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ELCPartially AllowedELC MISC. CASE NO. 58 OF 2008· [2019] KEELC 2931 (KLR)

Joyce Wariara Kiarie v Registrar of Titles, Mombasa & 2 others [2019] KEELC 2931 (KLR)

Environment and Land Court
21 June 2019
3,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Mombasa court removed a caveat on land because the buyer could not prove he was an honest purchaser, since the sale was never completed or registered.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Subdivision Number 1270 (Original No.67/Rev 557) Section I Mainland North, took out an Originating Summons seeking removal of a caveat lodged by the 3rd defendant, Samuel Varghese, who claimed a purchaser's interest under a sale agreement dated 10th October 2006 executed by one David Mbai Kiarie purporting to act under a Power of Attorney donated by the plaintiff. The plaintiff disowned the Power of Attorney as a forgery, showed she was in the United Kingdom at the material time, that the passport number used was her expired one, and that no purchase monies reflected in the donee's accounts. The 3rd defendant asserted he was a due-diligent purchaser who paid Kshs5.2 million, later increased to claimed expenses of Kshs8.5 million, through advocates, with the balance released to Omondi Waweru & Company Advocates as stakeholders. The court framed two issues: whether a valid sale existed between the plaintiff and the 3rd defendant, and whether the caveat should be removed. Applying the Katende bona fide purchaser test as quoted in Weston Gitonga, the court held the 3rd defendant was not an innocent purchaser for value: he held no certificate of title, never met the owner or her attorney, gave inconsistent evidence, released the balance before completion documents were surrendered contrary to the sale agreement, and registration was never completed. The purchaser's remedy was to recall the money held by the stakeholders. The court allowed the Originating Summons and ordered removal of the caveat, with each party bearing their respective costs.

Key legal issues

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01

Whether the plaintiff discharged the burden of proving she did not donate the impugned Power of Attorney

Holding

The plaintiff discharged the burden by showing she was out of the country at the date of execution, disowning the signature, and showing the passport number used was her expired passport

Reasoning

The court found that the plaintiff, living in the United Kingdom at the time, presented passport copies with exit/entry stamps to confirm she was away, showed the passport number A313977 used in the Power of Attorney was her long-expired passport, and disowned the signature. The court found missing links in the 3rd defendant's evidence countering this evidence.

p. 3
02

Whether the 3rd defendant proved he was a bona fide purchaser for value without notice of fraud

Holding

The 3rd defendant failed to prove innocent purchaser status: he holds no certificate of title, the transfer was never registered, and the purchase price was released before completion documents were surrendered contrary to the sale agreement

Reasoning

The court applied the Katende criteria. The 3rd defendant holds no certificate of title and the transaction was incomplete. He never met the owner or her attorney before executing the agreement, gave inconsistent accounts of who identified the vendor's advocates, and the balance of the purchase price was released before receipt of completion documents, undermining the claimed due diligence.

p. 4
03

Whether the caveat lodged by the 3rd defendant should be removed

Holding

Since registration was never completed and the 3rd defendant's claimed purchaser's interest was not proved, the caveat should be removed and the purchaser's recourse is to recall the money held by the stakeholders

Reasoning

The sale agreement provided that the vendors' advocates would hold all sums paid as stakeholders until registration of the transfer. The transfer was never registered, so the monies remain with the advocates, and the 3rd defendant's remedy is to recall the money rather than maintain a caveat on the plaintiff's title.

p. 4

Legal principles established

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  • A bona fide purchaser for value must prove that he holds a certificate of title, purchased in good faith, without knowledge of fraud, for valuable consideration, and was not party to the fraud

Court orders

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  1. 1.That the caveat registered by the 3rd defendant on 6th December 2007 on the suit title be removed forthwith

Authorities

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Legislation

  • Registered Land Act (Cap 281 Laws of Kenya)Section 65(1)

Cases cited (2)

  • Weston Gitonga & 10 Others versus Peter Rugu Gikanga & Another
    (2017) eKLR
  • Katende versus Haridas & Company Ltd
    (2008) 2EA 173
Jurisdiction invoked
Environment and Land Court jurisdiction over caveats on title to land (suit relating to registered land, Registered Land Act proceedings on a caveat under the land registration statutes)

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, "Joyce Wariara Kiarie v Registrar of Titles, Mombasa & 2 others [2019] KEELC 2931 (KLR)", Case Analysis (2019). ELC MISC. CASE NO. 58 OF 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2931/eng@2019-06-21

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