Joyce Wariara Kiarie v Registrar of Titles, Mombasa & 2 others [2019] KEELC 2931 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff discharged the burden of proving she did not donate the impugned Power of Attorney
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
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.
Whether the 3rd defendant proved he was a bona fide purchaser for value without notice of fraud
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
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.
Whether the caveat lodged by the 3rd defendant should be removed
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
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.
Legal principles established
#- 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
#- 1.That the caveat registered by the 3rd defendant on 6th December 2007 on the suit title be removed forthwith
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.