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ELCAllowedKisii High Court Civil Suit (formerly against 1st–10th defendants; 11th defendant Charles Magare Morwabe)· [2018] KEELC 1834 (KLR)

Hellen Moraa Maosa & 2 others v Charles Magare Morwabe [2018] KEELC 1834 (KLR)

High Court of Kenya
28 September 2018
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Maosa Moenga (deceased), sued for eviction and a permanent injunction against defendants said to have trespassed since 2002 on land parcel West Mugirango/Siamani/744 (8.8 hectares). The suit against the 1st to 10th defendants was withdrawn by consent with no orders as to costs after they vacated following the ruling in Kisii HC Succession Cause No. 190 of 2005; the suit proceeded against the 11th defendant, Charles Magare Morwabe, by formal proof as he filed no defence. The court framed four issues: registration of the suit property, the plaintiffs' capacity as administrators, trespass, and entitlement to reliefs. It found the official search proved the deceased was registered proprietor since 9th May 1973, and under Section 26(1) of the Land Registration Act, 2012 his title was prima facie and indefeasible. The grant of letters of administration intestate issued on 9th November 2005, before filing of the suit, gave the plaintiffs capacity. The 11th defendant had been an objector in the succession cause; his application to revoke the grant was dismissed by Musinga, J. on 16th June 2009, and with no appeal that determination stood, rendering his occupation unlawful. Any purchase from a son of the deceased was ineffective, as only a duly appointed administrator may deal with an estate under Section 82 of the Law of Succession Act. Judgment was entered for the plaintiffs: the defendant to vacate and deliver vacant possession within 30 days, eviction on default, a permanent injunction, and costs to the plaintiffs against the 11th defendant.

Key legal issues

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01

Proprietorship of the suit land

Holding

The deceased was the registered proprietor of West Mugirango/Siamani/744, having been registered on 9th May 1973, as shown by the official search, which was not controverted.

Reasoning

The 2nd plaintiff produced a certificate of official search showing the deceased registered as proprietor since 1973. Under Section 26(1) of the Land Registration Act, 2012, such certificate is prima facie evidence of absolute and indefeasible ownership. There was no evidence to controvert it, so the court found the deceased was the registered owner.

p. 2
02

Capacity of the plaintiffs

Holding

The plaintiffs, holding a grant of letters of administration intestate issued in Kisii HC Succession Cause No. 190 of 2005 before filing suit, had capacity to represent the estate.

Reasoning

The grant was issued on 9th November 2005 to the three plaintiffs before the plaint dated 8th December 2005 was filed. They therefore held the grant at commencement of the suit and had capacity to sue on behalf of the estate.

p. 2
03

Trespass by the 11th defendant

Holding

The 11th defendant's occupation of a portion of the suit property was unlawful and constituted trespass; his interest had been finally determined against him in the succession cause.

Reasoning

The defendant was an objector in the succession cause whose application for revocation of the grant was dismissed by Musinga, J. on 16th June 2009, with no appeal. He filed no defence, tendered no evidence justifying his occupation, and any dealings were with a son of the deceased who held no grant and thus had no capacity to deal with the estate under Section 82 of the Law of Succession Act.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of ownership and the title of the registered proprietor is indefeasible under Section 26(1) of the Land Registration Act, 2012.
  • Only a duly appointed administrator of a deceased estate has authority to deal with the estate of a deceased person.
  • A determination in a succession cause, if not appealed against, remains binding and determines the interests of objectors in the deceased's estate.

Court orders

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  1. 1.The defendant Charles Magare Morwabe is declared in trespass on land parcel No. West Mugirango/Siamani/744 and ordered to vacate and deliver vacant possession to the plaintiffs within 30 days of service of the decree
  2. 2.In default of compliance, an order of eviction for the forcible removal of the defendant to be issued on application by the plaintiffs
  3. 3.A permanent injunction restraining the defendant from re-entering, occupying, cultivating or in any manner dealing with or interfering with land parcel No. West Mugirango/Siamani/744
  4. 4.Costs of the suit awarded to the plaintiffs as against the 11th defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1) and 26(2)
  • Law of Succession Act, Cap 160 Laws of KenyaSection 82
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for trespass, eviction and injunction

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, "Hellen Moraa Maosa & 2 others v Charles Magare Morwabe [2018] KEELC 1834 (KLR)", Case Analysis (2018). Kisii High Court Civil Suit (formerly against 1st–10th defendants; 11th defendant Charles Magare Morwabe). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1834/eng@2018-09-28

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