Mary Muriza Ondatto (Suing as the Legal Representative of the Estate of Linus Juma Ondatto v District Lands Adjudication and Settlement Officer & 2 others [2018] KEELC 1594 (KLR)
The bottom line
#A Kenyan court cancelled a land buyer's title because he failed to check the register properly before buying—due diligence is non-negotiable.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Respondent was a bona fide purchaser for value without notice
The Court held that the 3rd Respondent was not a diligent bona fide purchaser because Cyril had no title to pass at the time of the sale, and due diligence would have revealed that Cyril's name could not have been in the adjudication register
The 3rd Respondent relied on a sale agreement between Cyril and PW2, but PW2 testified she never sold land to Cyril and no money changed hands. At the time of the 3rd Respondent's purchase on 10th November 2010, Cyril's name had not yet been inserted in the register (that occurred only after the Land Adjudication Committee decision of 23rd February 2011). The 3rd Respondent was literate, in business, and had the benefit of an advocate, so due diligence would have exposed the defect.
Whether the deletion of the deceased's name from the adjudication register and insertion of the 3rd Respondent's name was lawful
The deletion and insertion were unlawful and a nullity, as the objection decision in Objection No. 265 of 2012 directing insertion of Juma Linus Ondatto's name was never appealed and the Respondents lacked any basis to process title in the 3rd Respondent's name
Under Section 29 of the Land Adjudication Act, an aggrieved party had 60 days to appeal the objection determination to the Minister. No such appeal was lodged, so the objection decision stood. The land adjudication officer was required under Section 26A to forward a final adjudication register reflecting that decision, and the Court could see no basis on which the 1st and 2nd Respondents processed title in the 3rd Respondent's name.
Ownership of the suit property as between the Petitioner (as administrator of the estate) and the 3rd Respondent
The suit property rightfully belongs to the Petitioner as legal representative of the estate of the late Linus Juma Ondatto, who purchased it from Rose Koli Maseghe in 1993
PW2 testified clearly and without contradiction that she sold the land to the late Linus in 1993 for Kshs 300,000 paid in two instalments. The 2008 agreement she signed with Cyril was executed in good faith to assist the estate, with no money paid and no title passed. The Petitioner held a Certificate of Confirmation of Grant as administrator of the estate.
Legal principles established
#- A bona fide purchaser must prove, among other things, that he holds a certificate of title, purchased in good faith without knowledge of fraud and for valuable consideration
- A person who purchases land without conducting due diligence, particularly where no title deed has been issued during adjudication, cannot qualify as a diligent bona fide purchaser
- A vendor with no right, interest or title in land cannot pass title to a purchaser
Court orders
#- 1.A declaration that the deletion of the name Linus Juma Ondatto from the Adjudication Record/Register for Kawala 'B' Adjudication Section Plot No. 118 and the insertion of the name of Said T Sheikh Said therein is unlawful and a nullity
- 2.A mandatory order directing the 1st Respondent to rectify the Adjudication Record/Register by deleting the name Said T Sheikh Said and inserting the name Linus Juma Ondatto
- 3.An order compelling the 2nd Respondent to cancel the title issued in the name of Said T Sheikh Said, rectify the Register and issue a title deed for Kawala 'B' in the name of Linus Juma Ondatto
- 4.The Petitioner shall have the costs of this Petition
- 5.The Petitioner's application dated 10th May 2017 is dismissed with costs to the Defendants/Respondents
- Jurisdiction invoked
- Petition premised on alleged violation of constitutional rights in relation to land adjudication and registration, filed initially at the High Court of Kenya at Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Muriza Ondatto (Suing as the Legal Representative of the Estate of Linus Juma Ondatto v District Lands Adjudication and Settlement Officer & 2 others [2018] KEELC 1594 (KLR)", Case Analysis (2018). Petition dated 10th November 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1594/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.