By Faith Chepchumba

In a major decision in Supreme Court Petition No. E033 of 2023, the highest court in Kenya, dealt with important issues related to land ownership. The case focused on two main legal ideas:

1. The rights of someone who buys land honestly, pays for it, and doesn’t know of any problems with the title (called a bona fide purchaser); and

2. Whether someone can expect their lease on public land to be renewed based on past actions or promises (called legitimate expectation).

Three central questions were put before the Court:

1. What does it mean to be an honest buyer of land, and when does this protection apply?

2. Does this protection cover people who buy land that was wrongly or illegally given out by the government?

3. Can someone rely on past behaviour or promises from the government to expect their lease on public land to be renewed?

Brief Background of the Case

The Appellants were joint owners of a leasehold property in Ngara, Nairobi. The lease began in 1942 and was set to expire in 2001. They had purchased the land in 1968 for Kshs. 25,000. Before the lease expired, they say they applied for a renewal. While they didn’t produce the application itself, they relied on official letters showing that there were no objections from the relevant planning and survey authorities.

Despite this, the Commissioner of Lands kept asking for further confirmations. The Appellants say they remained in peaceful possession of the land during this time.

In 2014, they were forcibly evicted by the 1st and 2nd Respondents, who claimed to own the same land under a new title. The Appellants allege this new title was obtained fraudulently and that their lease renewal was unjustly ignored.

The Respondents, on the other hand, argue that the lease had expired, the land had reverted to the government, and it was lawfully reallocated to them. The 1st Respondent further claimed to have developed the land and was a bona fide purchaser who acted in good faith.

Trial Court Decision

The Environment and Land Court was asked two key questions:

1. Was the Appellants’ lease actually renewed?
2. Was the land lawfully given to the 2nd Respondent?
   

The judge found that since the Appellants stayed on the land and got no objections from authorities, they had a legitimate expectation their lease would be renewed. The court also ruled that the 2nd Respondent’s allocation was invalid since the correct legal steps weren’t followed. The Appellants were never warned about a possible denial or breach.

Court of Appeal Decision

The case then went to the Court of Appeal. The 1st Respondent argued they were an innocent buyer who had paid for the land and knew nothing of the Appellants’ lease. They said their title should be protected under Kenya’s land laws.

The Court of Appeal ruled that while the Appellants had applied for renewal, the lease had expired and reverted to the Government. Therefore, the 1st Respondent legally acquired it and was a bona fide purchaser who deserved protection. The court also said the trial judge had no legal authority to take back the land and give it to the Appellants.

Supreme Court Decision

The Supreme Court disagreed and made some important clarifications about land law in Kenya.

1. Bona Fide Purchaser Doctrine Isn’t Absolute

To qualify as a bona fide purchaser (an innocent buyer), three things must be proven:

• The buyer acted in good faith;
• Paid fair value;
• Got a valid legal interest.

The Court stressed: If the land was acquired illegally in the first place, it doesn’t matter how innocent the buyer is — the title is still invalid. In this case, the 2nd Respondent got the land illegally so that the 1st Respondent couldn’t inherit a clean title.

Referring to its landmark decision in Dina Management Limited v. County Government of Mombasa & 5 Others; Petition 8 (E010) of 2021 [2023] KESC 30 (KLR), the Court emphasised that the validity of the title depends on the lawfulness of the process leading up to its issuance. A certificate of title is merely the end product of a legal process, and if that process was flawed, the resulting title cannot be considered indefeasible.

Even a lack of knowledge of the illegality doesn’t protect a buyer when public land is involved.

2. Illegally Allocated Public Land Can’t Be Protected by Title

A title deed isn’t a magic shield. If the process behind it was flawed, the title can be challenged. Courts must look at the legality behind the title, especially when public land is involved.

3. Legitimate Expectation Matters in Lease Renewals

If someone applies to renew a lease, gets no objection, and remains in peaceful possession, they have a right to expect fair treatment. The government must give clear answers. Silence or delays can’t be used to deny renewals unfairly.

The Court found the Appellants had done everything right, and the government failed to process their renewal properly or explain why not. That violated their right to fair administrative action.

Key Takeaways for Landowners and Buyers in Kenya

• Buying land? Make sure you trace its history and confirm that it was legally allocated. You can’t rely solely on a clean title if the original allocation was illegal.
  
• Holding a lease? If you apply to renew it and meet all conditions, you may have a legal expectation it will be extended, especially if no one objects and you’re still on the land.
  
• Government agencies must follow lawful and transparent processes in handling public land and lease renewals. Silence is not a substitute for due process.