Introduction
Section 26 of the Land Registration Act provides that a Certificate of Title is conclusive evidence of proprietorship provided it is not linked to fraud or misrepresentation in which the person is party to. This means that even though the law provides for the principle of indefeasibility of title, the same is not absolute. The title should not have been acquired illegally, unprocedurally, or through a corrupt scheme.[1] Therefore, when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership.[2]
- Bona fide purchaser for value without notice
The Black’s law Dictionary defines a “bona fide 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 infirmities, 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 of Appeal in Lawrence P. Mukiri v Attorney General & 4 Others defined a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly.[3]
To be considered a bona fide purchaser for value, one must prove; that they acquired a valid and legal title, secondly, that they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly, that they paid valuable consideration for the purchase of the suit property.[4]
However, the protection offered to a bona fide purchaser for value without notice does not apply where the title to the property was obtained irregularly or illegally. The Supreme Court in the Dina Management v County Government of Mombasa[5] held that a title document can be invalidated if it is proven that the initial allocation process was illegal or unprocedural.
Therefore, a title document is not sufficient proof of ownership of property where the origin of that title has been challenged. The holder of the title document must go beyond the instrument itself and show that the process of acquisition from inception was both legal and procedural. This is because a registered proprietor can only acquire valid title if the original allocation was lawful and procedural. The onus is on the purchaser to carry out the necessary due diligence before purchasing property to establish whether there is good title to pass by looking into the root of the title.[6]
The Court in Galaxy Realtors Limited v Kenya Forest Service held that the appellant could not hide behind the doctrine of bona fide purchaser for value since there were several inconsistencies as to the validity of the title.[7]
- Good root of Title
Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title.
When a court is faced with a case of two or more titles over the same land it has to look at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conforms to the correct procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny, and they need to demonstrate how they got their title starting with its root. Every party must show that their title has a good foundation and has been passed properly to the current title holder.[8]
The elements for a good root of title were listed by the Court of Appeal in Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School as follows:[9]
- it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question;
- it must contain a recognizable description of the property; and
- it must not contain anything that casts any doubt on the title.
The Court of Appeal in its recent decision, while relying on the doctrine of good root in Title in MAS Construction Limited v Sheikh and 6 others, [10] found that the Respondents held good title since they had a well-documented history of the root of Title from 1937 when the Property was registered in the name of their deceased father and had demonstrated that it had been acquired legally.
Conclusion
The law offers no protection to a bona fide purchaser who cannot demonstrate a good root of title. It is therefore essential to carry out thorough due diligence before acquisition as the law favours those who are vigilant and not those who neglect to investigate the validity of the title they are acquiring.
If you have any queries relating to the above and other Real Estate queries, please do not hesitate to contact Saahil Patel and Anastasia Cherotich. Please note that this e-alert is meant for general information only and should not be relied on without seeking specific subject matter legal advice.
[1] Land Registration Act S.26
[2] Munyu Maina vs Hiram Gathiha Maina [2013]eKLR
[3] Lawrence P Mukiri v Attorney General and 4 others [2013] eKLR
[4] Samuel Kamere v Lands Registrar, Kajiado [2015]eKLR
[5] Dina Management Limited v County Government of Mombasa and 5 others [2023] eKLR
[6] Galaxy Realtors Limited v Kenya Forest Service [2024] eKLR
[7] Ibid par 25
[8] Hebert L Martin & 2 Others v Margaret J Kamar & 5 Others [2016]eKLR
[9] Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023]eKLR
[10] MAS Construction Limited v Sheikh and 6 others [2025] eKLR
