In re Estate of Tom Okello Nyaidho (Deceased) [2018] KEELC 4360 (KLR)
The bottom line
#A Kisumu court cancelled a title obtained 28 years after the landowner's death, ruling that inheriting land without a confirmed grant is fraud the law will not protect.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 1st Defendant's registration as proprietor of the suit land
The registration was fraudulent, irregular, illegal and unprocedural and null and void ab initio
The transaction took place 28 years after the death of the registered owner, ruling out an inter vivos transfer. No land control board consent under Sections 6 and 8 of the Land Control Act, and no confirmed grant under Sections 45 and 71 of the Law of Succession Act, was shown. The green card showed no consideration and no basis (transmission, gift or transfer) for the registration.
Collusion between the Land Registrar and the 1st Defendant
The 2nd Defendant colluded in the fraudulent registration
The Registrar failed to avail the source documents (transfer documents, grant, land control board consent) on which entry No.2 was based, even when confirmed by counsel from the bar, and opted to deny the claim rather than remedy the injustice, leading the court to find collusion and to condemn the 2nd Defendant to costs.
Whether the 1st Defendant's title is protected under the Land Registration Act
The title is impeached under Section 26 of the Land Registration Act
Because the 1st Defendant must have known she was not entitled to inherit and that no consent or grant had been regularly obtained, her registration did not confer good title, bringing it within the fraud exception to indefeasibility under Section 26.
Legal principles established
#- Registration of a deceased person's land 28 years after death requires a confirmed grant under the Law of Succession Act and land control board consent, failing which the title is impeachable under Section 26 of the Land Registration Act
- A registered proprietor's title does not confer good title where it was acquired fraudulently
Court orders
#- 1.Declaration that the registration of land parcel Kisumu/Ojola/2097 under entry No.2 in the name of the 1st Defendant was fraudulent, irregular, illegal and unprocedural and is null and void ab initio
- 2.The 2nd Defendant (Land Registrar) to rectify the register by cancelling the name of the 1st Defendant on entry No.2, recalling and cancelling the title deed issued under entry No.3, and reverting proprietorship to the name appearing on entry No.1 of 21st July 1978
- 3.The 1st Defendant to vacate the land and give vacant possession to the Plaintiff within 90 days, in default eviction order to issue
- 4.Upon vacation or eviction, permanent injunction against the 1st Defendant, her servants, agents, family members or employees from interfering with the Plaintiff's and beneficiaries' quiet possession and enjoyment
- 5.The Defendants to pay the Plaintiff's costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Kisumu/Ojola/2097 (no specific provision invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Tom Okello Nyaidho (Deceased) [2018] KEELC 4360 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4360/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.