Background

In the Dina case, the County Government of Mombasa entered a beachfront property registered to Dina Management Limited (Dina) and demolished the perimeter wall as an enforcement action to create a road to the beach. Dina claimed ownership of the beachfront property that it had purchased from Bawazir & Co Ltd, which had purchased the property from the former President of Kenya, H. E. Daniel T Arap Moi, the first allottee of the property. Dina consequently filed a suit in the Environment and Land Court (ELC) seeking orders to assert its ownership over the property on the ground that the property was previously unalienated government land which was lawfully alienated as private property. The ELC held that the alienation of the property was unprocedural and unlawful.

Aggrieved by the ELC’s judgment, Dina subsequently appealed to the Supreme Court. Among the issues for determination by the Supreme Court included whether the interpretation of a bona fide purchaser amounted to unjustifiable and unreasonable limitation of the right to property under the Constitution.

Who is a bona fide purchaser?

The Supreme Court outlined the elements of a bona fide purchaser for value, which include:

• the acquisition of a valid and legal title;
• conducting the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title; and
• payment of valuable consideration for the purchase of the suit property.

The Supreme Court further held that 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.

The Supreme Court concluded that the disputed property was originally designated as an open space and was therefore rendered a public utility and could not be described as unalienated public land. It was therefore not available for alienation to former President Moi. The court further held that irregularities and illegalities in the allocation of public land cannot be sanctioned based on indefeasibility of title.

Can the right to property be limited?

The court emphasised that although Article 40 of the Constitution grants the right to property, such rights are limited when the property is found to have been unlawfully acquired. Since the first allocation was irregularly obtained, former President Moi had no valid legal interest to pass it to Bawazir & Co Ltd, who in turn could not pass it to Dina. Dina’s ownership of the property could not be protected under Article 40. Consequently, the doctrine of a bona fide purchaser did not apply.