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ELCAllowedELC Case No. 183 of 2013· [2018] KEELC 4124 (KLR)

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)

Environment and Land Court
6 March 2018
2,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, suing as personal representative of the estate of his father Yohana Otaba Ndunde alias Ndunde (who died intestate on 18th April 1967), sought cancellation of title deeds Marama/Buchenya/1486 and 1487, restoration of the original title Marama/Buchenya/562 in the name of Ndunde, and eviction of the 2nd defendant. He alleged that a change of names entry of 18th May 2007 substituting Makau Ndunde for the deceased registered owner was fraudulent, as were the ensuing subdivision and transfers. The 1st defendant claimed he himself was Ndunde, that he lawfully corrected his name, subdivided the parcel and sold parcel 1486 to the 2nd defendant, an alleged innocent purchaser. The defendants also challenged the plaintiff's locus standi. The court found the plaintiff, holding a limited grant ad litem, properly before it. The 1st defendant died during the suit and the plaintiff withdrew the case against him; the 2nd defendant offered no evidence. Applying sections 24 and 26 of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, the court held that a change of name applies only to the same person and that the entry substituting a son for his deceased father, absent succession, was illegal and fraudulent, rendering all subsequent subdivision and transfers tainted. Judgment was entered for the plaintiff: cancellation of the two titles, restoration of the original title in the name of Ndunde, three months for the 2nd defendant to vacate parcel 1486 failing which eviction would issue, and costs to the plaintiff.

Key legal issues

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01

Locus standi of the plaintiff

Holding

The plaintiff had locus standi as he produced a limited grant of letters ad litem issued on 12th June 2013

Reasoning

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.

p. 2
02

Fraudulent change of name entry

Holding

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

Reasoning

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.

p. 3
03

Validity of the subdivision and subsequent transfers

Holding

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

Reasoning

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.

p. 3
04

Effect of fraud on indefeasibility of title of the 2nd defendant as purchaser

Holding

Even the title of a third-party purchaser can be impugned where the title was obtained illegally, unprocedurally or through a corrupt scheme

Reasoning

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.

p. 3
05

Whether the plaintiff proved his case

Holding

The plaintiff proved his case on a balance of probabilities and was entitled to the reliefs sought

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Penal CodeSection 355
  • Penal CodeSection 357
  • Law of Succession ActSection 45(1)

Cases cited (1)

  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "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.