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ELCAllowedELC Case No. 286 of 2013· [2019] KEELC 3376 (KLR)

Melisa Akumu Songoro v Ernest Twabwalaba, Eunice Khalitava Khisa & Enos Matangwe Sikoyo (Environment & Land Case 286 of 2013) [2019] KEELC 3376 (KLR)

Environment and Land Court
8 May 2019
NMN.A. Matheka
1,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled fraudulent land transfers done without succession papers, ordering the deceased's land back for proper inheritance proceedings.

What this practically means

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Executive summary

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The plaintiff sued the three defendants seeking nullification of the sub-division emanating from L.R. No. East Wanga/Mung'ang'a/222, registered in the name of her late husband, Boniface Songoro Shikhuti. She alleged the defendants jointly subdivided the deceased's estate and registered it in their names fraudulently and without due process. The plaintiff testified that her husband died in 1994 before subdividing the land, that she never took out letters of administration, and that a registration officer (PW2) confirmed the thumb print on the mutation form did not match hers. The defendants, comprising the deceased's son, the widow of the deceased's first-born son, and a neighbour, denied fraud, contending that the deceased himself had subdivided the land during his lifetime, obtained land control board consent, and allocated portions, and that they merely completed the process by paying outstanding fees. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and its exceptions, adopting the decision in Elijah Makeri Nyangw'ra. Noting the green card showed the plaintiff acquired the land in 2007 through succession and it was subdivided in 2010, but that no succession cause was tendered and the plaintiff never obtained letters of administration, the court found the transfers and subsequent titles fraudulent. Judgment was entered for the plaintiff: the sub-division was nullified and the parcel subjected to succession proceedings, with each party bearing their own costs. Delivered at Kakamega on 8 May 2019 by N.A. Matheka, J.

Key legal issues

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01

Validity of title derived through unproven succession

Holding

The suit land was fraudulently transferred and the defendants cannot claim good title; subsequent titles were obtained by fraud or misrepresentation and cannot stand

Reasoning

The deceased died in 1994 still registered as proprietor of the suit parcel. The green card showed the plaintiff acquired the land in 2007 through succession and it was subdivided in 2010, yet no succession cause was tendered and the plaintiff never took out letters of administration. PW2 confirmed the thumb print on the mutation form did not match the plaintiff's ID. The transfers therefore lacked legal foundation and constituted fraud, defeating indefeasibility under section 26 of the Land Registration Act.

p. 2
02

Statutory protection of registered title

Holding

Title may only be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act and adopted the decision in Elijah Makeri Nyangw'ra, holding that the law is extremely protective of title and permits challenge only in two instances. On the evidence, the fraudulent scheme through which the defendants' titles arose fell within the statutory exceptions, so the protection of indefeasibility did not avail them.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • A beneficiary who has not taken out letters of administration cannot legally transfer a deceased's estate property

Court orders

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  1. 1.Nullification of the sub-division emanating from L.R. No. East Wanga/Mung'ang'a/222 and the same to be subjected to succession proceedings
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (original jurisdiction over land titles)

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, "Melisa Akumu Songoro v Ernest Twabwalaba, Eunice Khalitava Khisa & Enos Matangwe Sikoyo (Environment & Land Case 286 of 2013) [2019] KEELC 3376 (KLR)", Case Analysis (2019). ELC Case No. 286 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3376/eng@2019-05-08

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