Joan Misoy v Mary Jerotich & another
The bottom line
#A Kenyan court cancelled a land title obtained through a secret registry rectification, confirming that land buyers must verify a property's full register history before purchase.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Land Registrar's powers under Section 79(2) of the Land Registration Act
The Registrar's rectification powers are limited to correcting errors, mistakes or omissions not materially affecting a proprietor's interests, with a 90-day written notice; using entry no. 4 to change proprietorship from the Defendants back to the original owner was an illegality
Section 79 confines rectification to errors and omissions not materially affecting proprietary interests, and subsection (2) requires 90 days' written notice. The Registrar's entry no. 4 changed proprietorship from the Defendants to the original owner without notice and without cancelling the Defendants' title, contrary to the statute. Authorities cited were unanimous that the Registrar cannot revoke titles under Section 79.
Whether the Plaintiff holds good title
The Plaintiff's title, having been acquired pursuant to the illegal rectification (entry no. 4), was tainted by illegality and she does not hold good title
Because the acquisition of the Plaintiff's title rested on entry no. 4, itself an ultra vires rectification and cancellation of the Defendants' registration, her root of title was founded on an illegality and nullity. A court cannot sanction an illegality, so the Plaintiff failed to prove ownership on a balance of probabilities and her title fell for impeachment under Section 26 LRA.
Rights of a transferor after transfer
Once a transferor transfers property, they retain no rights over it; all rights vest in the transferee under Sections 24 and 25 of the Land Registration Act
Section 24 vests absolute ownership in the person registered as proprietor. Upon transfer to the Defendants, the original owner Kipkoech arap Maswai ceased to have any rights capable of reverting to him; accordingly he could not lawfully re-acquire the land through the Registrar's purported rectification and transfer it to the Plaintiff.
Locus standi of the Defendants to counterclaim without letters of administration
The Defendants litigate in their own right since the property was transferred directly to them and never formed part of their late mother's estate
The green card entries 2 and 3 show registration in the Defendants' own names, not their late mother's. As the suit property never vested in the estate of Margaret Chepchirchir, no letters of administration were necessary and the Defendants had capacity to prosecute the counterclaim.
Proof of the Defendants' counterclaim
The Defendants proved the legitimacy of their title on a balance of probabilities and were entitled to the orders sought in the counterclaim
The chain of transactions from DW3 to the Defendants' mother and ultimately the direct transfer by the original owner to the Defendants, corroborated by the green card entries and Land Control Board consent, established their lawful registration on 3/4/2014, which the court upheld as valid.
Legal principles established
#- Upon transfer of land, the transferor retains no proprietary rights over the transferred property, all rights vesting in the transferee under Sections 24 and 25 of the Land Registration Act
- The Land Registrar's rectification powers under Section 79 of the Land Registration Act are limited to errors, mistakes and omissions not materially affecting the interests of any proprietor, and do not extend to revocation of title; rectification changing proprietorship without notice is an illegality
- A title procured through an illegal rectification of the register is impeachable under Section 26 of the Land Registration Act and a court cannot sanction an illegality
Court orders
#- 1.Declaration that the title issued to the Plaintiff is impeachable under Section 26 of the Land Registration Act and direction to the Land Registrar to effect rectification under Section 80 of the Land Registration Act
- 2.The Land Registrar to rectify by cancellation of entries 4, 5, 6 and 7 of the register of Nandi/Kamobo/5662
- 3.Upholding the Defendants' title issued on 3/4/2014 as valid
- 4.Permanent injunction restraining the Plaintiff, her servants and agents from trespassing onto, encroaching on, interfering with, alienating or dealing with Nandi/Kamobo/5662
- 5.Dismissal of the Plaintiff's suit and judgment for the Defendants on the counterclaim
- 6.Costs of the suit and counterclaim awarded to the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joan Misoy v Mary Jerotich & another", Case Analysis (2022). Environment & Land Case 40 of 2021 (Formerly Eldoret ELC Case No. 208 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13339/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.