Charles Ray Coulston & 2 others v Henry Kiarie Waweru & another [2021] KEELC 2995 (KLR)
The bottom line
#A Nairobi court cancelled a suspiciously acquired land title because the new owner could not explain how the transfer happened.
What this practically means
#Executive summary
#Key legal issues
#Whether the Suit Property was validly transferred to the 1st Defendant
The court found the transfer to the 1st Defendant was unlawful and granted the prayers sought, including revocation of his title and rectification of the register.
The Plaintiffs traced their root of title to a 1999 purchase from Mahmud Ega Musa and remained in possession of the land and the original title. They denied ever selling or consenting to any transfer. The 1st Defendant, though served by substituted advertisement, did not appear or adduce any evidence explaining the transfer. Possession of the original title by the Plaintiffs raised doubt as to the propriety of the 1st Defendant's registration, and no evidence countered the Plaintiffs' case.
Whether an agreement for the sale of land must be in writing and executed before witnesses
The court accepted the Plaintiffs' reliance on Section 3(3) of the Law of Contract Act; the Plaintiffs having never executed any written agreement with the 1st Defendant, no valid transaction existed.
The Plaintiffs' submissions invoked Section 3(3) of the Law of Contract Act to show that any agreement relating to land must be in writing and executed by the parties before witnesses. Since the Plaintiffs maintained they never engaged in any transaction with the 1st Defendant, and he led no evidence of such an agreement, the transfer was undertaken clandestinely without their knowledge and could not be upheld.
Legal principles established
#- A party alleging a transfer of land must tender evidence showing how the transfer to him was effected; registration obtained without proof of a valid transaction cannot stand.
Court orders
#- 1.Grants prayers (a), (b), (c) and (d) of the plaint dated 25/5/2017 (declaration of ownership, revocation of the 1st Defendant's title, rectification of the land records by cancelling the 1st Defendant and substituting the Plaintiffs)
- 2.Plaintiffs granted costs of the suit to be borne by the 1st Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Ray Coulston & 2 others v Henry Kiarie Waweru & another [2021] KEELC 2995 (KLR)", Case Analysis (2021). ELC Case No. 350 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2995/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.