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ELCPartially AllowedELC Case No. 376 of 2013· [2018] KEELC 646 (KLR)

Okech Chepondo v Stephen Otundo Kechi & 4 others [2018] KEELC 646 (KLR)

Environment and Land Court
22 November 2018
1,191 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 land titles created from a dead man's land without succession, even for a buyer who paid for it.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Selefano Okechi Chepondo alias Kechi Chapondo, who died on 1st June 1983 as registered proprietor of land parcel MARAMA/SHIROTSA/603, sued five defendants seeking cancellation of eight titles (MARAMA/SHIROTSO/1242, 1243, 1377, 1378, 1379, 1380, 1726 and 1727) created from subdivisions of the parcel, and reversion to the original title in the deceased's name, plus costs. The 1st and 3rd defendants supported the plaintiff, conceding the land was transferred without succession. The 4th defendant pleaded he bought two acres in 1998 from the plaintiff and his brother with the registered owner's participation and was an innocent purchaser for value; the 5th defendant filed no defence. The court considered sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render title indefeasible except on proof of fraud or misrepresentation to which the proprietor is party, or acquisition illegally, unprocedurally or through a corrupt scheme. Relying on Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, the court held that even an innocent third party's title may be impugned on those grounds. It found the 1st defendant subdivided and transferred the parcel in 1994 and 1998 using transfer documents purporting to be executed by the deceased, without any succession, and that the plaintiff proved his case on a balance of probabilities. The court cancelled all eight titles, ordered reversion to the original parcel in the deceased's name, and awarded costs to the plaintiff. Judgment delivered at Kakamega on 22nd November 2018 by N.A. Matheka, Judge.

Key legal issues

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01

Indefeasibility of title and its statutory exceptions under the Land Registration Act

Holding

Title is indefeasible except where fraud or misrepresentation is proved against the proprietor, or the title was acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court invoked sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and protect the certificate of title. It adopted the Makeri case holding that even an innocent third party's title falls if obtained through a corrupt scheme or illegally. The court then applied these principles to the evidence that the defendants subdivided and transferred the deceased's land without succession, presenting forged transfer documents purporting to be executed by the deceased.

p. 2
02

Whether transfers of a deceased person's land without succession proceedings are valid

Holding

Subdivision and transfer of a deceased registered proprietor's land without succession are illegal and a nullity justifying cancellation

Reasoning

The deceased died on 1st June 1983 while still registered as proprietor. The 1st defendant caused the parcel to be subdivided in 1994 and 1998 and transferred portions to the other defendants, presenting transfer documents purporting to have been executed by the deceased. No succession had been done. The court found the plaintiff proved his case on a balance of probabilities and ordered cancellation and reversion of all resulting titles.

p. 2
03

Whether the 4th defendant's claim as innocent purchaser for value protected his title

Holding

No, the titles derived from an illegal transfer without succession fell within the statutory exceptions and were cancelled notwithstanding the purchase for value claim

Reasoning

The 4th defendant pleaded he purchased two acres from the plaintiff and his brother in 1998 with the registered owner's participation and obtained title as purchaser for value. The court referred to the Makeri authority holding that a third party's title can still be impugned where acquired illegally, unprocedurally or through a corrupt scheme, and found the entire chain of subdivision stemmed from transfers presented in the deceased's name without succession.

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or illegality, unprocedurality or corrupt scheme
  • A title in the hands of an innocent third party can be impugned if obtained illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Cancellation of title Nos. MARAMA/SHIROTSO/1242, 1243, 1377, 1378, 1379, 1380, 1726 and 1727 registered in the name of the defendants and/or any other registration thereof and reversion to the original title MARAMA/SHIROTSO/603 in the name of the deceased Selefano Okechi Chepondo alias Kechi Chapondo
  2. 2.Costs of the suit to the plaintiff
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to title to 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, "Okech Chepondo v Stephen Otundo Kechi & 4 others [2018] KEELC 646 (KLR)", Case Analysis (2018). ELC Case No. 376 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/646/eng@2018-11-22

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