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ELCPartially AllowedELC Case No. 458 of 2016· [2018] KEELC 267 (KLR)

Simon Kanyoko v Chief Land Registrar & another [2018] KEELC 267 (KLR)

Environment and Land Court
26 November 2018
EOE. O. Obaga
866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his title deed and the registry lost its records, but the court still ordered the Registrar to issue him a duplicate title.

What this practically means

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Executive summary

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The plaintiff sued the Chief Land Registrar and the Attorney General seeking an order compelling the Registrar to issue him a certificate of title for LR No. 330/463, together with general damages, costs and interest. He purchased the property on 22 August 1977 from James Kibe Githahu and Judy Muthoni Githahu, took possession, converted the residential house into a nursery school, built flats, paid rates and used the property as security for loans. In 2012, when seeking a loan from Barclays Bank, he could not trace his original title; a search at the lands registry revealed that the folio recording ownership was missing, so ownership could not be ascertained. The defendants filed a defence denying the claim and stating that without the folio they could not establish ownership. The hearing proceeded ex-parte as the defendants, though served, were not represented. The court found the plaintiff had proved ownership on a balance of probabilities through the 1977 transfer, correspondence, a police abstract for the lost title, evidence of prior charges and payment of rates, and that no third party claimed the property. It held the plaintiff was not responsible for the missing folio. The claim for a duplicate title succeeded, but general damages were declined as the plaintiff remained in possession and no basis for damages existed. Judgment was delivered by E. O. Obaga, J on 26 November 2018, with costs to the plaintiff.

Key legal issues

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01

Proof of ownership where the registry folio is missing

Holding

The plaintiff proved ownership on a balance of probabilities and was entitled to a duplicate title

Reasoning

The plaintiff produced a 1977 transfer from James Kibe Githahu and Judy Muthoni Githahu, correspondence confirming proprietorship, a police abstract for the lost title, evidence of prior charges and payment of rates. The defendants did not deny ownership but only stated they could not ascertain it without the folio. No third party claimed the property, and the plaintiff bore no responsibility for the missing folio.

p. 2
02

Entitlement to general damages

Holding

General damages were declined because the plaintiff retained possession and suffered no demonstrated loss

Reasoning

The plaintiff sought general damages for negligence in the loss of the folio. The court held that while the first defendant has an obligation to keep records properly, damages were unwarranted where the plaintiff remained in possession of the property and no basis for damages was established.

p. 2

Legal principles established

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  • A registered proprietor who proves ownership on a balance of probabilities is entitled to a duplicate certificate of title notwithstanding a missing folio in the registry, where he bears no responsibility for the missing record

Court orders

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  1. 1.An order compelling the Chief Land Registrar to issue the plaintiff with a duplicate certificate of title in respect of LR No. 330/463
  2. 2.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 105
  • Government Lands Actrepealed
Jurisdiction invoked
Section 105 of the Land Registration Act No. 3 of 2012 and the court's inherent jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Kanyoko v Chief Land Registrar & another [2018] KEELC 267 (KLR)", Case Analysis (2018). ELC Case No. 458 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/267/eng@2018-11-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.