Maurice Ogwang Okong’o v Fredrick Omondi Omamo & 4 others [2018] KEELC 3122 (KLR)
The bottom line
#A Kenyan court cancelled land titles bought without proper succession documents and consent, ruling that a defective title cannot pass to later buyers.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the Plaintiff's registration over deceased persons' land
The Plaintiff's registration was irregular, illegal and unprocedural because he filed no succession cause and obtained no Land Control Board consent; his title is impugned under section 26 of the Land Registration Act
The land stood in the names of four deceased persons. Under the Law of Succession Act the Plaintiff was bound to obtain a grant to transmit the estate, and being agricultural land, Land Control Board consent was required under the Land Control Act. He admitted complying with neither, amounting to intermeddling. His title therefore fell with the subsequent transactions.
The 3rd Defendant's alleged purchase from the Plaintiff
The 3rd Defendant failed to prove the alleged sale agreement and payment of Kshs.1,200,000; his registration was irregular and his title impugned
The Plaintiff denied the sale. The 3rd Defendant produced no written agreement and no documentary proof of payments, which were allegedly made partly by his employees. Timing also undermined him, as the Plaintiff was only registered in October 2012 though the alleged transaction began in September 2012. He also admitted no Land Control Board consent was obtained.
The 1st and 2nd Defendants' title from the 3rd Defendant
The 3rd Defendant never obtained good title capable of passing to the 1st and 2nd Defendants; their registration was also illegal, irregular and unprocedural
A purchaser can only pass what he has. Since the 3rd Defendant's title was impugned, nothing passed to the 1st and 2nd Defendants. Further, there was no evidence their transaction received Land Control Board consent, and the 3rd Defendant admitted no written agreement existed for their alleged purchase of Kshs.1.4 million.
Conduct of County Land Registrars in transacting over deceased persons' land
The Court censured Land Registrars for registering transactions over land of deceased persons without confirmed grants, suggesting disciplinary action and surcharge
The Court observed that Registrars' complicity in such registrations causes injustice and disinheriting of beneficiaries, imposes mental anguish and expenses, and exposes government to costs and damages. It suggested the officers be made to show cause why disciplinary proceedings should not commence with a view to surcharging them for losses.
Legal principles established
#- Registration in respect of a deceased proprietor's land without a confirmed grant and without Land Control Board consent is irregular and the title is impugned under section 26 of the Land Registration Act
- The burden of proving a sale agreement and payment of purchase price lies on the party asserting the sale
Court orders
#- 1.The 4th Defendant to immediately rectify the register of Kisumu/Kanyawegi/5783 by deleting all the entries after number 2 and reverting ownership to the persons named in entry number 1, who are all reportedly deceased
- 2.The 4th Defendant to recall the title deeds issued in all entries after entry number 2 and cancel them
- 3.Those interested in the suit land registered in the names of the four deceased persons to move the Succession Court under the Law of Succession Act for its administration and distribution
- 4.Each of the parties to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); suit commenced by originating summons and plaint under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Ogwang Okong’o v Fredrick Omondi Omamo & 4 others [2018] KEELC 3122 (KLR)", Case Analysis (2018). Originating summons and plaint dated 29th January 2015, filed 3rd February 2015 (amended 19th October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3122/eng@2018-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.