Paolo Rossi & 2 others v Christian Rossi & another [2019] KEELC 547 (KLR)

The transfer document executed on 20/4/1999 indicated the transferees held the leasehold as joint proprietors, and the declaration by Bruno Rossi expressed the intention that the survivor inherit wholly. The defendants, who asserted an alteration of the records, relied on the Land Registrar's inability to confirm the original registration, but the burden of proving alteration lay on them under Sections 107, 108 and 109 of the Evidence Act, and they failed to discharge it.

Applying Section 91(4)(b) of the Land Registration Act and the reasoning in Isabel Chelangat v Samuel Tiro, the court held that on the death of a joint tenant the interest vests in the surviving tenant. Luigi's death in October 2008 therefore left the 1st plaintiff as sole owner, and the defendants' claim for an equal share as administrators of his estate could not stand.

Since the defendants held no interest in the suit properties once Luigi's interest vested in the 1st plaintiff, and the 1st plaintiff was entitled to deal with the land under Sections 24 and 25 of the Land Registration Act, the cautions registered on 13th April 2015 on the titles had no legal basis and the Lands Registrar Kwale was directed to withdraw them.

Although the plaintiffs pleaded general damages for the wrongful cautions, they led no evidence quantifying or establishing any loss flowing from the registration of the cautions. A court does not award unproved damages, so this head of relief was declined while the substantive declarations were granted.