Kasera & another v Richard

Section 101(1)(b) of the repealed Act required shares of proprietors in common to be shown; absent such indication, the registration must be joint proprietorship. The court declined to follow the contrary view in Moses Bii, reasoning that if undisclosed shares still meant tenancy in common, the statutory requirement to indicate shares would be illogical. The Land Registration Act 2012 introduced a rebuttable presumption of tenancy in common under section 91(2), but it was not retroactive.

Although the sale agreement was entered into in November 2016, after the 2012 Act commenced, the death of Jamin in 2007 had already vested his share in the surviving joint proprietor under the repealed Act. Applying the 2012 presumption of tenancy in common would interfere with crystallised vested rights, which the law does not permit. Evans, not being an administrator, was an unnecessary party to the sale agreement.

Neither party raised the question of Land Control Board consent in pleadings or evidence. Relying on Chumo Arap Songok and Baber Alibhai Mwaji, the court held that a court cannot pluck issues from the air and must pronounce judgment only on issues arising from the pleadings. However, the removal of the caution was properly considered as it was pleaded and evidenced by the respondent.

Despite succeeding on two grounds, the appellants did not prove they were innocent purchasers for value without notice. They were neighbours who knew the property was occupied by family members; the caution placed by Grace was surreptitiously removed days after the sale agreement; and rental income was shared among family members. Section 26 of the Land Registration Act and article 40(6) of the Constitution do not protect unlawfully acquired title.