Hellen Moraa Maosa & 2 others v Charles Magare Morwabe [2018] KEELC 1834 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proprietorship of the suit land
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.
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.
Capacity of the plaintiffs
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.
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.
Trespass by the 11th defendant
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.
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.
Legal principles established
#- 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
#- 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.In default of compliance, an order of eviction for the forcible removal of the defendant to be issued on application by the plaintiffs
- 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.Costs of the suit awarded to the plaintiffs as against the 11th defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over a claim for trespass, eviction and injunction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.