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ELCAllowedPetition dated 8th October 2012· [2015] KEELC 133 (KLR)

Devid Gremmo & 2others v Milena Bora & 7 others [2015] KEELC 133 (KLR)

Environment and Land Court
23 October 2015
OAO. A. Angote
848 words in judgment
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The bottom line

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A Kenyan court cancelled fraudulent land transfers signed before an owner's death but registered after it, restoring his name to the land registers.

What this practically means

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Executive summary

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The Petitioners, children of the late Giovanni Gremmo who died on 18th December 2009, petitioned for declarations that transfers of ½ undivided shares in Gede/Mijimboni/162 and Malindi portion No. 1757 to the 1st Respondent were null and void for fraud, and for rectification of the registers to reinstate the deceased's name. They alleged the deceased signed documents on 19th May 2009 for an unrelated plot only; that legal fees on the impugned transfers were paid after his death; and that the Land Control Board consent was obtained posthumously. Only the 2nd and 3rd Respondents (the Registrars) filed responses, each asserting that it was for the 1st Respondent and others to disprove forgery. The court found that although the transfers were purportedly executed on 19th May 2009, they were not registered until 3rd March 2010, by which time Giovanni Gremmo had died; the 1st Respondent then sold the properties to the 6th Respondent. Neither the 1st nor 6th Respondent, nor the advocate who drew the transfers, responded to the fraud allegations despite being served and sued. Holding the Petitioners had proved their case on a balance of probabilities, the court allowed the Petition dated 8th October 2012 as prayed, including declarations of nullity for fraud, rectification of both registers, reinstatement of Giovanni Gremmo's name, and costs. Judgment dated and delivered at Malindi on 23rd October 2015 by O. A. Angote, Judge.

Key legal issues

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01

Proof of fraud in transfer of registered land

Holding

The Petitioners proved on a balance of probabilities that the transfers to the 1st Respondent were fraudulent, null and void

Reasoning

Giovanni Gremmo died on 18th December 2009. The transfers of both suit properties to the 1st Respondent were purportedly signed on 19th May 2009 but were not registered until 3rd March 2010, after his death. The 1st and 6th Respondents did not respond to the fraud allegations, and the advocate who drew the transfer documents, though sued, also failed to respond. On that uncontroverted evidence the court found fraud established.

p. 3

Legal principles established

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  • Unexplained circumstances where transfers were executed before the deceased's death but registered after it, with no response to allegations of fraud by those implicated, support a finding of fraud on a balance of probabilities

Court orders

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  1. 1.The Petition dated 8th October 2012 is allowed as prayed
  2. 2.Declarations that the Letter of Consent serial number 39395 dated 11th February 2010, the transfer of ½ share in Gede/Mijamboni/162 registered 1st March 2010, and the indentures of conveyance over Malindi portion No. 1757 are null and void for fraud
  3. 3.Rectification of the registers for Gede/Mijomboni/162 and Malindi Portion No. 1757 and reinstatement of the name of Giovanni Gremmo
  4. 4.Costs
Jurisdiction invoked
Constitutional petition for declarations of nullity for fraud and rectification of land registers (Environment and Land Court jurisdiction over land)

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, "Devid Gremmo & 2others v Milena Bora & 7 others [2015] KEELC 133 (KLR)", Case Analysis (2015). Petition dated 8th October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/133/eng@2015-10-23

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