Margaret Orwa Opiyo v Rashid Agola Owino [2016] KEELC 404 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land transfer made outside the Law of Succession Act, ruling customary appointment of an administrator over a deceased person's estate was void.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal and Appeals Committee
The dispute was one of title and ownership, not merely a claim to occupy or work land, so the Tribunal and Appeals Committee acted ultra vires their statutory mandate.
The court examined the Appellant's testimony before the Tribunal and found she was claiming land rights and complaining of a change of registration without consultation. The dispute was therefore one of title and ownership of the parcels left by the late Protus Owino Ochieng, which fell outside Section 3(1) of the Land Disputes Tribunal Act. A ruling touching ownership and title was beyond the Committee's jurisdiction and hence null and void.
Applicability of the Law of Succession Act over customary law
The appointment of the Respondent as administrator under Luo Customary Law and his registration with the suit land contravened the Law of Succession Act and was illegal, irregular, unprocedural and null and void ab initio.
Under Section 2(1) of the Law of Succession Act, estates of all persons dying after 1st July 1981 devolve under the Act. The deceased died in 2000, so his estate's administration and distribution had to follow the Act. The Respondent was never a confirmed grant holder; his transfer of the land was without a confirmed grant, and the Tribunal and Committee erred in sanctioning that transmission, contravening provisions calling for criminal sanctions.
Legal principles established
#- Succession of estates of deceased persons dying after 1st July 1981 must be conducted in accordance with the Law of Succession Act; customary-law appointment of administrators and transfer of a deceased's land outside the Act are null and void ab initio.
- Land Disputes Tribunals and Appeals Committees lack jurisdiction over disputes concerning title and ownership of land, their mandate being confined to claims to occupy or work on land under Section 3(1) of the Land Disputes Tribunal Act.
Court orders
#- 1.The registration of Rashid Agola Owino with land parcels South Sakwa/Barkowino/4529 and 429, previously registered in the names of Protus Owino Ochieng (deceased), done in contravention of the Law of Succession Act, is cancelled.
- 2.The Land Registrar to revert the title of the said parcels to the names of Protus Owino Ochieng (deceased) to be dealt with in accordance with the Law of Succession Act.
- 3.Each party to bear their own costs.
- On appeal from
- Nyanza Land Disputes Appeals Committee
- 049 of 2010
- Jurisdiction invoked
- Section 8(9) of the Land Disputes Tribunals Act No. 18 of 1990 (now repealed) - second appeal on issues of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Orwa Opiyo v Rashid Agola Owino [2016] KEELC 404 (KLR)", Case Analysis (2016). Not stated in the judgment (appeal from Nyanza Land Disputes Appeals Committee Case No. 049 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/404/eng@2016-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.