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ELCAllowed· [2022] KEELC 3678 (KLR)

Ngunyangi & another v Registrar of Titles (Environment & Land Case E167 of 2020) [2022] KEELC 3678 (KLR)

Environment and Land Court
31 May 2022
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered the Registrar of Titles to register a couple's land after the registry lost their documents held since 2004.

What this practically means

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Executive summary

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Timothy Gachanja and Beatrice Njeri Gachanja sued the Registrar of Titles by a plaint dated June 17, 2020 (leave to file out of time having been granted by Lady Justice K Bor on February 10, 2021), seeking a declaration that they are the legal owners of Land Reference Number 209/12221/369, an order compelling registration of the property in their names, and costs. The plaintiffs purchased the property in 2004 under a sale agreement with Phoebe Achieng Awino, who had acquired it from the registered owner, Clozet Investment Limited. They paid stamp duty on June 15, 2004 and lodged the original title deed, transfer documents and clearance certificates at the lands registry, but the documents were lost or misplaced and the transfer was never registered. The plaintiffs have occupied the property for over 18 years. The defendant filed a statement of defence asserting there was no proof the documents were booked for registration and that a provisional certificate of title should have been sought, but called no witness, relying on written submissions citing sections 109 and 112 of the Evidence Act, section 33 of the Land Registration Act and regulation 27 of the Land Registration (General) Regulations, 2017. The court framed three issues: whether the plaintiffs proved their case, whether they were entitled to the prayers, and costs. Holding that the receipts of May 14 and June 15, 2004 proved lodgement and that the defendant's failure to adduce contrary evidence left the plaintiffs' case unchallenged, the court found the case proved on a balance of probabilities and attributed the loss to the defendant's carelessness. Judgment was entered for the plaintiffs with a declaration of ownership, a compulsory registration order, and costs of the suit awarded against the defendant. Delivered virtually by E K Wabwoto J at Nairobi on May 31, 2022.

Key legal issues

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01

Whether the plaintiffs proved surrender of the original title and transfer documents to the defendant for registration

Holding

Yes - receipts dated May 14, 2004 and June 15, 2004 proved lodgement, and the documents were lost or misplaced in the defendant's custody; the defendant adduced no contrary evidence

Reasoning

PW1 testified that he surrendered the original title deed and transfer documents to the defendant and produced receipts dated May 14, 2004 and June 15, 2004 as proof of lodgement. The defendant called no witness, relying only on written submissions, so the plaintiffs' evidence stood unchallenged. The court found the documents were lost or misplaced in the defendant's custody and that the plaintiffs had occupied the property for over 18 years.

p. 4
02

Whether the plaintiffs are entitled to the declaration and order for registration sought

Holding

Yes - the plaintiffs proved ownership on a balance of probabilities and were entitled to all rights, interest and privileges pertaining to the land

Reasoning

Having found that the plaintiffs purchased the suit property in 2004, paid stamp duty, surrendered documents for registration and that those documents were lost in the defendant's custody, the court held the defendant could not deny the lodgement. The plaintiffs' inability to obtain ownership documents since 2004 was attributable to the defendant's carelessness, entitling them to the prayers sought.

p. 4
03

Who bears the costs of the suit

Holding

The defendant, as the unsuccessful and liable party

Reasoning

Under section 27 of the Civil Procedure Act costs follow the event unless special circumstances exist. The plaintiffs succeeded, and considering the anguish they suffered over the years as successful litigants, costs were awarded against the defendant.

p. 4

Legal principles established

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  • Where original documents of title are lost or misplaced while in the custody of the registrar, the party who surrendered them proves ownership and entitlement to registration on a balance of probabilities, especially where no contrary evidence is adduced.
  • A party who has succeeded is entitled to costs, which follow the event absent special circumstances.

Court orders

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  1. 1.A declaration that Timothy Gachanja Ngunyangi and Beatrice Njeri Gachanja are the legal owners of Land Reference Number 209/12221/369
  2. 2.An order compelling the registrar of Titles to register Land Reference Number 209/12221/369 in the names of Timothy Gachanja Ngunyangi and Beatrice Njeri Gachanja
  3. 3.Costs of the suit awarded to the plaintiffs, to be paid by the defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 65
  • Land Registration ActSection 33
  • Evidence Act (Cap 80)Sections 109 and 112
  • Land Registration (General) Regulations, 2017Regulation 27
  • Civil Procedure ActSection 27

Cases cited (2)

  • Mbuthia Macharia v Annah Mutua Ndwiga & Another
    [2017] eKLR
  • Kenya Commercial Bank Ltd vs Alcon Holdings Limited
    [2021] eKLR
Jurisdiction invoked
Original civil jurisdiction over land registration disputes; leave to file suit out of time issued by Lady Justice K Bor on February 10, 2021

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngunyangi & another v Registrar of Titles (Environment & Land Case E167 of 2020) [2022] KEELC 3678 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3678/eng@2022-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.