The Uncertainty of indefeasibility: a legal analysis of bona fide purchaser protection in Section 26 of the Land Registration Act, No. 3 of 2012

Abstract

Prior to 2023, Kenyan courts were deeply divided on whether a fraudster could confer a valid title a purchaser or whether a legitimate property owner could lose their rights over the property solely because the property had been fraudulently transferred to an innocent buyer who had no prior knowledge of the fraud. As a result, innocent purchasers for value were at risk of losing their property despite having acted in good faith, creating uncertainty in land transactions. The urgent need for clarity led to the Supreme Court's landmark decision in Dina Management Limited v. County Government of Mombasa & 5 others, which declared that purchasers must investigate the root of a property's title before acquisition. The Court asserted that no protection would be granted to a purchaser with a defective or illegal title, raising critical questions about the security of bona fide purchasers under Section 26 of the Land Registration Act and the applicability of the Torrens system in Kenyan land law. Through doctrinal research, this study critically examines the protection of the bona fide purchaser for value under the Kenyan legal framework. It suggests that the conflicting decisions by the courts arise from a misalignment in our legal framework, specifically between the Land Registration Act, which is rooted in the Torrens system, and the general property rules, which originate from common law. It proposes that aligning title by registration laws with the general rules of property could create a clearer and more consistent legal framework, reducing conflicts and ensuring the integrity of the land register and the protection of bona fide purchasers’ property rights.