Hodhan Dahir Mahamud & another (Suing as the Administrators of the Estate of Mohamood Mohamed Hussein) v Attorney General (Sued for and on behalf of the Land Registrar – Kajiado) & another [2018] KEELC 3464 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a fraudulent title over Kajiado land, restoring it to a deceased owner's estate—but denied damages because none were proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased was the registered proprietor of the suit land
The Plaintiffs' title deed was prima facie evidence that the deceased was the absolute proprietor of the suit land
The Plaintiffs produced the original title deed in the name of the deceased, registered on 18th January 1991, together with conveyance documents showing transfer from Gadiel Lama Ole Nkarro to the deceased. The Defendants never entered appearance and the evidence went uncontroverted at formal proof. The court held the title deed to be prima facie evidence of the deceased's absolute proprietorship.
Whether the 2nd Defendant illegally and fraudulently acquired the suit land
The court found the 2nd Defendant acquired the title fraudulently and that the suit land belongs to the deceased estate
The Plaintiffs retained custody of the original title deed, yet a search showed a transfer to the 2nd Defendant backdated to 25th October 1994 while the deceased was alive. Under Section 26 of the Land Registration Act a title may be challenged where acquired illegally, unprocedurally or through a corrupt scheme. The 2nd Defendant tendered no evidence of purchase and lodged no objection in the succession cause. The uncontroverted evidence established fraud.
Whether the Plaintiffs are entitled to general damages
General damages were declined for lack of proof
Although the Plaintiffs pleaded general damages, no evidence was led to prove the damages suffered. The court distinguished between liability, which was proved on a balance of probability, and quantum of damages, which requires evidentiary support. As no evidence of loss was canvassed, the head of damages was refused even though the substantive claim succeeded.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, but may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26, Land Registration Act)
- Courts cannot condone illegality in dealings with a deceased person's estate; such dealings are void and a nullity
Court orders
#- 1.The deceased Mohamood Mohamed Hussein be and is hereby declared as the registered proprietor of land parcel number KAJIADO/KAPUTIEI-NORTH/1610
- 2.The 1st Defendant through the Land Registrar Kajiado be and is hereby directed to forthwith cancel the title deed of land parcel number KAJIADO/KAPUTIEI-NORTH/1610 held by the 2nd Defendant and register the same in the name of Mohamood Mohamed Hussein
- 3.The Defendants, by themselves, servants and/or agents be and is hereby permanently restrained from entering upon, selling or otherwise disposing or in any other way dealing in the land parcel number KAJIADO/KAPUTIEI NORTH/1610 without the express written consent or authority of the Plaintiffs
- 4.Costs of the suit are awarded to the Plaintiffs
- Jurisdiction invoked
- Environment and Land Court established under Article 162(2) of the Constitution (land disputes concerning title to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hodhan Dahir Mahamud & another (Suing as the Administrators of the Estate of Mohamood Mohamed Hussein) v Attorney General (Sued for and on behalf of the Land Registrar – Kajiado) & another [2018] KEELC 3464 (KLR)", Case Analysis (2018). ELC Case No. 458 of 2017 (Formerly Machakos ELC Case No. 3 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3464/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.