Nathoo v Musyoka & another (Environment and Land Case Civil Suit 161 of 2017) [2022] KEELC 3986 (KLR)

The court examined the original sale agreement and found the purchaser's signature bore no attestation at all, and the mark beside the vendor's signature could not be attributed to any named person. Even assuming the vendor's advocate attested it, the attesting signature differed radically from that on the transfer instrument. Attestation by a witness present at signing was mandatory for a 1998 land contract under the Law of Contract Act as amended by Legal Notice No. 21 of 1990.

Because the sale and transfer instruments required attestation, their execution had to be proved by an attesting witness under section 71, unless the section 72 route for unavailable witnesses was invoked, which the plaintiff never did. The 1st defendant's acknowledgment that the signatures resembled her late husband's could not substitute for attesting-witness evidence, since she disputed the sale itself and the burden lay on the plaintiff.

The court noted the transfer instrument bore no registration date or presentation book number at the front, no stamp duty or registration fee receipts were produced, the LCB consent was doubtful and post-dated the purported registration, and the original certificate of lease in the deceased's name was never surrendered or destroyed as required by section 33 of the Registered Land Act. The Registrar's speculation about a misfiled card during 2014 digitisation was rejected as it was more probable no registration ever took place.

The plaintiff relied on rates and land rent payments and clearance certificates from 2002 onwards in his name. The court held these were not sufficient proof of ownership; crucially absent were the 1998 clearance certificates, stamp duty receipts and registration documents that would ordinarily accompany a genuine transfer, and the payments could at most corroborate other proof of ownership, which was lacking.