Japheth Nyawade Chessah v Daria Nekesa & another [2018] KECA 575 (KLR)

The court held that a valid disposition of land required a written contract signed and attested under Section 3(3) of the Law of Contract Act, Land Control Board consent under Section 6(1) of the Land Control Act, and a transfer in the prescribed form under Section 85(1) of the Registered Land Act. The official register showed entry No. 2 was cancelled as a mistake, the agreement of sale produced was uncertified and incomplete, and no consent application or consent was produced. The appellant, having special knowledge of the transaction, bore the burden of proving it under Section 112 of the Evidence Act and failed.

Entry No. 3 referred to a correction of name, but since entry No. 2 had been cancelled, that entry could only refer to correcting the deceased's name. The Land Registrar testified the supporting documents (Chief's letter and Land Control Board application and consent) were unavailable, and the appellant denied making any such application. The court therefore held the correction-of-name procedure could not lawfully operate as a transfer of proprietary interest.

The appellant contended that fraud was perpetrated at the Land Registry and the Registrar should have been a party. The court noted that the appellant did not file a counter-claim joining the Land Registrar to impugn the rectification of the register by cancellation of the transfer, nor did he identify or counter-claim any interest acquired through long possession, the evidence showing continuing disputes rather than settled possession.

The appellant claimed long occupation of over 30 years with the respondents' knowledge and consent, but his own witness testified he had not settled on the land owing to disputes with the deceased's relatives. The court held that possession alone did not establish any registered or identifiable interest where no counter-claim was filed. The appeal on this ground also failed, and the first appellate court affirmed the ELC's findings.