John Teleyio Ole Sawoyo v David Omwenga Maobe

The alleged agreement of 19th July 1992 contained no purchase price or mode of payment. The appellant's evidence of a second witnessed agreement was unsupported: the alleged witness PW3 denied it and the other witness was not called. The cheque for Kshs.130,000/= pre-dated the alleged agreement, and the application for transfer dated 12th June 1991 pre-dated it too, exposing the appellant's account as lacking candour. The trial judge's credibility findings, based on demeanour, were consistent with the evidence and could not be disturbed.

Although the appellant pleaded limitation in paragraph 12 of the defence, he never framed it as an issue for determination at trial, so the High Court made no decision on it. Bauni J had earlier deferred the question pending evidence. The evidence showed the respondent discovered the change in the register in 2005 and filed suit in November 2005; the dates of the alleged transaction were uncertain, so the twelve-year bar did not apply.

The respondent's adjudication as owner was never challenged; he was unlawfully displaced from the register through fraud. Section 143(1) of the Registered Land Act protected the finality of the register given the elaborate adjudication process, but it did not envisage this situation. Under the proviso to section 28, a proprietor is not relieved of any duty or obligation as trustee, and authority holds that nothing in the Act precludes declaring a trust over registered land even on first registration.

Bauni J had earlier held that although particulars were not itemized as required by Order 6 rule 8, the proviso to that rule and amendments could rectify the omission, and the plaintiff should be allowed to prove facts justifying interference under section 143(2) of the Registered Land Act. The evidence accepted by the High Court showed circumstances making it inequitable for the appellant to retain the land, satisfying the required standard of proof.