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ELCPartially AllowedELC Case No. 873 of 2015 (Formerly H.C. Civil Case No. 72 'B' of 2005)· [2019] KEELC 2456 (KLR)

Douglas Onyango Olak & 2 others v David Ondeng & another [2019] KEELC 2456 (KLR)

Environment and Land Court
17 July 2019
2,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court voided a land sale made without a grant of representation, ruling even an innocent buyer gets no title from an irregular transaction.

What this practically means

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Executive summary

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The Plaintiffs, personal representatives and administrators of the estate of Nerea Atieno Olak (deceased), sued the Defendants over Plot No. 2/61 Migosi Site and Service Scheme (also un-surveyed Plot No. 63, later L.R. No. 26583), alleging that the Defendants fraudulently had the plot registered in their names after purchasing it from Duncan Onyango Olak, the deceased's elder son who held no grant of representation. The Plaintiffs sought a permanent injunction, mesne profits of Kshs. 12,000/= per month from August 2004, rectification of the register, interest and costs. The Defendants denied the allocation to the deceased, claiming direct allotment by the Commissioner of Lands in 2002 and, alternatively, a bona fide purchase; however, they tendered no evidence and their case was marked closed on 18th December 2018. Relying on the testimony of the 1st Plaintiff and the Acting Director of Housing of the Municipal Council of Kisumu, together with the letter of offer of 20th June 1986, the Council memo and receipts in the deceased's name, the court found the deceased was the proprietor at her death and that her estate was protected under Section 45(1) of the Law of Succession Act. The sale by Duncan without a confirmed grant was null and void, and his conviction for forging the Assistant Chief's signature confirmed the transaction was irregular. The Defendants' title was therefore not protected under Article 40(6) of the Constitution and Section 26 of the Land Registration Act. Mesne profits failed for want of proof, being akin to special damages. Judgment was entered for the Plaintiffs in terms of prayers (a) and (b)(i) of the Amended plaint, with costs to the Plaintiffs under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Ownership of the plot by the deceased at her death

Holding

The court found the deceased was the proprietor of Plot No. 2/61 Migosi Site and Service Scheme by the time of her death, based on the letter of offer of 20th June 1986, the Council memo of 8th August 2005 and receipts in her name.

Reasoning

The Municipal Council's records and Acting Director of Housing confirmed the plot was offered to the deceased who paid the requisite fees. Receipts in her name led the court to infer acceptance of the offer. The deceased died without parting with ownership, and her estate was protected under Section 45(1) of the Law of Succession Act against intermeddling.

p. 2
02

Validity of the sale by Duncan Onyango Olak and the Defendants' title

Holding

The sale was null and void and fraudulent as Duncan had no grant; the Defendants' title is not protected under Article 40(6) of the Constitution and Section 26 of the Land Registration Act.

Reasoning

Duncan, the vendor, was not the administrator of the estate and pleaded guilty to forging the Assistant Chief's signature to sell his late mother's land. Having obtained no title from him, the Defendants could not pass good title. Section 26(1)(b) removes protection from titles obtained illegally or un-procedurally even where the holder is innocent.

p. 2
03

Effect of the Defendants' failure to adduce evidence

Holding

The Defendants' averments remained mere allegations without evidentiary support; the Council confirmed there was no record of any transaction or allotment in favour of the Defendant.

Reasoning

The Defendants closed their case without tendering evidence. Their assertion that the deceased's name was replaced at the Council and that a letter of allotment was issued by the Commissioner of Lands was disputed by PW2 and unsupported by documents, so the court rejected it as a mere allegation.

p. 2
04

Mesne profits

Holding

Mesne profits of Kshs. 12,000/= per month were not awarded for want of proof.

Reasoning

Following the Court of Appeal in Chief Registrar & 4 Others v Nathan Tirop Koech, mesne profits are akin to special damages and must be pleaded and proved. Although pleaded, the Plaintiffs produced no evidence of a development generating Kshs. 12,000/= per month.

p. 3

Legal principles established

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  • A sale of a deceased person's free property by a person who has not obtained a grant of representation is null and void under Section 45(1) of the Law of Succession Act, and no title can pass.
  • Under Section 26(1) of the Land Registration Act, a title obtained illegally, un-procedurally or through a corrupt scheme is not protected even in the hands of an innocent holder.
  • A claim for mesne profits is akin to special damages and must be pleaded and proved.

Court orders

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  1. 1.Judgment entered for the Plaintiffs against the Defendants in terms of prayers (a) and (b)(i) of the Amended plaint dated 30th November 2006 (permanent injunction and rectification of the register).
  2. 2.Plaintiffs awarded costs of the suit.

Authorities

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Legislation

  • Law of Succession ActSection 45(1) and (2), Chapter 160 Laws of Kenya
  • Constitution of Kenya 2010Article 40(6) and Article 40
  • Land Registration ActSection 26(1) and Section 26(1)(b), No. 3 of 2012
  • Civil Procedure ActSection 27, Chapter 21 Laws of Kenya

Cases cited (5)

  • Elly Odhiambo Onyuka vs Ayub Odhiambo Migwalla
    Nairobi C.A No. 81 of 2002
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Elijah Makori Nyangwara vs Stephen Mungai Njuguna & Another
    Eldoret ELC Case No. 609B of 2012
  • Chief Registrar & 4 Others vs Nathan Tirop Koech & 4 Others
    [2018] eKLR
  • Mohammed Anun and Ors vs Vakil Ahmed and Ors
    1952 (1) SCR 1133
Jurisdiction invoked
Environment and Land Court, Article 162(2) of the Constitution ( suit transferred from the High Court, formerly H.C. Civil Case No. 72 'B' of 2005)

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, "Douglas Onyango Olak & 2 others v David Ondeng & another [2019] KEELC 2456 (KLR)", Case Analysis (2019). ELC Case No. 873 of 2015 (Formerly H.C. Civil Case No. 72 'B' of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2456/eng@2019-07-17

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