Elias Njue Ireri v Kubu Benson Nderi & 3 others [2019] KEELC 4027 (KLR)

The Plaintiff alleged forgery of his signature on the transfer and consent application forms but produced no handwriting expert or document examiner evidence, no OB number, and no results of any police investigation. His own signatures on court documents were strikingly similar to the impugned one, and he did not discredit the LCB consent letter produced by the 1st Defendant. The court therefore held the forgery allegation unproved.

The court noted contradictory Court of Appeal decisions (Ole Tukai and Willy Kimutai) and chose to follow the latter, holding that by Articles 10 and 159 of the Constitution equity binds the courts in interpreting the Land Control Act. Since the 1st Defendant fully paid the purchase price and took possession in 1993, the consent issued about 7½ months after the agreement did not invalidate the sale.

The 1st Defendant gave a reasonable explanation for the missing receipts, including the death of the handling advocate and the passage of over ten years. The Land Registrar testified that a triplicate receipt would normally be in the parcel file and that a transfer would not be registered without payment of stamp duty. The court found the allegation unproved.

The Plaintiff claimed a search on 18th April 2005 showed him as owner but did not produce the certified register copy or search certificate. Although two sets of transfer application forms (dated 2004 and 2005) were an unexplained anomaly, the Land Registrar testified there were no irregularities on the face of the record, and the court found back-dating unproved to the required standard.