Willy Mbadi Ojulu & another v Meshack Ogada Openji [2019] KEELC 2642 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained without letters of administration, ruling neither the buyers nor the squatter had lawful rights over a dead owner's land.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the Plaintiffs' registration as proprietors of the suit land
The registration was irregular and unlawful because the Plaintiffs transferred the land of the late Loise Ogolla Opwenji to themselves without obtaining a grant of letters of administration, contrary to Sections 2(1) and 45(1) of the Law of Succession Act.
Both Plaintiffs admitted in testimony that no grant of letters of administration was obtained for the estate of the deceased registered proprietor before the land was transferred to their names in 2007. Such transfer contravened the statutory prohibition on dealing with free property of a deceased person. Consequently, the indefeasibility protections of the Constitution and the Land Registration Act do not attach to the tainted title.
Whether the Defendant's occupation was adverse possession
No; his occupation beginning in 1996, the year of the deceased's death, was intermeddling with a deceased person's estate, not adverse possession.
Adverse possession can only run against a title holder. Since the registered proprietor had died by the time the Defendant took possession, his occupation was against the deceased's estate, which could only be dealt with through succession proceedings. His occupation therefore attracted the sanction of Section 45(2)(a) of the Law of Succession Act rather than conferring any prescriptive right.
Whether the Defendant's claim that parcel 2559 was unlawfully carved from parcel 222
The claim was not supported by the green card for parcel 222, which showed no subdivision since first registration in 1983.
The Defendant contended that the suit parcel was unlawfully subdivided from his father's parcel 222. However, the green card he produced showed first registration on 23rd June 1983 in the name of James Openji with no subsequent transaction, providing no evidential support for the alleged unlawful subdivision.
The appropriate remedy
The suit was dismissed; the court suo motu ordered rectification of the register by cancelling entry No. 6 and directed that administration and distribution of the land be pursued before the Succession Court.
Since both parties dealt with a deceased person's land without complying with the Law of Succession Act, the court could neither uphold the Plaintiffs' title nor declare the Defendant an adverse possessor. The register was to be restored to its status before entry No. 6 of 13th April 2007, and interested parties directed to the Succession Court.
Legal principles established
#- A title acquired over a deceased person's land without a grant of letters of administration contravenes Sections 2(1) and 45(1) of the Law of Succession Act and is not protected under Article 40(6) of the Constitution or Section 26(1) of the Land Registration Act.
- Possession of a deceased person's land taken after death is not adverse possession but intermeddling with the estate of a deceased person, punishable under Section 45(2)(a) of the Law of Succession Act.
- A court may, even on its own motion, order cancellation of an irregularly obtained title and rectification of the register.
Court orders
#- 1.The suit is dismissed with each party bearing their own costs.
- 2.The Land Registrar is directed to rectify the register of West Asembo/Nyagoko/2559 by cancelling entry No. 6 and restoring ownership to the person(s) registered before the Plaintiffs.
- 3.Administration and distribution of the suit land be pursued before the Succession Court in accordance with the Law of Succession Act.
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to title to registered land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Willy Mbadi Ojulu & another v Meshack Ogada Openji [2019] KEELC 2642 (KLR)", Case Analysis (2019). ELC Case No. 476 of 2015 (formerly Civil Case No. 69 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2642/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.