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ELCPartially AllowedELC Case No. 833 of 2015 (Formerly HCCC No. 45 of 2010)· [2019] KEELC 1836 (KLR)

Bonface Ochieng Saoke v Jack Odhiambo Miyawa [2019] KEELC 1836 (KLR)

Environment and Land Court
5 September 2019
1,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a man's land title because he got it from a deceased person without succession papers, but the buyer only gets his money back.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Lucas Saoke Maseko, sued the Defendant seeking a declaration that the Defendant's registration as proprietor of the suit land (Kisumu/Wangaya 1/3462) was illegally obtained, reversion of the registration to the late Joanes Tore Apuoyo, a permanent injunction and costs. The Plaintiff's case was that his late father bought the land from the late Joanes Tore Apuoyo under sale agreements dated 4th May and 25th November 1994 for Kshs. 53,000/- during adjudication, and that the Defendant later fraudulently procured registration in his own name. The Defendant denied the claim, asserting he was registered as a rightful beneficiary of the deceased's estate and that the sale was void for want of Land Control Board consent. The court framed six issues. It found the land sold under the agreements is the suit land, applying the Land Registrar's evidence that no North East/Nyangoma registration section existed. It held that approximately four acres were sold, not the whole 5.708-acre parcel. It held the sale agreements genuine, drawing an adverse inference from the Defendant's failure to call his step brother and father who witnessed them. However, the agreements were void for want of Land Control Board consent, limiting the Plaintiff to a refund of Kshs. 53,000/- possibly with interest. The Defendant's transmission of the deceased's land without a succession cause or confirmed grant offended Sections 2(1) and 45(1) of the Law of Succession Act and had to be reversed. Judgment was entered for the Plaintiff: a declaration of illegal registration, an order rectifying the register to revert proprietorship to the deceased's name for administration through the Succession Court, and costs to the Plaintiff. The permanent injunction was refused.

Key legal issues

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01

Identity of the land sold under the 1994 sale agreements

Holding

The land described as N.E. Kano/Nyangoma/3462 in the sale agreements is the same parcel registered on completion of adjudication as Kisumu/Wangaya 1/3462

Reasoning

The plaint described the parcel bought as Kano/Nyangoma/3462 properly described as Kisumu/Wangaya 1/3462, while the agreements referred to N.E. Kano/Nyangoma/3462. The Land Registrar testified there was no registration section called North East/Nyangoma in the area and that Nyangoma is a village in Wangaya 1 Registration Section. The court therefore concluded the parcel sold under the agreements is the suit land.

p. 2
02

Validity of the sale agreements for want of Land Control Board consent

Holding

The sale agreements were void for lack of Land Control Board consent within six months, and the Plaintiff's remedy is limited to a refund of Kshs. 53,000/- possibly with interest

Reasoning

The purchaser and vendor did not obtain Land Control Board consent within six months of the last agreement as required by Sections 4, 6 and 8 of the Land Control Act. Consequently the agreements are void. The Plaintiff, as administrator of his late father's estate, could only recover the purchase price of Kshs. 53,000/- paid under the agreements, possibly with interest at court rates.

p. 2
03

Whether the Defendant's registration as proprietor was legal

Holding

The Defendant's registration was illegal and irregular because the land belonged to a deceased person, no succession cause was filed and no confirmed grant obtained before transmission

Reasoning

The suit land was first registered on 23rd October 2003 in the name of Joanes Tore Apuoyo and transmitted to the Defendant on 6th October 2009. The Defendant admitted he did not file a succession cause over the deceased's estate before the transfer. The Land Registrar could not trace any transfer documents. Registration over a deceased person's land without a grant offends Sections 2(1) and 45(1) of the Law of Succession Act and must be reversed.

p. 2
04

Genuineness of the sale agreements

Holding

The sale agreements were genuine because the Defendant failed to call the witnesses to them, who were his step brother and father

Reasoning

The agreements were witnessed by Charles Miyawa Apuoyo and Wilson Otieno Miyawa, whom the Defendant described in testimony as his step brother and father respectively. The Defendant admitted they were alive and that he had not shown them the agreements. His failure to avail them to dispute or confirm the signatures supports the genuineness of the agreements, and an adverse inference follows.

p. 2
05

Entitlement to permanent injunction

Holding

The permanent injunction was refused because the Plaintiff and his family are not in possession and his entitlement is limited to a refund

Reasoning

Although the Plaintiff pleaded that his family took possession after the sale, his own testimony confirmed the Defendant and his brother are using the land. Since the court found the Plaintiff could only recover the purchase price and interest, and he is not in possession, the prayer for permanent injunction could not issue at that stage.

p. 2

Legal principles established

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  • Where an adverse party fails to call available witnesses who witnessed a transaction and who are close relatives, an adverse inference may be drawn that their evidence would be injurious to that party's case
  • A sale of agricultural land without Land Control Board consent within six months is void, entitling the purchaser only to a refund of the purchase price
  • Registration of land belonging to a deceased person without a succession cause and confirmed grant offends the Law of Succession Act and must be reversed
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.A declaration that the Defendant obtained registration as proprietor of Kisumu/Wangaya 1/3462 illegally, irregularly and in contravention of the Law of Succession Act
  2. 2.The Land Registrar to rectify the register by cancelling the Defendant's name (deleting entries numbers 2 and 3) and revert proprietorship to the late Joanes Tore Apuoyo per entry number 1 of 23rd October 2003
  3. 3.Those interested and entitled to administer the estate of the deceased to do so in accordance with the Law of Succession Act
  4. 4.The Defendant to meet the Plaintiff's costs of the suit

Authorities

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Legislation

  • Land Control ActSections 4, 6 and 8
  • Law of Succession ActSections 2(1) and 45(1)
  • Civil Procedure ActSection 27
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to title and registration of land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bonface Ochieng Saoke v Jack Odhiambo Miyawa [2019] KEELC 1836 (KLR)", Case Analysis (2019). ELC Case No. 833 of 2015 (Formerly HCCC No. 45 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1836/eng@2019-09-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.