[2001] KEHC 146 (KLR)
The court found that the transfer of the property was fraudulent because it was executed by four persons when the deceased was the sole owner at the time of his death, and one of the signatories was the deceased himself, who had died years earlier. The applicant, as the administrator, was the only person legally...
Source-derived case information.
- Citation
- [2001] KEHC 146 (KLR)
- Parties
- Applicant: Chandrakant Premchand Dodhia; Respondent: Francis Ngatia Theuri; Respondent: The Registrar of Titles; Respondent: Alima Mohammed Khanon
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2894 of 1993
- Procedural Posture
- Originating Summons / Ruling
- Outcome
- judgment for the applicant; transfer cancelled; costs and interest awarded
- Legal Topics
- Fraudulent Transfer, Letters of Administration, Land Title Registration, Bona Fide Purchaser, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chandrakant Premchand Dodhia
Applicant
Francis Ngatia Theuri
Respondent
The Registrar of Titles
Respondent
Alima Mohammed Khanon
Respondent
Procedural Posture
Originating Summons / Ruling
Legal Issues
- 1 Whether the transfer of L.R. No. 1186 Eastleigh Section 111 Nairobi was fraudulent and should be cancelled.
- 2 Whether the Registrar of Titles acted properly in registering the disputed transfers.
- 3 Whether the 1st and 3rd respondents were bona fide purchasers without notice of the defect in title.
Ratio Decidendi
The court found that the transfer of the property was fraudulent because it was executed by four persons when the deceased was the sole owner at the time of his death, and one of the signatories was the deceased himself, who had died years earlier. The applicant, as the administrator, was the only person legally entitled to transfer the property, but the transfer occurred before he obtained Letters of Administration. The Registrar of Titles failed in his statutory duty by registering the transfer despite clear anomalies and after being notified of the irregularities. The 1st and 3rd respondents could not be considered bona fide purchasers without notice, as a prudent search would have...
Court Disposition
judgment for the applicant; transfer cancelled; costs and interest awarded
Orders
- The transfer dated 24th April, 1991 of L.R. No. 1186 Eastleigh Section 111 Nairobi is cancelled.
- The Registrar of Titles is ordered to reinstate Nathoo Gospar Dodhia as the owner of the property.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT
AT NAIROBI MILIMANI LAW COURTS
CIVIL CASE NO. 2894 OF 1993
IN THE MATTER OF AN APPLICATION BY CHANDRAKANT PREMCHAND DODHIA AND IN THE MATTER OF LAND PARCEL NUMBER L.R. NO. 1186 EASTLEIGH SECTION 111 NAIROBI
CHANDRAKANT PREMCHAND DODHIA…………………..APPLICANT
-VERSUS
FRANCIS NGATIA THEURI…………………………..1ST RESPONDENT
THE REGISTRAR OF TITLES………………….……2ND RESPONDENT
ALIMA MOHAMMED KHANOON……………………3RD RESPONDENT
RULING
By an Originating Summon dated the 10th June, 1993, the applicant is seeking Orders to have the transfer dated the 24th April, 1991 of the plot L.R. No. 1186 Eastleigh Section 111 Nairobi be cancelled and the Registrar be ordered to reinstate Nathoo Gospar Dodhia now deceased as the owner.
The application is supported by an affidavit sworn by Premchad Dodhia who is the administrator of the estate of the deceased, Nathoo Gospar Dodhia.
The deponent in this affidavit together with the evidence he gave in court gives the details which gave rise to these proceedings. The facts are that the plot in dispute belonged to the deceased having bought it in 1948.
The plot remained the property of the deceased until his death on 5. 5.1971. The applicant was subsequently granted Letters of Administration to the estate. He later found that the plot had been transferred to Alima Mohamed Khanon on 26th April, 1991. Alima Mohamed Khanon subsequently transferred the plot to the 1st Respondent on 23-12-1991.
Examination of the transfer of 26. 4.91 to the 3rd respondent shows that the transfer was executed by 4 persons. This transfer cannot be geneuine because:-
First, the owner of the plot at the time when the deceased passed away was one person who was the deceased.
Secondly, the applicant was granted the Letters of Administration on 26. 6.1991 by which time the property had been transferred and the owner had died. It was only the applicant who had obtained the Letters of Administration who could have executed the transfer.
Thirdly, the fourth person signing the transfer is given as Nathoo Gashar who died on 5th May, 1971.
It is therefore clear that the transfer was fraudulent. In the replying affidavit by the 3rd Respondent Francis Ngatia Theuri, it is contended that he was a purchaser without notice of the defect to the title and that he would suffer loss if the Orders prayed for are granted because he does not know where to find the 3rd Respondent.
It is however to be noted that the applicant had complained to the Principal Registrar of Titles in a letter dated 15. 7.1991. The Registrar replied after a period of well over four months contending that the registration was proper. The contents of this letter are intriguing considering what the applicant says in paragraph one of his letter. For the Registrar to give as a reason that the transfer was proper because it was drawn by an advocate is an afront to the existing law which is basic when dealing with the property of a dead person.
Furthermore, notwithstanding the pertinent questions raised by the applicant in his letter the office of the Registrar registered another transfer to the 1st Respondent on 23. 12. 91.
To start with the anomalies in this transfer are so glaring not to be noticeable by the Registrar or an intending purchaser.
It is the duty of a purchaser to make a search of the property he intends to purchase. If the 1st and 3rd Respondents were prudent in their search they would have noticed that the owner of the property was one and not four. This being the situation I do not accept that the third respondent was a purchaser without notice of the defects in the title. Under section 23 of the registration of titles Act, title to the land can be challenged on grounds of fraud. I find that from the manner in which both the 3rd and 1st Respondents handled the transfer they were parties to the fraud.
After considering the evidence tendered, I find that the plaintiff has proved his case.
There will be judgement for the Plaintiff as prayed for in the Originating Summons. The Plaintiff shall be paid the cost of the suit and interest.
Delivered and dated at Nairobi this 31st day of January, 2001.
KASANGA MULWA
JUDGE