Zibreta Atamba Shikumba v Livingstone Shikumba & William Sayia [2018] KEELC 3013 (KLR)

The court found the suit parcel was agricultural land, as confirmed by the Deputy Land Registrar. The Land Control Act required consent before sale or transfer, with a six-month window for application. No consent or Board proceedings were produced. The title deed issued only three days after the sale agreement further suggested the statutory process was bypassed. The transaction was therefore void ab initio and incapable of conferring title on the 2nd Defendant.

The parties married in 1971 and solemnized the union in 1986, and jointly bought the suit land in 1986, establishing their matrimonial home thereon. The Plaintiff remained in possession, tilling the land with the children. Section 28 of the Land Registration Act categorizes spousal interest as overriding, and Section 93(2) deems a contributing spouse an owner in common. However, since the Act commenced on 2nd May 2012, after the February 2012 sale, spousal consent was not a statutory requirement at the time of purchase.

The Deputy Land Registrar (PW2) demonstrated that he neither signed nor stamped the title deed or the green card. No transfer documents were produced. Under Section 35 of the Land Registration Act, documents purporting to be signed by the Registrar are presumed signed unless the contrary is proved; the contrary was proved here. The registration was thus obtained by fraud or mistake, justifying rectification of the register and revocation of the title.

Although the 2nd Defendant paid the full purchase price and bought through agents after a public advertisement, the transaction remained void absent Land Control Board consent. The court held it would not authorize illegalities. The Plaintiff proved her case on a balance of probabilities, so the purchaser could not acquire good title; his remedy lay in a refund against the 1st Defendant.