Peter Okore Ponge v Mark Odoro Seda [2019] KEELC 945 (KLR)
The bottom line
#A Kenyan court cancelled a land transfer because an administrator took over an entire co-owned property when he was only entitled to his father's one-fifth share.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could consider issues raised for the first time in the Defendant's written submissions
The issues of the Plaintiff's lack of capacity (locus) and failure to join owners of the sub-divided portions, raised for the first time in submissions after the close of the Plaintiff's case, ought not to be considered; issues must flow from the pleadings.
Order 2 Rule 4 of the Civil Procedure Rules requires a party to specifically plead any matter which, if not pleaded, might take the opposite party by surprise or raises facts not arising from the pleadings. Relying on DEN v PNN, Chalicha FCS Ltd v Odhiambo and Galaxy Paints Co Ltd v Falcon Guards Ltd, the court held that judgments must be pronounced on issues arising from the pleadings or framed by the parties, and new issues raised in submissions fall outside that scope.
The history of ownership of the suit property
The Plaintiff proved that KISUMU/DAGO/631 was co-owned by five persons, including his father and the Defendant's father, in undivided 1/5 shares each; the Defendant's contrary claims were unsupported by evidence.
The Plaintiff produced a Certificate of Official Search dated 16th July 1990, the Demarcation Book and Adjudication Record for KISUMU/DAGO, and the petition in Kisumu HC Succession Cause No. 110 of 1990 including a Chief's letter confirming the Defendant's father held only 'a share with other persons'. None of these documents were specifically challenged. The Defendant called no evidence for his claims of fraudulent joint registration and chief's barazas, so the balance of probability favoured the Plaintiff.
Validity of the transfer of the whole suit property to the Defendant and its sub-division
The Defendant, as administrator of only one tenant in common's estate, could only transmit his father's undivided 1/5 share; the transfer of the whole property to himself was illegal and his title impeachable under Section 26(1) of the Land Registration Act, and the subsequent sub-divisions were equally unprocedural and impeachable.
Sections 91(5) and (6) of the Land Registration Act and Section 103 of the repealed Registered Land Act provide that a deceased tenant in common's undivided share becomes part of his estate. The Defendant should have sought letters of administration only in respect of his father's 1/5 portion. Transferring the whole property to himself was illegal, and the title so obtained was impeachable under Section 26(1), following Elijah Makeri Nyangwara v Stephen Mungai Njuguna. The sub-divisions had the effect of depriving the original co-owners of their titles.
Validity of the sale of portions of the suit property
The purported sale of sub-divided portions of the suit property was illegal and null and void because the Defendant's grant of letters of administration was never confirmed, and no immovable property may be sold before confirmation of a grant.
Section 82 of the Law of Succession Act prohibits sale of immovable property of the estate before confirmation of the grant, and Section 55 restricts distribution of capital assets before confirmation. Gikonyo J. in In re Estate of M'Ajogi M'Ikiugu held that any attempted sale before confirmation is null and void. A letter from the Deputy Registrar dated 2nd November 2018 confirmed the Defendant's grant was never confirmed and no application for confirmation was on record.
Appropriate reliefs
The court exercised its power under Section 80 of the Land Registration Act to order rectification of the register, nullifying the transfer and cancelling all subsequent transactions, restoring the property to the five original co-owners in undivided 1/5 shares each.
Following Kemei J. in John Kiguru Karume v Kenya Institute of Administration, absolute and indefeasible ownership cannot be clothed with legal and constitutional protection where the interest was acquired through fraud, misrepresentation, illegality, unprocedural means or corrupt schemes. Section 80(1) permits rectification where a registration was obtained by fraud or mistake; the Defendant caused the mistake by transmitting the whole property to himself, so the proviso in Section 80(2) did not protect him.
Legal principles established
#- Where land is owned in common, on the death of a tenant in common his undivided share forms part of his estate, and a co-owner's administrator may only transmit that deceased's undivided share, not the whole property
- Title obtained illegally, unprocedurally or through a corrupt scheme is impeachable notwithstanding the indefeasibility of title under the Land Registration Act
- A party who raises issues of capacity and non-joinder for the first time in written submissions, after the close of the opposing party's case, cannot have those issues determined
- No immovable property of a deceased's estate may be sold before confirmation of the grant; any such sale is null and void
Court orders
#- 1.A declaration that the transfer of KISUMU/DAGO/631 from Ponge Gumba, Sambianas Okembia, Otiende Gumba, Mboya Chiaga and Nyangiri Ndia (tenants in common in undivided 1/5 shares each) to Mark Odoro Seda was illegal, null and void, and the same is nullified
- 2.All subsequent transactions on the suit property are cancelled
- 3.The register is to be restored in the names of Ponge Gumba, Sambianas Okembia, Otiende Gumba, Mboya Chiaga and Nyangiri Ndia to be held in common in undivided shares of 1/5 each
- 4.The Defendant to bear the costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court) read with Section 26(1) and Section 80 of the Land Registration Act, 2012; the court also relied on Section 91(5) of the Land Registration Act and Section 103 of the repealed Registered Land Act (Cap 300)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Okore Ponge v Mark Odoro Seda [2019] KEELC 945 (KLR)", Case Analysis (2019). Originating Summons (Kisumu ELC), filed 6th December 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/945/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.