed the Appellants’ submissions against the binding authority of Dina Management Limited (supra), I am not persuaded that the Appellants discharged the burden placed upon them. Their claim rests upon a surface untroubled by inquiry. The depth, where fraud rst took root, remained unexplored. The doctrine of bona de purchaser cannot come to the aid of those who, though perhaps unaware of deceit, took no sucient steps to guard against it. 35. In view of the foregoing, I am inclined to agree with learned counsel for the 1st Respondent. The Appellants fell short of the threshold set by the Supreme Court. Their claim as bona de purchaser for value fails. 36. Accordingly, and owing inevitably from the nding on the rst issue, the second question must equally be answered in the negative. The 1st Appellant, having himself acquired no good title, could not convey what he did not possess. 37. The maxim of ‘nemo dat quod non habet’ is as old as the law itself; no one can transfer a better title than he holds. It matters not that the Appellants may have acted in good faith or that they relied upon https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18678/eng@2025-07-23 5

page 5 of 6

formal documentation. Where the root of title is poisoned, the subsequent transferee inherits not a shield but a shadow. The law does not breathe life into a transaction that is steeped in fraud. 38. Thus, whatever interest passed from the 2nd Respondent to 1st Appellant and nally to the 2nd Appellant was not clean title but a defective conveyance, incapable of curing the illegality at its source. 39. In view of the above analysis and my ndings set out therein, the Appeal dated 19th March 2024 fails. 40. The Appeal is accordingly, is dismissed with costs to the 1st Respondents. DATED, SIGNED AND DELIVERED, AT THIKA THIS 23RD DAY OF JULY 2025 ………....…….......……….. J. M. ONYANGO JUDGE In the presence of: Mr. Nderitu for the Appellant Mr. Ng’ang’a for Mrs. Ngugi for the 1st Respondent No appearance for the 2nd – 4th Respondents Court Assistant - Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18678/eng@2025-07-23 6

page 6 of 6