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ELCPartially AllowedELC Case No. 687 of 2015· [2017] KEELC 3015 (KLR)

Moses Parantai & another (Suing as the legal representatives of the Estate of Sospeter Mukuru Mbeere (Deceased) v Amana Properties Limited & another [2017] KEELC 3015 (KLR)

Environment & Land Court
24 April 2017
EOE.O. Obaga
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title transferred using a dead man's forged signature, returning the property to his family.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Sospeter Mukuru Mbeere (who died on 7 June 2011), discovered that LR No. 37/246/13 IR 12730, registered in the deceased's name since 1972, had been transferred to the first defendant in July 2014 - three years after his death - for a consideration of Kshs. 5,000,000. The transfer bore an incorrect name and ID number for the deceased, whose original ID had been surrendered on his death. The first defendant's directors put the land up for sale four months later, and the company's records could not be traced at the Registrar of Companies. Neither defendant entered appearance or filed a defence despite service, and the suit proceeded by formal proof. The court held that the transfer was a forgery - the deceased could not have signed a document dated after his death - and that the Plaintiffs had substantially proved their claim on a balance of probabilities. Judgment was entered in terms of prayers (A), (B), (C), (D), (E), (F) and (J): a declaration of the Plaintiffs' entitlement to possession, a permanent injunction against the first defendant, eviction, surrender of the title for cancellation, rectification of the register in the Plaintiffs' favour, police security for compliance, and costs with interest. However, general damages for loss of user and trespass and mesne profits were refused, there being no evidence of user and no pleading or proof of mesne profits, which are akin to special damages.

Key legal issues

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01

Validity of the transfer of the deceased's land to the first defendant

Holding

The transfer was fraudulent and a nullity: it was executed after the owner's death and bore a wrong ID number, and the company's records could not be traced at the Registrar of Companies

Reasoning

The court examined the death certificate, ID surrender form and transfer documents. The deceased died on 7 June 2011, yet the transfer was dated 9 July 2014 and bore an ID number different from the deceased's. The first defendant's records could not be traced, a hallmark of land fraud. The court concluded the Plaintiffs substantially proved their claim on a balance of probabilities.

p. 3
02

Entitlement to general damages and mesne profits

Holding

Refused because no evidence of user and no pleading or proof of mesne profits

Reasoning

The court noted there was no evidence of what the land was used for before the transfer or what the first defendant was doing with it, making general damages impossible to assess. Mesne profits, being akin to special damages, had to be specifically pleaded and proved, which was not done.

p. 3

Legal principles established

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  • A transfer of land executed by a person already deceased is a forgery and cannot pass title
  • Mesne profits must be specifically pleaded and proved like special damages

Court orders

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  1. 1.Judgment entered for the Plaintiffs in terms of prayers (A), (B), (C), (D), (E), (F) and (J)
  2. 2.Declaration that the Plaintiffs are entitled to exclusive possession and that the first defendant's occupation is illegal, null and void
  3. 3.Permanent injunction restraining the first defendant from occupying, trespassing on, selling, subdividing or interfering with the suit land
  4. 4.Eviction of the first defendant from LR No. 37/246/13 IR 12730
  5. 5.Order compelling the first defendant to surrender the title to the second defendant for cancellation and correction of the register
  6. 6.Order compelling the second defendant to cancel the title issued to the first defendant and register the property in the Plaintiffs' names
  7. 7.OCS Nyayo Stadium Station to provide security and ensure compliance
  8. 8.Costs of the suit and interest thereon to the Plaintiffs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit filed as ELC Case No. 687 of 2015)

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, "Moses Parantai & another (Suing as the legal representatives of the Estate of Sospeter Mukuru Mbeere (Deceased) v Amana Properties Limited & another [2017] KEELC 3015 (KLR)", Case Analysis (2017). ELC Case No. 687 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3015/eng@2017-04-24

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