Bonafide Purchaser For Value Without Notice: A Disappearing Principle?

Kenyan courts are narrowing the “bona fide purchaser” defence. This article explains how recent decisions treat “notice” as a duty of deeper inquiry beyond a registry search, and why defects at first registration can cascade through later transfers. It also highlights what due diligence now requires.

Author : Samantha Mangla

Bonafide Purchaser For Value Without Notice: A Disappearing Principle?

Samantha Mangla

Article Overview

This insight explains why the long-relied-on defence of “bona fide purchaser for value without notice” is no longer a safe fallback in Kenyan conveyancing. It shows that courts now require more than a current official search at the lands registry. Because the Constitution does not protect property acquired illegally, unprocedurally, or through a corrupt scheme, buyers must investigate the root of title and the historical chain of transfers.

Relying on register entries alone may not shield a purchaser where the first registration or a prior transfer is defective, since that defect can cascade through subsequent transactions. The article concludes that “notice” is increasingly treated as a duty of inquiry, raising the due diligence threshold for buyers, lenders, and their advisers.

Key takeaways

What the doctrine means: it protects a purchaser who buys in good faith, for value, and without actual or constructive notice of a defect in title.
Constitutional limit: Article 40(6) excludes constitutional protection for property acquired illegally, irregularly, unprocedurally, or through a corrupt scheme.
Supreme Court anchor: Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) held that if the first registered owner did not acquire title regularly, subsequent purchasers cannot acquire a lawful title from that chain.
Court of Appeal warning: Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR reinforced the need for robust due diligence, since one cannot pass a valid title where none existed in the chain.
Register is not enough: due diligence must go beyond a current search and extend back to first registration, testing each transfer for validity.
Section 26 LRA and exceptions: section 26 of the Land Registration Act does not protect titles shown to be illegally, unprocedurally, or corruptly obtained.
Nemo dat resurgence: courts are effectively re-centering nemo dat quod non habet in land transactions, strengthening the true owner’s superior claim where the root title is infirm.
Practical due diligence checklist: reconstruct the chain, retrieve deed files and mother titles, verify surveys and approvals, confirm consents (including Land Control Board where relevant), verify occupation and boundaries on the ground, and maintain a clear audit trail.
Transaction structuring tips: strengthen title representations and warranties, require vendor cooperation to cure historical defects, use escrow or undertakings tied to verifiable deliverables, and consider indemnities or title insurance where appropriate.
Public law risks: even a “clean” register may not cure issues tied to reserves, public land interests, wayleaves, planning status, or NLC processes, so purchasers should verify with relevant authorities before completion.

About the author

Samantha Mangla is an Associate at Rachier & Amollo LLP. In this insight, she explains the heightened due diligence standard now expected in Kenya’s land market and how recent jurisprudence is reshaping purchaser risk and conveyancing practice.