"Legal Analysis of section 25 Sale of Goods Act Cap 31: What challenges, if any are

presented in this statutory provision?”

The general rule of the common law is that the purchaser of a good takes it subject to what may turn out
to be infirmities in its title; a seller can give no better title than he himself has. This is the Nemo Dat Quod
Non Habet Rule. An exception to this rule is in the case of sale of goods in market overt.i The exception is
founded on the supposed duty of one whose goods have been lost to search and claim for them in the
market place. The sale of goods in a market overt did not confer title; it relieved the purchaser from
consequences of being in possession of stolen property. An exception to the market overt rule is that a
sale of stolen goods in the market overt gives title against the true owner. If the thief is prosecuted by the
true owner to conviction then the property revests in him. The origin of this rule may be found in
Stanforde’s P.C.,Lib.III,c.10: “Fresh Suit.”ii

We do not have a market overt for us to support the difference in the two subsections in our law. A
challenge then arises where there is a conflict between two principles of law. The court due to this
conflict has to decide whether the owner or third party to suffer the loss. This was stated in Bishopsgate
Motor Finance Corporation Ltd v. Transport Brakes Ltd,iii where Lord Justice Denning said:

“In the development of our law two principles have striven for mastery. The first is the protection of
property. No one can give a better title than he himself posses. The second is the protection of
commercial transactions. The person who takes in good faith and for value without notice should get a
good title.”

The court went further ahead and stated that the first principle has been modified by common law and
statute. The statute in this case being Section 25 of the Sales of Goods Act which challenges the first
principle. The first subsection protects proprietary rights while the second subsection protects third
parties. Adolf Weingut v. Leslieivwas a case where the two principles of law conflicted. Chanan Singh J.
held:

“…the so called second principle is likely on scrutiny to turn out a group of exceptions.  I wish it were
possible to say that in every case where a person takes in good faith and for value without notice he gets a
good title for that property.  In some cases he certainly does…”

If the statute is strictly followed as written then there would be problems especially to the commercial
buyers who buy in good faith. Cases involving section 25 of the Sales of Goods Act should be left to the
court’s discretion to decide whether the 1st or 2nd principle will apply to the case. This was as seen in the
case Symbion East Africa Printers Limited V Casey J. K. Mbugua & Another v.
i
Means a public market

ii
Pease J.G, The Change of the Property in Goods by Sale in Market Overt, Columbia Law Review Vol. 8, No. 5
(May, 1908), pp. 375-383

iii
[1949] 1 All E.R. 37, at 46.
iv
[1967] EA 480
v
[2009] eKRL