Kenya Anti-Corruption Commission -vs- Ahmed Karama Said & 2 others [2011] eKLR
Case Caption:
In the High Court of Kenya at Mombasa (Coram: Ojwang, J); Civil Suit No. 300 of 2007; Kenya Anti-Corruption Commission (Plaintiff/Applicant) v Ahmed Karama Said Associated Electrical & Hardware Supplies & the Administrator of The Estate of Mutuma Angaine (1st, 2nd & 3rd Defendants/Respondents respectively)
An innocent purchaser for value cannot obtain a good title where the title is void ab initio, having been obtained in violation of the law.
Applicable laws:
Order XXXIX Rules 1, 2, 2A, 3 and 9 of the Civil Procedure Rules
Section 185 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Brief Facts:
The Applicant sought an injunction restraining the Defendants from selling, leasing, charging,subdividing, wasting, transferring or dealing in any way with the land parcel described as Mombasa Island/Block XI/839 pending the determination of the main suit. The Applicant contended that it had a prima facie case against the Respondents having established through investigations that the Defendants had excised the suit property from the road reserve and alienated to the 1st Defendant contrary to the Local Government Act Cap 265, the Registered Land Act Cap 300 and the Government Lands Act Cap 280. The investigations showed that the Municipal Council of Mombasa, which held the property in trust, had converted the suit property into private land contrary to Section 185 of the Government Lands Act. Their application was supported by the affidavit of Dedan Okwama, the investigator.
Issues for Determination:
I. Whether the suit property was a road reserve
II. Whether the 2nd Defendant acquired a valid title
Holding:
On the issue whether the suit property was part of a road reserve, the court held that in light of the evidence availed by the Applicant, it was clear that the land was a road reserve which had been converted into private property by the Municipal Council contrary to the Local Government Act.
On the issue of the validity of the 2nd Defendant’s title, the 2nd Defendant averred that they were an innocent purchaser without notice of irregularity and claimed that they had acquired a valid title. The court stated that an innocent purchaser will be treated as the darling of equity and allowed to retain equity. However, this general rule was subject to the exception that the creation of the title should not itself be a breach of statute law, making it void ab initio. In this case, the Municipal Council converted the suit property into private property contrary to the Government Lands Act. Therefore, the title created was void ab initio.
The court granted the injunction sought by the Applicant and ordered the Municipal Council of Mombasa be enjoined as a party to the suit.
