Dinesh Jamnadas Thakkar & another v Damaris Nyambura Gakuyo & another [2017] KEELC 2050 (KLR)
The bottom line
#A Nairobi court cancelled a fraudulently obtained land title, confirming that a transfer signed by anyone other than the registered owner is legally worthless.
What this practically means
#Executive summary
#Key legal issues
#Validity of a transfer procured by a non-proprietor using fake documents
The transfer of the suit property into the 1st defendant's name was a nullity because it was not executed by the registered proprietors and was procured by fraud; the title and register entry must be cancelled
Under sections 38(1), 108(1) and 109(1) of the repealed Registered Land Act, a disposition must be effected by an instrument in the prescribed form executed by all registered proprietors. The uncontroverted evidence showed the sale agreement, transfer, photos, signatures, identity cards and PINs used were fake and not those of the plaintiffs. Such a transfer is ineffectual, creates no interest, and the fraudulently obtained title is an irredeemable fake unprotected under Section 26(1) of the Land Registration Act, 2012.
Proper party to be enjoined in matters relating to titles and land registers
The Chief Land Registrar, not the commissioner of lands or the National Land Commission, is the proper party, but non-inclusion of the Chief Land Registrar is not fatal to the suit
The plaint originally named the commissioner of lands as 2nd defendant and was amended to substitute the National Land Commission. The court held that in matters concerning titles and land registers the proper statutory officer is the Chief Land Registrar; however, the omission did not defeat the plaintiffs' suit, and the court still directed the Chief Land Registrar to cancel the register entry and certificate of lease.
Legal principles established
#- A transfer executed by a person other than the registered proprietor is a nullity and remains a nullity
- A title obtained fraudulently is an irredeemable fake and confers no interest capable of protection under Section 26(1) of the Land Registration Act, 2012
Court orders
#- 1.A declaratory order that the property known as Nairobi/Block 82/1923 rightfully belongs to the plaintiffs, Denish Jamnadas Thakkar and Premila Dinesh Thakkar
- 2.The entry made on 20/2/2008 in the land register transferring the property into the name of Damaris Nyambura Gakuya is revoked and the Chief Land Registrar directed to cause the same to be cancelled forthwith
- 3.The Certificate of Lease dated 20/2/2008 issued to Damaris Nyambura Gakuya is cancelled and the Chief Land Registrar directed to make appropriate notes on the Land Register
- 4.The plaintiffs shall have costs of this suit as against the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over titles and land registers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dinesh Jamnadas Thakkar & another v Damaris Nyambura Gakuyo & another [2017] KEELC 2050 (KLR)", Case Analysis (2017). ELC Civil Suit No. 410 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2050/eng@2017-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.