Lemaita alias Tetea Ole Kisaa v Maridady Enterprises Limited & 3 others (Environment and Land Case 544 of 2017) [2025] KEELC 6698 (KLR)

The plaintiff's proprietorship was uncontested, shifting the burden to the 1st defendant to prove lawful acquisition. The 1st defendant admitted it did not participate in the transfer and relied on an alleged agent who was never called as a witness and whose authority was never documented. No sale agreement, executed instrument of disposition, Land Control Board consent or stamp duty receipt was produced, contravening Sections 37 and 45 of the Land Registration Act. This absence of documentary evidence was fatal to the 1st defendant's claim of lawful acquisition.

Section 3(3) of the Law of Contract Act requires contracts for the disposition of land to be in writing, signed and witnessed; none was produced. The suit property is agricultural land within a land control area, and under Section 6(1) of the Land Control Act, absent Land Control Board consent, the transaction is void for all purposes. No stamp duty payment was evidenced, and under Section 19(1) of the Stamp Duty Act an unstamped instrument cannot be received in evidence or confer legal effect. The transaction therefore conferred no rights whatsoever.

A bona fide purchaser must demonstrate due diligence including verification of ownership, valid documentation and statutory compliance. The 1st defendant produced no sale agreement or consideration documentation and admitted relying on an unnamed agent of unproved authority. It allowed an agent to conduct the entire transfer without inquiry into why the registered owner had executed no instruments. For agricultural land, no Land Control Board consent or stamp duty compliance was shown, which a genuine diligent purchaser would have ensured before accepting registration.

Although the bank conducted an official search and valuation and dealt in good faith with the registered proprietor, the validity of a charge depends on the validity of the title creating it. The 1st defendant's title was void ab initio, and a chargee cannot acquire better rights than its chargor (nemo dat quod non habet). However, the loan contract between the bank and the 1st defendant remains valid, and the bank may pursue the 1st defendant personally for the outstanding balance exceeding Kshs. 28,000,000/-.

The registration was effected without mandatory statutory compliance—no executed sale agreement, no Land Control Board consent, no stamp duty. Verification of these instruments fell squarely within the purview of the Land Registrar. Following Chemey Investment Ltd, the Registrar was obliged to exercise due diligence and prevent irregular transactions from being reflected in the register. The 2nd and 3rd defendants filed defences but called no witnesses, leaving the court to draw the irresistible inference of acquiescence or failure of statutory duty.

Section 13(7) of the Environment and Land Court Act empowers the court to grant any relief it deems fit and just, including injunctions, damages, restitution and declarations. Having proved fraud, illegality and unprocedural dealings divesting him of title, the plaintiff was entitled to cancellation and rectification. The proprietary rights violation justified a modest award of general damages assessed at Kshs. 1,000,000/- against the 1st defendant, together with a permanent injunction protecting his ownership and possession.