David Khayo Kokoko v Land Registrar, Kiambu & another [2021] KEELC 432 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's fraud claim because he placed a caution without any registrable interest, while the buyer who did a proper search kept his indefeasible title.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant fraudulently and illegally removed the Plaintiff's caution
Though the caution was removed and the 1st Defendant gave no evidence of following Section 73 procedure, the Plaintiff had no registrable interest when he lodged the caution, so it was wrongfully placed and its removal could not be held fraudulent
The Plaintiff placed the caution in 2012 in anticipation of a decree in Nairobi CMCC 315 of 2014, but had no interest capable of registration under Section 71 of the Land Registration Act at that date. Section 75 renders such a caution wrongful. The 1st Defendant did not appear to rebut the allegation, but the burden of proving fraud rested on the Plaintiff, who produced no certified records proving collusion. The claim of fraudulent removal therefore failed.
Whether the 2nd Defendant was a bona fide purchaser for value without notice
Yes - he relied on an official search showing no caution, purchased from the registered proprietors under a sale agreement of 7th April 2014 and was registered on 8th April 2014, after the caution had been removed on 10th February 2014
The green card showed the caution was removed on 10th February 2014, before the agreement and registration. The 2nd Defendant testified under oath that he was unaware of any caution and his official search showed none. No evidence linked him to the caution's removal. Fraud was not proved against him; mere allegations cannot discharge the burden of proof on a balance of probabilities.
Whether the 2nd Defendant acquired a valid title
Yes - his title, issued under Sections 24 and 25 of the Land Registration Act, is absolute and indefeasible and not impeached under Section 26(1)(a) or (b); the Plaintiff's second caution is unjustified
Having been registered as proprietor without fraud or misrepresentation to which he was party, and without illegal, unprocedural or corrupt acquisition, the 2nd Defendant holds an indefeasible title under Section 26(1) of the Land Registration Act. He is entitled to the full rights of a registered proprietor and the second caution lodged by the Plaintiff against the title has no justification.
Legal principles established
#- A caution can only be lodged by a person with a present registrable interest under Section 71 of the Land Registration Act; a caution placed without such interest is wrongful
- Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from the facts
- A title registered under Section 26(1) of the Land Registration Act is indefeasible unless the proprietor was party to fraud or acquired it illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.The Plaintiff's claim contained in the Plaint dated 15th February 2017 is dismissed entirely with costs to the 2nd Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land registered under the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Khayo Kokoko v Land Registrar, Kiambu & another [2021] KEELC 432 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 15th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/432/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.