Benjamin Kimeli Tanui v Omari Salim Nasib & another [2019] KEELC 3187 (KLR)

Section 143 of the repealed Registered Land Act vested the power to cancel any registration in the Court alone; the Registrar's powers under Section 142(1) were limited to rectification in narrow cases. Section 64(2) required an application supported by evidence before cancellation of a lease. No such application was made, so the Municipal Council's cancellation of the deceased's lease and reallocation to the defendants was unlawful and infringed the deceased's property rights under Section 75 of the repealed Constitution without a hearing.

Fraud must be distinctly alleged and distinctly proved to a standard above mere balance of probabilities. Both defendants admitted in cross-examination that they had no evidence of fraud. The ODPP's report of 28th July 2015 found the plaintiff's title legitimately acquired and the defendants' title irregularly acquired. The David Kiptugen case relied on by the defendants was distinguishable because there the Registrar and Commissioner of Lands themselves challenged the title.

Counsel argued that the absence of a sale agreement and succession proceedings meant no due process. The court held that only the transferor or his Estate could complain about the legality of the transaction; neither the deceased nor his Estate challenged the plaintiff's title, and no evidence from the Lands Registry questioned its genuineness. The issue of a sale agreement was therefore superfluous.

Mesne profits are in the nature of special damages which must be specifically pleaded and proved. The plaintiff merely pleaded mesne profits without quantifying the claim or leading any evidence in support, so the claim was dismissed.