Julius Kariuki Muiruri v Smart Top Media Limited & another [2018] KEELC 3832 (KLR)

The Plaintiff produced a Certificate of Lease issued on 6th November 2001 under the repealed Registered Land Act, Cap 300. The 1st Defendant's registration was obtained in 2011, and it sold the property to the 2nd Defendant, who was issued a Certificate of Lease on 1st September 2011. Applying the maxim 'when two equities are equal, the first in time prevails', as endorsed in Gitwany Investment Ltd, the earlier registration must prevail. The later registration was obtained by fraud, mistake or omission and is liable to rectification under Section 80(1) of the Land Registration Act.

The Court traced the statutory protection of registered proprietors from the repealed Registered Land Act, Cap 300 (Sections 27(b) and 28) to the Land Registration Act, 2012 (Sections 24(b) and 25). The Plaintiff's rights as registered leaseholder, including quiet enjoyment, occupation and disposal, could not be defeated except as provided by the Act. The unchallenged evidence of fraud, and the caution lodged through Jonathan Ngumo Mbogo Advocate, established that the Defendants' registrations encroached upon those protected rights.

Having found that the subsequent registration was null and void, the Court accepted the Plaintiff's uncontroverted testimony that he had suffered financially and psychologically as a result of the litigation and the Defendants' actions. In the absence of any defence or contrary evidence, the Court exercised discretion to award general damages of Kshs. 500,000/= against the Defendants jointly and severally.