Hassanali Asaria v Sarbjit Singh Rai & 2 others [2019] KEELC 3236 (KLR)

Section 71 required at least 90 days' gazette notice, a solemn declaration by the registered proprietor stating the facts of loss, and an endorsed concise statement of the reason for issue. None was satisfied: the Acting Chief Land Registrar conceded no gazette notice was published; the provisional certificate bore no statement of reasons; the affidavit was allegedly sworn by the 1st defendant but the commissioner had relocated to Canada and denied commissioning it, and the postal address on the affidavit was not the 1st defendant's. The entry was therefore fraudulent and invalid.

The 1st defendant testified he never procured the provisional certificate, never sold the property to the 3rd defendant and never executed any transfer, and his testimony was uncontroverted since the 3rd defendant did not defend the suit. Further, the consent of the Commissioner of Lands, required under the Government Lands Act to which the title was subject, was never obtained for either transfer. On this uncontroverted evidence the court found the transfer fraudulent and invalid.

The 3rd defendant had no legitimate title to convey since the prior entries were fraudulent and invalid. Independently, entry number 5 showed the transfer registered on 27/6/2004 before its execution on 18/8/2004 and before stamp duty was assessed and paid; the registration date was a Sunday when registries do not work; and Presentation Register Day Book Number 1473 of 27/6/2004 related to a different title (IR 47998). The plaintiff's invocation of indefeasibility under Section 23 of the repealed Act and Section 24 of the Land Registration Act was rejected on the authority of the Court of Appeal decisions on fraud.

The Department of Lands is custodian of land registers, and the impugned entries were made by fraudsters owing to apparent lapses on the part of the Land Registry; the plaintiff relied on the fraudulent entries which remain on the parcel register, so the Registrar cannot escape liability. The plaintiff was found innocent of fraud - he was not condemned to pay the 1st defendant - but his failure to conduct due diligence limited his recovery to the purchase price. The 1st defendant received general damages for loss of user occasioned by the stalemate.