John Omamo Ndunde (suing as personal representative of the Estate of the Late Yohana Otaba Ndundi alias Ndunde) v Makau Ndunde & another [2018] KEELC 4124 (KLR)
The bottom line
#A Kenyan court cancelled land titles created through a fraudulent 'change of name' that swapped a deceased owner for his son, showing even innocent buyers can lose land.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the plaintiff
The plaintiff had locus standi as he produced a limited grant of letters ad litem issued on 12th June 2013
The plaintiff produced a limited grant of letters ad litem issued by Justice Said J. Chitembwe to prove he was the legal representative of the deceased. The court accepted this and held his appearance before the court was proper, proceeding to determine the case despite the defendants' objection.
Fraudulent change of name entry
The change of names entry No. 2 of 18th May 2007 from Ndunde to Makau Ndunde was illegal and/or fraudulent because Makau Ndunde was the son of Ndunde, not the same person
The deceased registered owner died intestate on 18th April 1967 and no succession had taken place. A change of name entry applies to the same person only. The instrument used for the change could not be traced. The 1st defendant had admitted in criminal proceedings that Ndunde was his father and the registered owner. The entry therefore fraudulently substituted the deceased owner with his son.
Validity of the subdivision and subsequent transfers
The subdivision of LR Marama/Buchenya/562 creating parcels 1486 and 1487 and the subsequent transfers were illegal/fraudulent as they flowed from the fraudulent change of name
Once the root change of names entry was found fraudulent, all subsequent transactions derived from it were tainted. The court relied on the judgment in Butere PMCCR Case No. 312/2011 which held that transactions flowing from the illegal change of names were illegal, and independently reached the same conclusion from the evidence before it.
Effect of fraud on indefeasibility of title of the 2nd defendant as purchaser
Even the title of a third-party purchaser can be impugned where the title was obtained illegally, unprocedurally or through a corrupt scheme
The court applied section 26(1)(a) and (b) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, noting the law protects title but permits challenge where the title is acquired by fraud to which the proprietor is a party, or illegally, unprocedurally or through a corrupt scheme. The 2nd defendant's title derived from the fraudulent transactions and offered no evidence to counter the plaintiff's case.
Whether the plaintiff proved his case
The plaintiff proved his case on a balance of probabilities and was entitled to the reliefs sought
The defendants did not offer any evidence to counter the plaintiff's evidence; the 2nd defendant never attended court despite being served and his case was closed. The court found the plaintiff's case proved on a balance of probabilities and granted cancellation of titles, restoration of the original title, and eviction with a three-month grace period.
Legal principles established
#- Registration of a person as proprietor vests absolute ownership of the land in that person
- A certificate of title may be challenged only on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- A change of names entry in the register applies only to the same person and cannot be used to substitute a deceased registered owner's name with that of his son where no succession has taken place
Court orders
#- 1.Cancellation of title deed numbers MARAMA/BUCHENYA/1486 and MARAMA/BUCHENYA/1487 and restoration of the original title deed number MARAMA/BUCHENYA/562 in the names of NDUNDE
- 2.The 2nd defendant given 3 months from the date of judgment to vacate MARAMA/BUCHENYA/1486, in default eviction order to issue forthwith
- 3.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Omamo Ndunde (suing as personal representative of the Estate of the Late Yohana Otaba Ndundi alias Ndunde) v Makau Ndunde & another [2018] KEELC 4124 (KLR)", Case Analysis (2018). ELC Case No. 183 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4124/eng@2018-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.